The 2008 Mumbai terror attack convict and Pakistani terrorist Ajmal Kasab Tuesday told the Supreme Court that he was denied fair trial as he was not provided legal assistance during the initial stages as mandated under the Indian constitution.
Once an accused, including a foreigner, is tried for an offence in India the provisions related to arrest as mentioned in the constitution get applied in his case.
“Denial of right to counsel at the earliest stage and denial of right to protection against self-incrimination” together vitiated the trial, amicus curiae (court appointed lawyer) Raju Ramachandra, appearing for Kasab, told the apex court bench of Justice Aftab Alam and Justice C.K. Prasad.
Pointing to procedural lapses, Ramachandran told the court that Kasab was provided lawyer Abbas Kazmi April 16, 2009 and on next day April 17, 2009, he retracted his confessional statement.
“If he would have got the lawyer’s assistance right from the beginning, one wonders if confessional statement would have been made,” Ramachandran told the court.
Ramachandran also contested that Kasab could not be accused of being a part of a larger conspiracy of waging war against the government of India.
He said in the given facts and circumstances of the case he could be accused of murder and terrorist activities.
The court was told that Kasab was taken before a magistrate for the recording of the confessional statement during police custody.
The apex court was told this during the hearing of Kasab’s appeal challenging upholding of his death sentence by the Bombay High court Feb 21, 2011.
The amicus curiae told the court that “confession by Kasab was liable to be eschewed from consideration on account of denial of constitutional consideration”.
Admitting that the magistrate court did ask Kasab if he needed legal assistance of a lawyer and he declined, Ramachandran told the court that it was just fulfilling the requirements of the provisions of the criminal procedure code and not satisfying the constitutional mandate.
The amicus curiae told the court that an accused was not just offered his right but he was informed of the right under the constitution and law.
When the court observed that “you can say it was a formal compliance” of the provisions of the criminal procedure code, Ramachandran said that it was not in accordance with the mandate of the constitution and fell short of it.
“Do you mean that if a person declines the offer of lawyer even then a lawyers has to be imposed on him,” the court said.
The judges inquired “does the law require that the moment a person is taken into custody he is entitled to legal assistance”.
The amicus curiae told the court that Kasab was in police custody from Nov 27, 2008 till February 2009. He was in judicial custody only for three days when he was taken for identification Dec 27-28, 2008 and Jan 14, 2009.
Assailing the conduct of trial, Ramachandran told the court that when Abbas Kazmi was appointed Kasab’s lawyer April 16, 2009, he sought four weeks’ time to go through the charge sheet and other prosecution evidence, running into thousands of pages but he was given just eight days’ time.
The amicus curiae told the court that the trial court took 10 days to arrive at a decision on Kasab’s age.