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A pertinent point

The insistent ringing of the phone suggested it could be Pertie. Since his return last month he’s been unusually angry. I took this to be the helpless rage many of us have felt after Bombay but I soon discovered the cause of his wrath was quite different, writes Karan Thapar.

india Updated: Dec 20, 2008 21:06 IST

The insistent ringing of the phone suggested it could be Pertie. Since his return last month he’s been unusually angry. I took this to be the helpless rage many of us have felt after Bombay but I soon discovered the cause of his wrath was quite different.

“I think we ought to congratulate Bombay’s lawyers for their spectacular self-goal.” Even if this was intended as satire there was a distinct edge to his voice. “If they carry on like this they could lose the match for us!”

Pertie was, of course, referring to a resolution by the Bar Council of Bombay directing its members not to defend Ajmal Amir Kasab. He found their argument that Kasab is a terrorist whom it would be wrong to defend difficult to accept.

“Don’t they realise that if Kasab is to be brought to justice — as opposed to a public lynching — he has the right to a defence and it would be a meaningless right if no lawyer will actually take on his case?”

“Sure they do”, I replied, “but they also believe there’s no room to doubt or question Kasab’s guilt. In such circumstances it would be morally wrong to defend a terrorist.”

“That’s utter rot. No matter how you look at it, it doesn’t make sense. Not legally, certainly not politically and definitely not morally.”

“Why?” I saw it in shades of grey. For Pertie it was stark black and white.

“Because even Satwant Singh, who several people saw killing Indira Gandhi, had to be tried in court before he was convicted and he had a lawyer to defend him. Ram Jethmalani took on the case. Kasab is in a similar situation. Due process of law requires a legal defence and if that is not forthcoming it would be a mockery of justice. If a trial without a defence lawyer is actually held it would embarrass, even undermine, the Indian legal system.”

“Alright,” I said, perhaps a little too quickly. “What about Subramaniam Swamy’s idea of declaring him an enemy alien? Then the government could invoke Article 22 (3) and deprive Kasab of the right to a legal defence.”

“That would, no doubt, please people like you,” Pertie retorted. Now the mockery in his voice was as sharp as a knife. “But first you have to declare Pakistan an enemy country! And what would the rest of the world think of that? Where would that leave our proud boast of restraint? The world would think we are spoiling for a fight.”

“The prisoners of Guantanamo are considered enemy aliens.” I shot back.

“So?” Pertie was equally fast. “Is that the example you want to emulate?” He was laughing at me. “Anyway, don’t you know the US Supreme Court has ruled that prisoners in Guantanamo have a right of defence?”

This time I had nothing to say but my silence wasn’t sufficient to appease Pertie’s rising anger.

“Do you know the worst of it? If Kasab doesn’t get a lawyer because none is prepared to take up his case then why would Pakistan agree to extradite its citizens like Masood Azhar? After all, we claim we want to try him in our courts but if we can’t guarantee a defence for him then what sort of trial would that be?”

“Hmmm?”. I wasn’t avoiding an answer. I was thinking about what Pertie had just said. But before I could speak he pronounced the conclusion himself.

“Wouldn’t this be an excellent reason for Pakistan to refuse extradition? They could cite Kasab to prove India cannot guarantee justice and we’d be left with nothing to say. Even our friends in America and Britain would be unable to come to our help.”

Perhaps I gagged or, maybe, I gasped but I was taken aback. Pertie was right. No one else had thought it through the way he had.

“It won’t be long before Pakistan picks this up” he said, as he got to the end of the call.

“Now that Dawn and GEO TV have accepted Kasab is Pakistani they’ll have no hesitation claiming he won’t be given a fair trial.”