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Duty -versus- ConscienceViews: 1351
Dec 15, 2008 6:42 amDuty -versus- Conscience#

Vijay Nair
IBNLive 15/12/2008

"Mumbai: Lawyers in Mumbai are refusing to take on the case of the lone surviving terrorist from last month's attacks in India's financial hub, citing moral and ethical concerns, legal officials said on Friday.

The decision creates a problem for the Maharashtra government as police continue their investigation into the attacks, in which 179 people were killed. Dinesh Mota, a member of the state's legal aid cell that provides free counsel, was asked to defend the accused, Mohammad Ajmal Kasab, after Mumbai's Bar Association decided that its members would not take on the case.

Mota also refused on Thursday, saying his conscience would not allow him to take on the case. "It was the first time in my 24 years as an advocate that I faced this dilemma because I knew what the risk was to me—I was shivering," Mota said.

Mota, who risks losing his licence to practise law over the decision, said he prayed to Lord Ganesha to give him the courage to turn down the request to defend Kasab. He then called his wife and his mother to tell them of his decision, and they too agreed.

"I did not want to even go to work the next day, but my wife said I should, so I went and told the cell I won't take the case because it is not morally right," he said. The cell accepted his decision, he said, and he went immediately to the Ganesha temple to give thanks.

Last week, the city's Bar Council passed a resolution saying its more than 1,000 members would not represent Kasab or other defendants related to the November 26-29 attacks. "It was a unanimous decision because everyone felt it is our duty as citizens of this country to not defend terrorists," said council president Rohini Wagh.

It was the first time the council had passed such a resolution, she said, after making a distinction between a criminal act and an act of terror. Mumbai police, who on Thursday were granted fresh custody of the accused for another two weeks, said they had approached the court to provide legal counsel to Kasab, and the process of appointing a legal representative will start in a day or two.

While the state will ensure Kasab is legally represented, the police will "leave no stone unturned to make sure this case is fool-proof and strong", said Rakesh Maria, Joint Commissioner of Police (Crime), who is the lead investigator in the case."




Vijay Nair, Partner
KNM & Partners, Law Offices
http://www.knm.in/

Private Reply to Vijay Nair

Dec 15, 2008 2:06 pmre: Duty -versus- Conscience#

charuhasan

Vijay I am not sure about your concept of conscience. Rights and wrongs are relative and variable according to world recognition. I was alive and kicking during world war two. As a Gandhian I would have shot any Gestapo dead as a matter of duty. If I had joined Subash Chandra Bose and his INA I would have shot any Indian soldier working for the British Americans and Russians.

Even today if I were working as a hangman I shall hang an accused till death if a district judge gives a death sentence and the Supreme Court confirms it. If I were an Energy man I would have shot every terrorist who raided Bombay if he would not surrender.

I have defended 3000 prosecutions and at least 1500 of them, I was sure, were guilty. I shall defend Kasab and his clan and can be his mouth piece if I am asked. I shall also bury him or cremate him if I were an undertaker. That is my conscience.

Private Reply to charuhasan

Dec 16, 2008 11:56 amre: re: Duty -versus- Conscience#

Vijay Nair
Charu Sir,

I am still unsure. Therefore, I am asking people around me, seeking wisdom. This post was part of that exercise.

More different voices can be found in the following links:

http://www.livemint.com/2008/12/10224837/Ned-Blakely8217s-Justice.html?h=D

http://in.news.yahoo.com/48/20081213/1241/top-not-indefensible.html

http://news.in.msn.com/national/article.aspx?cp-documentid=1717950

http://epaper.timesofindia.com/Repository/ml.asp?Ref=Q0FQLzIwMDgvMTIvMTUjQXIwMDIwNQ==&Mode=HTML&Locale=english-skin-custom





Vijay Nair, Partner
KNM & Partners, Law Offices
http://www.knm.in/

Private Reply to Vijay Nair

Dec 16, 2008 12:23 pmre: re: re: Duty -versus- Conscience#

Vijay Nair
IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 725 of 1985

Decided On: 10.03.1986

Appellants: Suk Das
Vs.
Respondent: Union Territory of Arunachal Pradesh

Hon'ble Judges:
P.N. Bhagwati, C.J., D.P. Madon and G.L. Oza, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Vijay Hansaria and S.K. Jain, Advs.
For Respondents/Defendant: Abdul Khader, G. Chandra and A. Subhashini, Advs.


