Poll: 62 pc feel Kasab shouldn't get a lawyer

Mohmmad Ajmal Amir Kasab - the only 26/11 terrorist to be captured alive – has now asked for legal aid.

His trial needs to start but lawyers in Mumbai have refused to take up his case and the Shiv Sena is openly attacking any lawyer who offers to defend him.

But top lawyers say however horrifying be the crime allegedly committed by any individual, India’s liberal constitutional democracy allows him the right of a fair trial. This right of the individual to defend himself, they say, is the very pivot of our democracy.

CNN-IBN debate on Face The Nation if Kasab is entitled to proper legal defence?

To debate the issue on the panel of experts were senior lawyer and Rajya Sabha MP Ram Jethmalani; senior lawyer Harish Salve; President Bombay Metropolitan Magistrate Court's Bar Association Rohini Wagh; and Shiv Sena MP from Rajya Sabha and senior journalist Bharat Kumar Raut.

Advocate Mahesh Deshmukh has now offered to defend Kasab - if Kasab gives his consent. Deshmukh is now seeking permission to meet him. The initial results of the SMS poll show that 35 per cent of those who voted in on the show say that Kasab should get legal aid but a majority - 65 per cent - said that he was not entitled to proper legal defence.

KASAB: A PARIAH FOR LAWYERS?

Reacting to a statement made by BJP MP and senior journalist, Arun Shourie that "best lawyers should not be made available to criminals, smugglers and terrorists. The fact that terrorists and smugglers get legal support from the best of our advocates makes their case stronger", Ram Jethmalani said that this was the most ridiculous statement that he had ever heard.

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Jethmalani stated that the Constitution of India made no difference between the accused that Arun Shourie had mentioned and other accused. "I am loyal to my Constitution and not to anything that politicians say, and I am afraid that Mr Arun Shourie has become a politician," he said.

He added that he did not think Kasab really needed a lawyer. "None of these lawyers have been approached by Kasab. I don't think he needs a lawyer, I think many lawyers in India need a client like him. This publicity war is going on because lawyers have created this controversy. Let the High Commission ask for the services of a lawyer. If people think that Kasab is not entitled to a defence, they have a right to their opinion, but they must be told that it is contrary to the Constitution of India and contrary to the express rules framed by the Bar Council of India," he stated.

He felt that the public needs to be educated on the fact that a defence of Kasab means the defence of the rules of India.

"I am quite happy that at least 35 per cent of the population of India feels that Kasab deserves a fair trial, because populations usually don't know the Constitution, the legal rules and the foundation of the judicial system of a country," Jethmalani said.

He also demanded to know why people thought that an accused would escape penalty and punishment which he deserves merely because a lawyer had agreed to defend him. "I must tell you that in this case, even if a 100 Ram Jethmalanis defend Kasab, they will not be able to get an acquittal for him, but if lawyers refuse, they will have disgraced the Indian legal system and they will give an opportunity to the international community to point fingers at India, saying we do not believe in our own legal Constitution."

RIGHT TO FAIR TRIAL

Jethmalani, continuing in this vein, said that this was a disgrace he was not willing to tolerate. Section 202 and 203 of the Criminal Procedure Code of India says that an accused is entitled to the right of defence in India.

"The Shiv Sena - which is above the law - may be willing to tolerate this disgrace, but I am not," he stated angrily.

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Bharat Kumar Raut shot back at Jethmalani saying that there were tons of different reasons why they were preventing Kasab from getting any legal defence.

"The basic purpose of having a legal process in place and a trial is to bring about the truth. When everyone knows the truth, then that question of legal aid does not arise. Secondly, the Indian law is meant for Indian nationals," Raut stated.

Raut said that doctors who treated Kasab were right in keeping him alive because he was needed alive so that India could get more details out of him. "If millions of people don't want this, then what use are the laws and the Constitution? They should be changed in keeping with the emotion of the people."

