Legal aid to a Terrorist:
Mumbai Terror Attack:
A sinister conspiracy was hatched in Pakistan and in furtherance of that conspiracy a savage attack was unleashed on Mumbai by a team of ten terrorists, including Kasab, who landed on the city’s shores via the Arabian Sea. The attack began on November 26, 2008 at about 9.15 PM and it ended when the last of the attackers, who was holed up in Hotel Taj Mahal Palace, was killed by Indian security forces at about 9.00 AM on November 29. The brutal assault left Mumbai scarred and traumatized and the entire country shocked. The terrorists killed one hundred and sixty-six (166) people and injured, often grievously, two hundred and thirty-eight (238) people. The loss to property resulting from the terrorist attack was assessed at over Rupees one hundred and fifty crores (Rs. 150 Cr.). The dead included eighteen (18) policemen and other security personnel and twenty-six (26) foreign nationals. The injured included thirty-seven (37) policemen and other security personnel and twenty-one (21) foreign nationals. Of those dead, at least seven (7) were killed by the appellant personally, seventy-two (72) were killed by him in furtherance of the common intention he shared with one Abu Ismail (deceased accused no.1) and the rest were victims of the conspiracy to which he was a party along with the nine (9) dead accused and thirty-five (35) other accused who remain to be apprehended and brought to court.
To deal with one terrorist, we cannot take away the right given to the indigent and under-privileged people of this country:
We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State.
The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.
It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the chargesheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice.
Consequence of failure to provide legal aid at pre-trial stage:
Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused.
But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial.
Request for consular access:
The appellant was arrested by Marde (PW-48) at DCB-CID, Unit III, on November 27, 2008, at 10.45PM. At the time of his arrest the appellant stated that he was a Pakistani national and he did not have any friend or relative in India. Marde, accordingly, made a note in “the Record of Formalities to be Followed at the time of Arrest” that intimation of his arrest could not be given to anyone in India but information about his relatives was being procured for giving intimation to them (in Pakistan). He added that information about his arrest was duly given to the Crime Branch, the Control Room and the superior officers. He also noted in the Arrest Panchnama that the appellant belonged to an economically weaker section, with an annual income of under Rupees twenty thousand (Rs.20,000/-) per annum. What is important for the present, however, is the note in “the Record of Formalities …..” that the appellant refused the offer of legal aid made to him.
We were also shown an undated letter written by the appellant to the Pakistani Consulate/High Commission (“Pakistani Wakalat”), New Delhi. The letter is in broken Urdu and is written in half-literate handwriting. The appellant handed over the letter to Marde on December 10, 2008. Marde passed the letter to his superiors, and the ACP (Crime), Mumbai, forwarded it to the Joint Secretary (Foreigners), Ministry of Home Affairs, Government of India, on December 11, 2008, with a request to arrange Consular access for the appellant. In this letter, the appellant asserts his Pakistani identity and nationality, and states that after having received armed training at different places in Pakistan, he and his associates made an attack on India. In the exchange of firing with the police, Ismail was killed and he received gun-shot injuries. He requested legal aid and asked that the Pakistani authorities should make arrangements to take the dead body of Ismail to his home. He signed the letter as “Yours Patriotic” (“Aapka Watan Parast”) Mohammad Ajmal.
Further, on December 26, 2008, on being produced before the Additional Chief Metropolitan Magistrate, he handed a similar letter, written by him in Urdu, to the magistrate. In this letter, he once again asserted his Pakistani identity and nationality, and requested a Pakistani lawyer. In this letter, he clearly said that he did not want any Indian lawyer for his defence. He also said that he had already written a letter to the Pakistani Consulate/High Commission, requesting a lawyer, but he failed to get any reply from there. He requested the magistrate to make a request on his behalf to the Pakistani Consulate/High Commission for providing him legal aid. On that date, the court remanded him to magisterial custody for the purposes of an identification parade, recording in the order sheet that the appellant had requested a Pakistani lawyer. On December 29, 2008, the Additional Chief Metropolitan Magistrate 37th Court, Esplanade, Mumbai, took the rather unusual step of directly forwarding the appellant’s letter to the “Hon’ble Ambassador, Pakistan”, with a covering letter under his seal and signature. Unfortunately for the appellant, the country of his nationality was in a mode of complete denial at that stage, and there does not seem to be even an acknowledgement of his letters requesting a Pakistani lawyer.
Refusal to avail legal aid:
It is seen that the appellant was offered a lawyer at the time of his arrest by the police officer making the arrest. He declined the offer. He then wrote a letter to the Pakistani High Commission asking to be provided with a lawyer. He made a similar request in a second letter that was handed over to the Additional Chief Metropolitan Magistrate. In the second letter, there is an assertion that he did not want to be represented by an Indian lawyer. It is thus clear that, in his mind, the appellant was still at war with India, and he had no use for a lawyer from the enemy country. Moreover, the negative assertion that he did not want an Indian lawyer itself implies that he had received offers of legal counsel. But those offers were not acceptable to him.
The appellant’s refusal to accept the services of an Indian lawyer and his demand for a lawyer from his country cannot be anything but his own independent decision. The demand for a Pakistani lawyer in those circumstances, and especially when Pakistan was denying that the appellant was even a Pakistani citizen, might have been impractical, even foolish, but the man certainly did not need any advice from an Indian court or authority as to his rights under the Indian Constitution. He was acting quite independently and, in his mind, he was a “patriotic” Pakistani at war with this country.
On March 23, 2009, the appellant finally asked for a lawyer, apparently convinced by then that no help would come from Pakistan or anywhere else. He was then immediately provided with a set of two lawyers.
In the aforesaid facts we are firmly of the view that there is no question of any violation of any of the rights of the appellant under the Indian Constitution. He was offered the services of a lawyer at the time of his arrest and at all relevant stages in the proceedings. We are also clear in our view that the absence of a lawyer at the pre-trial stage was not only as per the wishes of the appellant himself, but that this absence also did not cause him any prejudice in the trial.