Acts/Rules/Orders:
Indian Penal Code, 1860 - Sections 34 and 506; Constitution of India - Article 21

Prior History:
From the Judgment and Order dated 9.8.84 of the Gauhati High Court in crl. Revision No.205 of 1979.


JUDGMENT

P.N. Bhagwati, C.J.

1. This appeal by special leave raises a question of considerable importance relating to the administration of criminal justice in the country. The question is whether an accused who on account of his poverty is unable to afford legal representation for himself in a trial involving possibility of imprisonment imperilling his personal liberty, is entitled to free legal aid at State cost and whether it is obligatory on him to make an application for free legal assistance or the Magistrate or the Sessions Judge trying him is bound to inform him that he is entitled to free legal aid and inquire from him whether he wishes to have a lawyer provided to him at State cost: if he is not so informed and in consequence he does not apply for free legal assistance and as a result he is not represented by any lawyer in the trial and is convicted, is the conviction vitiated and liable to be set aside? This question is extremely important because we have almost 50% population which is living below the poverty line and around 70% is illiterate and large sections of people just do not know that if they are unable to afford legal representation in a criminal trial, they are entitled to free legal assistance provided to them at State cost.

2. The facts giving rise to this appeal are not material because the question posed for our consideration is a pure question of law. But even so the broad facts may be briefly set out since they provide the back-drop against which the question of law arises for consideration.

3. The appellants and five other accused were charged in the court of the Additional Deputy Commissioner, Dibang Valley, Anini, Arunachal Pradesh for an offence under Section 506 read with Section 34 of the Indian Penal Code on the allegation that the appellants and the other five accused threatened Shri H.S. Kohli, Assistant Engineer, Central Public Works Department, Anini with a view to compelling him to cancel the transfer orders of the accused which had been passed by him. The case was tried as a warrant case and at the trial 8 witnesses, on behalf of the prosecution, were examined. The appellant was not represented by any lawyer since he was admittedly unable to afford legal representation on account of his poverty and the result was that he could not cross-examine the witnesses of the prosecution. The appellants wished to examine 7 witnesses in defence but out of them two could not be examined since they were staying far away and moreover, in the opinion of the court, they were not material witnesses. The remaining 5 witnesses were examined by the appellants without any legal assistance. The result was that at the end of the trial four of the other accused were acquitted but the appellant and another accused were convicted of the offence under Section 506 of the Indian Penal Code and they were sentenced to undergo simple imprisonment for a period of two years.

4. The appellant thereupon preferred an appeal before the Gauhati High Court. There were several contentions urged in support of the appeal but it is not necessary to refer to them, since there is one contention which in our opinion goes to the root of the matter and has invalidating effect on the conviction and sentence recorded against the appellant. That contention is that the appellant were not provided free legal aid for his defence and the trial was therefore vitiated. This self-same contention was also advanced before the High Court in the appeal preferred by the appellant but the High Court took the view that, though it was undoubtedly the right of the appellant to be provided free legal assistance, the appellant did no make any request to the learned Additional Deputy Commissioner praying for legal aid and since no application for legal aid was made by him, "it could not be said in the facts and circumstances of the case that failure to provide legal assistance vitiated the trial". The High Court in the circumstances confirmed the conviction of the appellant but in view of the fact that he was already in jail for a period of nearly 8 months, the High Court held that the ends of justice would be met if the sentence on the appellant was reduced to that already undergone by him. The appellant was accordingly ordered to be, set at liberty forthwith but since the order of conviction passed against him was sustained by the High Court, he preferred the present appeal with special leave obtained from this Court.

