December 19, 2008	Friday	Zilhaj 20, 1429

MUMBAI, Dec 18: India could be in breach of international law if the surviving Mumbai attacker is refused legal representation, a human rights group said, amid strong public calls for harsh retribution.

Mohammad Ajmal Amir Kasab is being questioned by police about last month’s attacks, which killed 172 people, including nine gunmen, and provoked worldwide outrage.

But with feelings still running high after the 60-hour assault on India’s financial and entertainment capital, the Mumbai Metropolitan Magistrate Court’s Bar Association has resolved not to represent the 21-year-old said to be a Pakistani.

Others who say they would represent him have been publicly condemned as unpatriotic and some advocates’ homes have been ransacked.

The Hindu extremist Shiv Sena party has called for Kasab to be executed without trial outside Mumbai’s main railway station, where scores of people were killed when he opened fire indiscriminately on November 26.

Rights groups say that if no lawyer comes forward, Kasab — who faces a potential death sentence if convicted — will be denied a fair trial, putting the world’s biggest democracy in breach of domestic and international law.

“Everybody has a right to be represented” during questioning and at trial, said Meenakshi Ganguly, from Human Rights Watch in Mumbai.

“The presumption of innocence and the right to representation is the most basic of human rights,” she told AFP.

The 1948 Universal Declaration of Human Rights, which India ratified, enshrines the presumption of innocence until proven guilty in a court of law at which the defendant “has had all the guarantees necessary for his defence.” India’s own constitution also provides for the right to legal aid and representation, as well as a “fair, just and equitable procedure” in court for any defendant, regardless of whether they are a foreign national.

Chief justice K. G. Balakrishnan and the advocate appointed as state prosecutor for the trial, Ujwal Nikam, both said Kasab should be given a defence lawyer.

“(He) should be represented and our law provides that facility to him,” Nikam told AFP.

But the honorary secretary of the Bombay Bar Association, M. P. Rao, said the unprecedented nature of the attacks — blamed on the Lashkar-e-Taiba — meant normal rules should not apply.

“He (Kasab) has waged war on the country. If he’s waged war, the basic requirement of giving him a fair trial doesn’t really become justified,” he told AFP, reflecting a widely-held public view.

“The majority of our bar members are of the view that he could be tried without anybody representing him on the basis of circumstantial evidence that’s available.” A foreign lawyer could represent Kasab, possibly a Pakistani, as there was “unchallengeable proof” he came from India’s neighbour and rival, Rao said.

“I don’t think we have to sit by convention and the rigours of law,” he said when asked whether India was duty-bound to uphold the rule of law in such circumstances.

Ganguly said the lawyers’ position — a rerun of the reaction after the 2006 Mumbai train bombings — was “completely wrong”, not least because it would provide an automatic ground for appeal to the Supreme Court.

Mohammad Afzal, a Kashmiri militant sentenced to death after being found guilty of a 2001 attack on India’s parliament, has cited denial of proper legal aid in his bid to quash the conviction.—AFP