INTERNATIONAL ASSOCIATION OF PEOPLE’S LAWYERS
Oudergracht, 3511 AP Utrecht,
Netherlands.
2nd December 2009
26 / 11 trial judge, Tahilyani, be replaced
What transpired on 26th, 27th and 28th November 2009 in the court of Additional
Judge Mr. Tahilyani of Bombay Session Court hearing what is commonly called the
“26 / 11 trial” has not gone well with the basic principles of the criminal
justice system which India inherited from the British.
The Article 22 of the Constitution is categorical that no accused “shall be
denied the right to consult, and to be defended by a legal practitioner of his
choice”. The peculiarity of this case, however, made it impossible for Ajmal
Kasab to exercise this right and to have a legal practitioner to defend him,
let alone a legal practitioner of his own choice. Hence, the state intervened,
as is the practice, and provided him with a legal counsel. And that is how
Abbas Kazmi came to defend Kasab.
As a defence counsel, Kazmi had an independent status. He could not have been
dismissed on the ground that he opposed the prosecution’s application to
short-cut the trial by tendering evidence of prosecution witnesses on
affidavit. This episode has vitiated the trial of Ajmal Kasab. Justice should
not only be done, but also be seen to have been done.
It was unfair and uncalled for that Kazmi was removed from the case and asked
to leave the court premises. Was he a criminal who posed a threat to the judge
and the court? Kasab’s trial is a public trial which necessarily means a trial
to which the general public have access. Arbitrariness is not one of the
virtues of the Indian justice system.
Several of the 340 affidavits submitted by the prosecution in the court
constituted evidence not only in appearance, but also in substance. They did
not fall under Section 296 of Criminal Procedure Code. Abbas Kazmi has a legal
and moral obligation to raise the issue and debate it in the open court. How
could this disqualify him to be a defence counsel?
What happened in Mumbai on 26th November 2008 had arrested the attention of the
world. The trial and verdict of Kasab’s case will come under the watchful eyes
of the international media. This has serious implications for the Indian
judicial system. It is in the interest of justice and fairness and the good
name of the Indian judicial system that Judge Tahilyani is replaced with a new
judge. This is not just one of the million cases pending in India. This is a
unique case. It calls for special attention and treatment.
P.A.
Sebastian,
Chairperson – International Association of
People’s Lawyers.
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