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| Ram Jethmalani | ||||
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| Mohammad Ajmal Amir Kasab does not need a lawyer; someone in this country needs a client. That's why some lawyers seem to be amusing themselves imagining that Kasab sought their services and that they declined only to oblige Mother India. In medieval times, witches were feared, despised and burnt by furious mobs. They never got a fair trial; no one dreamt of giving them one. Prejudice and irrational fear ensured that they got nothing but undeserved punishment. In modern society, the "spy" has taken the place of the witch, with one vital difference. The danger so-called witches posed was entirely imaginary. Some spies do pose a threat. But to argue that a crime is so vile and dastardly that an accused must not be allowed to demonstrate his innocence is bad law. The measure of a civilisation is the way its society treats those it hates. It is the duty of every lawyer to defy a bar association resolution that a particular accused should not be defended. So important is the right of an accused to have the services of a lawyer that our constitution-makers were not satisfied with the right to defence created by criminal law. They made it a fundamental right so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and be defended by a legal practitioner of choice. And the 42nd Amendment of the Constitution, carried out during the Emergency, introduced at least one wholesome provision. The newly-added Article 39-A mandated that the legal system shall provide free legal aid to ensure that opportunities for securing justice are not denied to any one by reason of economic or other disabilities. When Thomas Paine was jailed and tried for treason for his pamphlet Rights of Man, the great advocate Thomas Erskine was briefed to defend him. Erskine, at that time, was the attorney-general for the Prince of Wales. Though he was allowed private practice, he was warned that if he accepted Paine's brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was deprived of office. His immortal words, which the editor of Howell's State Trials printed in capitals, stand out as a shining light: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the Court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of judgement; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all assumptions, and which commands the very Judge to be his Counsel." 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 and Indira 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. The Bar Council of India has also formulated standards of professional conduct. Among other things, the resolution says that an advocate is bound to accept any brief; that anyone in need of a lawyer is entitled to one, whether or not he can pay for one; that an advocate shall uphold the interests of a client...without regard to any unpleasant consequences to himself or any other; and that an advocate shall defend an accused regardless of his 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. So, no doubt, Kasab has a right to defence. But what will the lawyer do? It does not seem to me possible for any lawyer or even a combination of lawyers seriously to dispute that he committed what he is accused of. The arguable question will be one of sentence—namely the choice between death and life imprisonment. If I were a judge I wouldn't sentence Kasab to death. For it is only in the hell of an Indian jail that he would realise that what the mullahs told him is false. God has no place for him in heaven and probably none exists. His nine dead companions will not, in any event, communicate with him about their sad fate. A long stay in an Indian prison will detoxify him of the superstitions and illusions instilled in him. |
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