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Mainstream, Vol XLVIII, No 24, June 5, 2010

Afzal and the Right to Fair Trial

Thursday 10 June 2010, by Nandita Haksar

The TV channels continue to invite me to debates on death penalty. The corporate media refuses to understand that the fight for Afzal has nothing to do with the debate on death penalty. That is a separate debate. In the case of Mohammad Afzal Guru, the man convicted of being a part of the conspiracy to attack the Indian Parliament in December of 2001, the central question is whether an Indian citizen can be hung without a fair trial.

The arguments for and against the death penalty to Afzal have obfuscated the real issue at stake. The BJP (at least on corporate television) says that since the Supreme Court has given its verdict the government must enforce it. Its more vicious communal arguments are given outside the television channels. It would seem that the BJP has set itself up as the sole upholder of the Indian Constitution.

While there is no doubt that the Supreme Court is an institution that we as Indian citizens must respect, it is also not above scrutiny. There have been corrupt judges, there have been judgements which reflect vested interests and there are studies to show that the Supreme Court of India has over the years been fairer to the richer citizens of this country than to the poor, even when the poor have been able to move the Court. There is nothing disrespectful in criticising a judgement and indeed the criticism and debate has in the past led to major changes in the law.

The Congress is not being able to counter the BJP effectively because it has (as usual) not made up its mind on the issue; so they just postpone the time when they will make up their mind. Their two arguments are that the “law will take its own course” but that is falling into the BJP trap. The second argument is that the BJP too has taken long to decide on the death penalty of several persons.

The Supreme Court has, in a judgement, held that “pardons, reprieves and remissions are manifestations of the exercise of prerogative power…This discretion, therefore has to be exercised on public consideration alone.”

And in a democracy the right to fair trial is a basic right. The right is enshrined in Part three of our Constitution and anyone committed to the values of our Constitution must uphold the right to fair trial.

Mohammad Afzal Guru did not get a fair trial because he was too poor to hire a lawyer. The legal aid services do not provide adequate support. This was amply documented in the curative petition filed by Ms Indira Jaising. The curative petition has this chart which speaks for itself:

