Re: Internal Security Watch
Posted: 12 Feb 2013 04:15
Much has been written in the last couple of days (and before that) about Afzal's execution. I ignored the comments made by terrorist sympathizers and the likes of Arundhati Roy or Amaresh Mishra. Some people were motivated by their general aversion to the death penalty on moral or practical grounds - I have sympathy for this view on the latter grounds (too many cases of people being executed and subsequent conclusive proof emerging that they were guilty; in my books even one innocent person executed is one too many and due to its irreversibility, the death penalty is particularly problematic on this front). But that is not specific to Afzal's case. I did however, pay attention to those arguing that he did not receive a fair trial, and instead of depending on opinions of others, I went back to the original case documents. In particular, the Supreme Court judgement on the case is instructive.
http://www.outlookindia.com/article.aspx?228136
If you don't want to read it in full, here are the main points. Afzal's conviction rested on the following grounds
1. Confession statement - at the trial stage, this was the main basis for the verdict and the death sentence. However, the Supreme Court dismissed the confession statement, on the basis that it violated the safeguards provided in law. The facts are that the case was registered under regular criminal law, under which a confession is admissible only if it is taken in front of a magistrate - a confession given to a police officer is not admissible. However, the Government enacted POTO (later enacted by Parliament as POTA) on 19th December, i.e. after the Dec 13th attack and it was applied to this case on a retroactive basis. POTO/POTA allows confessions before police officers to be admissible, but with some safeguards. One of those is that of right to counsel, which was denied to Afzal. Second is the right for adequate time for reflection before signing the statement (this is to ensure that the confession is not a heat of the moment thing, but one based on careful consideration). This was also, in the Supreme Court's opinion, not provided. Thus the Supreme Court set aside the confession in its entirety.
2. The second point made was that he did not receive adequate legal representation. He was unrepresented for part of the duration of trial, but the Supreme Court did not find this to be a problem since it was for a short time, and during this time, there were no consequential legal decisions (only remands and such). He was initially represented by Seema Gulati, along with her junior counsel, Neeraj Bansal, but she later withdrew because she was representing the co-accused SAR Geelani. Neeraj Bansal continued as Afzal's counsel. Afzal expressed several times in court that he was not happy with the legal representation provided by Bansal but the court did not appoint a different counsel. The Supreme Court rejected this argument, and it could not have done otherwise. It is very hard to make a case on this basis, unless there is specific evidence of misconduct on the part of the counsel (e.g. if he was recorded having a conversation with the counsel for the other side, as in the case of the 2G case today). The state is obligated to provide a counsel for the accused, not the best counsel possible. That said, the trial court's decision to not seriously consider this issue is somewhat unfortunate, since justice needs to be seen to be done. In this case, the only thing the trial court did was to allow Afzal to cross examine witnesses. But how can somebody with not even an undergraduate degree be expected to do this adequately? Also, it is curious (but by no means evidence of improper legal representation) that the counsel for Afzal brought forth no witnesses, and did not provide any material of his own to support the case.
3. The third point, and on which basis the Supreme Court confirmed the conviction and death penalty for Afzal, relied on circumstantial evidence. Things like the telephone recovered from him to which the dead terrorists had made phone calls, identification by shopkeepers who had sold the ingredients for making explosives, a laptop that was used to create the fake ID cards the terrorists used etc., hideouts used by the terrorists and identification of Afzal by the landlords of these properties, identification by shopkeepers who sold mobile phones to Afzal that were used by the terrorists and so on. The court did point to some curious facts such as Afzal's mobile phone (a crucial piece of evidence as it turned out) but which had neither a SIM card in it, nor was its IMEI number recorded at the time of recovery. Or that the various identifications were based not on identification parades, or by presenting multiple photos of different people from which the witness picked out Afzal, but by asking whether this was the person they had sold the items to, showing only one photo. However, the court concluded that the circumstantial evidence pointed to Afzal's participation in the conspiracy.
4. The fourth case of the prosecution was based on the statements of Geelani and the other accused, where they implicated themselves as well as Afzal. But the Supreme Court acquitted or reduced the sentences of the others, and these statements did not have much evidentiary value in Afzal's case as well.