5. It is now well established as a result of the decision of this Court in Hussainara Khatoon's case that "the right to free legal service is ...clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held to be implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer". This Court pointed out that it is an essential ingredient of reasonable, fair and just procedure to prisoner who is to seek his liberation through the court's process that he should have legal service available to him. The same view was taken by a Bench of this Court earlier in M.H. Hoskot v. State of Maharashtra . It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involved jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognised that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellant was entitled to a free legal assistance at State cost when he was placed in peril of their personal liberty by reason of being accused of an offence which is proved would clearly entail imprisonment for a terra of two years.

6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him? Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advise in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor finds themselves can be alleviating to some extent by creating legal awareness amongst the poor. That is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. This is the reason why in Khatri and Ors. v. State of Bihar and Ors., we ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge obligation and contented themselves by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed "the Magistrates and Sessions Judges in the country to inform every accused who appear before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State" unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country "...to make provision for grant of free legal service to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situations," the only qualification being that the offence charged against an accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and that the needs of social justice require that he should be given free legal representations. It is quite possible that since the trial was held before the learned Additional Deputy Commissioner prior to the declaration of the law by this Court in Khatri and Ors. v. State of Bihar (supra), the learned Additional Deputy Commissioner did not inform the appellant that if he was not in a position to engage a lawyer on account of lack of material resources he was entitled to free legal assistance at State cost nor asked him whether he would like to have free legal aid. But it is surprising that despite this declaration of the law in Khatri and Ors. v. State of Bihar and Ors. (supra) on 19th December 1980 when the decision was rendered in that case, the High Court persisted in taking the view that since the appellant did not make an application for free legal assistance, no unconstitutionality was involved in not providing him legal representation at State cost. It is obvious that in the present case the learned Additional Deputy Commissioner did not inform the appellant that he was entitled to free legal assistance nor did he inquire from the appellant whether he wanted a lawyer to be provided to them at State cost. The result was that the appellant remained unrepresented by a lawyer and the trial ultimately resulted in his conviction. This was clearly a violation of the fundamental right of the appellant under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellant must be set aside.

7. The appellant contended that if the conviction and sentence recorded against him is set aside, the order dismissing the appellant from service passed on the basis of his conviction by the learned Additional Deputy Commissioner must also be quashed and he must be reinstated in service with back wages. Now it is true that the appellant was dismissed from service without holding an inquiry on account of his being convicted for a criminal offence and since the conviction of the appellant is being set aside by us, the order of dismissal must also fall and the appellant must be reinstated in service with back wages. But the result of our quashing the conviction of the appellants would be that the appellant would have to be tried again in accordance with law after providing free legal assistance to him at State cost and that would mean that the appellant would continue to be exposed to the risk of conviction and imprisonment and the possibility cannot be ruled out that the offence charged may ultimately be proved against him and he might land-up in jail and also lose their service. We therefore felt that it would not only meet the ends of justice but also be in the interest of the appellant that no fresh trial should be held against him and he should be reinstated in service but without back wages. We accordingly direct that the appellant shall be reinstated in service but he shall not be entitled to claim any back wages and no fresh trial shall be held against him. The appeal will stand disposed of in these terms.





Vijay Nair, Partner
KNM & Partners, Law Offices
http://www.knm.in/

Private Reply to Vijay Nair

Dec 16, 2008 2:41 pmre: re: re: re: Duty -versus- Conscience#

SOEB FATEHI
if your conscience tells you to do your duty then what will you do Vijay?

Private Reply to SOEB FATEHI

Dec 16, 2008 6:33 pmre: re: re: re: re: re: re: re: re: Duty -versus- Conscience#

Ritu
While i don't know about the legal intricacies n legal dilemmas involved here, I do know about conscience a bit...& I'd certainly not bother my conscience with such things...cos the case is clear cut...whats there to defend in the first place?? Why should there be any trial at all?? Isn't it obviously clear that what he did was for everyone to see?? & even if there is a trial n even if I were a real lawyer I wouldn't have anything to do with it (which is indeed what Mota is doing...n infact which is the only thing possible to do given the facts n circumstances)...n won't waste even two minutes of my time debating about it in my mind. There are things I won't do irrespective of what others think, say or do...if I don't do it, I don't do it n I wouldn't budge if I know I'm right, (whatever be the cost...n consequences be damned)....if I'm clear about my stand n whats right for me.

