Of Cabbages and Kings

December 28, 2008

Why defend a terrorist

Filed under: Law — Tags: , , , , , , — Chinmayi @ 12:59 am

The reasoning is similar to why a murderer is entitled to a defence lawyer. With people using brute force to try and prevent defence lawyers from representing the captured Kasab, the issue looms its head again. And again, I offer you borrowed words:

” So important is the right of an accused to have the services of a lawyer that the Constitution-makers were not satisfied with the rights created by the successive Codes of Criminal Procedure. The Constitution-makers introduced it in the chapter on Fundamental Rights so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and be defended by a legal practitioner of his choice…A lawyer worthy of his robes has no option in such a situation…

‘From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay, he assumes it before the hour of judgement; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all assumptions, and which commands the very Judge to be his Counsel’ [Quoting Erskine]”

From Witch? Yes. Hunt? No by Ram Jethmalani

December 27, 2008

Confessions

Filed under: Across the Universe, Law — Tags: , , , , , — Chinmayi @ 1:24 am

The better half and I were discussing the non-exclusiveness of our profession recently. People leave doctors to medicine, researchers to biotechnology and engineers to electronics but everybody has an opinion on the law. While this is certainly a desirable tendency in a democracy, the opinions come shaded, colour-coded almost, according to how informed the opiner is. And this applies to both lawyers and “lay-people” (the nasty patronising epithet that lawyers are taught to use for non-lawyers in law schools so they can feel a little more special) – a badly informed lawyer will come up with exactly the same kind of silly nonsense as anybody else…which does the beg the question of what the lot of us spend all our time studying but I’m going to swerve around that little issue today and move on to my pitch for the day.

One very popular demand in post-attack-on-Mumbai India is for admission of confessions as evidence. A confession is not admissable as evidence in India* and everybody is upset that although the media has tried and convicted the sole captured terrorist avaliable after the attacks, and his confession has been publicised, the confession cannot be submitted to the judiciary. A grand and colourful contradiction is emerging as a result – on one hand, everybody is grumbling about the ineptness of our investigation agencies and on the other is encouraging this ineptness by insisting that they should be permit to toture so-called confessions out of random people and admit these documents as evidence in courts in lieu of doing the spade work to come up with anything else at all that points towards the guilt of the accused. While I always thought the non-admissability of confessions as an important safeguard against abuse of the criminal justice system, I did not know of its history until I read ‘Under pain of death‘.

That people are thinking about the law is an encouraging sign for the democracy. That they are thinking of it in the silly dramatic and superficial way that the media encourages – that your opinion matters but you needn’t trouble to work enough to make it an educated opinion – is not. In the spirit of encouranging opinions – educated opinion – I offer you ‘Under pain of death‘ as something to mull over before leaping into the Confessions As Evidence debate.

*except for parts pertaining to physical evidence that was discovered as a result of the confession. So if a confession mentions the location of the murder weapon, and the weapon is found at that location, that part of the confession would be admissable, but a confession that simply admits to the murder would not count for anything.

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