Witch? Yes. Hunt? No

Kasav has a right under the Constitution to be defended by a lawyer

RAM JETHMALANI
Eminent Jurist

TELEVISION NETWORKS and newspaper correspondents are running around seeking opinions and arranging shows on the terrorist Kasav and his entitlement to legal assistance. I have not been spared and I have freely expressed myself to many an interlocutor. But I have not failed to remark on the futility of the effort. I do not believe that Kasav needs a lawyer. Someone in this country needs a client. This effort has started at the instance of some lawyer who wanted to amuse himself by imagining that Kasav has desperately asked for his services and he has declined the lucrative invitation only to oblige Mother India. Kasav has certainly not asked for my services, nor has the Pakistan High Commission. The Commission has not even received Kasav’s request; probably it has not 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. The feeling against her was strong and the judge sensed it. The neighbours swore 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. We all have a right to immunity. I see, therefore, no reason for this prosecution and this poor woman may return where she pleases.”

Before the century of Galileo and Newton, witches were a despised lot. Though they had been believed to exist since ancient times, whether in Greece, Rome, China, India, Egypt, Japan or Sumeria, they were uniformly regarded with fear. From time to time, they were burnt by furious mobs. They never got a fair trial and no one dreamt of giving them one. Blind prejudice, irrational fear and undeserved punishment were all they got.

Modern society has its ‘witches’ too. Human nature has not basically changed. The ‘spy’ has taken the place of the witch and with social and judicial prejudice as intense as that of the primitive mob, he, too, is frequently the unfair victim of injustice. You mention a spy and you conjure up a vision of secret conspiracies fomenting disorder, of knifing and shooting in dark alleys, of governments toppled and wars unleashed. A vital difference must, however, be acknowledged. Witches just did not exist and the danger posed by them was wholly imaginary. Some spies really are such and their activities do pose a threat to the public weal and national security. But many are just stigmatised as such. The result is bad law and a failure of justice. The measure of civilisation is the way society treats those it hates. I confess to a concern for the despised. The purpose of this essay is to demonstrate to what extent my concern extends to terrorists like Kasav.

I certainly do not approve of any Bar Association passing a resolution stating 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 Mrs Indira Gandhi, the prime minister of India. Even so-called champions of constitutional liberty and repositories of integral humanism decided 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. A lawyer who assisted them must be a bird of the same feather for whom there can be no place inside a party that practices ‘value-based politics’.

So important is the right of an accused to have the services of a lawyer that the Constitution makers were not satisfied with the rights created by the successive Codes of Criminal Procedure. The Constitution-makers introduced it in the chapter on Fundamental Rights so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and be defended by a legal practitioner of his choice. These two accused, while in death row, communicated their choice to the court. Three judges of the Delhi High Court, naturally anxious to respect their constitutional choice, rightly enquired whether the lawyer chosen would also respect the choice of the condemned men. A lawyer worthy of his robes has no option in such a situation. Being a lawyer whose sole reason for being in politics is to preserve constitutional verity, I could not, without sullying my entire past, frustrate the constitutional rights of two human beings languishing in the shadow of the sentence of death.

BY THE 42nd Amendment of the Constitution, during the Emergency, the Congress government introduced at least one wholesome provision to the Constitution. The newly-added Article 39-A mandated 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.

The role of an Indian lawyer, brought up in the traditions of the British Bar, is clear, admitting neither doubt nor ambiguity. Thomas Paine, a late-18th century political journalist and a champion of the rights of the common man, achieved fame with the pamphlet Common Sense, which was a powerful plea for independence of the American colonies from British rule. Naturally, the British treated him as a seditionist guilty of the highest treason. His pamphlet, The Rights of Man, which began as a defence of the French Revolution, evolved into a violent attack on the evils of arbitrary government, poverty, illiteracy, unemployment and war. He spoke out effectively to the ruling class of his time in favour of republicanism as against monarchy. His proposals spelt bloody revolution.

The book was banned and Paine was jailed and tried for treason. The great advocate, Erskine, was briefed to defend him. Erskine, at that time, was the Attorney General for the Prince of Wales. Though he was allowed private practice, he was warned in advance that if he accepted Paine’s brief, he would be dismissed from office. Of course, Erskine accepted the brief, and because of the brave defence he made on behalf of his client, he was deprived of office.

Erskine’s immortal words, which the editor of Howell’s State Trials printed in capital letters, stand out as a shining light for generations of lawyers to come: “In every place where business or pleasure collects the public together, day after day, my name and character have been the topic of injurious reflection. And for what? Only for not having shrunk from the discharge of a duty which no personal advantage recommended and which a thousand difficulties repelled. Little indeed, did they know me who thought that such calumnies would influence my conduct; I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar without which impartial justice, the valuable part of the English Constitution, can have no existence.

Form the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay, he assumes it before the hour of judgement; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all assumptions, and which commands the very Judge to be his Counsel.”

IT IS interesting to recall that in later years, the British public that had lambasted Erskine, and the establishment that had despised him, silently accepted him as a Lord Chancellor. Towards the end of his life, he achieved widespread prominence for his role in the defence of Queen Caroline, whom her husband, King George IV, brought to court for adultery before the House of Lords. Lord Campbell, a later Lord Chancellor and author of the Lives of the Lord Chancellors, recorded that, as an advocate, Erskine was “without an equal in ancient or in modern times”.

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 would 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 by investigation and research, the Bar Council of India, in exercise of its statutory power, has formulated standards of professional conduct and etiquette. The following need to be cited:

“II. 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…

“15. 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…

“46. Every advocate shall in the practice of the profession of law bear in mind that anyone 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 Kasav 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 Kasav’s case, because normally my comments would cause him prejudice. But this is an exceptional case in which they probably would not. It does not seem to me possible for any lawyer, or even a combination of lawyers, to seriously dispute that he committed the atrocious act he is reported to have indulged in. It is a classic case of an accused being caught in 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 case, in which a death sentence would be more than justified, there are circumstances which must be judicially weighed. Obviously someone indoctrinated Kasav. He was made to believe that his dastardly action had the approval of Allah, who would welcome him to paradise to enjoy its pleasures for the rest of eternity. Is not his act that 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 were a judge, I would not sentence Kasav to death. It is only by remaining in the hell of an Indian jail that he would realise that what the mullahs told him was false. God has no place for him in heaven, and probably none exists. Only long stay in an Indian prison can detoxify him of all the superstitions and illusions instilled in him.