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Posts tagged ‘enemy alien’

Kasab-II


The story of Kasab has revived. Revived by the Shiv Sainiks, who object to him being represented in the Courts of Law by any Advocate in India. The TIMES OF INDIA dt. 2/04/2009 in its Editorial contends that for the preservation of the Judicial system that has as its fundamental premise that EVERY ACCUSED IS INNOCENT IN THE EYES OF THE LAW, TILL PROVEN GUILTY, an Advocate has to defend Kasab, as otherwise the basic premise would stand TAINTED.

Further, the Editorial goes on to state that the Guarantees given under Article 22 of the Constitution would not be fulfilled if a lawyer does not represent the Accused.

I would importune the readers of this blog to go thru my earlier blog for greater clarity of this blogger’s opinion on the same topic vide the link given below:

https://movid.wordpress.com/2008/12/30/kasab-qasab-an-enemy-alien/

Article 22 of the Constitution of India does not EMPOWER the courts in India to COMPEL a lawyer to represent an accused. Even if a Lawyer is bound under the Legal Aid Rules, Advocates Act etc., to represent an accused without considering if the person he proposes to represent is guilty or not guilty, before accepting the brief, the LAWS and RULES CANNOT and DO NOT TAKE AWAY THE PROFESSIONAL LIBERTY OF A LAWYER TO ACCEPT OR REJECT THE BRIEF WITHOUT ASSIGNING ANY REASON WHATSOEVER.

This blogger is of the opinion that each Advocate is at ABSOLUTE LIBERTY TO TAKE UP A BRIEF OR NOT TO. Further, such a decision CANNOT and SHOULD NOT be the subject matter of the BAR COUNCILS of the respective states. Ms. Anjali Waghmare is at liberty to represent or not to represent Kasab. The bar council should not compel, nor public pressure be mounted to restrain Anjali Waghmare from accepting the Brief for Kasab, as that would seriously jeopardize the PROFESSIONAL LIBERTY OF THE ADVOCATE. Kudos to Ms. Anjali Waghmare for sticking to her conviction despite political and peer pressure. In fact she should file A WRIT AGAINST ANY ADVISORY PASSED BY ANY BAR COUNCIL RESTRAINING ANY ADVOCATE FROM APPEARING FOR KASAB.

Further, the protection of Article 22, clauses 1 & 2 are NOT APPLICABLE TO ENEMY ALIENS. The courts should first, determine the import of the phrase ENEMY ALIEN and see if Kasab is an enemy alien and construe Article 22 in the light of the declared Law and not based on the opinions, brainwaves and unwholesome views of a few.

In any case, the matter of Kasab has come to TRIAL and IT NOWHERE IMPOSES A DUTY ON THE COURT TO GET AN UNWILLING LAWYER TO REPRESENT KASAB’S CASE.

Even though our judicial system is ADVERSARIAL( which means that the Judge need not bring up the points not pleaded by the defence counsel into focus etc..), it nowhere states that the FACTS cannot be gathered by the TRIAL JUDGE himself to establish the TRUTH. If the FACTS are gathered by the trial JUDGE at his own initiative – who is vested with extraordinary powers to ascertain those- diligently, even the best lawyers would not be able to obfuscate the EVIDENCE showing Kasab’s guilt.

LET US PURSUE TRUTH, TEMPERED WITH PRACTICABILITY, PURPOSE AND PATIENCE!

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KASAB @ QASAB – AN ENEMY ALIEN.


There has been a lot of debate as to whether the captured TERRORIST of the MUMBAI MASSACRE was entitled to the protection enshrined in ARTICLE 22 (1) & (2) of the CONSTITUTION OF INDIA. If the captured terrorist KASAB @ QASAB were to be both an ENEMY as well as an ALIEN, he would not be eligible for the following protections guaranteed in our CONSTITUTION:-

  • 1.information of the grounds of arrest;
  • 2.right to consult;
  • 3.right to be defended, by a legal practitioner of his choice;
  • 4.production before the Magistrate within 24 hours of his arrest &
  • 5. no detention beyond 24 hours without the authority of the Magistrate.