Jethmalani retaliated by saying that everyone was entitled to their emotions and he wasn't questioning them, but added that these emotions were destructive for India's rule of law and the country's reputation of being one that was committed to the rule of law.

"We will not destroy our reputation merely becuse the Shiv Sena wants it to be destroyed," Jethmalani added.

Raut intervened saying that Ram Jethmalani should not bring politics into the matter by saying that it was a Shiv Sena issue. "My brothers and sisters, my relatives, my friends were attacked and killed, so why should I advocate legal aid for someone like Kasab?" Raut demanded.

DEFENDING A TERRORIST

There is a school of thought, the outcome-oriented approach, which says that a wily defence lawyer will conjure up a defence and that there will be no clean and quick trial; the defence will prevent that from happening.

Harish Salve said that Indians may not be aware of the rule of the Constitution but there was something that was bothering them definitely.

"Why should we not treat this man, who on his own admission has been supported and trained by ISI - which is a Pakistan government organisation - as a terrorist who has waged war on India? I say treat him as a Prisoner of War. I think the Government of India is letting the common man down again. It is high time that the nation stood up and fought back. Sponsoring, supporting and committing terrorism on your land is contrary to the United Nations resolution. A state like Pakistan should be treated as having committed an act of war," he stated.

He continued, saying, "This man is a prisoner of war and he is not a certified soldier. People like him have to be treated differently. I am not suggesting go the Shiv Sena way of threatening and abusing lawyers, that's completely wrong and I am not suggesting that we become a banana republic. But we have to address this problem and create a separate legal regime to deal with situations like this."

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Salve said that the problem was that Kasab was being treated like an ordinary criminal. "He came in and he said that he was taught by the Lashkar-e-Toiba, we have all seen what Pakistan has been doing for the last few days. On Monday, they removed the ban on all unlawful organisations in their countries. So my question is: Why should we not treat this attack on Mumbai as an act of war?"

WANTED: A NEW LEGAL REGIME

Jethmalani said that Salve was entitled to plead that a new legal system be created, but that he (Jethmalani) wanted to talk of the existing legal system.

He said that he was surprised that a prominent lawyer like Harish Salve was saying such things.

Salve retorted saying, "Mr Jethmalani is entitled to his opinion on other people's opinions and I would not like to reciprocate his comments. But I feel strongly as an Indian that it is time we stood up and dealt strongly with problems that need to be dealt with. Maybe Mr Jethmalani is right and under the current legal system, we have to do this for Kasab, but the problem is that we are trying to fit in a square peg in a round hole under the existing system."

He said that in a situation like this if a lawyer refuses his brief, he should not be disbarred.

"The real truth lies somewhere in between. The reason why there is a sense of outrage is because this man is being treated like any criminal born in India would be treated like. There is a qualitative difference here. By his own admission he is from across the border, has come in illegally by a boat and has waged war on our country. Indian lawyers are not obliged to defend war criminals," he said.

Rohini Wagh said, "Let it be understood that laws are created for man and not the other way round. Before being a lawyer, I am an Indian and every Indian should show unity at this time."

However, the question is that if people like Dara Singh (Graham Staines case), Lt Col Purohit, Sadhvi Pragya (Malegaon blast) and Nalini (Rajiv Gandhi assassination case) can all be given legal aid, then why not Kasab? Even Nazi war criminals in the Nuremberg trial were given the right to defense.

To this Rohini Wagh said, "This is something completely different. This terrorist has come from another country, fully trained. This terror attack was not only on our country but on humanity as well. Before considering this terrorist and his rights, let's consider the rights of our citizens. He took away the fundamental right to live of those people who he killed in Mumbai."

Salve concluded that without the Government creating a procedure to try people like Kasab, the law will take its usual course and some lawyer or the other will try and defend him.

Final SMS poll: Is Kasab entitled to proper legal defence?

Yes: 38 per cent

No: 62 per cent