That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )

That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.

That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.

I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.

Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.

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“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”

 

Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.

To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.  

 

“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”

In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.

The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.

In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.

This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.

Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !

 

Readers may also read Law and Other Things  on the case and developments therein. 

 

 

The Indian Newspapers report (Sunday TOI, p. 12) of the Obama Administration in the United States of America now doing away with the phrase ‘enemy combatant’; a designation for terror suspects to justify their detention in Guantanamo Bay.

After Hamdan v. Rumsfeld, the Military Commissions Act 2006 gave power to the Bush Administration to define an ‘unlawful enemy combatant’ and decide whether the laws of war as codified in the Geneva Conventions and existent in customary international law were applicable to such person or not. The Act also contained provisions removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status.

This idea of ‘unlawful enemy combatants’ was thus used as a justification to hold detainees in Guantanamo bay and to deny them access to habeas corpus. The United States Supreme Court has deliberated the legality of this notion in may case law. [See Boumediene v. Bush, 128 S. Ct. 2229 : Rasul v. Bush, 542 U.S. 466 (2004) ]

One of the promises of the Obama Campaign was to shut down Guantanamo Bay and rightly so, the moment he came to power he decided to shut down that ill fated detention centre within a given period. In In re: Guantanamo Bay Detainee Litigation, the Washington District Court is deliberating on the legality of such detention and the Obama Administration has recently filed a memo in that Court regarding its ‘new understanding’ of the situation in Guantanamo Bay. The memo now says;

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

 

Thus, in as much as the power to arbitrarily define as to who is an enemy combatant has been done away with, there is a fixed definition that has been incorporated in the Authorisation of the Use of Military Force (AUMF). But sadly, this however does not change anything for the prisoners in Guantanamo as the consequences of this change are futile and they shall still remain in Guantanamo. This because, in as much as they may now not be enemy combatants, they still may have ‘substantially supported’ forces engaged in hostilities with the United States. 

My point then being, that newspaper reports in India that there has been a substantial change in the outlook are wrong and a deeper analysis is required to comment upon it.

What is laudatory however is the commitment of the Administration that the laws of war would be applicable to all the detainees thus doing away with the earlier discretion of the Bush administration as to whether the laws of war would be applicable or not.

The entire memo submitted to the DC Court is available here. 

See also Obama admin. to end use of term ‘enemy combatant’ . 

 

Camus idea that dissent must never be confused be disloyalty may find new vigour with the events unfolding in Pakistan. President Zardari has applied Section 144 of the Code of Criminal Procedure in the country thus giving a free hand to the security officials to make arrests of those protesting against the state of that nation.

 

The Section 144 of Pakistan’s Criminal Procedure Code is similar to the Indian legislation giving the power to a magistrate to issue an order in urgent cases of nuisance or apprehended danger. Mustafa Quadri in The Guardian gives an interesting history of this legislation in India and Pakistan with its British Origins and critiques it with reference to the current state of affairs. To quote him,

“But the provision, sadly, has a much older history than that. Section 144 traces its origins to a British criminal code enacted in India as far back as 1860, just three years after the subcontinent’s first modern independence movement rocked British rule throughout north and central India. The provision was subsequently used routinely by British authorities well up to Partition in 1947. Many of the most celebrated leaders of the great civil disobedience project that eventually unseated the British were imprisoned using this most colonial of enforcement mechanisms.

The 1860 criminal code was adopted by Indian and Pakistani authorities after independence, and section 144 has been used to prevent civil disobedience in both countries for successive decades.

Pakistan‘s latest string of protests is no different.”

 

Perhaps when all forms of expressing dissent fail, civil disobedience may be pursued. The situation in Pakistan is tense with the Government in shambles. It is evident that there is no rule of law prevalent in that State and a movement towards its preservation in the manner of protests may then be justified.

With pressure being put across from all corners; national and international, if President Zardari does not cede to the demands of his adversaries, then probably Marital law may be the best alternative. Not unnatural in a supposed Constitutional democracy where the Army has ruled more than democratically elected governments combined. Truly history repeating itself.

The age- bar at law schools.

A PIL has been filed in the Bombay High Court challenging the Bar Council of India Rule (Rule 28) that states that no person shall be admitted to a 5 year LLB course if he or she is above the age of 20 and to a 3 year LLB course if above the age of 30.

Yasmin Tavaria, the petitioner who enrolled for a 3 year LLB course at the age of 42 and was denied admission states,

 “commitment to the profession and age can never be inversely related to each other and that the age of a person has no bearing on the degree of commitment with which he or she would pursue a profession.”

IIM’s and other professional institutions are doing away with the age bar; perhaps it is time that law schools do away with them too.