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Saturday, November 28, 2020

Kasab and fair trial

Courage is not a prevalent virtue in our legal fraternity save some honourable exceptions.

Written by Soli J. Sorabjee | April 12, 2009 1:17:22 am

Courage is not a prevalent virtue in our legal fraternity save some honourable exceptions. This was evident during the spurious June 1975 Emergency when many lawyers were scared to appear for the victims of Emergency and invented ingenious excuses for their refusal. Recourse to violent strikes by lawyers,burning down a police station situated in the High Court and battling with the police are not commendable acts of courage. These are condemnable onslaughts on our legal system and judicial institutions. Regrettably,senior lawyers do not resolutely oppose these unruly elements because they are afraid of their personal safety.

In this context and despite the intimidation and violence unleashed at her home by goons masquerading as patriots,the decision of Anjali Waghmare as a lawyer appointed by the legal aid panel to defend the terrorist Kasab is truly courageous and commendable. It is in the best tradition of the Bar epitomised by the great Thomas Erskine in England and Clarence Darrow in the US,namely not to deny legal representation to unpopular persons accused of heinous crimes. It is not realised that Kasab’s likely conviction based on overwhelming evidence may yet become vulnerable and flawed if he is denied a fair trial—one of whose essential components is adequate legal representation. Moreover,India’s requests for extradition of Dawood Ibrahim and other criminals who have found hospitable sanctuary in Pakistan may well be declined on the ground that the extradited person will not have a fair trial in our country and Kasab’s case can be cited as a telling instance. The deep anger against Kasab is certainly understandable. However,let us not convert our country,which has an impartial judicial system and an independent legal profession,into a banana republic by denying a fair trial to the despicable Kasab. It would be indeed ironic if he has the last laugh.

Broken marriages and divorce

The basis of a happy marriage is affection,mutual trust and understanding. When that disappears,nothing but a shell of marriage is left. Is there any point or purpose in keeping two persons tied by the matrimonial bond when they cannot live harmoniously? Should the law not provide for dissolution of marriage in that situation on the ground of irretrievable breakdown of marriage?

Squabbles,taunts and heated reproaches by one spouse against the other by themselves cannot lead to an inference of irretrievable breakdown in our country,unlike in the US and in certain European countries,where short-term marriages followed by prompt divorces are common and accepted occurrences. The critical question is whether the matrimonial bond is broken beyond repair and it would be a cruelty and injurious to the health of either spouse to live under such a state of affairs,in which case the court may relieve one of the parties “from the shackles and chains of a broken marriage”. Incidentally,divorce by mutual consent is different from divorce on the ground of irretrievable breakdown of marriage.

There are divergent judicial dicta on this subject. In some judgements of the Supreme Court irretrievable breakdown of marriage has been accepted as a valid ground for grant of divorce. However a bench of the Supreme Court consisting of Justices Markandey Katju and VS Sirpurkar ruled that in the absence of a specific provision in the Hindu Marriage Act a court cannot grant a divorce on that ground and it is for the Parliament to enact or amend the law and it is not for the courts to legislate. The reasoning of the bench,clearly influenced by the doctrine of separation of powers,is not without force.

The Law Commission headed Justice Lakshmanan,former Supreme Court judge,has recently made a recommendation for inclusion of “irretrievable breakdown of marriage” as an additional ground for grant of divorce. It is hoped that this salutary recommendation is accepted promptly without prolonging the agony of the unhappy couple and without waiting for the unpredictable outcome of the elections and without raising the bogey of breach of Electoral Code of Conduct.

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