Afzal Guru's unfair trial
By Ghulam Nabi Hagroo
Kahsmir Times, 28 October 2006
Afzal Guru, an accused in the assualt on the Parliament in 2002 stands convicted by the Supreme Court and sentenced to death. Afzal's wife, Afshana has submitted a petition to the President of India and has sought a fair trial for her husband. The President has entertain it and has called a report in this regard from the Home Ministry. The Home Ministry has in turn sought views of the Law Secretariate in this regard. The Law Secretariate, as reported in the press, has stated the judgement need not be disturbed. The two secretariates being the chips of the same block thus stand against Guru. But with all that as per requirements of the procedure the Home Ministry has to submit all the records, the investigation case diary, the trial court and other courts records to the President so it has called all these reports and so the matter is in the pipe line. In the meanwhile the Home Ministry has delayed the execution of Afzal. So he is living.
The Appellate Court upheld the judgement. The Supreme Court set aside the judgements. It did not acquit Afzal but convicted him under Sec, 302 IPC read with 121-B and sentenced him to death.
In the said judgement the court says:"the incident which resulted in the heavy casualites, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender."
These remarks of the Supreme Court reflected that court has been something beyond the purview of the judicial file other-wise no prosecution witness or even a defence witness so to say or court witness has deposed it that the collective conscience of the society got disturbed by the said act. It is a judicial principle which cannot be refuted muchless denied by any person, lawyer of judge or other persons having some taste in legal proceedings, that a judge has to confine himself within the four corners of the judicial file. It is settled principle of judicial procedure that the courts have to be deaf and dumb vis-a-vis things beyond the purview of judicial file. But here is a case whwere judges of the Supreme Court say that they taken note of the collective conscience of the society. It can be well said that their lordships of the Supreme Court have been influenced by the media, electronic or print, which in no case can be said to be judicial record. Media, electronic and Print, for their own purposes make out a mountain out of mole hill. Whereas the judge has to do justice as per records on the file and the law applicable to the facts which have been brought on file. So in this case the judges of the Supreme Court have deviated from the normal course and as such the judgement cannot be said to be inconsonance with the standards set out by the authorities throughout the world in this regard.
The Supreme Court of India, because of its judgements is being respected by all the legal circles of the democratic world but I am sure that the judgement in Afzal's case will dampen the sheen and will adversely effect the dignity and integrity of the Supreme Court. So it would be in the interest of the Indian judiciary itself and in the interests of India at large to reverse the judgement during the life time of Afzal Guru. The Supreme Court of Russia (USSR) in twentees held TRTSKY guilty and convicted him to death. But the said person was away from USSR and so the arm of the Russian Law could not reach him. In sixtees the same court set aside that judgement and held him to be innocent. But in the meantime he had died natural death but all the same the judicial remark was erased by same court only for setting the records straight. I hope this should not happen in Afzal Guru's case.
It may be stated that Afzal was tried under POTA convicted and sentenced under POTA and was given life imprisonment under POTA which the appellate courts held. The Supreme Court was aside that judgement and convicted Afzal under Section 302 read with 121-B IPC but all the same it relied on the same statement of the prosecution witnesses which were recorded for purposes of ascertaining case under POTA.
It way be submitted that under POTA a judge has to travel in dimlight and the accused has to prove his innocence while as under normal judicial law the accused is to be presumed to be innocent and the prosecution has to prove case beyond any shadow of doubt against him. It simply means that once the judges of the Supreme Court resorted to proceed under normal panel law the best course for them was to order retrial. So that the inquiry and the statements of the prosecution could have been recorded as per standards of the criminal procedure code and not running in a dimlight atmosphere created by POTA in the particular case. It would be better to give specific example from every file. The trial court puts a question to Afzal about one Ghulam Muhammad, the main accused in person, and Afzal's reply was that he accompanied said Ghulam Muhammad to Delhi and stayed with him but it was under compulsion of Devinder Singh, SP Special Task Force. According to normal criminal procedure code the judge was duty bound to put several quesions to Afzal regarding the identity of said Devinder Singh and his position. But under POTA the court not opt to do so and it was not found legal on its part as to why the court failed to make queries which otherwise would have unveiled a very important aspect of the case.
Under normal Criminal Procedure Code once the accused is asked to give particulars of Devinder Singh the word S.P. and that too of Special Task Force is to implicate same very person having power and influence over Afzal and so Afzal meant to say that he had no option but did such nasty thing under pressure and duress. This has caused injustice not on Afzal but has thrown deep shadow on the judicial process. Secondly Afzal could not, for reasons best known to him, afford to have his defence lawyer. And as per rules the judge provided an advocate to him of its choice and the said advocate was to get his fees from the prosecution. Such an advocate usually happens to be hand-in glow with the prosecution and thus fails to perform his normal duty of defending his client. Be it like that. With all that Afzal reportedly brought to the notice of the court that he has no faith in the Amicas Curiae the advocate appointed by court, as indicate here in above. But all the same the court did not take notice of Afzal's beseechings and allowed amicas curiae to continue to participate in the proceedings. The court was bound as per judicial proceedings to stop the proceedings ask Afzal arrange for his defence or else ask him to cross-examine the prosecution witnesses himself warning him that in case he fails on both these counts the court will continue to record the statements of the prosecution witnesses without cross-examination. The worst is that has Amicas curiae accepted the prosecution as if he was next friend of the prosecution.
In these circumstances it can be safely said that Afzal's trial was not fair and injustice was done to him. It would be in the interest of justice itself to set aside the judgement and order re-enquiry and retrial of Afzal according to the standards of the Criminal Procedure Code. This is not some thing unusual the Supreme Court has done in Gujarat communal case and has ordered retrial of Zaheera Sheikh and that too outside Gujarat. It can be done as yet. A word may also be submitted that the Hon'ble Supreme Court has remarked even the clemency granted by the President can be made subject matter of the judicial process. I beg to differ because of the fact that judicial consideration are entirely different than that of the President of India. He has to look to the larger interests and has not to confine himself within the four corners of the judicial file. Phoolan Devi the murderer of 3 persons wherein eye witnesses were available was acquired due to the clemency and later on she became Hon'ble Member Parliament of India and has got a place amongst the stalwarts of India. The Supreme Court Judgement, as stated herein above, is judicially the last word but is not infallible. Judicial history shows retrospectively. And some judgements as political trials.
Maulana Abul Kalam Azad has rightly said that of the battle field the largest number of the innocent people got killed on the court rooms. Mr. A.G.. Noorani has written a book 'Indian Political trials 1775-1947 (published by Oxford 2005) which gives analysis of so, many political trails wherein the history has shown that the judges were wrong and the accused were innocent. The Judges of the Hon'ble Supreme Court are bond to see that it would not happened within their sphere of influence.