The right to counsel begins from the moment of arrest. From the time Afzal Guru was arrested in 2001 to the filing of a charge sheet in court, he had no lawyer—a fact that goes against the Supreme Court’s own observation on the need for defence counsel. By A.G. NOORANI in Frontline
DRAVINDER SINGH, Deputy Superintendent of Police, exposed himself in an interview in 2006. It merits quotation in extenso. Afzal Guru yielded nothing on interrogation by Vinay Gupta of the dreaded Special Operations Group (SOG). “But I requested Vinay not to release him and send him to my camp Humhama (Budgam district). That is how I know Afzal. I did interrogate and torture him at my camp for several days. And we never recorded his arrest in the books anywhere. His [Afzal’s] description of torture at my camp is true. That was the procedure those days and we did pour petrol in his arse and gave him electric shocks. But I could not break him. He did not reveal anything to me despite our hardest possible interrogation. We tortured him enough for Gazi Baba but he did not break. He looked like a ‘bhondu’ those days, what you call a ‘_______’ [an Urdu swear word for naive or easily duped persons] type. And I had a reputation for torture, interrogation and breaking suspects. If anybody came out of my interrogation clean, nobody would ever touch him again. He would be considered clean for good by the whole department.
“Q. In the light of allegations by Afzal, do you think that you may have been used?
“It is a difficult time for me. I would expect my superiors to clear my name. But it is so that nobody from my department has come forward so far….
“Q. Then why is your name figuring in Afzal’s letter and his wife’s accounts?
“I am being victimised for having worked in SOG, for being very nationalistic. What am I getting in return? Bad name as a conspirator.… It’s really unfortunate.… Also, to be candid with you, nobody would ever forget having been interrogated by me.”
This “torture specialist’s” admission must be read with his revealing use of a swear word for a naive, gullible man. Afzal Guru was not called a crook, which he would have been if he was really guilty, and he would not break under torture. He had to be killed. This interview will be published in the next edition of Penguin’s 13 December.
As for the other two police officers: “In 2008, on March 20, ACP [Assistant Commissioner of Police] Rajbeer Singh was shot dead by his friend and partner, Vijay Bhardwaj, a property dealer of Gurgaon, over a dispute on ‘investments’ he made with the realtor. In his statement, the accused, Bhardwaj, confessed, among other things, that he was unable to repay Rajbeer the money invested in shoddy land deals and the gun used in the killing, with apparent marking ‘E-8256’, was given to him by Rajbeer Singh to help recover money from his business clients. During the media trial of the Parliament case held at Lodhi Road, he snubbed Afzal Guru for speaking something contrary to what he had been directed to. This was noted by Shams Tahir Khan, reporter of Aaj Tak who later testified to it before the court. The most unfortunate thing is that the trial court believed Rajbeer’s version when many details of his dubious and illegal dealings were already in public domain” (Abdur Majid Zargar, Kashmir Times, March 5, 2013).
Citing first information reports, Sama Bhat reported “Shanti Singh is in jail” on charges of custodial killing (Kashmir Life, a Srinagar weekly, February 24, 2013). It is such men who created the “circumstantial evidence”. Afzal Guru was sent around and the people he met testified against him—they were themselves in police custody.
Only a skilled and courageous lawyer could have exposed the forces that organised such a prosecution. The right to counsel begins from the moment of arrest. From the time of his arrest by the police on December 14, 2001, until their filing of a charge sheet in court, Afzal Guru had no lawyer. On January 19, 2002, when he was produced before the designated judge S.N. Dhingra under the Prevention of Terrorism Act (POTA) who was to try him, he was asked whether he would be engaging a lawyer. He gave the only answer a financially ruined man could—No. It was the court’s duty to name one for him.
Dhingra, who was also an Additional Sessions Judge, Delhi, appointed, on May 17, a lawyer, Seema Gulati, as amicus for him. This was a wrong step.Amicus curiae are appointed to assist the court, especially when rival sides will not bring out the whole truth. On May 17, 2002, Seema Gulati “appeared on behalf of Afzal. She conceded that a prima facie charge was made out against him even though she could have challenged the charges. The court records of 5 June 2002 show when charges were framed she made vital concessions and admitted certain documents so that those documents were taken into evidence without formal proof. These concessions resulted in dropping of several important prosecution witnesses which meant Afzal could not undo the damage of these concessions made on his behalf but without his instructions and without thought to the consequences to him. And then Seema Gulati gave an application stating that she does not want to defend Afzal. That was on 2 July 2002—barely a week before the trial was to begin. She took up [S.A.R.] Geelani’s defence for a professional fee” (Nandita Haksar, pages 184-85).