Prosecution witness Designation Cross examination by Neeraj Bansal Cross examination by Afzal Remarks
PW1 GL Mehta SHO Parliament St PS Nil Nil
PW2 Sanjiv Kumar SI, Parliament St PS Nil Ni Alleges that Afzal identified bodies of terrorists
PW3 Rajinder Singh SI, President’s House security Nil Nil Alleges Afzal identifies Haider
PW4 Yog Raj Dogra SI, IGI Airport Nil Nil Recovers slips with phone numbers; mobile
PW5 ASI Jeet Ram Security, Delhi Police Nil Nil
PW6 Rajesh Kumar Constable Photographer Nil Nil Alleges to have taken 184 photos
PW7 Jasveer HC, Parliament Street PS Nil Nil
PW8 H.S. Ashwani Kumar HC Parliament Street PS Nil Nil
PW9 Sukhbir Singh HC Parliament Street PS Nil Nil
PW10 Jagvir Singh HC Parliament Street PS Nil Nil
PW11 G.L. Meena Deputy Secretary, Home Nil Nil Court disallowed several questions; Grant of prosecution sanction
PW12 T.N. Mohan DCP, Headquarters Nil Nil Sanction for prosecution
PW13 Dushyant Singh Deputy Chief Security Officer Nil Nil Issuance of sticker Ministry of Home Affairs
PW14 Malkit Singh H.C.Parliament Street PS Nil Nil
PW15 Mathew George Executive, Infrastructure Nil Nil Original owner of white Leasing and Financial Ambassador Services Ltd.
PW16 Dheeraj Singh Peon, Infrastructure Leasing Nil Nil Buyer of the white Ambassador and Financial Services Ltd.
PW17 Satbir Singh Shopkeeper Yes Nil Bought the white Ambassador from PW16
PW18 Raghbir Singh Motor mechanic Yes Nil Buyer of the white Ambassador
PW19 Harish Chander Jaggi Proprietor, Jaggi motors Yes Nil Bought the white Ambassador from PW 18
PW20 Harpal Singh Proprietor, Lucky motors Afzal admits going Afzal truthfully owns up his role. to the shop of witness
PW21 Constable Mahipal Singh CRPF Nil Nil Injured in firing
PW22 R.S. Verma Director, SFSL, Chandigarh Nil Nil
PW23 P.R. Nehra Principle Scientific Officer Nil Nil Handwriting expert CFSL, CBI
PW24 A. Dey Senior Scientific Officer, Asst. Chemical Examiner, CFSL, CBI Nil Nil
PW25 Jasvinder Singh Computer Centre (Xansa Webcity) Nil Nil
PW26 Jibharam Mechanic Yes Nil Buyer of Yamaha motorcycle
PW27 Salim Junk Dealer Nil Nil Purchased motorcycle from PW26
PW28 Babu Khan Barber Nil Nil Purchased motorcycle from PW27
PW29 Sushil Kumar Gupta Auto Deals Ni Yes (Only one suggestion given) Important witness on purchase of motorcycle
PW30 SI Mahesh Kumar Draftsman, Crime Branch, PHQ Nil Nil
PW31 Bal Raj Property Dealer Yes (Inadequate) Nil Court allows leading question; Property Dealer in regard to Indira Vihar
PW32 Jagdish Lal Owner of Indira Vihar house Yes Yes Photos of five terrorists
PW33 Davinder Pal Kapoor Property Dealer Yes Nil Not even a suggestion was put to the witness that he did not get the set premises on rent for Afzal or that he was deposing falsely.
PW34 Subhash Chand Malhotra Owner of A-97 Gandhi Vihar Yes (Inadequate) Nil Testimony regarding identification of Mohd. went unchallenged
PW35 Capt. P.K. Guharay Security Manager, Airtel Nil Nil
PW36 Maj. A.R. Satish Sterling Cellular Ltd. Nil Nil
PW37 Prem Chand Hostel owner, Christian Colony Yes (One suggestion only) Nil Important witness
PW38 Rajneesh Kumar Runs STD Booth, Christian Colony Nil Nil
PW39 Naresh Gulati Landlord of S.A.R. Geelani Nil Nil Landlord was on bail at the time
PW40 Anil Kumar Chemical Business Yes (Inadequate) Nil
PW41 Ajay Kumar Salesman, Dry fruits shop Yes Nil
PW42 Ramesh Adwani Shopkeeper, Dyes and Colours Yes (Inadequate) Nil
PW43 Sunil Kumar Gupta Shopkeeper, Electrical Gadgets Yes Nil
PW 44 Sandeep Chaudhary Shopkeeper, Mobile Phones Yes Nil
PW45 Tejpal Kharbanda Landlord, Shaukat (co-accused) Nil Nil
PW46 Usha Kharbanda Wife of PW45 Nil Nil Her testimony is not recorded
PW47 Dr. Upender Kishore Senior Resident, Lady Harding Medical College Nil Nil Conducted postmortem on deceased terrorists; Important witness
PW48 Dr. Rajinder Singh Expert, CFSL, CBI Nil Nil
PW49 Kamal Kishore Behal Shopkeeper, Mobile Phones Yes Nil
PW50 Sanjay Mani Manager, Admin, Xansa India Ltd. Nil Nil
PW51 Dharampal Clerk, District Transport Office, Faridabad Nil Nil
PW52 Charan Singh Clerk, Registering Authority, Motor Vehicle, Faridabad Nil Nil
PW53 Mahesh Chand LDC, MLO, HQ Nil Nil
PW54 Anil Ahuja UDC, Transport Authority Nil Nil
PW55 Sham Singh Sub-Inspector, Security, Vice-President Nil Nil
PW56 Constable Ranjit Kumar Special Branch, Lodhi Road Nil Nil
PW57 SI Pawan Kumar Special Cell, Lodhi Road Nil Nil Laptop was in custody of this witness.
PW58 SI Neeraj Paliwal CRPF, SDG, VVIP Security Nil Nil
PW59 N.K. Aggarwal Senior Scientific Officer, CFSL, CBI Nil Nil
PW60 Ashok Chand DCP, Special Cell Yes Yes Witness states: “I am not aware if on 20/12/01, accused Afzal was produced before the media or on any other date, he was produced before media to tell media about his role in attack on Parliament”.
PW61 Abdul Haq Butt Deputy SP, SDPO, M.R. Ganj, Srinagar Yes (Inadequate) Nil
PW62 H.C. Mohammad Akbar Parampura PS, Srinagar Yes (One suggestion only) Nil Most important witness on Afzal’s arrest
V.K. Maheshwari Addl. Chief Metropolitan Magistrate, Patiala House Yes (Inadequate) Nil
PW64 SI Hardaya Bhushan Special Cell, Lodhi Road Yes Nil Contradicts PW61 and PW62 on time, place of arrest
PW65 SI Sharad Kohli Special Cell, Lodhi Road Nil Nil Important witness in regard to Afzal’s arrest.
PW66 Mohan Chand Sharma Special Cell, Lodhi Road Nil Nil Crucial witness not cross-examined
PW67 SI Bidrish Dutt Special Cell, Lodhi Road Nil Nil The witness stated that Afzal identified photograph of one Mohd@Bargar who was deceased terrorist and told he was hijacking of IC 814; someone objected but no cross examination
PW68 Dr. S.K. Jain Asst. Director, CFSL, Chandigarh Nil Nil
PW69 Inspector Santhosh Singh CRPF Nil Nil
PW70 SI Harinder Singh Special Cell, Lodhi Road Nil Nil
PW71 Rashid Transporter Nil Nil
PW72 Vimal Kant Computer Engineer Nil Nil On the laptop
PW73 Krishnan A. Sastri Bureau of Police Research and Development, Ministry of Home Affairs, Hyderabad Nil Nil On the laptop
PW74 Constable Shambir Singh CRPF Nil Nil
PW75 K. Satyamurthy Officer Commanding, BDU, NSG Nil Nil
PW76 Inspector H.S. Gill Special Cell, Lodhi Road Yes but inadequate Nil Crucial witness on whose testimony Afzal given a death sentence
PW77 SI Lalit Mohan Special Cell, Lodhi Road Yes Nil
PW78 Manjual Kapur Manager, Siemen, Gurgaon Nil Nil
PW79 M. Krishna Ministry of Home Affairs, Nil Nil On laptop Hyderabad
PW80 ACP Rajbir Singh Investigating Officer, Yes but very inadequate Nil It is this officer whose Special Cell, investigation was found to be Lodhi Road riddled with illegalities

The reason for the column on “cross examination by Afzal” is because the Sessions Court judge recognised that the amicus curiae was not doing his job and allowed the accused to cross examine. But this hardly helped because cross examination requires both skill and training of a criminal lawyer and experience to hone one’s skills. Afzal had neither.

The reason why Afzal should not be hanged is simple: he was denied a fair trial, his fundamental right under our Constitution.

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