Fair trial

The Chief Justice of India, KG Balaskrishnan has come down heavily on Mumbai lawyers who have refused to defend Mohammed Ajmal Amir Kasab, who was the only one among 10 persons involved in the Mumbai attacks who was caught alive.

Public opinion has gone into outrage mode and lawyers in Mumbai — as their counterparts have done earlier in Jaipur, Delhi and elsewhere  —  have refused to take up his case. The Mumbai Metropolitan Magistrate Courts’ Bar Association’s 1000-odd members passed a resolution stating no lawyer would take on the task.

A lawyer was appointed by the court but he declined, claiming Kasab had attacked “his city.” Another, who hinted he may consider taking up the case, found his house surrounded by irate Shiv Sena members. This is bound to deter other lawyers. This has angered the chief justice, who has called such decisions unconstitutional.

The question this brings up lies at the basis of Indian jurisprudence — a right to a free and fair trial. There is the other matter of presumption of innocence and that every accused has to be proven guilty by the prosecution. The stand taken by Mumbai’s lawyers is based purely on some sentimental notion of patriotism which in this case, flies in the face of Indian law. This has also been pointed by eminent lawyers like Ram Jethmalani who has in the past taken up unpopular causes, including defending the killers of Indira Gandhi.

The right to be defended — even if you plead guilty — is inalienable in a civilised society. We are all entitled to be tried fairly and to be tried equally. The reason why laws like TADA were shot down finally is because they went against the natural laws of justice. The US prison at Guantanamo bay also faces flak.

Lawyers cannot take it upon themselves to assign guilt without a trial — and that is what they are doing in the case of Ajmal. They have to present their case to the court, which then hands out a sentence based on evidence. This is the basis of their profession and they know it. They should know better than to defy the Constitution or come up with bogus arguments like Ajmal being a foreigner and therefore not entitled to representation.

India’s best legal minds have expressed their own anger at these lawyers and that does not make them unpatriotic. Rather, it emphasises their commitment to the Constitution of India and to the foundations of our democracy. Not all jobs are pleasant at all times, but professional commitment means that you have to do your job responsibly at all times. Doctors, for instance, did not refuse to treat Ajmal because he was a “terrorist”. For lawyers to refuse is to taint their entire profession.