Mumbai Terror Attacks; Does Kasab Really Deserve Legal Aid


The news of providing state legal aid to Mohammed Ajmal Kasab, the sole surviving gunman in the terrorist attacks in Mumbai, has stirred profound consternation throughout India. Shiv Sena honcho Bal Thackeray thundered that no trial for Kasab is necessary, that the television news clippings are evidence enough, and that he should be hanged in full public view at the Gateway of India opposite the Taj Palace, which was one of the attack sites.

Thackeray found support from an unexpected quarter, with All-India Milli Council president Iqbal Mohiudeen invoking the shariah: “An eye for an eye, a limb for a limb, and a life for a life.”

The homes and properties belonging to three Mumbai-based lawyers who volunteered to appear for Kasab have been vandalized. A Parsi lawyer was even castigated collectively by his own community through the Bombay Parsi Panchayat.


Neverthless, there is no shortage of lawyers willing to defend Kasab, especially after the Chief Justice of India K.G. Balakrishnan categorically affirmed Kasab’s right to legal aid.

If the lofty reason invoked by every such volunteer-lawyer — namely, to uphold the Constitution of India and its bulwark, the Rule of Law — is taken at face value, the country’s legal profession and its entire judicial infrastructure is thriving in safe, altruistically motivated hands. But there’s a little wrinkle. Legal-aid services are an integral part of the Indian legal set-up, whereby the state provides admittedly meager funds (Rs 900 or $18 per case, regardless of its complexity) to assist the needy in representing themselves in courts through empanelled lawyers. How many of those volunteering to represent Kasab for $18 have similarly volunteered to assist any of the millions of indigents in their anonymous tribulations against a cold and corrupt court system? Very few, it turns out. So what does that tell us about their motivation? How many of these “Upholders of Justice” wrapped themselves in the robes of earnest do-gooders out of selfless commitment for the cause of a fair trial and how many are lured by cheap publicity?

Publicity, it appears, was thrust on the conscientious objectors too. A legal-aid panel advocate Dinesh Mota refused, at the risk of losing his sanad (license), to accept Kasab’s brief after being handpicked for the defense counsel’s job by the Legal Aid Services Authority. “This city is my family,” he declared by way of explanation. Far from ordering the forfeiture of his sanad, a judge recused Mota. Literally overnight, the lawyer became a local hero. His fellow train-commuters gave him a standing ovation the next morning, and several city associations chimed in with felicitations.

Another reputed lawyer dropped out of the selection race after admitting that the evidence against Kasab is overwhelming and his case indefensible. Yet another, a former advocate-general of Maharashtra, offered representation, but only on condition that the Pakistani Government requisition his services. Faced with a bevy of over-eager non-empanelled advocates and stubborn reluctance from the panel, the legal aid authority has yet to decide on who will defend Kasab even as the state has finalized the court and its judge.

Meanwhile, the debate rages within India’s legal profession: Are we doing the right thing in paying for Kasab to be represented in court? Does the perpetrator of such a heinous crime deserve a fair trial?

Strictly from a legal and constitutional perspective, the answer is a resounding yes. The Indian Constitution distinguishes between fundamental rights guarenteed exclusively to citizens (such as Article 15 which protects against discrimination, Article 16 which ensures equal opportunity, and Article 19 which guarantees freedom of speech, etc.) and fundamental rights available to citizens and non-citizens alike. Among the latter are Article 14 (equality before law), Article 21 (protection of life and personal liberty), and Article 22 (protections for accused persons, including legal aid). Furthermore, the Criminal Procedure Code gives an accused person the right to be defended by a pleader of his choice and, in the event of non-representation, mandates that the court assign a pleader at state expense. So does the Advocates Act.

However, Article 22(3) excludes protections for an “enemy alien,” the citizen of a country with which India is at war. To declare Kasab an enemy alien, India must be at war with Pakistan.

That’s not all. If Kasab’s defense team succeeds in linking his acts to the Pakistani military (for instance, by proving that the Pakistan Navy helped the Mumbai attackers with logistical support or that their handlers were military men inside Pakistan), then Kasab’s acts could arguably become part of a covert Pakistani military mission, which in turn could be seen as part of an undeclared war. And then Kasab becomes, in the eyes of international law, a prisoner of war, who under the Geneva Convention, to which India is signatory, cannot be executed.

The perils of depriving Kasab of legal aid far outweigh those incumbent in providing him state-paid representation. Kasab can, if he so wishes, defend himself. But that’s hardly practical, given his literacy level and his obvious ignorance of Indian law. If he isn’t represented, his trial in any Indian court could be vitiated as a mistrial. If he is represented, India will have the opportunity of putting all the evidence it has gathered through a rigorous legal sieve and presenting it to the global community as incontrovertible proof of his dastardly acts and perhaps of Pakistan’s complicity. It will also demonstrate to the world the nation’s legal commitment — that even in the most trying and tempting of times we are unwilling to dispense with the Rule of Law.

There is also something unabashedly and unmistakably ennobling in following the fundamental tenets of natural justice and the due process of law without fear or favor. All the more so when confronted by the evil spectre of terrorism. By subverting that process, we are putting ourselves in the morally debased company of the very terrorists we wish to vanquish. Replicating their lawless methods only makes us their allies in an all-round descent into barbarism.

But does the ever-increasing decibel of otherwise reasonable men clamouring for terrorist blood in utter disregard for legal norms tells us something between the spoken lines? Mota’s fellow-commuters in the local train compartment who applauded his decision to reject Kasab’s brief aren’t all goons keyed up by incendiary speeches by hate-mongers. The 300-plus-year-old Parsi Panchayat does not advocate vigilante justice. And not all of the thousands of lawyers across the country who have resolved not to represent terrorists are dismissive of the Rule of Law.

What then, are these gestures suggesting? Perhaps that our outdated laws despite — or probably because of — periodic tinkering are letting us down, allowing the guilty to roam free with the help of professional touts. Perhaps that it’s time we stopped depending on our state machinery for our inland security because that machinery is at best inept, and at worst cynical and corrupt. Perhaps that we need a law tailored for tackling terrorism on the scale that we are suffering today, a law that while being both preventive and punitive, succeeds in its objective without compromising constitutional safeguards.

Such a law, even eminent jurists admit, would be extraordinary. So be it. We are living in extraordinary times. 


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