I guess this gyaan by me could be the end of your quest for wisdom on the issue, Vijay...look no further, when the wise one is right here. :-p

Private Reply to Ritu

Dec 17, 2008 4:43 pmre: re: re: re: re: re: re: re: re: re: Duty -versus- Conscience#

Ritu
'Mota, who risks losing his licence to practise law over the decision, said he prayed to Lord Ganesha to give him the courage to turn down the request to defend Kasab. He then called his wife and his mother to tell them of his decision, and they too agreed.'

~~In fact Mota should sue the authority/person/dimwit who cause him to lose the license for doing the right thing...dismissing him would be following law in letter but not in spirit...it must never have been the intention of law to stretch the concept of duty to include defending an obviously patent terrorist whoz credentials have been established beyond doubt...no duty could be greater than duty towards humanity & duty towards one's own conscience.

Private Reply to Ritu

Dec 19, 2008 12:45 amre: Duty -versus- Conscience#

John Dierckx
There are two things here that struck my attention: the courageous action of one lawyer in deciding that his conscience did not allow him to defend a terrorist and second the unanimous resolution by the local Bar Council in Mumbay not to defend a terrorist.

Now let’s start with the individual decision not to defend this terrorist. There are arguments pro and contra such an approach bit it cannot be denied that if you are emotionally involved in such a way, you may very well not be able to do a great job anyway. But that is the personal and emotional side of things. There is however a professional side to this dilemma and that is that regardless of whether you are a terrorist or a ‘normal’ criminal, you have a human right to an impartial trial and that entails having a defence counsel. While I may feel sympathy for the individual lawyer choosing to risk his practicing license and stick to his conscience; at the same time the article is unclear about the reasoning. Or let me say it like this, I do not understand it.

One could ask oneself: what makes this terrorist different than another murderer, or even serial killer. Or what to think of big shot corporate who, instead of bombing people, pollute the environment with toxic waste to save a few dollars and leave a legacy of cancer patients for the coming generations. What to think of paedophiles that raped or exploited children: do they deserve a defence counsel? Is it really possible to make a choice here other than on personal perspectives, and is it not exactly that what you leave at home if you choose to be a criminal; defence lawyer? The individual lawyer as I understood the email, was aware that his client actually did it and made a moral and spiritual choice on that basis. Professionally I may not agree but who am I to judge this lawyer’s personal choices: and in all fairness he was willing to pay the price for that (actually similar to the accused terrorist).

The Resolution of the Bar Council
What surprised me more is the decision by the Bar Council, cleverly trying to distract the big issues by making a distinction between “an act of terror” and a “criminal act”. Without a doubt one could fill books with justifying such a distinction and decision making based thereon. But in all fairness, is this not a matter of fooling yourself and hiding behind a big wall of legalese to justify equally personal choices. I think it is fair to say that in general, lawyers view the law with contempt. Let me explain. I suggest that it is accurate to claim that lawyers generally see the law for what it really is: contingent, negotiable and more than once flawed. Given such an assumed perspective and trained at large to take advantage of rules for their clients, is it not virtually inevitable that lawyers will approach the rules that govern their own conduct in a similar fashion? In addition, when assessing their own conduct against the rules that bind them they inevitably lack the distance and objectivity to professionally assess the legal, let alone ethical or moral merits of their behaviour. I can just see how this happened in this case: where a terrorist act was redefined as an “act of terror” not covered by the rules that bind these lawyers to defend a “criminal”.

