As a lawyer with practical experience of the working of the Indian police and the Indian criminal trial courts and having, I daresay, dear attachment to processes and principles of justice; I have been concerned for quite some time now with matters of improvement of our criminal justice system and I have been writing on the same for a number of years now as a number of other writings that I have posted on this blog overtime will show.
A few days back, by what chance I don’t know; my Facebook homepage – by way of memories to be shared that it recently has been putting up – was showing a discussion that had taken place on my Facebook page on the subject of Afzal Guru hanging. There, the subject had been gone into in some detail.
Soon thereafter, the JNU incident took place.
Here what I want to touch upon, or rather impress upon, is that purely as a working of law as reflected in the judgements giving out death to Afzal Guru; the said judgements are indeed gravely flawed. I am reproducing below the discussion, above referred to, on my Facebook page which goes into detail in pointing out the grave flaws in the judgements giving out death to Afzal Guru and if to that extent, the hanging of Afzal Guru was criticised at the JNU event; the same would not be radical as is being tried to show by some quarters through sustained propaganda.
Personally, I don’t want to say more about the JNU event except to say that if indeed slogans in support of Pakistan and against India were raised in the same event at JNU; then I would be quite interested in a thorough investigation by impartial quarters to find out the IDENTITY & THE POLITICAL ANTECEDENTS of the persons who ACTUALLY raised the slogans.
Anyway, coming back to the main subject of the quality of judgements handing out death to Afzal Guru; the discussion referred to above is reproduced from the point of view of bringing about improvements in the workings of our criminal justice system so that justice is evenly and adequately available to all without discrimination. For who knows, some day we may find ourselves accused in some criminal charges and wouldn’t we then seriously wish our criminal justice system to be fair and efficient ?
THE FACEBOOK DISCUSSION, REFERRED TO, REPRODUCED HERE.
Am not always abreast of the news. So it was with some time lag that I read of the hanging of Afzal Guru. More out of professional interest rather than anything else; I read the High Court judgement upholding his conviction and that of the Supreme Court confirming the same. The link to the High Court judgement is below. It’s a long judgement but well worth reading to those interested.
The police claimed to have obtained a number of telephone numbers from papers recovered from the bodies of the dead terrorists. It was on the basis of these numbers that Afzal Guru and others were claimed by the police to have been traced and arrested. Confessions from the accused were recorded by the police. These confessions played an important part in coming to a finding of guilt.
Would the slain terrorists carry papers in their pockets bearing telephone numbers of their fellow conspirators while carrying out the attack ? Not impossible.
The investigating police team was led by ACP Rajbir Singh. Some details on him in the link in the comment below.
1. Every criminal trial is a voyage of discovery in which truth is the quest. The journey, in the present case, has been navigated by the Designated Judge of the Special Court constituted under Section 23 of the Prevention of Terrorists Activities Act, 2002 (hereinafter referred to as POTA). In the…
Sanjay Kumar Singh The very origin of the prosecution case was the claim of the police to have recovered papers from the pockets of the bodies of the dead terrorists carrying telephone numbers from which the police claimed to have traced and arrested Afzal Guru and the other accused. Would terrorists carry papers listing telephone numbers of their fellow conspirators in their pockets while carrying out the attack? Possible, but quite improbable.
There were a number of other seriously suspect areas in the prosecution version based on police investigations carried out by a team led by ACP Rajbir Singh (“encounter specialist” and a highly controversial officer who was, a couple of years back, murdered in strange circumstances). So this was a case where an effective cross-examination of the prosecution version was a must. However, the amicus curie supposed to carry out the defence of Afzal Guru did not cross examine as many as nearly 56 witnesses out of a total of about 80 witnesses. And, where the amicus curie did undertake cross-examination of the remaining witnesses; he did it in a most scanty and perfunctory manner.
The Supreme Court ultimately upheld the death sentence of Afzal Guru primarily by;
(1) “relying” on the thorough lack of cross-examination of prosecution version/witnesses;
(2) giving benefit of doubt to the prosecution version rather than to the accused!
Not something new. Kehar Singh had suffered in the same manner.
Sanjay Kumar Singh Here’s an instance of how the Supreme Court “relied” on thorough lack of cross examination on behalf of Afzal Guru in the trial court & also gave benefit of doubt to the prosecution instead of the accused. This you would not find in any news channel…..smile emoticon
Prevention of Terrorism Act (POTA) contains compulsory safeguards to be followed in investigating charges under this act. If these safeguards are not complied with; the entire trial would be vitiated having regard to the draconian nature otherwise of POTA. Counsel for the defence in the Supreme Court (SC) [including Jethmalani & Shanti Bhushan, who had between them, done an able job] had argued that the original FIR had included POTA provisions; but the compulsory safeguards under POTA had not been followed. So, what the prosecution/police had done – to save their case – was to unlawfully delete the POTA provisions from the original FIR & to add it later only when “compliance” with the safeguards under POTA had been undertaken. Faced with this argument, this is what SC said.
