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Speaking out of turn

In the aftermath of 11/7, a cacophony of voices have gratuitously proffered their analyses of the root causes of the catastrophe, writes Mahesh Jethmalani.
None | By Mahesh Jethmalani
PUBLISHED ON JUL 31, 2006 12:06 AM IST

In the aftermath of 11/7, a cacophony of voices have gratuitously proffered their analyses of the root causes of the catastrophe. These views, from important personalities, have received widespread publicity. Thus, they merit close scrutiny. The validity of these analyses would afford us lessons for the future. On the other hand, flaws in the insights would be pointers to where the panaceas do not lie.

The Leader of the Opposition in the Lok Sabha, L.K. Advani, would have us believe that it is the repeal of Pota by the UPA government at the Centre that was responsible for the blasts. History falsifies Advani’s thesis. A far more draconian Act than Pota, Tada enacted in 1987, did not prevent the serial bomb blasts in Mumbai in 1993. Pota itself, enacted in 2002 as a knee-jerk response to the Parliament bomb blasts of December 13, 2001, proved ineffective in preventing terrorism. As if to pour scorn on its March 2002 enactment, in September of the same year terrorists attacked the Akshardham temple complex in Gujarat. This took place on a sacred Hindu shrine located in Gujarat whose Chief Minister Narendra Modi was the BJP’s most hawkish leader, at a time when there was a BJP-led government at the Centre.

While draconian laws have proved singularly ineffective in acting as a deterrent to terrorists, their record in bringing terrorists to swift justice is no better. The trial of those allegedly involved in the serial bomb blasts of 1993 are governed by the provisions of Tada 1987. The case has not been concluded till date. On the other hand, the proceedings pertaining to the Parliament bomb blast of December 2001 were concluded all the way up to the Supreme Court in 2005. The guilty were punished and the innocent acquitted. This trial was governed by the provisions of the ordinary criminal laws of this country. The overall conviction rate under Tada for the period it was in force was less than 1 per cent.

However, the most crucial argument against draconian laws like Tada and Pota is the drastic misuse of their provisions by the authorities. State governments never hesitated to use Pota to fix political opponents. Thus, these laws inflicted harm while failing to stem the tide of terrorism or punish its adherents. It is this that led to their ultimate repeal. The politician in Advani has clearly got the better of the lawyer in him. He needs to resurrect the lawyer in him.

Advani’s partymen in Maharashtra do not seem to share their leader’s views. Led by the former MP, Kirit Somaiya, they have lodged a staggering 212 complaints with the Additional Commissioner of Police against State Home Minister R.R. Patil and Home Secretary A.P. Sinha. The duo, the local BJP feels, is liable to be prosecuted for an offence under the IPC’s Section 304, culpable homicide not amounting to murder, for the deaths that occurred on 11/7. It is thus not the absence of Pota, but the criminal conduct of the two dignitaries that occasioned the disaster of 11/7.

The Home Minister is a politician who, in liberal eyes, has perpetrated grave injustices. He has caused the Bombay Police to spend a disproportionate amount of time on trivial personal obsessions — raiding and banning dance bars, arresting those responsible for the publication of what he considers to be an unflattering book on Shivaji and other such private morality issues. While it is time he resigned as Home Minister, if only to accept moral responsibility for the failure to avert the blasts, the BJP’s charge against him is misconceived. Culpable homicide, even when it does not amount to murder, requires that those accused of it cause death by acting with the intention of causing death or with the intention of causing bodily injury that is likely to cause death. None, but the most malicious, can attribute either the mental element or indeed the overt act necessary to commit the offence to either the Home Minister or Secretary. Somaiya and his cohorts in the Maharashtra BJP need to acquaint themselves with criminal law.

The leader of the recently formed Maharashtra Navnirman Sena, Raj Thackeray, seems to believe that the legal system and lawyers in particular are the root cause of the Bombay blasts. In a vitriolic public speech, he has indicated that his party would thrash advocates who dared to defend those who would face trial in the 11/7 case. He also deprecated lawyers who had defended the accused in previous bomb blast trials. He requested the judiciary to stay clear of human rights issues. Revealing an admiration for the Bombay Police, Thackeray thundered that if the police are allowed to act without interference they can stop all illegal activities in 48 hours.

In one stroke, the young Thackeray has revealed himself to be a demagogue who will exploit emotive events like the bomb blasts for votes. His threat against lawyers is tantamount to criminal intimidation under the Indian Penal Code and hopefully the Bar Council of Maharashtra will take note. It is also incitement to lawyers to violate ethics and is on par with an exhortation to doctors to violate the Hippocratic oath when treating captive terrorists. His request to the judiciary to ignore their oath deserves severe condemnation.

Thackeray’s proposed alternative to the rule of law is police raj. If he  cares to look into the record of police convictions in even the most celebrated cases, he will discover that the accused persons of the very type he despises have escaped conviction because of police ineptitude or corruption. He needs to read the Constitution and brush up on his legal history. Most of all, he needs to indulge in a bit of self-analysis and discover why he hates lawyers.

A well-known criminal lawyer from Mumbai, Nitin Pradhan, who defended the 18 people accused in the trial of the 1993 blasts in Mumbai, has created somewhat of a public stir by releasing to the press a letter addressed by him to his clients informing them that he was withdrawing from the case, vowing not to appear for any accused in the event of a trial pertaining to the 11/7 blasts and disclosing his reason for these decisions. Were Pradhan to withdraw from his briefs privately and without much ado, no one could join issue with him. It must be assumed, however, that in releasing his letter to the press, he submitted his decision to public judgment.

Pradhan claims that he defended his 18 clients in the 1993 case because he was approached by leaders from three Muslim organisations. No leader of the minority community came forward to give succour to the victims of 11/7. Thus, says Pradhan, “I feel let down by the leaders from that community. The reason why I accepted the brief no longer survives.” By implication, Muslim leaders are responsible for the recurrence of blasts in Mumbai.

While Pradhan is deeply moved by the blasts, his consequent decision and reason offered invite grave objections. The identity of the 11/7 perpetrators is unknown. While  members of the Muslim community may be involved, his assumption is premature. The argument assumes that Muslim leadership consists only of its clergy and undermines the role of non-religious leaders. To make members of a community flaunt their patriotism is to assume that their silence denotes connivance with terror acts. On a parity of reasoning, is A.B.Vajpayee  responsible for the Gujarat riots in not loudly condemning them? What is the guarantee that public expressions of grief and solidarity by Muslim leaders are representative of their real feelings? Crocodile tears ought not to satisfy Pradhan. In short, Pradhan’s ‘expectation’ is both unreasonable and unfair.

Even more flawed is his decision to jettison his clients in the 1993 case. That trial has concluded and only judgment is awaited. Presumably, Pradhan means that he will not represent them on the question of sentence if they are convicted. But by inference, Pradhan is telling us that his clients will be convicted. This is fortified by the fact that while forsaking his original 18 clients, he has made an exception in the case of Abu Salem, on the ground that he considers him to be innocent. This distinction between clients is prohibited by the Bar Council. If lawyers take up briefs  only on the basis of their personal opinions regarding the guilt or innocence of their clients, it will sound the death knell of the criminal justice system.

Pradhan is an honourable, if emotional, man. He needs to ensure that his emotions don’t get the better of his professional ethics.

(The writer is Senior Advocate, Supreme Court and Bombay High Court)

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