Ritesh K Srivastava
In the aftermath of the deadly terrorist attacks in Mumbai, an intense debate on the fate of Ajmal Kasab has gripped the whole nation. Should he be given a chance to defend himself in the court of law? Is he entitled to legal help considering the degree of his crime? Should he be executed or hanged without any trial as it is done in countries like China, Iran, Iraq etc? Whether not providing any legal help will spoil India’s image as world largest democracy, which is built on the principle of justice and equality. Is capital punishment all that he deserves?
However, answers to these questions require several aspects to be considered thoroughly, including India’s international obligations, the constitutional guarantees provided to every citizen in this regard, violation of human rights, and the difference between democracy and an unjust society.
Legally speaking, there is no denying the fact the Ajmal Kasab should be given legal aid, but going by the anger in the common public and popular sentiment that he should be hanged so as to send a clear message that no one should dare threaten the country’s integrity and security.
People are apprehensive that Kasab will be subjected to a never ending trial and by the time the verdict comes it will be too late. What if political parties use Kasab to woo vote banks, as has been in the case of Afzal Guru, who still awaits his execution? Whether keeping him alive could encourage another IC 814 plane hijacking like case. It is not clear whether there can be any political consensus on the issue. Or whether they (politicians) are really serious about tackling terror this time.
Kasab is one among from among the bunch of terrorists, who intruded India’s marine territory and killed hundreds of innocent humans mercilessly at various places in Mumbai. He was captured alive by the security forces from outside CST, from where the terrorists were heading to other targets to unleash mayhem and spread havoc.
Since then, Ajmal Kasab is under detention and is being subjected to interrogation. The incident was unequivocally criticised by every section of our society and earned worldwide condemnation in the strongest terms. The carnage in Mumbai, which shocked the collective conscience of the entire nation, once again brought the menace of terrorism to the fore. Diplomatic ties between the two nuclear powered states reached their lowest ebb and there is even speculation about war. The tragic incident has highlighted to the international community that terrorism is indeed a global problem and there was an urgent need to address the challenges posed by terrorists in the name of jihad or religious war.
With every passing day, the investigations into the tragic incident are exploring several dimensions and have been offered assistance by foreign agencies like the FBI and Interpol.
In view of the diplomatic tussle between the two South Asian neighbours, the international community has also started exerting pressure on Pakistan to act swiftly on terror and fulfil all its promises to curb terrorism. However, Islamabad is yet in a state of denial about the fact that the attackers had roots in Pakistan and were especially trained for the purpose by some militant outfits.
A major twist in the story came when Mumbai Bar Association unanimously passed a resolution telling its members not to defend Ajmal Kasab in the court of law.
Expressing solidarity with the public anger, the Bar Association said that Kasab should be tried on circumstantial evidence and no legal aid should be provided to him keeping in view the seriousness of his crime. Bar Association did so brushing aside arguments that not providing legal aid to Kasab will be a violation of our Constitution and is against the principal of natural justice.
Human rights group too cited the 1948 Universal Declaration of Human Rights ratified by India which protects the “presumption of innocence until proven guilty in a court of law at which the defendant has had all the guarantees necessary for his defence.”
Political parties like Shiv Sena went a step further and demanded that Kasab be executed outside Chatrapati Shivaji Terminus, where the terrorists had killed several innocent people.
At the height of the controversy, Chief Justice of India K G Balakrishnan said that Kasab should be given a defence lawyer.
Our own Constitution guarantees right to legal aid and representation. It ensures every individual a “fair, just and equitable procedure” in court for any defendant, regardless of his nationality.
The Right to Life guaranteed under Article 21 of the Constitution of India, includes right to Legal aid. Article 39 A of Constitution further mandates equal justice and free legal aid. Section 303 and section 304 of the Criminal Procedure Code speaks of the right of an accused to be defended by a lawyer and the state`s duty to provide legal aid.
The Supreme Court in its landmark ruling ( in Sukhdas vs Union Territory of Arunachal Pradesh case 1986) said, “Free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty.``
Justice P N Bhagwati and Justice A P Sen in their 1981 ruling said that legal aid should be given to an accused not just at the time of trial but also when he is first produced before a magistrate.
Kasab’s case took an interesting turn when Pakistan categorically refused to accept that Kasab as a Pakistani national and denied giving any legal aid to him. Pak NSA Durrani said that they were examining Kasab’s letter and would act appropriately.
In India only a handful of lawyers have offered to defend Kasab in the court of law. However, this has not been accepted by some sections of our society, which thinks that these lawyers are doing this to gain publicity, while some think it would be an unpatriotic move.
Another drawback, if no one steps forward to defend Kasab, could be that if his trial will not be able to proceed hence our legal system would not be able convict him. This is an argument that was forwarded by a lawyer from Mumbai who expressed willingness to become his defence counsel. But Shiv Sena activists stoned his house to protest any such move.
Whatever logic one gives in favour of or against providing legal assistance to Kasab, it is beyond doubt that Kasab deserves a stringent punishment for his heinous crime. But his conviction should come in a dignified and a justified manner. We need to understand that by providing legal aid to Kasab, India has nothing to lose since sentencing in the case looks inevitable. On the contrary, if he is given a free and fair trial India would get a moral edge over its arch-rival Pakistan. So in the larger interest, countrymen should keep their faith in the Indian judicial system and the law should be allowed to take its own course.
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