www.sacw.net - 26 December 2006
http://www.sacw.net/free/pancholitoNDTV.html

Dishonest reporting by NDTV

-- By N.D. Pancholi
Advocate A-5/8, Triveni Apartments,
Vasundhara Enclave,
Delhi -110096

Date: 26th December, 2006

To
The Managing Editor,
N.D.T.V.,
Archana Building,
Greater Kailash I,
New Delhi-110048

Sub: Your repeated news bulletins on Hindi
channel on 16th & 17th December, 2006 displaying
Afzal's statement video-taped by the Special Cell
of Delhi Police when AFZAL was in police custody.

This is with reference to your aforesaid news
reports repeatedly telecast in the news bulletins
on your Hindi channel on 16th and 17th December,
2006, wherein your reporters claimed to have got
exclusive possession of a video tape in which
Mohd. Afzal Guru, who is facing the death
sentence in the Parliament attack case, is shown
making self-incriminatory statements.

Around 3 PM on 16th December, 2006, when I was in
the High Court, I received a phone call from one
of your reporters, Ms. Sunetra Chaudhary, asking
whether I had seen the news about Afzal on NDTV.
I expressed my ignorance. She told me that the
police had given NDTV the video tape of a
statement given by Afzal in police custody and
that the said tape was being broadcast by NDTV. I
told her that any statement given by an accused
in police custody has no value and is
inadmissible in law and that the alleged
confession of Afzal made in police custody had
been rejected by the Supreme Court. I also told
her that media conference organized by the police
in December 2001, in which Afzal was shown
admitting to his involvement in the Parliament
attack, was also strongly disapproved of by the
High Court and the police were reprimanded for
having conducted such an unlawful exercise. But
she said that the said tape was not of the media
conference but of the statement which Afzal had
given to the police at the time of interrogation
-- and which NDTV has brought out for the first
time. I told her that before producing Afzal in
the media conference he was several times made to
rehearse his statement as tailored by the police,
and that the said tape must be a recording of one
such rehearsal. She told me that she would send a
reporter to me to get my comments. She also
requested me to provide her with a copy of the
statement made by Afzal in the Court under
Section 313 Criminal Procedure Code, which she
said she would juxtapose along with his recorded
statement in the news. She also told me that Ms.
Barkha Dutt had sent her a copy of the letter
written by Afzal to Shri Sushil Kumar, Senior
Advocate, who had argued his case in the Supreme
Court, and if the "313 statement" of Afzal was
not available with me, she would use the contents
of the said letter in the news bulletins. She
also asked me to see, on the news bulletins, the
tape which was being repeatedly shown by NDTV.

I came home and saw the news bulletins. An NDTV
reporter also came to my residence at about 5.30
PM and recorded my statement, both in Hindi and
in English. My statement was to this effect:

"The statement in the tape is a tutored rehearsal
which Afzal was coerced to make under threat and
after torture, that such statements in police
custody have no value, that the High Court had
reprimanded the police for organizing a media
conference where Afzal made self-incriminatory
statements, that the Supreme Court had also
rejected his so-called confession made in police
custody, that the police had never produced such
a tape during the trial, that it was the defence
lawyers who had had the tape of the media
conference of Afzal produced in the Court to show
how the conference was organized and manipulated
under the dictation of the ACP Rajbir Singh."

However, my aforesaid comments were not
broadcast. All that was shown was a small part of
my statement, in a manner which distorted my
stand, while the tape was repeatedly telecast.
The reporter said: "Advocate says that the tape
was not produced by the police in the court". All
of my other aforesaid comments were suppressed by
your reporter. It was obvious that your reporter,
by producing only that small part of my statement
in a manner which removed it from its context,
wanted to convey to your viewers that
non-production of the tape was only a minor
negligent act, a small mistake on the part of the
police -- which mistake was being rectified by
your "investigative journalism" for the sake of
those who wanted the prompt hanging of Afzal.

