The story of Kasab has revived. Revived by the Shiv Sainiks, who object to him being represented in the Courts of Law by any Advocate in India. The TIMES OF INDIA dt. 2/04/2009 in its Editorial contends that for the preservation of the Judicial system that has as its fundamental premise that EVERY ACCUSED IS INNOCENT IN THE EYES OF THE LAW, TILL PROVEN GUILTY, an Advocate has to defend Kasab, as otherwise the basic premise would stand TAINTED.
Further, the Editorial goes on to state that the Guarantees given under Article 22 of the Constitution would not be fulfilled if a lawyer does not represent the Accused.
I would importune the readers of this blog to go thru my earlier blog for greater clarity of this blogger’s opinion on the same topic vide the link given below:
Article 22 of the Constitution of India does not EMPOWER the courts in India to COMPEL a lawyer to represent an accused. Even if a Lawyer is bound under the Legal Aid Rules, Advocates Act etc., to represent an accused without considering if the person he proposes to represent is guilty or not guilty, before accepting the brief, the LAWS and RULES CANNOT and DO NOT TAKE AWAY THE PROFESSIONAL LIBERTY OF A LAWYER TO ACCEPT OR REJECT THE BRIEF WITHOUT ASSIGNING ANY REASON WHATSOEVER.
This blogger is of the opinion that each Advocate is at ABSOLUTE LIBERTY TO TAKE UP A BRIEF OR NOT TO. Further, such a decision CANNOT and SHOULD NOT be the subject matter of the BAR COUNCILS of the respective states. Ms. Anjali Waghmare is at liberty to represent or not to represent Kasab. The bar council should not compel, nor public pressure be mounted to restrain Anjali Waghmare from accepting the Brief for Kasab, as that would seriously jeopardize the PROFESSIONAL LIBERTY OF THE ADVOCATE. Kudos to Ms. Anjali Waghmare for sticking to her conviction despite political and peer pressure. In fact she should file A WRIT AGAINST ANY ADVISORY PASSED BY ANY BAR COUNCIL RESTRAINING ANY ADVOCATE FROM APPEARING FOR KASAB.
Further, the protection of Article 22, clauses 1 & 2 are NOT APPLICABLE TO ENEMY ALIENS. The courts should first, determine the import of the phrase ENEMY ALIEN and see if Kasab is an enemy alien and construe Article 22 in the light of the declared Law and not based on the opinions, brainwaves and unwholesome views of a few.
In any case, the matter of Kasab has come to TRIAL and IT NOWHERE IMPOSES A DUTY ON THE COURT TO GET AN UNWILLING LAWYER TO REPRESENT KASAB’S CASE.
Even though our judicial system is ADVERSARIAL( which means that the Judge need not bring up the points not pleaded by the defence counsel into focus etc..), it nowhere states that the FACTS cannot be gathered by the TRIAL JUDGE himself to establish the TRUTH. If the FACTS are gathered by the trial JUDGE at his own initiative – who is vested with extraordinary powers to ascertain those- diligently, even the best lawyers would not be able to obfuscate the EVIDENCE showing Kasab’s guilt.
LET US PURSUE TRUTH, TEMPERED WITH PRACTICABILITY, PURPOSE AND PATIENCE!