“(ii) Incidentally, another question raised is whether there was manipulation of FIR by not showing the POTA offences though in fact POTA was resorted to by that date. In regard to the latter aspect, the learned counsel for the accused has drawn our attention to the letter of AIRTEL (Cell phone service provider) addressed to the I.O._M.C. Sharma (PW66). In that letter (Ext.PW35/1), while giving the reference to the FIR dated 13.12.2001, the offences under various Sections of POTO were mentioned in addition to other offences. From this, an inference is sought to be drawn that the FIR was tampered with by deleting reference to POTO Sections so as to make it appear that on the 13th & 14th December when the interceptions took place, the investigation was not extended to POTO offences. We find it difficult to accept this contention. We find no basis for the comment that the FIR would have been manipulated by deleting the POTO offences. No such suggestion was ever put to the police officials concerned, namely, PWs 1, 9 & 14 connected with the registration of FIR and they were not even cross-examined. The original FIR register was produced by PW14. The trial Court perused the same while recording the depositions and returned it. In fact, this contention about the manipulation of FIR was not even raised in the trial Court. The High Court rightly found no substance in this contention. As regards the letter of AIRTEL, no question was put to PW35-the Security Manager of AIRTEL as to the basis on which the reference was given to the FIR mentioning various POTO offences. When the question was raised for the first time before the High Court, the High Court perused the case diaries and found that the addressee of the letter (Inspector M.C. Sharma) had sent up a written request on 25.12.2001 to furnish the requisite information to him. By that time, the POTO provisions were invoked. According to the High Court, there was every possibility that in that letter of 25.12.2001, the POTO provisions were mentioned and based on that, the same would have been noted in the AIRTEL’s letter. The High Court also observed that the possibility of the date 17th being a mistake cannot be ruled out. Irrespective of the question whether the High Court was justified in observing that the date 17th noted in (Ext. PW35/1) could be a mistake, we do not consider it necessary to delve further into this aspect, in view of the fact that none of the witnesses pertaining to FIR were cross examined. By reason of the purported description of FIR given in the letter of AIRTEL (Ext.PW35/1) alone, we cannot reach the conclusion that POTO offences entered initially in the FIR were deleted for extraneous reasons. It is pertinent to note that the letters addressed by the Essar Cell phone provider (vide Exts.36/6 and 36/7, dated 13th and 18th December) do not contain any reference to POTO.”
Notice the total reliance by SC on lack of cross examination on behalf of Afzal Guru (AG) in trial court in this connection. Notice also the benefit of doubt given by SC to prosecution by speculating, as the High Court had, that the letter by AIRTEL might be in reply to police’s letter of 25/12 & not any earlier police letter (FIR had been registered on 13/12 itself & investigation had commenced on the same day and AIRTEL’s reply letter had specifically referred to FIR dated 13/12 and POTA provisions mentioned in it) Even otherwise, it would be natural to mention POTA provisions at the outset in the original FIR dated 13/12 as the attack on the Parliament was clearly a terrorist attack & act. In fact the High Court had given so much benefit of doubt to the prosecution, as may be noticed, by stating that the date of reply letter of AIRTEL looked to be a typographical error!!
Sujata Suri I have serious issues with the ‘collective conscience’ of our judiciary – especially those who feel strongly that Afzal did not get a fair trial. What stopped any of them from representing him? The Trial Court offered him the option that was available to them at that point in time – only because all the other six shortlisted by Afzal refused to represent him.
Also, the lady representing him earlier was hired by SAR Geelani – the ‘expert’ on NDTV and Afzal’s co-accuser who also insists that Afzal didn’t get a fair trial. Isn’t that ironical?
Sanjay Kumar Singh There are different takes on “non availability” of counsels to represent Afzal Guru (AG) in the trial court. I shall post just one link on the subject matter – i.e. the notings of the counsel who represented AG in High Court. That said; may I suggest that you are not viewing the issue properly…..smile emoticon
There are two things here.
First:- The court is not absolved of its duty in any circumstances. Particularly where the accused is MERELY having an amicus curie appointed by the court; the duty of the court is all the more onerous & this duty is that the court shall always judge strictly – irrespective of what the counsel for the two sides may have submitted or not submitted – the quality/reliability of evidence. As pointed out in one of my comments above; what to judge the quality/reliability of evidence – & the issue of quality/reliability of evidence remains, as is evident even otherwise by common sense, even in any absence of cross examination on the evidence concerned; the courts from bottom to top, to the contrary, gave benefit of doubt to the prosecution/police case rather than to the accused !
The second & the foremost aspect: – Leading counsels had come to represent AG from High Court onwards; meaning thereby that any question of “non availability” of counsels was foreclosed from this point of time onwards. The least that the High Court or the Supreme Court could have done – given that the amicus curie had not cross examined as many as 56 out of 80 witnesses & had cross examined the rest in a perfunctory manner – was to have remanded the case for a fresh trial. Please bear in mind that the law requires strictest duty on part of the Superior courts in hearing death references, including covering every aspect of trial court proceedings in the strictest sense. This strictest duty was flouted.