Rule of Law and Natural Justice
T R S Allan in Law, Liberty and Justice (Clarendon Press, Oxford, 1993, p 21) suggests that,
“the rule of law is an amalgam of standards, expectations and aspirations: it encompasses traditional ideas about liberty and natural justice, and, more generally, ideas about the requirements of justice and fairness in the relations between government and governed”
Rules, which are implied here, are not just generalisations about human nature, but are often specific commands that a sovereign power issues to its subjects; the breach of a rule could invite the use of legal sanctions. To guard against arbitrary use of this power we invented the “rule of law”. The idea behind a ‘government of laws’ is that dealing with particular problems by applying general rules constitutes an important check upon arbitrary behaviour. No stronger is this embodied than in the Latin maxim “nulla poena sine lege” (no punishment without law) that views law, and the rule of law, as a safeguard against the arbitrary power of a sovereign.
The idea of general rules leads us to the concept of formal equality. This formal requirement is an important safeguard against arbitrary behaviour. It lies at the root of the conception that all individuals are entitled to the equal protection of the laws. A challenge to the idea of formal equality arises whenever there is unequal treatment between groups.
The second important aspect of the rule of law is natural justice and/or due process of law. The procedural guarantees embodied in natural justice are important barriers to arbitrary and unpredictable behaviour by judges who are charged with the implementation of the rules set out by a sovereign, be it a single individual or a modern government. The first of the rules of natural justice is audi alteram partem or ‘hear the other party’. In a criminal case the burden of proof is on the prosecution. The prosecution has to give notice of the charges the accused faces and present the evidence that shows that the accused has been in violation of the law: is “guilty” according to the law.
Accused persons have the right to defend themselves. So, two voices are heard, not just one. Beyond that, there is a set of issues about exactly what kind of hearing is required for which kind of case.
The second requirement of natural justice is nemo judex in sua causa (no one should be a judge in his own cause). Therefore judges must be unbiased. This requirement is so fundamental that John Locke gave it as one of the reasons for leaving the state of nature in his Second Treatise on Government. It is not too hard to imagine why we are (to be) worried about bias: it corrupts outcomes!
While more requirements may be discussed in relation to the rule of law, I guess in the context of this article we can leave it to what was discussed above. The rule of law is part of an honourable tradition, and does not function well when its substantive commitments are not respected. It should be embraced by anyone who understands that stability of expectations is one of the prime conditions for a successful society and is undermined by arbitrary government behaviour. Therefore we need standards; in legislation, administration and adjudication. They are fundamental to the operation of our legal institutions.
This brings us back to the conscience of the lawyer and the resolution of the Council.
Finally
What I am trying to say here is that it is very hard to make a choice here other than based on emotional and highly personal perspectives. At the same time basing such a choice on conscience, is something hard for me to understand as someone with a legal background. How can one justify a choice that implies that for some people the rule of law and natural justice do no longer apply?

The same applies for the resolution of the council. However they devised a distraction: redefining a criminal act to what was defined an “act of terror”, to which their rules regarding professional duties no longer apply. I guess that is a perfect example of treating the law and perhaps even the rule of law and natural justice as something contingent and negotiable. The ultimate result of the decision is in my view the expression of the view that for terrorists the rule of law no longer applies, packaged in opportunistic, purpose driven reasoning and interpretation of the law.

In effect this resolution is denying a specific group from their rights and entitlements under the law, the rule of law and natural justice: the fundaments of modern society. Does that not make those lawyers equally arbitrary as a corrupted absolute sovereign that does as it pleases? Creative reasoning and interpretation of the law is not going to change that.

The individual lawyer may say NO, and pay the price for his professional failing of not being able to uphold the rule of law and natural justice (losing his license) because he cannot reconcile his personal conscience with his professional duty.

The Council on the other hand is hiding behind a wall of legalese to justify what cannot be justified in a legal sense and can only lead to bias and with that corrupted outcomes of the legal system. Let’s be honest for one second, can we really distinguish between a horrible “crime” and an “act of terror”? And even if we could: what justifies any claim that a terrorist is no longer entitled to what any human in modern society is entitled to? Is this denial of basic human rights not implicitly saying: “we are no longer considering you a human with all the rights that come with it?” Whether we like it or not, rule of law and natural justice imply that we make no exceptions.

