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Home > Human Rights > India Must Ensure A Fair Trial To Qasab

India Must Ensure A Fair Trial To Qasab

by Rajeev Dhavan, 24 April 2009

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Mail Today, 20 April 2009

Uphold our laws which say that even Qasab has a right to fair trial

When it comes to terrorists, is the Indian legal system, an unrecognised Guantanamo? Consistent with aberrational practice, terrorists are tortured by the police, vilified by the media, threatened by fundamentalists and jingoists, denied legal and constitutional rights and pressurised into confessions.

Under Article 22( 1) of the Constitution of India, no person who is arrested “shall be denied… a legal practitioner of his choice”. Legal aid is also, an objective in the Directive Principles of State Policy (article 39A). This is further elaborated in the Legal Aid Act (Section 12( g)). Under the Advocates Act only “advocates” who are recognised have the right to practice in India ( Section 29-30). A special provision says that “ any Court, authority or person may permit any person not enrolled as an advocate under this ( i. e. Advocates Act) to appear before it or him in any particular case”.

Defence

In the early fifties QC’s ( Queen’s Counsel) like Dingle Foot and D. W. Prett from England appeared in India’s Supreme Court.

Distinguished counsel like Geoff Robersteon QC from England have appeared in Africa and the South Pacific including Fiji. Yes, yes, we are not Fiji. But are we better or worse? The entire Qasab affair appears to be a farce. In sessions cases, the Criminal Procedure Code says that where the accused is indigent, “the Court shall assign a pleader for his defence at the expense of the State” ( Section 304 CrPc)”. This is the solemn duty of the court. The Maharashtra rules issued by the Bombay High Court as early as 1982 affirm this duty, for which Qasab qualifies.

There is an old cab rank rule lawyers should take up cases irrespective of any bias or favour. “Cause lawyers” ( those fighting for a cause) suggest they will not take up particular classes of cases involving corruption or terrorism.

Recently, the best of such lawyers plunged into supporting terrorist cases against Muslims from the 2002 Gujarat riots.

But Qasab has had no such luck. The Supreme Court in the Hoskot ( 1978), Khatoon ( 1980), Khatri ( 1981) Ranjan Dwivedi ( 1988) and various other cases has stressed that right to counsel means rights to “effective” counsel from the beginning to the end. This has been continued by the International Commission of Jurists’ Berlin Declaration (Clause 7). It cannot be said that this has happened for Qasab. He has been given inferior publicity chasing lawyers. They are not the best. Even so, the Shiv Sena opposed even these lawyers doing their duty.

Two lawyers were assaulted. Anjali Waghmare is the wife of a police officer.

Fairness

The Metropolitan Court Bar Association issued a boycott call against Waghmare.

By 16 April 2007, Judge Tahilyani doing the Bombay case removed Waghmare because she was also a state appointed lawyer for a victim and had contacted a witness for the prosecution. S. G. Kazmi is now Qasab’s lawyer. He is under pressure too and has advised Qasab to stop smiling in court. This, too, has hit the headlines.

Qasab is being tried for some 168 offences. The Constitution says that he is entitled to a lawyer of his choice (Article 22). According to the Supreme Court’s interpretation of these provisions, the lawyer must be effective for the client and meet the court’s satisfaction.

Judge Tahilyani is wrong when he says that Qasab’s request for a Pakistani lawyer is legally impermissible. This is simply not correct. The Judge or Bar Council has the power to allow a non-Indian advocate or person to appear for Qasab by way of a special dispensation under the Advocates Act.
Are we afraid that a Pakistani lawyer will come and play havoc with the court; and draw publicity? The Indian legal system has enough provisions to secure a dignified trial. Let Qasab have a lawyer of his choice. This is his constitutional right. Give it to him.

Hindu fundamentalists have no illusions about the kind of justice Qasab is entitled to. According to Saamna, the Shiv Sena’s mouthpiece, Qasab should simply be publicly executed by hanging. This is Shiv Sena justice. It is also Taliban justice. Should India accept this talibanisation — which is not being done directly but in slow stages by denials and intimidation? Unfortunately, fundamentalist coercion exists in India and is on the increase.

Earlier before Waghmare joined the team, three other lawyers (Ashok Saroji, Mukesh Deshmukh and B. N. Law) were subject to public ire.
If the best of lawyers could defend the accused in the Indira Gandhi assassination case, the Bombay riots case, Gujarat carnage and the Rajiv Gandhi assassination case, why should Hindu fundamentalist deprive Qasab of a counsel of his choice? Whether Qasab was tortured may emerge. Qasab says his confession was given under coercive circumstances.
In Indian law, confessions to the police are generally not admissible. This was a British-India deviation from the common law.

But those to a magistrate are. Qasab’s was a magisterial confession. He has retracted it.

I have taught courses to police officers including those from Mumbai. With some reluctance, police officers say that it is only by pressure and torture that they can solve cases. In terrorist cases, they feel they have the nation behind them. This is especially true in cases where the terrorists are from Pakistan. Even secularists step back. The hate game is on. The BJP leadership murmurs they want to bring back a strengthened POTA. This will introduce a kind of automaticity in terrorist cases.

Justice

But the BJP leaves it to its fundamentalist allies to drum up lumpen support all over India where Muslims and ISI sponsored terrorism are an issue. Muslim groups are put on the defensive to swear loyalty to India. The ‘terrorists’ trials are not fair in a lumpen atmosphere, where even lawyers are intimidated.

This is simply unacceptable.

The rule of law cannot be replaced by rule by mob.

We are concerned here with both guilt and sentencing.

Under these pressures, the court is asked to convict and sentence to death.
We have something to learn from a courageous Priyanka Gandhi meeting Nalini, convicted of a former Prime Minister’s murder, and asking for her release. This shows the statesmanship of a Nehru or a Nelson Mandela.

India is governed by two pillars: democracy and the rule of law.

Fundamentalists have attacked and undermined both. But Indian governance cannot be defended unless both are saved from the hysteria of Hindu fundamentalism.

Judge Tahilyani is under pressure. He must try the case with characteristic impartiality. But he must also defend that part of the rule of law which gives all accused a fair trial. Chief Justice Swatantra Kumar of the Bombay High Court would do well to use a public platform to warn those who intimidate lawyers that the law of contempt could visit those who persist in this activity.

Fiat Justicia ruat caelum.

Let justice be done even if (fundamentalist) heavens fall.

The writer is a wellknown jurist and lawyer