One Attar Alam was appointed but he “was not willing to act as amicus”. The Supreme Court conceded that Afzal Guru “was without counsel till 17 May 2002”, but it said nothing important had happened until then. But this was during the crucial stage of investigation, torture and confessions. On July 1, 2002, Seema Gulati sought her discharge from the case “citing the curious reason” that she had been engaged by another accused, Geelani, to appear on his behalf, for a fee, of course. One Neeraj Bansal, her junior, was thrust on Afzal Guru.
Afzal Guru objected on July 8 and sought the services of a Senior Advocate. But counsel he named were unwilling. “Neeraj Bhansal was therefore continued in view of the fact that he had experience in dealing with TADA [Terrorist and Disruptive Activities (Prevention) Act, POTA’s predecessor].” Thus did the Supreme Court brush aside its own observations on the need for defence counsel and acquiesced in a brazen wrong. It is for the accused to select his counsel, not for the court to impose one on him because it considers him an expert. Afzal Guru objected to Bansal the very day he was appointed, July 12, 2002. He continued all the same thanks to Judge Dhingra though Bansal himself wanted to quit. He never met Afzal Guru, never asked to meet him. Of the 80 prosecution witnesses, only 22 were cross-examined, mostly inadequately. Judge Dhingra evidently was not concerned about hearing the defence. That the Supreme Court ignored a monstrous wrong in the one case of Afzal Guru speaks for the justice he received. It can be confidently asserted that no other court in any other democracy in the world would have acquiesced in such a wrong. This is exactly what the Magistrate trying Bhagat Singh and Batukeshwar Dutt did, that is, imposed on them a lawyer they did not want.
Anthony Lewis, who died on March 25, wrote in his classic Gideon’s Trumpet that Gideon had pencilled his petition “in the form of a pauper; as a poor man”. The U.S. Supreme Court ruled unanimously, speaking through Justice Hugo Black, that “in our adversary system of criminal justice, any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him”, counsel he approves (Gideon vs Wainwright 372 U.S. 335 (1963)). The Indian Supreme Court has followed this ruling, but in the one case of Mohammad Afzal Guru, it denied that right. It is an absolute right that no court can deny on the specious ground that no harm was done after all. The test laid down in the leading case Powell vs Alabama (287 U.S. 45) was “effective aid in the preparation and trial of the case”. It concerned a black charged with rape (1932).
Police officer’s grave lapse
Two oddities reflect the farce. On December 19, 2001, Assistant Commissioner of Police Rajbeer Singh took over the investigation. On the same date, the draconian POTA was applied to the case. The next day, Afzal Guru was interrogated. Three accused—Afzal Guru, his cousin Shaukat, and Geelani—were said to have desired to confess. He informed Deputy Commissioner of Police Ashok Chand of this and was asked to produce them on the following day, December 21. Geelani refused to confess. Afzal Guru was produced; a “confession” was recorded after formal cautions. The confessions were sent to the Additional Chief Metropolitan Magistrate on December 22. But alone among the four accused, Afzal Guru was paraded before TV channels in the very office of the Special Cell at Lodhi Road, New Delhi. Rajbeer Singh was present and intervened at one stage. Shams Tahir Khan, principal correspondent of Aaj Tak, one of the TV channels summoned to interview Afzal Guru, bravely deposed as defence witness on October 10, 2002.
Afzal Guru had said that Geelani was not involved. The witness said: “It is correct that accused was told by ACP Rajbeer Singh not to say anything about S.A.R. Geelani. By that time my interview had already been concluded and NDTV persons were interviewing. Rajbeer had requested not to telecast the line stated by accused about Geelani. So when this interview was telecast on 20th December 5 p.m. that line was removed but when this was rebroadcast in our programme 100 days after attack this line has not been removed and is in the interview.
“Question by Afzal: I put it to you that Rajbeer had not simply told me but shouted at me not to say anything about Geelani? Ans.: It is correct.” The Supreme Court merely expressed surprise at Rajbeer Singh’s profession of “ignorance about the media interview”. But in the very next sentence the court explained it away: “We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused.” Why not? This is of a piece with the Supreme Court’s approach to the case. Rajbeer Singh’s gross lapse exposed him completely.
