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Legal Rights of
the despised
Ram Jethmalani
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The lone surviving and now detained attacker of last month's
violence in Mumbai's right to a lawyer is defended by
octogenarian advocate Ram Jethmalani though he does not feel it
would help him in any way. World Sikh News does not endorse all
views of the noted lawyer, particularly his contention of death
sentence but presents the views nonetheless to foster debate on
the issue |
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 Television
networks and newspaper correspondents are running around seeking
opinions and arranging shows on terrorist Kasab and his entitlement
to legal assistance. I have not been spared either and I have freely
expressed myself to many interlocutors. But I have not failed to
remark on the futility of the effort. I do not believe that Kasab
needs a lawyer. Some one in this country needs a client. This effort
has started at the instance of some lawyer who wanted to amuse
himself by imagining that Kasab has desperately asked for his
services and he has declined the lucrative invitation only to oblige
Mother India. Kasab certainly has not asked for my services nor has
the Pakistan High Commission. The Commission has not even received
Kasab's request; probably it has never been sent or some ministry in
the Government of India is holding it up, the usual bureaucratic
rigmarole.
A
great English judge, Lord Mansfield, once had to try a poor old
woman on a charge of witchcraft brought by her neighbours who swore
that they had seen the woman walking in the air, upside down. At the
end of the trial, the judge reviewed the evidence calmly and
observed, "I do not doubt that this woman has walked in the air,
with her feet upward, since you have all seen it, but she has the
honour to be born in
England as well as you and I, and consequently cannot but be
judged by the laws of this country, nor punished but in proportion
as she violated them. Now, I know not one law that forbids walking
in the air with feet upward. I see, therefore, no reason for this
prosecution and this poor woman may return where she pleases".
Modern society has its "witches" too. The "spy" has taken the place
of the witch and with intense social and judicial prejudice he too
is frequently the victim of injustice. A vital difference, however,
is that witches did not exist and the danger posed by them was
wholly imaginary. Some spies are real and their activities do pose a
threat to public weal and national security.
 But
many are just stigmatised as such and the result is failure of law
and justice. The measure of any civilisation is the way society
treats those whom it hates. I confess to a concern for the despised.
I certainly do not approve of any Bar Association passing a
resolution that a particular accused should not be defended. It is
the duty of every lawyer to defy such a resolution. Many years ago,
I decided to defend the accused allegedly involved in the conspiracy
to kill the late Indira Gandhi.
Even so-called champions of constitutional liberty and repositories
of integral humanism decided that I was not fit to hold the
membership of a political party. In substance what I was told was
that the crime of the accused was so vile and dastardly that they
must not be allowed even to demonstrate their innocence. But so
important is the right of an accused to have the services of a
lawyer that our Constitution makers introduced it in the Fundamental
Rights chapter so that no tyrannical regime could curtail or destroy
it. Article 22 declares that no accused shall be denied the right to
consult and to be defended by a legal practitioner of his choice.
By
the 42nd Amendment of the Constitution, during the Emergency, the
Congress government introduced in the Constitution at least one
wholesome provision. Article 39-A mandates that the legal system
shall provide free legal aid to ensure that opportunities for
securing justice are not denied to anyone by reason of economic or
other disabilities.
Indian lawyers have followed this great tradition. The Razakars of
Hyderabad were defended. Sheikh Abdullah and his co-accused were
defended; and so were some of the alleged assassins of Mahatma
Gandhi. No Indian lawyer of repute has ever shirked responsibility
on the ground that it will make him unpopular or affect the
electoral prospects of his party.
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I certainly do not approve of any Bar Association passing a
resolution that a particular accused should not be defended. It
is the duty of every lawyer to defy such a resolution. Many
years ago, I decided to defend the accused allegedly involved in
the conspiracy to kill the late Indira Gandhi. Even so-called
champions of constitutional liberty and repositories of integral
humanism decided that I was not fit to hold the membership of a
political party. In substance what I was told was that the crime
of the accused was so vile and dastardly that they must not be
allowed even to demonstrate their innocence. |
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To
spare Indian lawyers the trouble of discovering the great traditions
of the Bar, the Bar Council of India has formulated standards of
professional conduct and etiquette: An advocate is bound to accept
any brief in the courts or tribunals before any other authority in
or before which he professes to practice at a fee consistent with
his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.
It
shall be the duty of an advocate fearlessly to uphold the interests
of his client by all fair and honourable means without regard to any
unpleasant consequences to himself or any other. He shall defend a
person accused of a crime regardless of his personal opinion as to
the guilt of the accused, bearing in mind that his loyalty is to the
law which requires that no man should be convicted without adequate
evidence.
Every advocate shall in the practice of the profession of law bear
in mind that any one genuinely in need of a lawyer is entitled to
legal assistance even though he cannot pay for it fully or
adequately and that within the limits of an advocate's economic
condition, free legal assistance to the indigent and oppressed is
one of the highest obligations an advocate owes to society.
So
Kasab has a right under the Constitution of India to be defended by
a lawyer of his choice. If he cannot afford one, he or his High
Commission may request the courts to give him one. But the point
still remains what will the lawyer do? I do not wish to discuss the
merits of Kasab's case, but it does not seem to me possible to
dispute that he committed the atrocious act. It is a classic case of
an accused being caught flagrante delicto. The arguable question
will be one of sentence, namely the choice between death and life
imprisonment.
Though this is a rarest of rare cases in which a sentence of death
would be more than justified, there are some circumstances which
have to be judicially weighed. Obviously someone has indoctrinated
him. He was made to believe by others that his dastardly action had
the approval of Allah who would welcome him to paradise and make him
enjoy its pleasures for the rest of eternity.
Is
not the act of Kasab an act of a person who has lost the capacity to
distinguish between right and wrong by reason of intoxication, where
liquor has been forced upon him by some superior will against his
wishes?
If
I had been a judge I would not sentence Kasab to death for a
different reason. It is only by remaining in the hell of an Indian
jail that he would realise that what the Mullahs told him is false.
Long stay in an Indian prison will detoxify him of all the
superstitions and illusions instilled into him. Those who did it
surely deserve a sentence of death if caught.
Ram Jethmalani is a veteran lawyer and writes frequently on legal
and political issues.
Courtesy: The Asian Age
24 December
2008
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