Sanjay Kumar Singh The issue here is of fair trial & fair investigations. It’s not stating any gospel truth to state that the ways of Indian Police are such that the very thought of ever having to visit any Indian Police Thana is oppressive & depressive in the utmost for the ordinary Indian citizen. And again; for the ordinary Indian citizen, experience of Indian criminal courts is nightmarish. It takes a high profile case such as the present one to particularly bring home the point. Even the High Court & Supreme Court judgements were constrained to record the brazen flouting of law on part of the police – Supreme Court setting aside the confessions on grounds of non-compliance with mandatory provisions of POTA & High Court passing strictures on the pre-trial “confessional” broadcast of the accused arranged by the Police. Its another thing that the Superior Courts, sadly, couldn’t save the script by ordering a fresh trial.
The heart of the issue here is the rottenness of the Indian Criminal Justice system; brought home, yet again & again…….frown emoticon
Sujata Suri Still some clarity required. Nandita Haksar says ” He did not get a lawyer because he was too poor to pay the fees for a lawyer, and even those who he named refused to represent him (including a well-known human rights lawyer). The lawyer foisted on him by the Sessions Judge did not want to represent Afzal. The Order of the Sessions Judge, dated July 7, 2002, states: “Mr Neeraj Bansal has requested for withdrawal from this case, but he is requested to assist the court during trial.” This shows Mr Bansal was an amicus curiae, not a defence lawyer.”
My question – What stopped her from representing him, for instance?
Sujata Suri Also, “Every Indian citizen should read the annexure to Afzal’s mercy petition, reproduced in the curative petition filed by Indira Jaisingh. The chart lists the 80 witnesses produced by the prosecution and shows that the lawyer appointed by the Sessions Court for Afzal did not cross- examine 56 of those witnesses, even the most crucial ones. And even those who were cross- examined were done most inadequately, sometimes by merely giving one suggestion.”
She, like many such lawyers following the case, were fully aware of this ‘shortcoming’ – so why wasn’t a pettition filed to correct it when the matter was presented in the High Court – why wait for the verdict to be declared and then file a mercy pettition?
Sujata Suri Sanjay – These are the 2 questions that have been going on in my mind. Why are they crying hoarse after it is too late? Why didn’t they intervene earlier? After all, 3 others had been acquitted too. Is this the normal process that determines how Justice is delivered in our country?
Sanjay Kumar Singh Isn’t this side-tracking the issue ? Why get into what writers/activists voicing protests themselves did or didn’t do? Even sharaabis lying dead drunk in gutter have rights to caution others against sharaab……:)
Once it was apparent that he was not really represented in the trial court & given that there had been no cross examination on his behalf in the trial court on a number of important areas which were suspect on the face of it such as, for instance, claim of the police to have recovered papers from the pockets of dead terrorists carrying the list of telephone numbers of their fellow conspirators; a retrial, at the bare least, should definitely have been ordered by the High Court in hearing the death reference. (Sentencing of death by sessions court has to be compulsorily heard by the high court in careful details as a death reference. The aspect of non-representation of AG was a singular issue before the High Court; so no mercy petition was required at that stage. In the High Court, he was adequately represented)
Sujata Suri If he had been adequately represented in the High Court does that imply that that a retrial was an obvious necessity which had been overlooked for some reason? Couldn’t anybody else highlight that deficiency and ensure that the right process is followed?
(It may be a dumb question. However, I am extremely concerned about how the judiciary functions in our country.)
Sanjay Kumar Singh A number of lawyers, including Jethmalani, had come to defend the accused (though AG was represented by another lawyer in the High Court) from High court onwards. So “non-availability” of lawyers, once the matter reached High Court, at least was no longer a matter of dispute. At the bare least [refer to my comments above if you haven’t as it seems…..:)]; matter was required to be remanded for retrial by the High Court.
The “confession” that you are referring to was televised from the Special Branch cell prior to trial. Supreme Court set aside this confession on the grounds of non-compliance with mandatory safeguards against torture/duress/coercion under POTA [AG otherwise had maintained that Rajbir Singh, known “encounter specialist” had threatened to have his wife & infant son – held in Kashmir by STF – killed if he didn’t co-operate with the “confessional thing”].
PS: High Court had also passed strictures against the police in no uncertain terms for this “confessional” stunt.
Sanjay Kumar Singh Aur kuchh hamare Police ko aata ho yaa nahin; lekin bina mai baap ke aadmi ko “confess” karana unko aata hai (which AG was, in light of allegations against him, when arrested) Agar waise “confessions” are so important; then why waste time on court trials ? Chhara do suli par “police confessions” ke baad….smile emoticon
Sujata Suri Hmmm…. Good to know the HC rejected the “confession”. Why was a retrial not sought at the high court level? Where were all these activists then?
(Please pardon my wrong use of technical legal terms w.r.t appeals/ pettitions etc as long as you understand my question) tongue emoticon