To sum up, it seems like the Supreme Court did go into issues such as flaws in legal representation, the lack of safeguards while taking the confession statement, and loopholes in the other circumstantial evidence that many of those opposing Afzal's execution point to and did not base its judgement on these pieces of evidence (throwing out the confession statement altogether). It did, however, consider the circumstantial evidence to be sufficient to uphold the conviction and the death penalty.
My own reading of the case document suggests that Afzal probably did have some role to play in the conspiracy. He probably did procure material for the attack, and he was in touch with the terrorists. He probably did know what the plan was, but the courts did not establish this once the confession statement was thrown out by the Supreme Court. Thus, it seems to me (with my absence of legal training) that the evidence was sufficient to say that he was an accessory to the fact. He was probably in full knowledge of the conspiracy, but this was not established beyond reasonable doubt. It is unlikely that an innocent man was executed - whether the sentence was commensurate with his offense is a different question (the trial court sentenced him to death on the basis that he was a conspirator, not that he was an accessory). We must also remember the time that this happened, in the post 911, post Dec 13/Kaluchak/Akshardham era when public sentiment wanted some of the guilty to be apprehended and punished (and unfortunately enough, even the Supreme Court referred to this in justifying the death sentence). Overall, this was not the Supreme Court's finest moment (in confirming not just the execution but also death penalty in a case based largely on contaminated circumstantial evidence without corroborating evidence in most cases). That does not mean that Afzal was innocent or that the conviction was wrong per se. Only that it will unfortunately be pointed to in future as a case where people can raise doubts about whether justice was done. To repeat, justice needs to be seen to be done, and even more so in a case involving the death penalty.
What are some lessons from this?
1. There seems to be an utter lack of knowledge of basic procedures of investigation amongst our law enforcement agencies. Especially when it comes to application of legal safeguards for the accused, this can cause most cases to not result in convictions. No wonder our conviction rates are so poor. For instance, in this case, even the basic Miranda rights given explicitly under law were denied. When evidence was collected, even the basic precautions taken world over were not taken, contaminating the evidence altogether. There is a high probability, in my opinion, that this case would have resulted in an acquittal of Afzal at the trial stage itself had this been in a country like the US. Not because he was innocent, but because the evidence was contaminated (not just the confession but even the circumstantial evidence).
2. There needs to be codification of certain things that are taken for granted elsewhere, but which seem to have grey areas in our case. A universally applied principle of the law everywhere is that you can be tried only under laws that were applicable at the date of the commission of the crime. Laws cannot be retroactively applied. In this case, POTO was applied in the case even though it was enacted after the Dec 13th attack. His initial arrest, remand etc. was not under POTA. POTA was applied when the confession was taken from him since the Act allowed the confession to be recorded by a police officer and used as evidence, something not ordinarily admissible as evidence.
3. Justice needs to be prompt and needs to be seen to be fairly applied. The inordinate delay in the decisions on the clemency petitions, the feeling that this is not fairly applied (e.g. in the case of the assassination of Rajiv Gandhi and of Beant Singh due to political considerations) is not good for our legal system, or indeed for our fight against terrorism. In this regard, some of those politicians (e.g. the BJP) who clamored for Afzal's execution but are silent about Rajaona (Beant Singh's killer, against whom the case is much stronger than against Afzal) are doing great disservice to the cause of fighting terrorism of any kind. And they feed into the claims of those in Kashmir and elsewhere that the law is not applied uniformly and fairly. There may be no basis to this, but the politicians don't help matters when they selectively want the application of the law in some cases but not in others.
4. Executions need to be clinical affairs, seen to be done for the purpose of upholding the law and nothing else. While the state itself cannot be faulted too much in the cases of Kasab and Afzal, the same cannot be said about some of the people involved. For instance, some person in Tihar jail talked about the contents of the letter that Afzal wrote to his wife just before his execution (funnily enough, the person said that it would be insensitive to reveal its contents, but went ahead and did it anyway). There is no need to cater to the perverse voyeurism of society. A criminal, if given the death penalty, has to be executed by the state, but the public spectacle that follows is unseemly. What he said before his execution, what he ate etc. don't need to be publicly revealed. It didn't use to be like this - I remember the day of Kehar Singh's execution (the last execution in Tihar) and our neighbor at the time was the senior Delhi Police official in charge of the execution. Not once did he speak, even in an informal way about it, and not much was revealed to the press either. I guess what has changed (for the worse in many ways) is the large number of TV channels, but that is no excuse to the kinds of leaks we have been seeing.