The display of the tape was followed by
suggestive comments by your reporter such as,
"You have seen the tape. See how natural, how
truthful, how fluent his statement appears!"
".Who can believe that such statement can be
given under torture?" The news was captioned
"Afzal Ke Badalte Hue Bayaan (Changing statements
of Afzal)". In a discussion of the tape your
anchor declared, "If such a statement of Afzal
was made under coercion, then he must be a good
actor."

In the morning news of 17th December, 2006, I saw
that the families of security men killed during
the attack on Parliament had been brought on the
programme and, after showing the tape to them,
your reporter asked their opinion about the
hanging of Afzal. Their expected reply was duly
telecast. Your reporters stationed in some cities
were shown gathering the opinion of the public
about the hanging of Afzal in the light of the
tape telecast by NDTV. These telecasts were
repeated many times during the day and viewers
were asked to send SMS messages to NDTV.

I met Afzal in jail on 20th December, 2006 and
told him about the tape and the repeated
performance of NDTV. He was amused. He told me
that there was not one such tape but several, as
before producing him at the media conference the
police had forced him to rehearse his "Bayaanâ"
(statement) five or six times. Before that he had
been brutally tortured for about two days. Urine
was forced into his mouth. He was given repeated
beatings. Once he was kept completely naked
throughout the day, and on that day one of the
public witnesses who was to give evidence against
him later in the Court also participated in the
beating. He was also hung by ropes. The next day
he was given a written statement and was made to
rehearse it five or six times. Rajbir Singh, ACP,
instructed him,"Iske Aage Nahin Batana, Iske
Peechhe Nahin Batana (Do not add anything to or
remove anything from this statement)". Afzal was
told that his brother Hilal was in the custody of
the STF in Kashmir and that if he wanted the
safety of his brother and family, he should speak
in the media conference on the lines of the
"Bayaan" tailor-made by the police. Each
rehearsal was video-recorded.

However, the portion in the "Bayaan" relating to
co-accused S.A.R. Geelani created a problem. The
police wanted Afzal to implicate Geelani in his
statement before the media, which Afzal found
himself unable to do. He faltered at the Geelani
point in each rehearsal. So ACP Rajbir Singh
instructed that he should keep silent if the
issue of Geelani cropped up in the media
conference. But a deviation occurred when a
reporter asked Afzal about the involvement of
Geelani in the attack. Afzal replied that Geelani
was innocent. This angered Rajbir Singh, who
shouted at Afzal ordering him not to say anything
about Geelani. Rajbir Singh also requested the
media persons to delete this part of the
statement while presenting it to the public. By
and large, the media obliged the police in a
truly nationalistic spirit.

But the media conference ultimately misfired.
There was an unintentional leak by the "Times of
India", and after a couple of months the TV
channel "Aaj Tak" telecast the complete
conference -- without realizing that this would
be to the detriment of the police case. The
defence lawyers of Geelani were quick to pounce
upon such lapses of the media and had the entire
video tape of the conference produced in the
court. Shams Tahir of "Aaj Tak" was summoned on
behalf of the defence lawyers to give true
account of what happened in the conference, and
his evidence earned for the police a strong
reprimand from the High Court for organizing the
media conference. It also contributed to the
acquittal of Geelani.

I am narrating these facts in detail as your
reporters seem to be ignorant of various salient
features of the Parliament Attack Case.
Your repeated news bulletins over two days
reduced the issue of the hanging of Afzal and his
Mercy Petition pending with the President to a
very simplistic solution "Show repeatedly the
video tape (an unlawful piece of evidence) of the
alleged confession of Afzal recorded in police
custody as breaking news, convince the viewers
that it has brought out the ultimate truth, ask
them to send SMS messages to NDTV conveying their
opinions about the "—Phansi" (hanging) of Afzal,
and then pour out the "—collective opinion"
gathered in this manner to pave the way for the
prompt hanging of Afzal."What a simple, quick
solution of an issue involving the life and death
of a citizen!

