In Defence of Afzal
By Colin Gonsalves
(Senior Advocate, Supreme Court)
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.
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