Audi alteram partem

Hi All ..I am writing this post after a VERY long time. I think I will now stop recollecting when I wrote my last post and making excuses for the delay because its getting to be a regular feature now.

This post of mine is related to the horrible terror attacks in Mumbai. The ordeal which dragged on for more than 2 days has really shaken us up and left everyone feeling very angry and vengeful. The feeling of anger and that of vengeance are completely vindicated. However I do feel that this anger needs to be channelized. There were some suggestions by celebrities like we should not vote or we should carpet bomb Pakistan etc. The first one is really stupid and the other I feel is not realistic under the circumstances. But the main debate raging right now and the one on which I want to talk about is the legal defense of the lone captured terrorist Kasab.

There are two opinions on this story. The first one which is in majority and which is mostly due to the anger generated by the attack is that Kasab should not be given the option of a defense lawyer. This opinion is based on the fact that Kasab's involvement in the terrorist act was seen on TV by everyone. After that he has also gone on record by confessing to the act and giving many details about the planning of this attack. As the current scenario goes Kasab indeed does not have any lawyer and the Bombay Metropolitan Magistrate Court Bar Association has also passed a resolution forbidding its members to represent him. Also the Shiv Sena resorted to violent action towards the lawyer who showed interest in representing him.

The other opinion which is in stark minority says that Kasab should be provided with a defense lawyer and be given the chance of a fair trial. Also according to article 22(1) of our constitution - no arrested person detained in custody “shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.” The only exception which can be made in this case is when we are formally at war with another country. Hence there is a small group of people which includes he chairman of the Bar Council of India S N P Sinha, who believe that Kasab should be given his rights and we should have a fair and proper trial.

I for one also feel that Kasab should be given the chance to be defended. This is not due to the fact that I am sympathetic to him. It is also not the case that I am less angry and vengeful as everyone else. But I feel that we should follow our legal system which we have been following since the past so many years. This concept in which a person is innocent until proven guilty is the cornerstone of our legal system. The title of this post "Audi alteram partem" is a Latin phrase meaning "hear the other side". Given the current circumstances I am sure no one including me wants to hear Kasab's side in the court. He is beyond a shadow of a doubt guilty and needs to be given the harshest punishment possible.

However by not giving him a fair trial I am concerned about what precedent we are going to set. Are we going to be one of those countries in which a person can be caught and punished without a trial. I agree that Kasab's act deserves this but think about other cases like this. Right now we are very angry and we want vengeance by punishing Kasab and hence we feel that this is the right stance. But suppose there is a serial killer on the loose who has killed many innocent people. When that person is caught and we have conclusive evidence are we again going to say that he should not be represented and sent to death without a trial? I am sure there have been people like this caught. Leave alone a serial killer. Suppose a man who has brutally killed just 1 victim is caught. Even at that point the victim's relatives and close friends are bound to be angry just like just we are right now and will feel that a trial is not needed. Are we going to follow a similar practice at that time too ???

So what I am saying is that if we do have a system which we know is a very good one we should follow it. We should be careful about what precedent we set for the future. Suggestions like a public hanging or public stoning will make us no different than the Taliban. I do understand the difficult circumstances which is making people think like this but we need to control our anger. Not forget or let go but channelize it. I agree it is not easy. If I was a lawyer myself I would never defend Kasab so I can see how everyone in the BAR is feeling. But if the government appoints someone we should be sane enough to realize that the lawyer is being professional and in no way is he less Indian for doing his job which he is instructed to do. Plus another thing is if the trial starts early I am sure it will get over quickly and Kasab will be justifiably punished.

Please do let me know your views on this by commenting on this post or emailing me. I understand it is a controversial issue and people will have varied thoughts but I would love to hear them :)