In
Defence Of Afzal
By Colin Gonsalves
21 October, 2006
Countercurrents.org
When I was brought in to defend
Afzal Guru in the High Court and I studied the trial court proceedings,
it was clear that apart from the appreciation of evidence, his case
rested on two gross infirmities. The first was trial by media, which
rendered the doing of justice to Afzal impossible, and the second was
that the trial court denied him a lawyer.
Media Trial
Afzal was handcuffed in the
office of the Special Cell and before his trial could begin and the
police called in the media to broadcast a nationwide 'confession' on
primetime television. Such a 'confession', though inadmissible in evidence
had a huge impact in the country and a fair trial thereafter became
nigh impossible.
Prior to making such statements,
Afzal was not informed that he could consult a lawyer nor was he permitted
to do so. He had a right to a lawyer from the moment of arrest. Any
lawyer would have advised his client not to speak to the media. As a
result of this trial by media, I argued that both the trial court and
the Amicus had been biased. Bias is insidious. The subconscious is affected.
Trial by media is the anti-thesis of the rule of law and makes a fair
trial impossible. ACP Rajbir Singh in the testimony stated, "I
allowed media to interview accused Afzal in my office under the consent
of my senior officer, namely DCP."
The High Court dealt with
these arguments in detail setting out not only the Indian decisions
cited by me but also the judgements of the European Court of Human Rights
and also the US Supreme Court.
Though my arguments for a
retrial were rejected, the High Court observed, "It has indeed
become a disturbing feature that the accused persons are brazenly paraded
before the press and are exposed to public glare in cases where test
identification parade arise, weakening the impact of identification.
What is fundamentally disturbing is the fact that custody is given by
the Court. This custody is not to be misused."
Legal Aid
Afzal was not given a lawyer
in the trial court. He wrote to the judge saying that he needed a competent
senior advocate and suggested four names. The judge enquired from two
of the advocates present in court, who declined, and did not pursue
the enquiry any further. He then appointed a lawyer for Afzal. When
Afzal empathically said that he did not want this lawyer to represent
him and the lawyer himself informed the court that he wished to withdraw,
the court appointed the lawyer to assist the court. Assisting the court
is one matter. A defence lawyer for the accused is another. Afzal's
trial then proceeded without a defence lawyer.
Since he had no defence lawyer,
many prosecution witnesses testifying directly against Afzal were discharged
without effective and competent cross-examination. No cross-examination
was conducted of many witnesses regarding recoveries, including of the
mobile phones and sim cards said to be implicating Afzal. No cross-examination
was done of prosecution testimony showing Afzal allegedly identifying
the dead terrorists. No cross-examination was done on seizure memos
and alleged renting of rooms in Delhi. No cross-examination was done
on the manner of the identification of the accused, alleged purchases
of chemicals or the pointing out memos. The cross examination in respect
of Afzal's arrest at Srinagar was done contrary to Afzal's case. On
several dates presence of the advocate is not recorded. On some dates
opportunity to examine the witness is not recorded. Critical questions
regarding the media interview and the recording of the confession were
not put to the investigating officer. As a result counsel did not consult
with defendant Afzal on critical aspects of the trial, made no objections
as to inadmissible evidence, made cursory closing arguments, did not
make written submissions, presented no case law and often did only a
formal cross examination.
It is inexplicable why the
trial court insisted on the advocate continuing with the case once the
accused had emphatically said that he did not want to be represented
by him. It is unfair both to the accused as well as to the lawyer. No
lawyer should be compelled to proceed with a trial, especially in a
capital case, against his wishes.
The final arguments on behalf
of Afzal in the High Court covers the illegality of the written confession,
the illegal way in which the accused was identified by the prosecution
witnesses, the non sealing of crucial evidence, the failure of the prosecution
to call material witnesses, that testimony about the mobile phones and
sim cards was fabricated and unreliable, that Afzal's fingerprints do
not appear on a computer said to be recovered from him and so on.
Death Penalty
The Constitution permits
the sentence of death provided there is a law to that effect. This law
is to be found in 354 (5) of the Cr.P.C. which permits life to be taken
but only by hanging. If this section is struck down by any court as
constituting 'cruel, inhuman or degrading treatment', then there will
be no law by which life can be taken and consequently the sentence of
death cannot be imposed. The argument that 354 (5) Cr.P.C was unconstitutional
was made several years ago in Bachan Singh's case and rejected on the
basis that there was no medical evidence then to show that death by
hanging was cruel, inhuman and degrading. The challenge to this section
was again pleaded in Afzal's case with a view to having the section
declared null and void so that if there is no law allowing for the death
sentence, the sentence of death cannot be executed. The striking down
of death by hanging and the consequent result of commutation to life
has happened in several US states and in other countries as well. No
argument was made that a new section ought to be introduced. As long
as a statute enabling the taking of life does not exist subsequent to
a court pronouncement declaring it void, the result is that even a person
sentenced to death cannot be executed.
No argument was made in Afzal's
case that he be given the lethal injection. There is no reference to
this in the 250 page final arguments. There is no reference to this
in the High Court order. I cannot understand why persons who showed
no interest in Afzal's fate over all these years of trial and appeal,
have, at this critical stage, chosen to spread the canard that I asked
for his death by lethal injection. It distracts from the presentation
that must be made before the President and does disservice to Afzal.
Clemency / Commutation
Afzal's case before the President
must be made on the basis of truth. It needs no embellishments. It certainly
needs no falsehoods. The record of the trial court shows undoubtedly
that he did not receive a fair trial. The arguments before the President
should proceed on the basis of the evidence on record that would shock
anyone's conscience.
Colin Gonsalves
is a Senior Advocate, Supreme Court of India
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