In all honesty, I cannot begin to imagine the horror and disgust that must come with such terrorist actions. Any act of violence against another human in my view is a flaw in our humanity, regardless of whether we are talking about harassment, violence, murder, or even acts that are not considered crimes necessarily but are just as devastating (pollution, abuse of resources) and terrorist acts alike.

At the same time, denying the perpetrators – in all their different shapes and sizes – their basic and fundamental human rights is in my view a breach of the law, rule of law and natural justice that almost equals any terrorist act, because it is aimed at undermining the root of a modern society in which the rule of law and natural justice are supposed to be defending us against arbitrary use of power. Whether we are talking about a murder, a serial murder, environmental pollution and abuse of resources with deaths as a result or a terrorist attack, in essence they are all grave infringements on human rights to life, health, safety and security for which we have designed sanctions and appropriate procedures to establish that someone is actually guilty in the legal sense, whether there are circumstances to consider in that that may have an effect of the level of guilt or appropriate sanction. As a defence lawyer is it not your duty that justice is done by safeguarding your client’s rightful interests within the boundaries of the law? Is that not what the rule of law and natural justice demand from a lawyer? Is that not what you are actually serving?

And on a practical level, I could just see it: protected by legal privilege I confess to my lawyer. “Sorry ahum, this is not crime bit an act of terror you are confessing to me. I can no longer defend you.” Four lawyers later and finally in court, what will the first question be? ... “ Mr X, you were fired by three lawyers before the one that is now representing you. Is there any act of terror(ism) you’d like to confess?

I can imagine being a lawyer and having my conscience come before duty and pay the price for that. The terrorist broke the same rule of law by doing what he did. But hiding behind creative interpretation of the law, to deny someone his basic human rights, to deny him his humanity; where does that leave a legal profession?

Private Reply to John Dierckx

Dec 19, 2008 9:51 amre: re: Duty -versus- Conscience#

Ritu
Here I would just like to quote Bal Thackrey with whom I agree totally for once except that instead of hanging him I'd suggest he be gullitoned n given the worst kind of death possible

'Criticizing the judicial system of the country, Thackeray said, "How can such a ‘naradham’ be given chance to defend himself. Why create a mockery of democracy and judicial system by treating him (Kasab) as the nation's guest? On the contrary, he, who is the lone gunman alive, should be hanged till death. He should be hanged not once but 100 times outside the CST station where he first began the dance of terror."

Thackeray has termed the lawyers who are willing to defend Kasab as "disloyal". He noted that some legal eagles were also eager to defend terrorists, gangsters and dons like Afzal Guru, Abu Salem, Dawood Ibrahim's brother as well as the Memon brothers who were involved in the 1993 blasts.

However, Thackeray appreciated the spirit of those lawyers who decided not to appear for Kasab. "It is said that everyone has a right to defend himself. But in case if any lawyer refuses to take up the case of an accused then tall claims are made that such refusal is against the ethics of this profession. Those lawyers who feel for such terrorists should first handover their loved one to them and then defend such people," he said.

He further added that the footage shown on news channels and the photographs of Kasab and other terrorists along with his statement was enough to convict him without any trial. '

Private Reply to Ritu

Dec 19, 2008 10:02 amre: re: re: Duty -versus- Conscience#

Ritu
Here I would just like to quote Bal Thackrey with whom I agree totally for once except that instead of hanging him I'd suggest he (kasab) be gullitoned n given the worst kind of death possible

'Criticizing the judicial system of the country, Thackeray said, "How can such a ‘naradham’ be given chance to defend himself. Why create a mockery of democracy and judicial system by treating him (Kasab) as the nation's guest? On the contrary, he, who is the lone gunman alive, should be hanged till death. He should be hanged not once but 100 times outside the CST station where he first began the dance of terror."