The Constitution of India does not define these terms and both these words i.e ALIEN and ENEMY concern not merely the guarantees to the individual but also the SECURITY OF INDIA. In any democracy PERCEPTION of the majority is important, but when the perception of the majority is perverse vis-a-vis the constitution of the land, that perception HAS TO BE OVER-RULED.

There is a perception that KASAB @ QASAB should not be given the GUARANTEES that are enshrined in ARTICLE 22 (1) &(2).

Upon examination, it is no doubt clear that Kasab is an ALIEN for three reasons:-

  • that he is not an Indian and he himself doesn’t make that claim;
  • that the country that he calls his own DENIES that he is from Pakistan;
  • that the country from where he claims to come from has NOT RECOGNIZED his statehood nor has any other state owned up.

He is not merely an ALIEN but also STATELESS in the eyes of the International Community. Therefore none can tomorrow claim any nationality to the terrorist and make requests based on a Nationhood for the terrorist. So we INDIANS ARE ABSOLUTELY GUILTLESS ON THIS COUNT.

But the news that the terrorist is a Pakistani, must be based on overwhelming evidence gathered from his person as well as the confessions made by the said kasab @ Qasab. However, since the confessions have come while he was in the custody of the police, the confessions cannot have the sanctity of evidence in the eyes of the Law.

Pakistan is an UNFRIENDLY NEIGHBOUR and we have had many aggressions from their end. In lay-man’s terms a person who claims that he hails from the territory of an UNFRIENDLY NEIGHBOUR can be classified as an ENEMY.

Further as per the Army Act 1950 and Air Force Act 1950 the definition of an Enemy is ONE THAT HATES AND WISHES OR SEEKS TO INJURE ANOTHER.

As per the Official Secrets Act 1923, THE TERM ‘ENEMY’ INCLUDES AN UNFRIENDLY STATE.

As per our own INDIAN PENAL CODE under section 121, Kasab @ Qasab has been waging war with India and he being an Alien, from the point of view of the Government, is an ENEMY ALIEN by his mere actions.

Therefore we do not need to have compunction on the grounds that his fatherland is disowning him and buckle under the fact that THEY ARE WATCHING. Who are they – a splintered state that has less than the population of Uttar Pradesh; has no credible INSTITUTION, whatsoever; which has been ruled by the Army and its cohorts?; and has shown no development whatsoever neither has kept its people happy and secure??- except for the fact that that country holds land mass where Punjabi, Sindhi and Kashmiri (all these are also our Schedules Languages) are spoken, we have no sympathy or connection.

The Chief Justice of India, has reiterated that if the said Kasab @ Qasab were not to be defended by an Advocate, the TRIAL PROCEEDINGS WOULD STAND VITIATED. That is true if one were to go by the existing precedent. But His Lordship must be also aware that the precedent could be distinguished on the mere ground that the precedent relates to a case where neither the facts were relating to an INIMICAL ALIEN, nor was the conduct of that person WITNESSED by so many eyes in India.

In many of our judicial decisions, when we came to sticky solutions, the HIGHER JUDICIARY had invented IDEAS like ABSOLUTE LIABILITY(in the matter of Oleum gas leak case), BASIC STRUCTURE OF THE CONSTITUTION OF INDIA (in the Kesavananda Bharti case) etc., which have stood the test of TIME. Likewise, it is possible for the Judiciary to divest the protection of ARTICLE 22 (1) &(2), merely by interpreting that such loose canon balls like Kasab @ Qasab , who do not fall within the established hierarchy of a nation ( as Pak has already denied his citizenship), by their mere acts of revolting crime could be treated in law as INIMICAL which wud fall squarely within the meaning of ENEMY.

Further the Honourable CJI’s fears that he would be acquitted, seems unfounded, as even in the Jessica Lal Murder case, when the belligerent and astute Ram Jethmalani’s rational arguments were effectively rebutted by the appeal Justice, i’m sure that in Kasab’s case (which is of graver import) whoever the Judge might be, would issue a well reasoned order of conviction.


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