22 February 2020 05:40 PM

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S.G.VOMBATKERE | 26 JANUARY, 2020

No Justice for The Accused, Is This The New Norm?

Republic Day 2020


On January 8, 2020, during a student demonstration within the campus of the University of Mysuru at Manasagangothri, Ms.Nalini Balakumar reportedly displayed a banner which bore the words “Free Kashmir”. For this reason, the Police suo moto registered a case of sedition against her. Whether or not displaying a “Free Kashmir” sign is an offence deserving being booked for sedition under IPC Section 124A, is discussed elsewhere.

The present concern is with the report that the Mysore Bar Association (MBA) passed a resolution that no member of MBA should represent Ms.Nalini Balakumar in Court, since she “...was involved in an anti-national activity”. Further, MBA “... decided that none of us would represent the person who has been booked by the police for sedition”. [<https://scroll.in/latest/949964/free-kashmir-placard-mysuru-lawyers-body-refuses-to-appear-for-protestor-charged-with-sedition>].

A very similar occurrence was when Pakistani militant & member of Lashkar-e-Taiba, Ajmal Kasab, was arrested soon after the wholly condemnable Mumbai terrorist attacks in 2008. He was charged with 80 offences including murder, being in possession of explosives, and waging war against India. He was appropriately convicted and sentenced to death by the trial court in 2010, the death sentence was upheld by the Bombay High Court in 2011 and by the Supreme Court in 2012, and President of India refused to pardon him. He was executed on December 21, 2012.

At no point in time was any Indian in doubt as to Ajmal Kasab’s culpability, or questioned the findings, judgment and sentence. As befitting a responsible Republic governed by a model Constitution, Ajmal Kasab was convicted and sentenced, and the sentence was executed after due judicial process, which afforded him the right of appeal up to Supreme Court and further pleading for mercy from the President of India.

Notwithstanding, at the trial stage, the Bombay Metropolitan Magistrate Court's Bar Association unanimously passed a resolution that none of its more than 1,000 members would defend Ajmal Kasab or any of the accused of the terror attacks. [Press Trust of India (6 December 2008) “Lawyers refuse to take up arrested terrorist’s case”; Rediff.com; Retrieved 25 November 2012].

Further, reportedly, a political party threatened lawyers against representing Ajmal Kasab, and when lawyer Ashok Sarogi hinted that he would be willing to represent Kasab, members of that political party protested outside his home and pelted it with stones, forcing him to retract. [“Sena forces lawyer to back out of Kasab case”. Retrieved 17 August 2013, & “Ajmal Amir Kasab should get lawyer for “fair trial”, says Chief Justice of India”, Archived 29 December 2013, Zeenews.india.com, Retrieved 17 August 2013].

In December 2008, then CJI K.G.Balakrishnan reportedly said that for a fair trial, Kasab needed a lawyer. [https://en.wikipedia.org/wiki/Ajmal_Kasab]. On 1 April 2009, Senior Advocate Anjali Waghmare courageously agreed to represent Ajmal Kasab, despite threats and attack on her home by the same political party. Thus was due judicial process followed in such a heinous crime, as expected of any civilized country, but not before none less than the CJI declared that the accused needed to be represented in Court by a lawyer.

It boggles the imagination that the Bombay Metropolitan Magistrate Court's Bar Association in 2008, and the Mysore Bar Association 12 years later, passed resolutions that effectively deny legal rights to an accused person. It is also beyond comprehension why learned sitting judges at various levels have remained silent when such resolutions were passed by Bar Associations.

As a layperson understands the legal/judicial infrastructure, every advocate is an Officer of the Court(s) in which he/she practices the legal profession. Like every other recognized profession, the legal profession has rules to which its members need to adhere, besides the ethical norms which are to be observed.

In criminal cases, the State’s Public Prosecutor prosecutes the accused, and the accused has to defend himself/herself concerning the charges. The Prosecution and the Defence produce evidence before the Court, argue the validity and admissibility of the evidence, and advocate the merits of their arguments before the judge, who arrives at the judicial decision regarding the culpability or guilt of the accused, and accordingly passes a sentence against the accused.

Essentially, no accused is guilty of a crime until a judge proclaims him/her guilty after due process of law, only after which he/she can be termed as a “criminal”. The “defence” of an accused does not in any way imply defending the crime committed. The judicial process is to ensure the identity of the accused person before the Court, and the defence advocate ensures that he/she is given all available legal remedies according to extant law, including the right to appeal should the guilty person so desire. It is to the credit of our established judicial system that Ajmal Kasab, a terrorist, was thus able to appeal to the Bombay High Court and the Supreme Court, and even beg for pardon from the President of India.

What is worrying is that some advocates, every one of them being Officers of the Court in the administration of justice, have collectively passed a resolution not only to not defend an accused, but also prevent an advocate of their Bar Association from exercising his/her right as a practicing advocate to represent the accused, who also has the right to be represented.

One is constrained to view this matter in one of two ways. The first view is that the learned advocates have pre-judged the accused, and their collective opinion (resolution passed) is that the crime is so heinous that the accused may be judged and sentenced without due process of law. This, notwithstanding that Article 21 of the Constitution of India states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. It is beyond imagination that the learned advocates are not aware of Article 21.

In the Nalini Balakumar case, reportedly Justice Santosh Hegde and Justice V. Gopala Gowda (both retired) have said respectively, that this is professional misconduct, and that it is the professional duty of a lawyer to render legal assistance to an accused person.

But why serving judges, especially at the trial court level, have failed to uphold the judicial process by bringing this to the notice of the learned advocates and advising them accordingly, is beyond comprehension. Surely it should not require the CJI to state the obvious, as was done in the Ajmal Kasab trial.

Recalling that in the Ajmal Kasab trial, it was a political party which objected to any advocate representing him, the second view is that the professional responsibility of the advocates as Officers of the Court was overridden in the Nalini Balakumar case by certain unstated political considerations.

Either view reflects poorly on the administration of justice. Worse still, there appears to be a disdain, even contempt, for the Constitution of India among some of our legal fraternity. This bodes ill for the future of the Republic of India.

S.G.Vombatkere retired after 35 years in uniform in the rank of Major General, from the post of Additional Director General in charge of Discipline and Vigilance in Army Headquarters Adjutant General’s Branch.

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