There was another factor—the Ministry of External Affairs gave evidence behind the accused’s back that the trial court readily accepted. Nandita Haksar records: “The proceedings of 14 January 2002 show that the Ministry of External Affairs (MEA) filed an application asking permission to file ‘secret and other documents for keeping in sealed envelope’. The learned judge ordered: ‘Ahmad is directed to place the documents in sealed envelope and keep the same in safe custody under his lock.’” Was this the secret source of the learned judge’s information that he could confidently accuse Pakistan of involvement in the attack without any evidence on record? (page 71).
Each of the three courts made its own distinctive contribution to emotive rhetoric that should be out of place in judicial reason. The trial judge Dhingra said of the defence’s criticism of a prosecution witness who was “Only 5th/ 6th Standard pass for translating Kashmiri conversation to Hindi. Language is not monopoly of educated and elite class. A child starts learning mother tongue while sucking milk of her mother. A person educated up to 5th or 6th standard may be knowing his mother tongue much better than a graduate or postgraduate, who after acquiring knowledge of English starts forgetting his mother tongue and can speak only in Hinghlish, Chinglish or Kashinglish. Tulsidas, Kabir, and several other contemporary personalities had no little formal education but had command over language and produced great ‘works’. Being a fruit seller is no sin. Today we do not understand the dignity of labour and look upon persons earning livelihood by labour as low class. If India is 10th among the most corrupt countries, it is not because of these poor people but because of some other class of people. The witness could not understand English words in the conversation because of lack of knowledge of English language but he understood Kashmiri and Hindi well and translated the conversation to Hindi properly.”
The 392-page judgment of the Delhi High Court, delivered by Justices Usha Mehra and Pradeep Nawajog on October 29, 2003, has the same patriotic fervour. “After the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place. The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war.”
In the Supreme Court, Justice P. Venkatarama Reddi said on behalf of himself and Justice P.P. Naolekar. “The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the government as well as disrupting the normal life of the people of India is something which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation,and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act. The Appellant (Afzal Guru) who is a surrendered militant and who was bent upon repeating the acts of treason against the nation is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence” ((2005) 11 SCC 760). Even the prosecution did not allege that Afzal Guru was “bent upon repeating” what was alleged against him. There was not a tittle of evidence to that effect. Why did the Supreme Court jump to this conclusion?
Emperors and dictators of the lower breed have proclaimed that a particular person’s life be rendered “extinct”. In all history no judge has ever used such language. In civilised countries judges pronounce the death sentence with great reluctance, regret and, in extreme cases, controlled indignation. Never exultantly, in a spirit of vindication or in brazen populism. This passage has been widely criticised, but the question it squarely raises is overlooked. How fair and detached in their evaluation of the complex facts and the law can be judges who are capable of using such language as this? The least which the Supreme Court ought to have done was to order a retrial.
Contrast all this with these words by another judge of the Supreme Court, Justice Radhakrishnan: “A criminal court while deciding criminal cases shall not be guided or influenced by the views or opinions expressed by judges on academic platforms. The views or opinions expressed by judges, jurists, academicians, law teachers may be food for thought. Even the discussions or deliberations made at the State Judicial Academies or the National Judicial Academy at Bhopal, only update or open new vistas or knowledge for judicial officers. Criminal courts have to decide the cases before them examining the relevant facts and evidence placed before them, applying binding precedents” (OMA vs State of T.N., (2013) 3 SCC 440 para 22). Popular feelings stand on a lower footing than academic writings. How did their Lordships discern the people’s “collective conscience”? It is a purely subjective appraisal influenced by their own feelings.
The immortal classic on the point is Lord Mansfield’s pronouncement in the celebrated case of John Wilkes in 1770. “I wish popularity; but it is popularity which follows, not that which is run after; it is that popularity which sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of deluded people can swallow” (4 Burrow 2527 at page 2562; 98 Eng. Rep. 327 at page 347; 19 St. Tr. 1075 at Col. 1112-3).
He said also: “The Constitution does not allow reasons of state to influence our judgments… we are bound to say ‘fiat justitia, ruat caelum’ [let justice be done though the heavens fall].” When did an Indian judge in the Mansfield mould last sit on the Bench?
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