[Shiv Sena is calling for public excecution of the alleged attacker (Qasab) in the Bombay attacks. They have already intimidated and vadalised homes and offices of the rare lawyers who offered to defend him. Ram Jehmalani, the maveric lawyer makes a case for the defence of any accused. The only jarring bit about Jethmalani's article is that he defends death penalty.
see below Jehmalani's article in Asian Age, December 18, 2008 ]
Defence of Kasab: Legal rights of the despised
By Ram Jethmalani
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.
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.
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