New Delhi: With certain lawyer bodies declining to take up the case of Mohammad Ajmal Amir Kasab, the lone militant arrested in the Mumbai terror attacks, eminent lawyer Ram Jethmalani on Sunday maintained that no lawyer has the right to say he will not defend an accused.
"There is the express rule of the Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular," Jethmalani said.
"That is something that should never worry a lawyer. No lawyer worth the name should even talk about this kind of a thing," Jethmalani said and asked the legal community not to worry about peer criticism while taking up such cases.
"No lawyer has the right to say that he will not defend an accused," the eminent jurist told CNN-IBN news channel. Asked whether he had been approached to defend the terrorist, he said, "Has Kasab asked me? Let him ask me and I will tell him. Let the Pakistan High Commission approach me and I will give them a proper reply and advise."
Jethmalani said a lawyer should advise his client on the basis of facts. "The lawyer's duty is to say that on the facts I find no defence. The man is guilty on his own confession... unless he instructs the lawyer, the confession was obtained by some force or fraud or whatever, which is very unlikely".
"A lawyer should be able to tell him (the terrorist) that either hanging or life imprisonment is your option. "If you want me to tell the court that you should receive life imprisonment I am prepared to do my best," Jethmalani said.
On the terror attacks, he said, "According to me, a person who thinks that by doing these actions, he is going to heaven he should be denied the chance to go to heaven, he should remain the rest of life in a jail in India".
Advocates in Mumbai are facing a dilemma about whether to take up arrested terrorist Ajmal Kasab's case or not.
It was perhaps the call of conscience that prevented Dinesh Mota from taking up the case of arrested Mumbai attacker Ajmal Kasab. Not just him, even lawyers who have defended other terror accused in Mumbai feel it would be immoral to defend this case.
"He was caught red handed. There is no doubt about his involvement. In such a case it would be immoral to take it up," Advocate Mubin Solkar says.
The Esplanade Court Bar Association has even gone a step ahead and passed a resolution that none of them will defend Ajmal.
But according to the law, Ajmal has the legal right to defence and hence one of the lawyers in the city will have to take up the case — a prospect many are dreading.
City lawyers say that the Indian Government can help them out of this moral dilemma by using a special provision and declaring Ajmal an alien enemy.
“Once the government declares him an alien enemy then according to Section 22 of the Constitution, he will not have a right to defence," says Advocate Shahid Azmi.
But this step could damage India's image as a fair state and on the other hand, if no lawyer takes up the case, Ajmal might get a chance to get the trial transferred out of Maharashtra. All this would only delay justice to the victims of 26/11.
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