IN THE DEFENCE OF MUMBAI 26/11 ATTACKER

As far as democracy is concerned we are facing a lot in the name of being a democratic country. All the attacks, violence,kashmir issue  all in the name of beng a democratic country ,a peace loving nation . We never are the first to start a war or give back to the people back firing us .

As far as Kasab is concerned what is left to proove ,and do u think that there is a little hope that he aint an accuse.

I agree with you on the context of giving him a legal defence otherwise how would the trail run.But at times i feel it would have been good if in some policies we would have been like china (barbaric is the term)

I respect your views. You have a point to make and for us to take note of.

No - I donot think there is anything left to be proved against Kasab, in my eyes, he (along wiht others) is guilty of waging war against India and should be dealt as such. But, the point is - that is my personal opinion and also an opinion based on what I have been personally privy to all these 22 years in Army. Issue is, does independent body like our judiciary feels that way or not ? And to help judiciary reach that conclusion, prosecution has presented its case and now they need to be informed of defence on those points. That can come about through defence counsel only. Let him present his defence - why fear that ? Why deny him the oppurtunity ?

Thanks for your valuable addition to value to the question

Really appreciated the post. Left a comment.

To add to the discussion: I believe the first choice was to let him defend himself but he has insisted on representation. And that's the only reason for appointing a defence counsel. And as she rightly said, there is no way he won't be found guilty, it's just a question of due process. Let's hope it's a speedy process.

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Thanks for your comments (on my post as well). That had some depth in them and sincerely hope some politicians read the same to discern what people think and what a disconnect between politician's thoughts and that of public opinions.

My comment on your blog post :

As a law student, I find it pertinent to observe Right to Legal Representation is an integral part of Right to Life as has been guaranteed by our Constitution (yes,Article 21 - Right to Life applies even to Kasab who is not a citizen). This is the law as it stands today.In furtherance of this, his case may very well be beyond salvation, but he is entitled to a counsel in the interests of fair trial.Mumbai state bar and many prominent lawyers had outrightly issued statements that he did not deserve representation, let alone representing him. When lawyers educated on the legal position and principles of fair trial make such emotionally charged statements, one wonders what democracy has come to.

I was not aware of bar council opposing the issue of provision of defence counsel to the accused. Thanks for your inputs. Its really surprising that experienced lawyers took such a stand. I wonder if they were trying to be more loyal than the king or just a publicity stunt or there is any such law which legalises their resolution (I am though not a law graduate but I know for sure that principle of natural justice demands that no accused shall be held guilty if he has not been accorded equal oppurtunities to defend aganist charges). I think, the same principle is applicable to Internation Human Rights laws, as well. That's the reason the law states that dead man cannot be proceeded against in law, because he cannot defend himself.

I have read your question, replies thereto, your comments on the replies and your blog on the subject. So far so good. But I have few questions to ask :-

(a)    Where were your so called human rights when hundreds of unarmed innocents were being killed by Kasab and his group of terrorists, at the behest of their masters sitting in Pakistan with active connivance of Pakistani Government ?

(b)  

Sorry for errounous post - completing the reply now.

(b)   Pakistan is in any case in perpetual denial mode. They are habitual in doing so. They  did that during 1947, 1965, 1971 and Kargil is still to fresh to recount when we  were bringing back our soldiers in body bags. Are we trying to satisfy them through so called fair trial.

(c)    Another Indian Government shall come to power in few months - another hijack will take place and we will have another Jaswant escorting KASAB to LAHORE (they shall be bolder now and shall ask minister to drop Kasab at lahore - why go all the way to Kandhar) - Are we to wait for that day ?

(d)    Let's be what we are and stop following west to satisfy them. If we believe in ourselves let's do it our way and tell everyone in one loud voice - Here we go and donot dare to repeat.

(e)     You need to define limits to tolerance. In this case we are stretching it too far - being fair to everyone else except our own citizenary.

Hi Adesh,

Read your comments. I appreciate your thoughts and you have freedom to express.

I would rather like to comment in the same sequence as you have raised the issues :-

(a)   Terrorists are terrorists because they do not follow rules and regulations of civilised society - of which we are part. It means, it is not a desired policy to reply a barbaric act in a barbaric manner. No doubt, innocent and indefensible people have lost lives in this (and similar attacks over a period of time at various places), but, we as state, cannot reply in similar manner. If we do so - what is difference between them and us? All other accomplices of Kasab have been killed by our security forces in befitting reply. But, case of Kasab is different. In any case, he is in custody and let law take its course.

(b)    As regards Pakistan, we cannot compare ourselves with Pakistan. They are no match in any sphere of activities, be it GDP, its development, scale of economy, its governance or any other field. They are what they are because of the very fact that they have charted a path of voilence against India and supported groups those who believe in guns as means of policy. If we also follow same path, where would be the difference? As you are aware, monster of terrorism engulfs the one who creates it - sooner or later. Same is happening in Pak now - remember the attack on Lahore Police Training Academy recently.

(c)   Old days are over. The government of the day could survive because of certain factors which were relevant at that point of time. Our people are smarter now and I do not think Indian Population is prepared to allow the government a similar freedom now.

(d)   In any case, I donot think, by granting access to defence counsel to Kasab, we are imitating West. Allowing him to defend himself is in our own interest - but, if by default, it is in the interest of others too - let it be that way. Why should we NOT do a right thing simply because it will suit someone else as well.

(e)    I think, the government of the day has done quite a bit on this score and achieved a major diplomatic victory over Pakistan. As of now, they also feel that India's patience cannot be tested forever.

Whatever be the status between India and Pak, Kasab has a Right to Fair Trial. Right to Counsel is an integral part of Right to Fair Trial.

Even if Kasab were to be 'declared' (yes, the Government needs to issue a declaration to this effect) an Enemy alien, even then, this Right persists.

"Even the constitution of India allows for suspension of fundamental Rights in times of emergencies and when national security is at threat. "Article 21 - Right to Life is an exception."The case of Afzal Guru makes it evident how legal system can be used to evade punsihment for a very long time. "Afzal Guru case was delayed because there was no lawyer to represent him in Court. India has been severely criticized for having carried out his trial and passed a judgment in the absence of legal representation. In academic and legal circles, Afzal Guru is remembered as a case where the sacrosanct principle of 'Fair Trial' was NOT followed - it is seen as a bad precedent.See, Kasab may be given whatever punishment. His case will not hold up at all - all that is true. But still, he has the right to legal representation. First give him an opportunity to argue his case, then give him whatever punishment you deem fit - death sentence inclusive.