Trial hangs in balance as lawyers shy away from defending Kasab

MUMBAI: Arrested Pakistani terrorist Mohammed Ajmal Kasab has two choices : defend himself or opt for a lawyer. Though Dinesh Mota, the lawyer chosen in advance from the state���s legal aid committee refused to appear for his remand hearing, many say the very appointment of Mota perhaps indicates Kasab may have asked for a defence counsel.

The question now is will anyone else agree to be his defence lawyer, and more importantly, can the trial begin begin in the absence of one or will it be vitiated?

The law clearly says every accused has the right to be defended by a lawyer of his choice. In the absence of a defence lawyer or if the accused can���t afford one, the state is duty bound to provide him with free legal aid, even if the accused is a foreigner.

Advocate Amit Desai said, ���If an accused or litigant wants to defend himself, he can.������ Adhik Shirodkar, senior counsel added, ���A lawyer has the right to refuse a brief (a case). If a legal aid lawyer refuses to appear for Kasab, no one can force him to. He will have to defend himself.������

The Supreme Court in Husainara Khatoon���s case, 1969, held the state must provide free legal aid to an indigent accused. And early this year the Bombay high court in a landmark judgment quashed the conviction and set free a murder accused on the grounds that he faced a criminal trial with no defence lawyer, not even one from the state���s legal aid panel. The court said, ���The trial court must ensure an accused who is unrepresented is provided with free legal aid so that basic principles of natural justice are upheld.������

Lawyers differ on whether a defence counsel is a must for Kasab. Shirodkar said if no one is willing, the trial can proceed but others say the state would have to appoint someone. Crime counsel Nitin Pradhan said, ���else any such trial will be unconstitutional.������ Anand Grover too said trial without a lawyer could be unconstitutional if the accused wants a lawyer.

On Mota, lawyers say the State Bar Council can initiate action if a complaint is lodged. His licence doesn���t have to be revoked, a mere warning could be issued.