India must be bemoaning not having its own Guantanamo Bay, which would have been such a convenient way out of a quandary the country finds itself in over the issue of providing a fair trial to the lone surviving suspect from the terror attacks on Mumbai, now euphemized as 26/11.
The issue, on the face of it, is simplicity itself; a civilized country provides all persons charged with any crime a fair trial in accordance with the rule of law, guaranteeing the right to defense.
Enter the caterwauling knock of reality — civilization must be on a vacation here. The 21-year-old Pakistani, Mohammad Ajmal Amir “Kasab”, captured alive as nine others were killed in a near-live televised gunbattle which raged for three harrowing days, has already been judged.
The problems for India began as soon as it prepared to get the case against Kasab started, including finding a lawyer to defend him, especially after Pakistan refused to respond on the issue of arranging the defense for its citizen.
In the absence of a response from Islamabad, Kasab then requested the special Indian court that had been set to try him to provide a lawyer at state expense. After four months of suspense and doubts over legal representation, threats and open attacks on lawyers who “dared to express willingness” to take up his case, the special sessions court judge, M. L. Tahaliyani, appointed Anjali Waghmare — ironically the wife of a police officer whose department lost officers in the battle to save Mumbai and who is a supplementary investigator of the prosecution.
This kind of attack against the due process of law has been going on for some time now, and is increasingly rearing its head in Indian society. Trial by media and unleashing of public hysteria, partly rationalized by growing resentment against delay and incompetence in the legal system, have all been weakening judicial independence.
This dangerous trend of moralistic mobs creating an openly hostile atmosphere, putting pressure on lawyers not to take up cases and pre-judging people as criminal even before the case goes to court are becoming recurring features.
In several cases, especially in the acid-attack crime wave, where spurned “lovers” attacked women, often college mates or office colleagues, who “dared” to reject their “love proposals” by throwing acid on them, a mass hysteria has been built through the media, arguing that this is a “unique category of crime” where the “accused does not deserve to be defended or provided a fair trial”. But when this trend extends from local criminal cases to a case of global terrorism, India may conclude that the attack against its judicial independence has reached a peak and the credibility of its justice system its nadir. Ms. Waghmare, chosen from a legal aid list comprising 17 lawyers, was apologetic and apprehensive about her job from the start. The extreme right-wing Hindu Shiv Sena attacked her residence, throwing stones and demanding that she withdraw immediately. Flip-flops and television drama followed.
Even as the Shiv Sena accused the Congress of protecting “terrorists” who don’t need a trial but, rather, a bullet between their eyes, the Congress government provided Z-category security reserved for VVIPs to try to persuade her to hold on. The case finally began on April 6, with Ms. Waghmare appearing in defense of Kasab.
India must try Kasab fairly not for the sake of this case alone. It needs to allow its judicial supremacy to prevail against all temptations and to re-establish its credibility as a just and fair society, for its own tomorrow.