I am constrained to refer to what the Supreme
Court has said in such a situation, one of a
death sentence and a mercy petition. This aspect
has not been highlighted by any legal luminary in
any of the debates or discussions organized by
any channel. This aspect also assumes importance
when the "pro-hangers", including their legal
"pundits", assert that after the Supreme Court
had found Afzal guilty, the merits of the issue
cannot be reopened as the matter has been decided
once and for all by the highest court. This was
also the stated opinion of the then President of
India when he rejected the mercy petition of
Kehar Singh, sentenced to death in the Indira
Gandhi murder case. The order of the government
in that case said:

"The President is of the opinion that he
cannot go into the merits of a case finally decided
by the Highest Court of the Land."

This opinion was challenged by Kehar Singh, and
the five-judge bench of the Supreme Court (AIR
1989 SC 653) held that the opinion formed by the
President was wrong, that a decision of the
Supreme court can also be wrong and that "it is
open to the President to scrutinize the evidence
on the record of the criminal case and come to a
different conclusion from that recorded by the
court in regard to the guilt of and sentence
imposed on the accused."

Thus the President can also determine whether the
convict is guilty or not -notwithstanding the
findings of the courts, including the Supreme
court in this respect.

A few excerpts from the full-bench judgment of the Supreme Court:
"All powers belong to the people and it is
entrusted by them to specified institutions and
functionaries with the intention of working out,
maintaining and operating a constitutional order.
To any civilized society, there can be no
attributes more important than the life and
personal liberty of its members. That is evident
from the paramount position given by the courts
to the Article 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over
all other attributes of the political and social
order and consequently, the Legislature, the
Executive and the Judiciary are more sensitive to
them than to the other attributes of daily
existence. The deprivation of personal liberty
and the threat of deprivation of life by the
action of the State is in most civilized
societies regarded seriously and recourse, either
under express constitutional provision or through
legislative enactment is provided to the judicial
organ. But, fallibility of human judgement being
undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been
considered appropriate that in the matter of life
and personal liberty, the protection should be
extended by entrusting power further to some high
authority to scrutinize the validity of the
threatened denial of life or the threatened or
continued denial of personal liberty. The power
so entrusted is a power belonging to the people
and reposed in the highest dignitary of the state.
" is open to the President in the exercise of the
power vested in him by Article 72 of the
Constitution to scrutinise the evidence on the
record of the criminal case and come to a
different conclusion from that recorded by the
court in regard to the guilt of, and sentence
imposed on the accused.
"It is apparent that the power under Article 72
entitles the President to examine the record of
evidence of the criminal case and to determine
for himself whether the case is one deserving the
grant of relief falling within that power. The
President is entitled to go into merits of the
case notwithstanding that it has been judicially
concluded by the consideration given to it by
Supreme Court" (emphasis added).

The Supreme Court, in its aforesaid judgment,
noted with approval the following remarks of the
judgment of the U.S. Supreme Court in the matter
of "Ex-parte Philip Grossman (1924) 267 US" where
Chief Justice Taft explained:

"Executive clemency exists to afford relief from
undue harshness or evident mistake in the
operation or enforcement of the criminal law. The
administration of justice by the courts is not
necessarily always wise or certainly considerate
of circumstances which may properly mitigate
guilt. To afford a remedy, it has always been
thought essential in popular governments, as well
as in monarchies, to vest in some other authority
than the Courts power to ameliorate or avoid
particular criminal judgements...."

I have reproduced the above excerpts for the
benefit of those who are clamouring for the head
of Afzal on the ground that his guilt and
sentence have been finally decided by the Supreme
Court and cannot therefore be questioned. A
full-bench decision of the Supreme Court has held
that this cannot be the case and that its
judgment can be re-examined by the President, who
is empowered to come to a different conclusion
about the guilt as well as about the sentence.

Afzal, in his petition to the President under
Article 72, has pleaded that the President may go
through the entire evidence of the case and come
to his own conclusion about the guilt and the
sentence imposed on him.

I have taken the consent of Afzal before writing
this letter to you, and on his behalf I request
you to faithfully present his side also to your
viewers, without any suppression or distortion.

I hope that the above contentions on behalf of
Afzal, on facts and law both, will be truthfully
presented by you to your viewers to enable them
to make a responsible judgement on the issue.

N.D.Pancholi

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