If the proceedings of the Trial of Afzal and
three others before the Designated Judge under
POTA were to be video-graphed one would have
understood the trivialization of Rule of law in
this country.
The case itself was a highly publicized affair,
the Investigation parading the accused before the
print and electronic media in what can be
described as a trial before committal stage; the
screaming headlines and the news reporting in
both the media prevents any disinterested
endeavour to understand the case and assess the
evidence for and against the accused. The media
attention the case received foreclosed any
possibility of a just conduct of the case, and in
such a case conformity to procedure is the only
visible guarantee of justice.
The attack on the parliament generated such
hostility all around that nobody was willing to
appear for the accused in the first instance
Advocate Alam was appointed as Amicus, who is a
practitioner in the courts in Patiala House and
the proceedings date 10/1/01 show that the said
counsel was to be informed. Obviously he did not
respond. Ms Seema Gulati, a regular experienced
lawyer appearing in criminal courts was appointed
as Amicus. Afzal requested for the discharge of
Seema Gulati as Amicus. On a written application
she states that she has neither taken her
instruction nor had discussed the case with the
accused Afzal. She also applied for discharging
her from the Amicus brief as the other accused
Geelani in the same case engaged her. In her
place a raw junior Mr Niraj Bansal was appointed
as Amicus by order on 1/7/02. The trial commenced
on the 8th July.
On that day Afzal petitions the Court as follows
Hon’ble Sir,
Respectfully I am not satisfied with state
council (Counsel) appointed by the court. That I
need a Competent Senior Advocate as Amicus Curiae
to meet the ends of justice from this court. The
way the Court is treating me I could not get
justice. It is there fore requested to appoint
one of the following lawyers: 1. Ashok Agarwal;
2. Pandit R K Naseem; 3. R K Dham; 4. Mr Taufil.
On 12/7/02 the court passed the following order:
After recording 20 prosecution witnesses and
after protest again by Afzal the learned judge
passed the following order: "Afzal states that he
does not want the amicus curiae Niraj Bansal to
represent him. He had earlier given the list of
four advocates namely, R M Tuffail, Dham, Ashok
Agarwal, R K Naseem. This Court had enquired from
R M Tuffail and Pt R K Naseem who appeared in was
of the view his case was entirely different from
the case of the rest of the accused. Hence, his
insistence with reference to R M Tufail and
Pandit R K Naseem the court records that the
judge ascertained their willingness to appear as
amicus for Afzal when they happened to appear
before him in another case, but both of them
expressed their inability to become amicus curiae
in this case.
Ashok Agarwal had earlier appeared in this case
on behalf of one of the accused and argued the
bail application. Thereafter he did not appear“The court further observed that”I consider that
if accused wants a lawyer of his choice, he is
free to engage himself the lawyer of his choice,
but if he has not engaged a lawyer of his choice
and has asked the court to appoint amicus curiae,
the court can appoint amicus curiae out of panel
available with it or out of the willing
advocates. Afzal has been given the liberty to
cross-examine the witnesses. Neeraj Bansal has
requested for withdrawal from this case, but he
is requested to assist the court during trial" Mr
Bansal cannot act, as court Amicus, even purport
to act for Afzal.
After performing this ritualistic exercise
according to his understanding of Rule of law,
the judge, very much like the Procurator of
Judea, washed his hands off the case! The result
was Afzal was undefended through out and that
does vitiate the conviction and sentence. He
understood the seriousness of the charge he is
facing and so wanted the services of an
experienced lawyer. Two lawyers refused to appear
and he did not ask the other two. After young Mr
Bansal was discharged of his right to represent
Afzal there has bee no other advocate defending
him. No doubt there were advocates engaged to
defend the other three accused. But they had no
brief to defend Afzal for he did not consent to
such a course as is evident from the
representations made to the court. In these
circumstances it is impossible either to presume
or infer that cross-examination was common. The
designated judge sentenced to death the three
accused did not order the forfeiture of life of
the wife of Shoukat. Her newborn child was with
her in prison.
These death sentences have to be confirmed by
Bench of two judges under the provisions of the
Code of Criminal Procedure. It is again a
detailed re- trial on the basis of recorded
evidence with wide powers for courts to do
justice. Every aspect of the case has to be and
can be brought under scrutiny. In the Final
submissions filed on behalf of Afzal this aspect
of the case is brought to sharp focus. Articles
14, 21, 22, and 39A ensure that the accused will
be tried according to procedure established by
law, where procedure means not any procedure but
a fair and just procedure including access to
justice. The court giving Afzal the liberty to
cross-examine is a vacuous liberty where such
liberty implies a comprehensive understanding of
the Evidence Act and the Criminal Procedure. This
freedom given by the court without discharging
its Constitutional obligation is itself a total
denial of his Constitutional Right to defend
himself effectively.
The High Court in the Referred Case, record these
facts in Para 133 of its judgment, and the court
goes on to record that Accused Afzal has in fact
cross examined eighty prosecution witnesses. The
High Court held, "Mohd Afzal continued the trial
without any objection or grievance." This
conclusion is not supported by the proceedings of
the trial court. Afzal had more than once
requested for Counsel to be appointed by the
court. But the court at the trial stage gave
Afzal a Hobson’s choice. Either accept the lawyer
appointed by the court or cross examine the
witnesses yourself was what the court had told
the accused. The gravity of the case is writ
large and such a case cannot be disposed of in
the manner it was done both at the Designated
Judge’s level and the High Court.
