Monday, August 15, 2011

In Defence of Afzal By Colin Gonsalves

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

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

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

(Senior Advocate, Supreme Court)
october 2006

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