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The untouchable: why lawyers won't defend terrorism suspect

Anuj Chopra

He is regarded as a pariah so despicable, his crime so unpardonably heinous, that many Indian lawyers think it is unconscionable to defend Ajmal Amir Kasab in court.

This 21-year-old is said to be among 10 terrorists who went on a murderous rampage around Mumbai on November 26, killing nearly 180 people.

Kasab was the lone alleged gunman taken alive by the Indian police and he has been the main source of intelligence about the attack, furnishing details about how he was trained in camps operated by the Lashkar-e-Taiba, a banned militant outfit in Pakistan.

He stands accused on 12 different legal counts but, in the absence of a defence lawyer, uncertainty looms over his trial.

Last week, the Bombay Metropolitan Magistrate Court's Bar Association, which includes a battery of 1,000 lawyers as members, passed a unanimous resolution that none of them would defend Kasab. Soon after, lawyers from another legal association, Legal Aid Panel, resolved to do the same.

This resolution came despite Section 202 and 203 of the Indian Code of Criminal Procedure, which explicitly states that every accused, no matter how odious his crime, is entitled to the right of defence.

But Rohini Wagh, president of the bar association, says the gravity of Kasab's crime warrants that no fundamental legal rights be extended to him.

'Before considering this terrorist and his rights, let's consider the rights of our citizens,' she said. 'Our brothers and sisters, our relatives and friends were attacked and killed, so why should I advocate legal aid for someone like Kasab?'

A few independent lawyers who evinced interest in taking on Kasab's case were browbeaten into withdrawing their applications.

A swarming crowd of 200 activists from the Shiv Sena, a right-wing political party, on Tuesday demonstrated outside the residence of well-known criminal lawyer Ashok Sarogi, pelting it with stones and hurling insults.

The crowd, waving orange flags, forced him to issue a written statement that he would not defend Kasab. In the past, Mr Sarogi has represented Abu Salem, a notorious underworld don, currently incarcerated in an Indian prison.

Mahesh Deshmukh, a lawyer based in the town of Amravati, was labelled a traitor by sloganeering Shiv Sena activists, who ransacked his office after he agreed to take on the case.

This dilemma has spawned a volatile debate across India: must a lawyer, should a lawyer, defend the most reviled criminals?

In the past, some of India's best lawyers have represented clients that were widely detested by the public. For instance, in 1984, Ram Jethmalani, a senior Delhi-based lawyer, defended Satwant Singh and Kehar Singh, the alleged assassins of former prime minister Indira Gandhi. Her assassination aroused rage against the killers and sparked communal riots on the streets of New Delhi.

Colin Gonsalves, a senior Supreme Court lawyer, chose to defend Mohammad Afzal Guru, who was convicted of conspiracy in a terrorist attack on the Indian Parliament in 2001. Enraged right-wing political groups have since then been aggressively demanding that Guru be executed.

But never before has this debate been so vehement and laced with jingoistic fervour.

Arun Shourie, a member of the Indian parliament, said that 'the best [Indian] lawyers should not be made available to criminals, smugglers and terrorists. The ... legal support from the best of our advocates makes their case stronger'.

But K.B.N. Lam, a 63-year-old Mumbai-based lawyer, rejects such an idea.

'People think it is immoral to represent Kasab,' said Mr Lam, who was once a barrister at London's venerable Lincoln's Inn. 'But unless he is represented, there cannot be a case against him. Even those who want to send him to the gallows will not be able to do so if there's no defence lawyer.'

After Mr Lam expressed interest in being Kasab's counsel this week, his office in Mumbai was ransacked by the Shiv Sena. But he is undeterred.

He stresses that it is imperative to demonstrate to the international community that India, the world's largest democracy, can indeed provide a fair trial to an accused.

Many who plead against giving Kasab legal aid argue that the case against him is open and shut, and that no lawyer, no matter how competent, can save him. Kasab, they say, was caught red-handed by the Indian police while on his killing spree around Mumbai on November 26.

'The basic purpose of having a legal process in place and a trial is to bring about the truth,' said Bharat Kumar Raut, a Shiv Sena lawmaker. 'When everyone knows the truth, then that question of legal aid does not arise.'

But, warns Mr Lam, even if Kasab is guilty, this case shouldn't be viewed through the prism of victory or defeat. There are certain mitigating factors that need to be firmly established, he says: for instance, was Kasab under pressure from an overlord or was he intimidated into committing this crime?

'All of this can only be established in a court of law, and not by an investigating agency,' he said.

Even if the law decides to hang him, he ought to be treated humanely, not tortured in prison, and his family be allowed to come and see him from Pakistan, if they wish to, Mr Lam said.

In these times of heightened public emotions, he acknowledges there is a danger that every lawyer, no matter what his intentions, will be labelled a traitor or patriot depending whether or not he chooses to represent Kasab.

Some of Mr Lam's cousins pass snide remarks, warning him that accepting Kasab's case is akin to committing professional hara-kiri.

He lives in a suburb of Mumbai with his 97-year-old mother, and there is a lingering fear that thugs will browbeat his immediate family or ransack his property again.

'If I said I wasn't scared the same would happen to me, I'd be living in cuckoo land,' he said chuckling wryly.

'But you can't let fear stop you from doing the right thing.'

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