K G Kannabiran appeared for Kashmiri separatist Afzal Guru’s cousin Shaukat Hussain Guru in a trial court in Delhi in the 13 December 2001 attack on Parliament attack, in which five men in an explosives-laden car entered the compound of Parliament House. Four were arrested and tried under The Prevention of Terrorism Act, 2002—Afzal Guru, Shaukat Hussain Guru, S A R Gilani and Afsan Guru.
The trial court convicted three accused and awarded them the death penalty, but only Afzal Guru’s death sentence was confirmed by the Supreme Court of India. Two were acquitted by the high court and one was acquitted of terror charges by the Supreme Court and awarded a lesser sentence.
Kannabiran was of the view (shared by many human-rights defenders) that Afzal Guru was denied the opportunity to a fair trial. Kannabiran saw Afzal Guru’s conviction as a travesty of justice—a view he elaborates on in a chapter in the just-released book The Speaking Constitution, based on Kannabiran’s Telugu memoir titled 24 Gantalu: Atmakadhatmaka Samajika Chitram (24 Hours: A Personalized Social History).
The book traces the history of civil liberties through Kannabiran’s (1929–2010) cases. Read an exclusive excerpt:
If the proceedings of the trial of Afzal Guru and three others before the designated judge under the Prevention of Terrorism Act (POTA), 2002, were to be videographed, one would have understood the trivialization of the rule of law in this country. The case itself was a highly publicised affair, the investigation parading the accused before the print and electronic media in what can be described as a trial before the committal stage; the screaming headlines and news reports prevented 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 just conduct, and in such a case conformity to procedure is the only visible guarantee of justice. The attack on Parliament generated such hostility all around that nobody was willing to appear for the accused in the first instance. A relatively junior lawyer was appointed as amicus by order on 1 July 2002. The trial commenced on 8 July. On the same day, Afzal petitioned the court as follows:
Hon’ble Sir, Respectfully I am not satisfied with the 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 therefore 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 July 2002, after recording twenty prosecution witnesses and after another protest by Afzal, the learned judge passed the following order:
Afzal states that he does not want the amicus curiae ... to represent him. He had earlier given the list of four advocates ... The judge ascertained their willingness to appear as amicus for Afzal when they happened to appear before him in another case, but [they] expressed their inability to become amicus curiae in this case.
The court further observed:
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.
Reminiscent of the Procurator of Judea, this ritualistic approach left Afzal undefended throughout, and vitiated the conviction and sentence. He understood the seriousness of the charge he was facing and so wanted the services of an experienced lawyer.
Two lawyers refused to appear and he did not ask the other two. After the young amicus was discharged from representing Afzal, there was no other advocate defending him. Although there were advocates engaged to defend the other three accused, they had no brief to defend Afzal, for he did not consent to such a course, as was evident from the representations made to the court. In these circumstances, it was impossible either to presume or infer that cross-examination was common. The designated judge who sentenced the three accused to death did not order the forfeiture of life of the wife of Shoukat Guru, Afsan Guru. Her newborn child was with her in prison.
These death sentences had to be confirmed by a bench of two judges under the provisions of the Code of Criminal Procedure. It was again a detailed retrial on the basis of recorded evidence with wide powers for courts to do justice. Every aspect of the case had to be and could be brought under scrutiny. In the final submissions filed on behalf of Afzal, this aspect of the case was brought into sharp focus. Articles 14, 21, 22 and 39A ensure that an accused is 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 which implies a comprehensive understanding of the Evidence Act and the Criminal Procedure Code. 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 recorded these facts in paragraph 133 of its judgement, and proceeded to record that Afzal had 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 a 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….’
The Right to Legal Defence
When one waives the right to counsel, it should be a decision informed by competence and intelligence. The failure of the designated judge to appoint a counsel was on account of the self-imposed limitation that he could not traverse beyond the panel of lawyers available to the court. It was not that lawyers were not available, but that they 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 was wholly untenable...
It was grossly unfair to conclude that permitting Afzal to cross-examine the witnesses would constitute compliance with Articles 21, 22 and 39A of the Constitution and the related international covenants. In the great debate that took place in the decades starting with the 1970s, the one issue which had the consensus of all the contending groups and intellectuals was that the rule of law should inform our understanding of the Constitution and governance. Yet, within a matter of two decades, the rule of law stood discredited as never before, the likes of which had not happened even in the dark days of the Emergency in 1975. Political prejudices paraded as juridical principles and communal prejudices entered the decision-making processes of the justice system, sometimes disguised as judicial activism.
The failure of the criminal justice system to bring justice to victims of mass violence is evident: the victims of the Sikh massacres in 1984; the indifference to the crimes perpetrated by the majority community in the 1992 Mumbai riots, leading to the appointment of the Srikrishna Commission; the riots in Coimbatore where crores of rupees worth of property was consigned to flames and the massacre of around two scores of Muslims went unnoticed, while the sequential blasts a few days thereafter led to arrests and the pretrial incarceration of around 170 persons for a decade, followed by prosecution; the Gujarat riots where the killings led to no accountability.
At the same time, we have the strident assertion of partisan ‘justice’ in the death sentences of Kehar Singh and Afzal Guru. These are two instances of the operation of the ‘rule of law’ in its paranoid state. One became a victim of substantive injustice and the other of processual injustice.
(“The Speaking Constitution” has been published by Harper Collins India.)
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