Due process

Print edition : January 30, 2009
in New Delhi

Mohammed Ajmal Amir Iman Kasab at the Chhatrapati Shivaji Terminus where he and his gang killed several innocent people on November 26. The Bombay Metropolitan Magistrate Court Bar Association passed a resolution declaring that none of its lawyers would defend Kasab in the trial court.-MUMBAI MIRROR, SEBASTIAN D'SOUZA/AP

DOES Mohammed Ajmal Amir Iman Kasab, the lone survivor among the terrorists involved in the Mumbai attacks, have a right to consult and be defended by a legal practitioner of his choice? The question has acquired emotional overtones. To many, treating him as an ordinary detenu, who is entitled to safeguards guaranteed in the Constitution, would be a travesty as Kasab and his gang butchered several innocent persons on November 26 in pursuit of their jehad. The Bombay Metropolitan Magistrate Court Bar Association passed a resolution declaring that none of its 1,000-odd members would defend Kasab in the trial court.

Majid Memon, a senior Mumbai lawyer who had defended some of the accused in the 1993 Mumbai serial blasts case, spoke in favour of providing a defence lawyer to Kasab, but he revealed his reluctance to defend him in court because his case was indefensible. We have all seen him committing the crime. His guilt is beyond doubt, he said in a newspaper article.

Memon said he knew at least three lawyers who had come forward to defend Kasab but were threatened and attacked. Consequently, they gave up their plans. Even a lawyer from the legal-aid panel had decided to retreat in the face of threat, he said.

The threats and intimidation and the fear among the lawyers have brought disrepute to the Indian legal tradition. Kasab has approached the Pakistan High Commission, through a letter, to provide him legal assistance to face trial in India. Irrespective of what view Pakistan takes on his request, there is an irrefutable case under the Indian Constitution for Kasabs right to legal assistance and the Indian states duty to provide it.

Article 22 (1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. The expression of his choice does not mean the detenu can pick and choose a lawyer; it only suggests that the lawyer representing the accused must be acceptable to him or her.

Article 22 (2) says every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

Article 22 (3) says nothing in Clauses 1 and 2 shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. Janata Party leader and former Union Minister Subramanian Swamy has suggested that Kasab could be considered an enemy alien under Article 22 (3) (a) and deprived of the right to legal assistance.

The first possible objection to treating Kasab as an enemy alien stems from Article 21, which guarantees the right to life or personal liberty to even non-citizens. Under this Article, no person shall be deprived of his life or personal liberty except according to procedure established by law. The danger in treating Kasab as an enemy alien is that it may set an unhealthy precedent.

The Constitution may well vest some rights, but going back to the criticisms of the infamous ADM Jabalpur judgment delivered by the Supreme Court during the Emergency, it is clear that rights can exist outside Constitutions and one should be wary of arguments that seek to take away such rights. In this case, the Supreme Court held that the legality of the order of detention issued during the Emergency could not be challenged in a court of law as the Presidential Order had suspended the right to move any court to enforce rights under Articles 14, 21 and 22.

Article 22 is not the sole repository of the right to counsel, especially for Kasab, who is not an Indian national. So, that provision is not the sole determinator of his rights. And, it would be patently unfair to subject him to the demands of that provision alone. If the right to counsel is today recognised as a basic human right, it cannot be open to individual nations to deny foreigners such rights on the basis of their local laws. Since there is no parliamentary or executive declaration to the effect that Kasab is an enemy alien, he should be entitled to counsel, even under the terms of Article 22 (1). Exceptions under the Constitution cannot be invoked because there is a clamour from sections of civil society. There should be something that indicates that someone in authority had made a determination as to who could be called an enemy alien and under what circumstances.

It is true that the conventional understanding of war has changed. In the Parliament attack case, the Supreme Court said that for invoking Section 121 of the Indian Penal Code (punishment for waging of war), a formal declaration of war was not required: a terrorist attack by militants from across the border, with their accomplices in India, on the symbols of state power was sufficient to infer that a war-like situation prevailed. According to Wikipedia, an enemy alien is a citizen of a country which is in a state of conflict with the country in which he or she is located; usually, but not always, the countries are in a state of declared war. Once a war is on, such people finding themselves for some reason in an enemy country with which their countries are at war would not be entitled to certain constitutional rights that are otherwise available to non-citizens during peace time.

Kasab and his accomplices could be said to have waged war with India for the purpose of their prosecution, but they cannot be considered enemy aliens under international law and deprived of rights accorded to non-citizens under the Indian Constitution. Quite rightly, India has not even considered this option following the Mumbai massacre.

It will be imprudent to deny Kasab such a basic procedural right as guaranteed by Article 22(1). The state should appoint legal counsel for Kasab if no legal practitioner agreeable to him is available for his defence.

This is also provided in Section 304 (1) of the Code of Criminal Procedure, which requires the court to assign a pleader for the defence of an accused at the expense of the state if it appears to the court that the accused does not have sufficient means to engage a pleader.

Certain basic procedural safeguards evolved by the Supreme Court have not been followed so far in the case of Kasab. Natural justice requires some professional assistance to the party to make his defence meaningful. The Supreme Court, in the case of Nandini Satpati vs. P.L. Dani (1978), allowed legal representation during custodial interrogation. In A.K. Roy vs. Union of India (1982), the Supreme Court held that even a detenu who is statutorily denied legal representation is entitled to a common law right of representation through a friend.

The right to free legal aid has been given a constitutional status by the Court by including it in Article 21 of the Constitution in M.H. Hoskot vs. State of Maharashtra (1978). Therefore, the state is constitutionally bound, according to scholars, to provide legal aid to the poor and indigent accused, not only at the stage of trial but at the time of remand also.

Kasab may well be indefensible in view of the brutal massacre of innocent civilians in full public gaze. But issues of guilt and innocence go to the substance of the trial whereas the right to engage a legal practitioner to represent the accused is a procedural right, which should be treated separately and honoured.

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