15 December 2008
The new untouchables | |||||
| Some Indian lawyers’ refusal to defend terror suspects is illegal, and the way police often conduct investigations makes matters worse, experts tell Samanwaya Rautray | |||||
First, the lawyers came under fire. Ram Jethmalani was reviled as “anti-national” when he decided to defend the alleged killers of Indira Gandhi two decades ago. Then the attacks became more violent, because political groups and mobs had entered the scene. Noor Muhammed, an elderly lawyer in a district court in Dhar, Madhya Pradesh, was thrashed before TV cameras by suspected Bajrang Dal activists after he had chosen to represent alleged terrorists. Now, the lawyers themselves have joined the bigots. Bar association after bar association is refusing to defend suspects in terrorism or high-profile criminal cases, sometimes even beating up the accused (see chart). On Thursday, Mohammed Ajmal, the gunman arrested after the Mumbai attacks, could not find a single lawyer to represent him when he came up for remand hearing. Long before the trials have begun in these cases, the lawyers have made their verdict known: guilty. “As a lawyer, you can’t do this,” said senior counsel Kamini Jaiswal, who had braved derision to defend suspects in the Red Fort and Parliament attacks. “Every accused has a right to be defended by a counsel of their choice,” she told The Telegraph, speaking before the Mumbai carnage. No lawyer, she said, can refuse to defend an accused on the ground that the person is a terrorist. That would amount to misconduct under the Advocates Act, 1961. An accused is entitled to have a lawyer present even during interrogation. A lawyer can say he is too busy or demand a high fee. “But he cannot pronounce an accused guilty while refusing to defend him. Any lawyer who does that is liable for action under the Bar Council of India rules. He risks being barred from practising in any court,” Jaiswal said. Jethmalani seconded her on Sunday, telling a TV channel: “There is the express rule of the Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular.... No lawyer worth the name should even talk about this kind of a thing.” He suggested that even in case of accused like Ajmal, who has allegedly confessed, a good lawyer can make the difference between the gallows and a life term. The Bar Council wrote to state bar associations (forums of lawyers) a year ago not to pass resolutions against defending terror accused, but last week the Bombay Metropolitan Magistrates’ Courts Bar Association passed one, asking members not to take up Ajmal’s case. If an accused doesn’t have the means to engage a lawyer, the state has to provide him with one at its own expense (every state has a government-appointed legal aid committee). Violation of any of the rights of the accused can lead to the Supreme Court acquitting them on the ground they did not get a fair trial.
However, Mumbai lawyer Dinesh Mota, who refused the Maharashtra legal aid committee’s request to represent Ajmal, said he couldn’t care less whether the committee took action. He said his “moral values” didn’t allow him to defend Ajmal, just as they had led him to avoid the cases of the July 2006 train bombers. Jaiswal said even the caretaker of the house in Delhi’s Jamianagar where two terror suspects died in a police “encounter” has been unable to find a lawyer. The counsel assigned to him refused to defend him at the last moment. “What’s worrisome is that he was portrayed as some kind of a hero,” Jaiswal said. Abroad, it has been different. The accused in the 9/11 attacks and July 7, 2007, London bombings have been provided legal aid. In America, civilian lawyers volunteered to join the state-appointed military counsel defending the 9/11 suspects. US Navy Reserves Cmdr Suzanne Lachelier, defence lawyer for Ramzi bin al Shibh, alleged driver and bodyguard of Osama bin Laden, said the 9/11 case presented “the ultimate challenge for a criminal defence attorney when a defendant is facing so much hatred from the general public and political backlash, to say the least”. Public mood At the root of the problem in India lies the vitiation of public discourse, senior lawyers say. “A large section of the public believes that if the police have named a person, he must be guilty. So people are being condemned unheard. If you are picked up for interrogation, you are finished,” Jaiswal said. She cited how the Jamia Millia Islamia vice-chancellor was pilloried for saying the university would extend legal aid to students arrested after the September 13 bombings. Prashant Bhushan, lawyer and human rights activist, blamed the hardening of attitude among sections of Indians on the influence of Right-wing groups. “If you give the Bajrang Dal and the Vishwa Hindu Parishad free run to tarnish a community, inject poison into every institution, all norms will be thrown out of the window,” he said, also speaking before the Mumbai attack. “A handful of people now decide whether we are patriotic or anti-national…. It’s scary.” Jaiswal blamed the media too. “The worst part is that everything is being blown out of proportion. The media hype that follows (every terror case) helps the public form a very negative opinion about the accused.” This, she added, is reinforced by a corrupt police. In the absence of a “clean and proper investigative system”, the premise that a person is innocent till proved guilty is turned on its head. It then becomes the headache of the accused to prove his innocence which, in the face of a boycott by lawyers, he can’t do. Bhushan cited the police’s tendency to rush to the media with alleged details of the crime immediately after a high-profile arrest. After schoolgirl Aarushi Talwar’s murder in Noida this year, local police arrested her father and held a news conference to give the crime a sex angle, even dragging in her parents. All of it was later rejected by the CBI, which released the father, a dentist. “The police manufacture evidence against people and selectively leak it to the media. Or they parade them in front of the media and get them to confess,” Bhushan said. “If you protest, people start insinuating you are defending only the rights of terrorists.” “Yes, if you protest against such injustice, you are dubbed anti-national,” Jaiswal agreed. “What these people don’t realise is that it could happen to them tomorrow.” | |||||
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