http://www.outlookindia.com/article.aspx?228136
If you don't want to read it in full, here are the main points. Afzal's conviction rested on the following grounds
1. Confession statement - at the trial stage, this was the main basis for the verdict and the death sentence. However, the Supreme Court dismissed the confession statement, on the basis that it violated the safeguards provided in law. The facts are that the case was registered under regular criminal law, under which a confession is admissible only if it is taken in front of a magistrate - a confession given to a police officer is not admissible. However, the Government enacted POTO (later enacted by Parliament as POTA) on 19th December, i.e. after the Dec 13th attack and it was applied to this case on a retroactive basis. POTO/POTA allows confessions before police officers to be admissible, but with some safeguards. One of those is that of right to counsel, which was denied to Afzal. Second is the right for adequate time for reflection before signing the statement (this is to ensure that the confession is not a heat of the moment thing, but one based on careful consideration). This was also, in the Supreme Court's opinion, not provided. Thus the Supreme Court set aside the confession in its entirety.
2. The second point made was that he did not receive adequate legal representation. He was unrepresented for part of the duration of trial, but the Supreme Court did not find this to be a problem since it was for a short time, and during this time, there were no consequential legal decisions (only remands and such). He was initially represented by Seema Gulati, along with her junior counsel, Neeraj Bansal, but she later withdrew because she was representing the co-accused SAR Geelani. Neeraj Bansal continued as Afzal's counsel. Afzal expressed several times in court that he was not happy with the legal representation provided by Bansal but the court did not appoint a different counsel. The Supreme Court rejected this argument, and it could not have done otherwise. It is very hard to make a case on this basis, unless there is specific evidence of misconduct on the part of the counsel (e.g. if he was recorded having a conversation with the counsel for the other side, as in the case of the 2G case today). The state is obligated to provide a counsel for the accused, not the best counsel possible. That said, the trial court's decision to not seriously consider this issue is somewhat unfortunate, since justice needs to be seen to be done. In this case, the only thing the trial court did was to allow Afzal to cross examine witnesses. But how can somebody with not even an undergraduate degree be expected to do this adequately? Also, it is curious (but by no means evidence of improper legal representation) that the counsel for Afzal brought forth no witnesses, and did not provide any material of his own to support the case.
3. The third point, and on which basis the Supreme Court confirmed the conviction and death penalty for Afzal, relied on circumstantial evidence. Things like the telephone recovered from him to which the dead terrorists had made phone calls, identification by shopkeepers who had sold the ingredients for making explosives, a laptop that was used to create the fake ID cards the terrorists used etc., hideouts used by the terrorists and identification of Afzal by the landlords of these properties, identification by shopkeepers who sold mobile phones to Afzal that were used by the terrorists and so on. The court did point to some curious facts such as Afzal's mobile phone (a crucial piece of evidence as it turned out) but which had neither a SIM card in it, nor was its IMEI number recorded at the time of recovery. Or that the various identifications were based not on identification parades, or by presenting multiple photos of different people from which the witness picked out Afzal, but by asking whether this was the person they had sold the items to, showing only one photo. However, the court concluded that the circumstantial evidence pointed to Afzal's participation in the conspiracy.
4. The fourth case of the prosecution was based on the statements of Geelani and the other accused, where they implicated themselves as well as Afzal. But the Supreme Court acquitted or reduced the sentences of the others, and these statements did not have much evidentiary value in Afzal's case as well.
To sum up, it seems like the Supreme Court did go into issues such as flaws in legal representation, the lack of safeguards while taking the confession statement, and loopholes in the other circumstantial evidence that many of those opposing Afzal's execution point to and did not base its judgement on these pieces of evidence (throwing out the confession statement altogether). It did, however, consider the circumstantial evidence to be sufficient to uphold the conviction and the death penalty.
