What! The man has not been tried.”
“Of course he hasn’t. But didn’t he kill the nigger?”
“Certainly he did; but you are not thinking of hanging him without a trial?”
“Trial! What do I want to try him for, if he killed the nigger?”
“Oh, Capt. Ned, this will never do. Think how it will sound.”
“Sound be hanged! Didn’t he kill the nigger?”
“Certainly, certainly, Capt. Ned, nobody denies that, but…”
“Then I’m going to hang him, that’s all.”
—Mark Twain, Roughing It (1872)
Give the man a fair trial and then hang him. One would have thought that this Wild West notion of justice would have gone the way of the racist vocabulary of Capt. Ned Blakely by now. But the Bombay metropolitan magistrate court’s bar association has passed a unanimous resolution barring its members from representing Mohammad Ajmal Kasab, the sole surviving terrorist arrested after the attacks of 26 November in Mumbai. The resolution is wrong on several counts.
One, it mocks the notion of presumption of innocence till guilt is proven. Not only is that a cornerstone of law, enshrined in the Universal Declaration of Human Rights (which turned 60 on 10 December), but also guaranteed in the Indian Constitution—something, I presume, the bar association members know a bit about. If lawyers start prejudging clients responding to public mood, the consequences are anarchic, with an extreme conclusion being mob justice.
Two, it undermines the rule of law and fair trials, or what India rightly claims as values separating it from its enemies. Indian jurisprudence is fairly well defined when it comes to the rights of the accused. An impartial judge, a government-appointed lawyer and a quick trial do not, in themselves, make for a fair trial. An accused needs due representation irrespective of the mood of the nation.
Three, this is like scoring an own goal. It makes those who hate India feel their nihilist narrative—shoot first, ask questions later—is justified, because India does the same. Why must India stoop to their level? There is nothing to conquer through such stooping.
To be sure, contrary to the jokes, lawyers have feelings. Some may have known the late senior advocate Anand Bhatt personally. But they have an ethical obligation to represent clients competently. The state will provide a government pleader to represent Kasab. But will that ensure competent defence? Or will it strengthen terrorists’ perceptions that Muslims can’t get justice in India? Even if Ram Jethmalani or Jawahar Raja were to take up the case—and India is richer that it has such lawyers—it boxes them in a corner, implying that those who care for fair trials only represent unpopular clients including extremists.
With the bar association wrapping itself in the tricolour, such lawyers will get portrayed as anti-national. That’s preposterous, because what guides these lawyers is the notion of upholding the rule of law.
There is one problem: What if Kasab defiantly confesses? That poses a dilemma for the defence lawyer, but even so, the answer is not to deny him representation. Other defences, from mitigation to duress, are available. A civilized society is judged by how it treats the one the vast majority has little sympathy for, for it must treat as equal all those before its court of law. How does India wish to be measured up?
During charged times, human rights lawyers and activists have to perform a balancing act—of defending what appears indefensible—for the sake of the liberties that the rest of us take for granted. Some activists may be more concerned about the rights of the accused than the rights of the victims. They contextualize the issue, taking it to an absurd region, excusing Kasab’s acts because of the post-Godhra violence, which sought justification from the Godhra incident, which traced its origins to the destruction of the Babri Masjid, which sought to avenge what Babar may have done in the 16th century. That can’t go on. Mohandas Gandhi was on to something when he said that an eye for an eye leaves the whole world blind.
Since 9/11, human rights advocates have become aware of this issue. If torture cannot be contextualized and is always wrong, so is terror. One thoughtful expert, Karima Bennoune at Rutgers University in the US, has argued that a state facing terrorism has to safeguard its population without violating its rights.
Security experts emphasize security over liberty; human rights activists focus on rights over surveillance. But the state has to do both and get both right. It cannot take short cuts. But some lawyers, who should uphold the law, are encouraging short cuts. It is time for wiser lawyers to stand up for the Constitution for the sake of all of us.
Salil Tripathi is a writer based in London. Your comments are welcome at firstname.lastname@example.org