Mumbai under attack: Criminal justice system in jittery

Senseless killing of hundreds innocents and paralyzing innumerable denizens in Mumbai on 26.11.2008 and onwards by few dangerously armed groups allegedly to be Pakistanis put present Criminal justice delivery system of this country and its much applauded democratic fabric under severe challenge. It goes without saying that a person with slightest humane feeling has to share the tears of the victims of Mumbai tragedy. A serious debate has been raised by a section of political parties and their organizations, unfortunately with series of lawyers and their associations speaking against giving legal support to the lone arrestee; Ajmal Kasav in criminal trial. Undoubtedly, the person in captivity has committed crime against humanity. But still in accordance of rule of law he should be presumed not guilty and he has every right to enjoy such status until he is proved guilty under a fair trial by a competent court. But there is possibility of booking him in some special acts where the presumption of guilt is reverse or otherwise.

The devastating act of Mumbai carnage has a global nature of phenomenal reality. It can hardly be controlled by enacting stringent or draconian laws in any geographical part of this world. The real problems lie with complex international situation from sharing of power to unequal distribution of wealth in the world along with other discrimination such as discriminations related with religious belief, social and racial identity and culture with many other factors.

Our legal system guarantees the accused to be properly defended in criminal trial. As far international commitments and obligations are concern; Universal Declaration on Human Rights 1948 states in Article 10, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’. In Article 14 (3) (b) of International Covenant for Civil & Political Rights 1966, it is recognized, ‘To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;’

Our Constitution guarantees all by the Article 22(1); the right to consult and to be defended by legal practitioner of his/her choice is a fundamental right though there is reservation for foreigners. Justice P.N. Bhagawati of Supreme Court observed in a case Khatri vs State of Bihar, ‛…the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for person accused of an offence and it must be held implicit in the guarantee of Article 21…’[AIR 1981 SC 928]. Justice V.R. Krishna Iyer of Supreme Court opined in Hascot vs State of Maharastra case, reported in 1978 (3) SCC 544, as ‘Where the prisoner is disabled from engaging a lawyer, on unreasonable grounds such indigence or incommunicable situation, the court shall, if the circumstances of the case the gravity of the sentence and the ends of the justice so require, assign competent counsel for the prisoner’s defence, provided the party does not object to that lawyer.’

The Code of Criminal Procedure also provides in section 304, “Legal aid to accused at State expenses in certain cases: (1) Where, in a trial before a Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of state.”

The Legal Services Authorities Act 1987 also made definite provisions of providing legal aid to a litigant with certain conditions.

 Right to have legal assistance is universally accepted principle. Whatever crime one might have been committed but he can not be deprived of legal assistance and fair trial in any case or circumstances. Denial of providing legal assistance to Kasav puts criminal justice system of this country to serious questions of its fairness and application of rule of law. May we presume that the investigating agencies or the prosecution are so naïve and incompetent that they do not feel confident of proving the guilt of Kasav with standard of proof as required under law? In normal situation, there is no challenge to the state but Mumbai-incident throws challenge to the state to follow rule of law and human rights guaranteed to all. Ajmal Amir Kasav is yet to get legal assistance and mockery of this democratic practice with neutral judiciary in this country is established once again. So- called largest democracy; India is nothing but in actual essence having a feudal system of governance with a thin sugar coating of democracy which is as brittle as glass! One Kasav and few intruders can easily blow up the coating. We can remember that a section of left lobby termed the trial of Iraqi dictator, Saddam Hussein as ‘judicial assassination’ but the bold (!) lefts are conspicuously silent now on the issue about the trial of Kasav!

It is clear that Indian government is not ready to conduct a trial of Kasav in our country because many compulsions of realpolitik, so alternatively it can propose the trial in International Criminal Court, constituted under Rome Statute in 1998 and can set an example for fair trial!