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India: The Right to Fair Trial and Ajmal Kasab

by Nandita Haksar, 12 April 2009

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Mohammad Ajmal Amir Kasab must be given a fair trial. Protection of all his rights under the international human rights law is not to protect one individual but to uphold the basic norms of rule of law and human rights. The question is not whether he deserves our sympathy or not, the question is whether we love our Constitution and cherish the principles enshrined in it.

I believe that those who support the right to fair trial for Kasab are really the true patriots while those who want him publicly hanged without trial are chauvinists and anti-nationalists because they do not wish to uphold the principles upon which Indian democracy is based.

There are five reasons why Kasab must be given a fair trial and defended by the lawyers of his choice.

First of all, if we ensure a fair trial to Kasab or for that matter to any other militant, we prove the superiority of our democratic ideals over the ideology of terror. The Supreme Court, in its judgement in the Parliament attack case, held that Mohammad Afzal deserves to hang “to satisfy the collective conscience” of the country and did not take into account the fact he did not have a proper defence lawyer at the trial court. This became a major reason for such a massive outcry against the Indian justice system in Kashmir. European Parliament members and nearly 50 members of the British Parliament also expressed their concern over the denial of fair trial to Afzal.

Secondly, by denying Kasab or any other militant a fair trial we corrupt our own police force which gets an exaggerated idea of its importance and instead of carrying out proper investigation it resorts to illegal means such as torture and even encounter killings. In fact the police force has been arresting hundreds of Muslim youth all over the country and in a majority of cases it has been found that there was no evidence against the youth. The most blatant cases have been the arrests in Hyderabad and the subsequent release of the young men. Similarly, many of those accused of being members of SIMI and jailed for years had to be acquitted because the prosecution could not prove its case. Once the police has been corrupted, then it treats all cases in the same way as we saw in the Arushi murder case. Or take Rajbir Singh the officer of the Special Cell who was charged with being involved in land deals.

Thirdly, a fair trial for Kasab or any other person accused of terrorism ensures that the criminal justice system and the courts are not corrupted. When courts are used as a political arena they will inevitably undermine the entire criminal justice system and destroy the most important pillar of democracy. The beating up of an elderly lawyer, Noor Mohammad, in the district court by suspected members of the Bajrang Dal because he was representing someone accused of terrorist act was caught live on TV. The Bar Associations failed to condemn the act and instead Bar Associations all over the country have been passing resolutions forbidding their members from taking up cases of people accused of terrorist activity. By doing this they have undermined the principle of fair trial, the right of the accused to be presumed innocent and thus damaged the entire legal system. Rohini Wagh, President of the Mumbai Metropolitan Magistrate Court’s Bar Association, has done great injustice to the Indian judiciary by passing a resolution barring its members from defending Kasab.

Fourthly, the denial of justice to men accused of terrorist acts further communalises the society and proves to the religious minorities that there is no justice for them in secular India. Instead of isolating those involved in crimes, an entire community feels under siege and this leads to their large scale alienation from Indian democracy. The refusal to concede to the demand for an enquiry into the Batla House encounter has resulted in massive alienation of Muslim citizens in Delhi and UP. The denial of justice also resulted in the bomb blasts in the court premises in Lucknow, Varanasi and Faizabad in November 2007.

Lastly, the concepts of human rights and rule of law have been evolved after centuries and centuries of violence, wars, barbarity, dictatorships and authoritarian rule. The millions of continuous and unrelenting struggles for justice and democratic principles have contributed to the evolution of human rights standards which have been accepted across continents. Of course, we are still far from being able to achieve those standards, but at least we, the inhabitants of planet earth, have agreed on our goals. And now there is a very real possibility of these standards being set aside and even completely destroyed in the name of nationalism.

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The hate filled cry for revenge against Kasab shows we are not confident about our own democratic ideals. We do think these ideals make for good politics and good governance. Perhaps we could learn a few good things from the USA apart from getting their help to fulfil our nuclear ambitions. Barack Obama’s nominee for Assistant Attorney General was Tony West, the defence lawyer for the only American Taliban, John Walker Lindh. Did that mean the US President supported the Taliban ideology?

In the end, even the Americans have had to negotiate with the “good” Taliban. The point is not whether there is a “good” Taliban and a “bad” Taliban. The point is that ultimately, we have to recognise that political Islam is a political ideology and the only way it can be eradicated is by addressing the root causes which have given rise to it. The cry for revenge and the hate filled politics of communalism of the Shiv Sainiks distract us from that basic task.

In the midst of the din for revenge the voice of Kavita Karkare has been drowned. She told the media that she did not seek revenge from a 21-year-old Kasab. She wanted that he be given an opportunity to rethink his ideas. This was from the widow of the police officer who was killed by Kasab and his companions.

Demonising Kasab or Mohammad Afzal helps the cause of both the Hindu and Islamic militants. Understanding them, even if we do not agree with their politics and their ideology may be repugnant to us, forces us to examine our own beliefs, ideology and politics and our ability to provide a viable alternative political ideology.

The author is a human rights lawyer and writer.

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