[Originally written in January, 2007]
If this is not a case of the lawyers loosing faith in law, then what it is? I am referring to the incident in the premises of a Ghaziabad court where the prime accused in the Nithari serial killings case, Moninder Singh Pandher and Surendra Koli, were attacked by the lawyers and angry locals, when these two accused persons were produced by the CBI at the court for an extension of their remand and were being escorted by the police to a lock up nearby. It is reported that Moninder Singh Pandher was punched, kicked and pulled by his hair by the enraged crowd which wanted these accused persons to be handed over to the public. Mohinder fainted after he was beaten up.
Dealing with law, day in and day out, who can know better than the lawyers as to what could be possible outcome in such a case? Is it the frustration of the lawyer community with the non-functioning criminal justice system in the country? Or, is it too-much-knowledge about the intricacies of the criminal justice system which gives them a clue about the possible outcome of the case?
Unlike the pre-independence days when the lawyers were at the forefronts of the independence struggle, the society does not look too kindly at the law profession of late, though the culprit – the delays in the legal system – may be due to the sheer insufficiency of the judicial strength. Somehow, many battles fought by lawyers inside and outside the courts for protecting the rights of the people even after the independence, especially during the seventies, have been lost in the high-decibel noise of the legal delays, in the non-functioning criminal justice system or in the misdeeds of a few unscrupulous ones in the lawyers community. ThisGhaziabadincident has again put the lawyers at the head of a public ire, though for very wrong reasons.
Of late, there have been many such incidents when the public has shown its anger against the accused persons. But, the lawyers leading the public in attacking the accused persons, and that too in a matter which did not involve the lawyers directly, is a rare scene. In any case, it is a barometer of public ire against such ghastly acts committed for years in Nithari as well as against the system for having failed to take any action and may be against the system for the possible expected outcome in future.
Though the attack on the accused persons definitely deserves to be condemned whole-heartedly, one should not be too naïve to ignore the message behind this attack to the effect that there is some serious lacuna in the criminal justice system over which even the lawyers are frustrated.
There can be no doubt that every accused should get a fair trial. In fact, just last week, in an article [Of lawyers representing terrorists], while dealing with a controversial statement made by Cully Stimson, deputy assistant secretary of defense for detainee affairs in the U.S. against the major U.S. law firms that have helped represent terrorists / detainees at Guantanamo Bay, I had the occasion to mention that representation of an accused by an advocate is a basic principle of the criminal justice system in India. Article 22 of the Indian Constitution guarantees it as a fundamental right, clause (1) of which declares as under:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” (emphasis is mine.)
In addition, Section 303 of the Criminal Procedure Code, 1973, which deals with the procedures to be followed during criminal trials inIndia, lays down this further statutory right of an accused:
“Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
Therefore, the right of an accused, irrespective of the seriousness of the offence committed by him, to get represented by an advocate of his choice is guaranteed under the Indian laws as a fundamental right under the Constitution as well as a statutory right under the laws relating to criminal trials. In addition, there are a large number of detailed provisions laying down the various rights of an accused and the procedure which have to be followed during a criminal prosecution.
Thus, every accused does have a right to get a fair trial. It is for the competent court to decide about the guilt of the accused. The problem is when will the court(s) decide? After 20 years or after 30 years? And, how fair this trial will be? It is not only the accused person but also the society, which has a stake in a fair and speedy trial.
And, how do you feel when people of criminal background continue as your law-makers and administrators, meanwhile, for several years while they are waiting for that fair trial to be completed? Or that they continue to enjoy the fruits of their misdeeds? What impact will all this have on the people? Frustration?
Is it not a wake-up call then for some serious legal reforms, particularly in the area of the criminal justice system?
