In the weeks following the 26/11 attacks, there was a debate in the media on whether Kasab deserves a trial. Much of the debate was largely inconsequential, since the Indian Constitution is based on rule of law and it guarantees a fair trial, irrespective of the crime or the nationality of the criminal. This is a core principle of constitutional democracy and a proud Indian tradition. Thus, as legally mandated, the judicial process soon swung into action, and Kasab’s trial got underway. When the chargesheet in the case was filed, Kasab’s request for an Urdu translation of the 11,000 page document was denied. The prosecutor argued that there is no such express legal right and that the Magistrate ruled accordingly. This decision raises two important issues – First, does Kasab have a legal right to a translated chargesheet? Secondly, what impact will this ruling have on the successful prosecution of the 26/11 conspirators?
The law states that the Magistrate must mandatorily provide the accused with a copy of the chargesheet, as well as other documents that the prosecution proposes to rely on. The law does not state whether these documents ought to be in a language that the accused can understand. However, it is evident that the rationale behind the law is to ensure that the accused is able to understand what he is being charged for and why; and the facts on which the prosecution seeks to rely, essentially to give the accused a fair opportunity to defend himself. Therefore, this rule is an important component of fair trial principles. Making a narrow argument, that literally speaking, the Cr.P.C does not require translations of the chargesheet to be provided to the accused, defeats the very purpose behind the law.
This is however, not only a matter of complying with constitutional principles, but also might have important practical repercussions on bringing other 26/11 perpetrators to book. With the Government itself recognizing that this conspiracy extends beyond its borders, it is foreseeable that India might seek extradition of these conspirators from other countries. It is essential to understand that a country cannot seek extradition as a matter of right, but has to convince the foreign court that extradition should be granted. In deciding whether to extradite, courts consider whether the person extradited will get a fair trial in the country to which he is being extradited. Extradition can be refused on this ground.
India got a taste of this in the Gulshan Kumar murder case, when it sought Nadeem’s extradition. One of the accused in this case, made a confession in Hindi implicating Nadeem. The Magistrate recorded the confession in English, ensured the confessor understood it, and then made him sign the document. On this basis, the Indian government argued before a U.K. court that there was enough evidence against Nadeem, and that he ought to be extradited to India to stand trial. Nadeem argued that since the confessor did not know English, he could not have understood the contents of the confession. There were also arguments made about the fairness of the Indian criminal justice system. India argued that since most Indian Magistrates are bi/multi-lingual, it is a common practice to hear statements in one language and record it in another after explaining the contents to the accused.
The U.K. court did not accept this argument, ruling a certified translator ought to have been used, because the matter involved core principles of fairness. It held that since these principles of fairness had been violated, the confession could not be considered by it. Consequently, there was not enough evidence to show that Nadeem was involved in the crime and hence, India’s extradition request was rejected. This case goes to show that if fair trial procedures are not followed both in letter and in spirit, the prosecution might win the battle, but ultimately lose the war! The bigger question though is why are we fighting this particular battle over translations at all? What has the prosecution really gained by denying a translated chargesheet to Kasab? What might it lose? Will this decision come back to haunt the prosecution?
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