Ajmal’s trial — test case for fair standards

(The Hindu Mar 4 2009)

Ajmal Amir Iman ‘Kasab,’ the lone terrorist captured alive during the Mumbai attack, is entitled to a fair trial. There is no doubt that his offence is extremely heinous, causing tremendous anguish to the victims and survivors, besides threatening the security of the state. But he still deserves a fair trial, for which one of the prerequisites is his right to have a lawyer to defend him.



The criminal justice system is based on the time-tested principle that an accused is innocent until proved guilty and that the evidence against the accused must be proved beyond reasonable doubt. These principles are based on the premise that an accused (even those who commit heinous crimes) is pitted against the might of the state and is entitled to certain rights under the law.


Fair trial processes have two stages. The first is the pre-trial stage that includes the stages of investigation. The right against self-incrimination, prohibition of torture, prohibition of illegal arrests and the production of an accused within 24 hours are all examples of fair trial standards at the pre-trial stage.


The second stage is at trial, where fair standards include the right of the accused to understand the proceedings and the right to have legal counsel. Legal submissions and critical examination of evidence are crucial to any case and require professional expertise. When such supportive skills are not available to a person charged with an offence, there will be a failure of justice. A fair trial process does not seek to decriminalise serious offences but establishes procedures that incorporate principles of natural justice and established norms of international human rights law. Various judicial precedents of the Supreme Court under Article 21 of the Constitution have enriched and enlarged the ambit of the process and sought to strengthen the rule of law. Ajmal’s trial should be seen as a test case for fair trial standards. And that is why it is important for us not to lose track of such principles with the argument that since there is so much of direct evidence against him, the trial is a mere formality.


Anjali Waghmare has been appointed by the judge according to the mandate of the criminal procedure code that requires the court to assign a pleader to the accused for his defence at the expense of the state. This is a constitutional right and is not dependent on the accused making an application. The right to free legal service is an essential ingredient of a reasonable, fair and just procedure under Article 21. The right is so protected that in a case where there was no legal representation, the Supreme Court acquitted the accused and held that the trial was vitiated by constitutional infirmity. (Suk Das and another versus Union Territory of Arunchal Pradesh AIR 1986 SC, pg 991)


Ajmal’s case projects two disturbing trends. The attack on Ms. Waghmare at her residence by right-wing groups such as the Shiv Sena and the earlier attacks on other lawyers who wanted to represent ‘Kasab’ indicate the growing impunity with which these groups are interfering in judicial processes most brazenly.


While lawyers and public defenders have been attacked in the past, these incidents have been under secrecy. But the current attack on a lawyer appointed by the court by identifiable persons under the gaze of cameras is probably the first of its kind posing a challenge to the judicial system.


The other trend that is equally disturbing is the role of Bar Associations which have passed resolutions asking their members not to take up such cases. The Mumbai Bar did so in the case of ‘Kasab.’ In Lucknow, advocate Shoaib Mohammed was beaten up on the court premises for taking up the case of the Varanasi bomb blast accused, Khalid Mujahid. Resolutions were passed by the local association asking members to boycott the lawyer.


A lawyer may decide not to take up a particular case based on his or her principles of ethics or ideology. This is a matter of individual choice. But when associations force such decisions on their members, it indicates that the principles of natural justice and the rule of law are vanishing from the collective consciousness of the Bar. Such acts amount to interference in the judicial process, besides affecting the freedom of an individual lawyer to carry on his or her professional duty without fear. It is time for some serious introspection.