Remember December 13?

Someone planned December 12, someone executed it, someone helped them get to within chilling distance of achieving a shock strike much more portentous than it eventually was.

Someone needs to be brought to justice.

But the chief alleged perpetrators of the crime are not even available to the law. Of the 12 accused, five 8212; the ones that launched the raid on Parliament 8212; are dead. Three are beyond reach, taunting proceedings from safe havens in Pakistan 8212; Maulana Masood Azhar, Ghazi Baba alias Abu Jehadi and Tariq Ahmed. The ones arrested and put in the dock are charged with conspiracy 8212; Mohammed Afzal, Shaukat Hussain Guru, his wife Afshan Guru and Professor S A R Geelani, a teacher of Arabic at Delhi8217;s Zakir Hussain College. All of them were arrested within 24 hours of December 12 and all, bar Geelani, made confessional statements under custody, which they now want to recant. In the absence of the eight chief accused, these four now symbolise the forces that effected December 12. They now must take the consequences that follow.

But should they? The defence has a question. The defence in this case is battling against the energies of a state that has been pro-active in picking its enemies and nailing them, a law that it feels is a gag on the rule of law, and, above all, a pervasive consciousness that has prejudged the case in question. K G Kannabiran and his fellow counsels on the defence bench 8212; Nitya Ramakrishnan and Sima Gulati 8212; have opted to disagree and they have questions. Not about the whys and wherefores of December 12 but on who the state is punishing and how.

8216;8216;My defence in this case is in no way a defence of what happened in Parliament,8217;8217; Kannabiran says. 8216;8216;That is condemnable and the guilty must be punished. But who are they and how are we going to punish them? We live in civil society, these questions must be asked.8217;8217; He wears double-decked floaters on his feet, silken gowns on his shoulders and, most often in court, a helpless incredulity on his face. What does a lawyer do when the law is not an instrument he fights with but an instrument to fight against?

But then, Kannabiran and his benchmates are used to uphill battles. Kannabiran is chairman of the People8217;s Union of Civil Liberties and has led many a battle for those he thought wrongly implicated. Gulati has made her reputation skirmishing with the state in TADA matters. Ramakrishnan has set herself up as a defender of lost causes. They agree this is going to be a grind at the end of which they will probably end up losers but they are convinced it is necessary to raise the questions; the implications are far wider than the case at hand.

Ramakrishnan and Gulati are clear they are fighting the case for more than the classical defence reasons: that everybody is innocent till proven guilty, that everybody has a right to a fair trial. 8216;8216;This is about safeguards for society at large,8217;8217; says Ramakrishnan. 8216;8216;This is about ensuring the state itself doesn8217;t become lawless, that it is kept under watch and plays by the rules of the game, even though we think those rules themselves are flawed.8217;8217;

The defence has argued, for instance, that the Delhi Police did not secure proper authorisation, even under POTA provisions, before intercepting cellphone exchanges of the accused. 8216;8216;Even a law like POTA has provisions and one of them states that a competent authority must sanction interception for it to be made admissible as evidence. This was not done and yet the court overruled our objections,8217;8217; Ramakrishnan says. The defence has had to go to the Delhi High Court in appeal.

The defence has more basic worries, which will come into play as the trial proceeds. A key provision of POTA, for instance, is that confessions made under police custody are admissible as evidence. Several of the accused want to retract statements they made to the police 8212; as is often the case when matters move from lock-ups to courtrooms 8212; but in this case, the prosecution might be able to press those confessions given POTA.

8216;8216;Here is a clear case for a fresh law,8217;8217; says Gulati. 8216;8216;You force confessions, you leak them to the media, you hold a media trial before a legal trial has begun and then you bring that entire bias into play against the accused. This is extremely dangerous and there has to be a law against this, against media trials.8217;8217;

She is particularly troubled by the manner in which the police exposed Mohammed Afzal, said to be Jaish-e-Mohammed8217;s point man in Delhi, to the electronic and print media soon after his arrest and sealed public opinion on the matter. 8216;8216;And if, at all, you are going to hold Afzal to his original confession, you must also agree with him when he says the other three, namely Geelani and Shaukat and his wife, are not involved in the conspiracy. You cannot pick and choose what is convenient.8217;8217;