Thackeray has termed the lawyers who are willing to defend Kasab as "disloyal". He noted that some legal eagles were also eager to defend terrorists, gangsters and dons like Afzal Guru, Abu Salem, Dawood Ibrahim's brother as well as the Memon brothers who were involved in the 1993 blasts.

However, Thackeray appreciated the spirit of those lawyers who decided not to appear for Kasab. "It is said that everyone has a right to defend himself. But in case if any lawyer refuses to take up the case of an accused then tall claims are made that such refusal is against the ethics of this profession. Those lawyers who feel for such terrorists should first handover their loved one to them and then defend such people," he said.

He further added that the footage shown on news channels and the photographs of Kasab and other terrorists along with his statement was enough to convict him without any trial. '

Private Reply to Ritu

Dec 21, 2008 3:47 pmre: re: re: re: Duty -versus- Conscience#

7 Th Thinking Hat
I don't share this confusion over duty VS conscience.

This is a land where Lord Krishna advised Arjun not to run away from the fight just because it was his great grand father on the opposite side. Duty as KSHATRIYA is supreme over emotional attachments. Today the converse must hold good. Follow your profession even if the client is country's enemy.

Again in Ramayana Ram declined to continue the fight with a tired and spent Ravana. Instead of killing a defenseless Ravan, Ram told," Renew yourself and come tomorrow for the war"!.

That is our heritage. Even wars were fought within the framework of ethics and when ethics were violated our puranas did not hesitate to criticise it.

Forget about heritage. Don't you think that the image of our legal system will only be glowing bright in the international view if the accused is given legal help even if he is an enemy? Conversly if you convict him without legal aid will not the judicial process be defective and the case may suffer a setback in upper court on appeal for that single reason?

Here I am talking about only the legal process not political decision which is another issue altogether

Private Reply to 7 Th Thinking Hat

Dec 21, 2008 3:58 pmre: re: re: re: re: Duty -versus- Conscience#

7 Th Thinking Hat
One more line of thought.

Fist the nation must decide if we are treating the terrosist attack as a crime or a war against the nation.

Crime will be subject to the due process of law, including legal assistance to the accused.

Issues of war are not to be taken to courts. Military/Government decides how the enemy is to be dealt with.

Private Reply to 7 Th Thinking Hat

Dec 22, 2008 2:30 amre: re: re: re: re: re: Duty -versus- Conscience#

SOEB FATEHI
is anyone reading the Geneva Conventions and the Hague Conventions nowadays?

Private Reply to SOEB FATEHI

Dec 22, 2008 8:25 amre: re: re: re: re: re: re: Duty -versus- Conscience#

7 Th Thinking Hat
I only heard about the Geneva and Hague stuff. I suppose they deal with how to treat POWs. But I don't think they figoured out such things as terrorism. War is straight forward thing between nations and wars are mostly conducted after 'declaring' a war so that the both sides know what to expect.

But terrorists torment the governments by targetting unsuspecting civilians and that too for their own private agenda which they do not want to resolve through legitimate means. You don't owe any decency to them.

Even he US did not choose to apply Geneva or Hague to Afgan prisonors. Very rightly they called their prisoners with a newly coined term "Illegal Combatents" and not POWs.

As I already said we need to differentiate between enemity and criminality. These two situations call for two definitely different approaches.

Learn from our ancient Chanakya. Enemy is should be annihilated. Criminal may be punished or pardoned.

Private Reply to 7 Th Thinking Hat

Dec 24, 2008 4:15 amre: re: re: re: re: re: re: re: Duty -versus- Conscience#

Ritu
Post the terror attacks in Mumbai the Muslim Council came out with the statement of no burial grounds for the nine terrorist killed but I din't see any counter arguments from Muslims elsewhere that if Muslims are not given a proper burial Islam will be under criticism or that its the duty of every Muslim to provide a burial ground for the dead blah bluh ( a la Jethmalani n Balkrishnan n Laamb in the context of democracy)...extraordinary situations demand extraordinary response n one can't go on parroting about duties without weighing the circumstances n gravity of the situation.

Private Reply to Ritu

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