This issue was not raised before the Supreme
Court. When one waives the right to counsel it
should be informed by competence and
intelligence. The failure to appoint by the
designated judge was on account of the self
imposed limitation that he cannot traverse beyond
the panel of lawyers available to the court. It
is not that lawyers were not available, but
lawyers were avoiding handling Afzal’s brief.
Non-availability and declined to appear are two
different categories. The latter is outright
denial of equal opportunity before law. This
would amount to refusal of access to justice.
The position taken by the High Court appears to
be wholly untenable. The Right to be defended by
a Lawyer is not only a Fundamental Right but a
right guaranteed under the International Covenant
on Civil and Political Rights which have become
mandatory thanks to their recognition by the
Protection of Human Rights Act. 1993. Article 8
gives a person a right to an effective remedy for
the enforcement of the fundamental rights
recognized by the Constitution or by law and
Article 14(c) which guarantees the right to the
accused to be tried in his presence and to be
defended by a competent lawyer. The Supreme Court
has read these clauses in the Covenant along with
the clauses dealing with equality and equal
protection of laws (Article 14) Right to be tried
according to procedure established by law
(Article21) Right to be assisted by counsel from
the time of arrest and during the trial (22 (1&2)
and 39A which deals with equal justice and frees
legal aid.
According to the Court Article 39A is
interpretative of Article 21 and pointed out that
courts cannot be inert in the face of these
Articles. In one of the decisions cited by the
Counsel the Supreme Court approvingly quoted the
opinion of Judge Douglas of the US Supreme Court
in Raymond vs Hamlin The right to be heard would
be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even
the intelligent and educated layman has small and
sometimes no skill in the science of law. If
charged with crime, he is incapable, generally,
of determining for himself whether the indictment
is good or bad. He is unfamiliar with rules of
evidence. Left without the aid of counsel he may
be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and the knowledge
adequately to prepare his defence, even though he
has a perfect one. He requires a guiding hand of
counsel at every step in the proceeding against
him. ŠIf that be true of men of intelligence how
much more true of is it of the ignoring and
illiterate or those of feeble intellect." After
quoting this passage there is no discussion of
this decision and its applicability to the facts
of this case. Reference to the passage relied
upon by the counsel is not considering the ratio
of the case. Without deciding the denial of the
right to be assisted and defended by the lawyer
the Court proceeds to the issue of the
performance of a counsel and points out the
difficulties of lawyers in performing this task.
While being mechanical in dealing with the
fundamental obligation of the Court to provide
lawyer assistance for defending the accused. the
Court proceeds on a short dilation into the
competence of defending counsel who was not there
and that was the major complaint It would be very
unfair to conclude that permitting Afzal to cross
examine the witnesses would be compliance with
Art 21 22, and 39A of the Constitution and the
related international covenants.
The great debate that took place in the decades
of the seventies of the last century one issue,
which had the consensus of all the contending
groups and intellectuals, was that Rule of Law
should inform our understanding the Constitution
and Governance. Yet within a matter of two
decades Rule of Law stands discredited as never
before, not even in the dark days of ’75
Emergency. Political prejudices are parading as
juridical principles and communal prejudices have
entered the decision-making processes of the
justice system sometimes as judicial activism.
The failure of the criminal justice to the
victims Sikh massacre in 1984, the indifference
to the crimes perpetrated by the majority
community in the Mumbai riots in Mumbai in 1992
leading to the appointment of Sri Krishna
Commission and the attention Rule of law to the
sequel by the violence of minority community in
the Mumbai blasts, the Riots in Coimbatore where
crores worth of property was consigned to flames
and around two scores of Muslims killed went
unnoticed while the sequential blasts a few days
thereafter led to arrest and pre trial
incarceration of around one hundred seventy five
for around a decade and prosecution, the Gujarat
riots where the killings led to no
accountability, the Best Bakery case and the
reopening of investigations that have been
closed, by legal proceedings are the index of
major failures of the criminal justice system by
partial suspension of Rule of Law. in those cases.
At the same time we have the strident assertion
of partial justice in the death sentences on
Kehar Singh and Afzal. These two are instances of
the operation of Rule of Law in its paranoid
state. One became a victim of substantive
injustice and the other the victim of processual
injustice.
In India law has never been logic, justifying
Justice Holmes and the replacement to logic he
offered, namely,: "the felt necessities of the
time, the prevalent moral and political theories,
intuitions of public policy, avowed and
unconscious even prejudices judges share with
their fellow menŠ The decision will depend upon a
more subtle than any articulate major premise.’
in its unexpurgated sense applies to this country
now. This is a major reason why the human rights
activists campaign against death penalty In a
death penalty casein 1994 (Collins vs. Collins)
justice Black mum’s dissent is to the point. "The
problem is that the inevitability of factual,
legal and moral error gives us a system that we
know must wrongly kill some defendants. Blackmum
acknowledges error to be inevitable and injustice
unavoidable Šit seems that a decision whether a
human being should live or die is so inherently
subjective, rife with all of life’s
understandings, experiences, prejudices and
passions, that it inevitably defies the
rationality and consistency required by the
Constitution".
Wherever and whenever courts overlook the
importance of political justice, as a head of the
Sovereign Democratic Republic, Mr President, Sir,
should intervene to make amends in this regard
and maintain democracy. Mr President, Sir in this
case political justice failed and therefore calls
for your intervention and commute the sentence of
death into one of life.
For more information on the Afzal Guru case use the link below:
http://www.justiceforafzalguru.org