My own reading of the case document suggests that Afzal probably did have some role to play in the conspiracy. He probably did procure material for the attack, and he was in touch with the terrorists. He probably did know what the plan was, but the courts did not establish this once the confession statement was thrown out by the Supreme Court. Thus, it seems to me (with my absence of legal training) that the evidence was sufficient to say that he was an accessory to the fact. He was probably in full knowledge of the conspiracy, but this was not established beyond reasonable doubt. It is unlikely that an innocent man was executed - whether the sentence was commensurate with his offense is a different question (the trial court sentenced him to death on the basis that he was a conspirator, not that he was an accessory). We must also remember the time that this happened, in the post 911, post Dec 13/Kaluchak/Akshardham era when public sentiment wanted some of the guilty to be apprehended and punished (and unfortunately enough, even the Supreme Court referred to this in justifying the death sentence). Overall, this was not the Supreme Court's finest moment (in confirming not just the execution but also death penalty in a case based largely on contaminated circumstantial evidence without corroborating evidence in most cases). That does not mean that Afzal was innocent or that the conviction was wrong per se. Only that it will unfortunately be pointed to in future as a case where people can raise doubts about whether justice was done. To repeat, justice needs to be seen to be done, and even more so in a case involving the death penalty.
What are some lessons from this?
1. There seems to be an utter lack of knowledge of basic procedures of investigation amongst our law enforcement agencies. Especially when it comes to application of legal safeguards for the accused, this can cause most cases to not result in convictions. No wonder our conviction rates are so poor. For instance, in this case, even the basic Miranda rights given explicitly under law were denied. When evidence was collected, even the basic precautions taken world over were not taken, contaminating the evidence altogether. There is a high probability, in my opinion, that this case would have resulted in an acquittal of Afzal at the trial stage itself had this been in a country like the US. Not because he was innocent, but because the evidence was contaminated (not just the confession but even the circumstantial evidence).
2. There needs to be codification of certain things that are taken for granted elsewhere, but which seem to have grey areas in our case. A universally applied principle of the law everywhere is that you can be tried only under laws that were applicable at the date of the commission of the crime. Laws cannot be retroactively applied. In this case, POTO was applied in the case even though it was enacted after the Dec 13th attack. His initial arrest, remand etc. was not under POTA. POTA was applied when the confession was taken from him since the Act allowed the confession to be recorded by a police officer and used as evidence, something not ordinarily admissible as evidence.
3. Justice needs to be prompt and needs to be seen to be fairly applied. The inordinate delay in the decisions on the clemency petitions, the feeling that this is not fairly applied (e.g. in the case of the assassination of Rajiv Gandhi and of Beant Singh due to political considerations) is not good for our legal system, or indeed for our fight against terrorism. In this regard, some of those politicians (e.g. the BJP) who clamored for Afzal's execution but are silent about Rajaona (Beant Singh's killer, against whom the case is much stronger than against Afzal) are doing great disservice to the cause of fighting terrorism of any kind. And they feed into the claims of those in Kashmir and elsewhere that the law is not applied uniformly and fairly. There may be no basis to this, but the politicians don't help matters when they selectively want the application of the law in some cases but not in others.
4. Executions need to be clinical affairs, seen to be done for the purpose of upholding the law and nothing else. While the state itself cannot be faulted too much in the cases of Kasab and Afzal, the same cannot be said about some of the people involved. For instance, some person in Tihar jail talked about the contents of the letter that Afzal wrote to his wife just before his execution (funnily enough, the person said that it would be insensitive to reveal its contents, but went ahead and did it anyway). There is no need to cater to the perverse voyeurism of society. A criminal, if given the death penalty, has to be executed by the state, but the public spectacle that follows is unseemly. What he said before his execution, what he ate etc. don't need to be publicly revealed. It didn't use to be like this - I remember the day of Kehar Singh's execution (the last execution in Tihar) and our neighbor at the time was the senior Delhi Police official in charge of the execution. Not once did he speak, even in an informal way about it, and not much was revealed to the press either. I guess what has changed (for the worse in many ways) is the large number of TV channels, but that is no excuse to the kinds of leaks we have been seeing.
. Hope the government just ignore these people. The govt. was all okay for them to come and see the grave, but no these folks wants the body.
” she said.
The daughter of Pilavendran, one of the men, said he was innocent. "My father was never part of the Veerappan gang. He did not participate in any criminal activities. In fact he was working in Erode district far away from location of the landmine attack but he was picked up and tried," Josephine Pasca Mary told BBC Tamil.Activists now plan further appeals in the courts."All the accused were arrested in 1993 and are in prison for 19 years," Balamurugan said. "In 2004 they gave their mercy petition to the president and only now they got the reply. We will say keeping them on death row for over nine years violates their rights." 