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Afzal Guru case: Justice ended up the loser

By Saurav Datta

In the Afzal Guru case the legal community, swayed by misconceived perceptions of patriotism, demonstrated its abject failure to adhere to its core ethics. The judiciary was carried away by bloodlust. And the state, paranoid about ‘terrorism’, was cavalier in its interpretation of effective legal aid to the accused. Did Afzal Guru have any meaningful access to justice?

Nothing rankles more in the human heart than a brooding sense of injustice.
--  Justice Brennan, Supreme Court of the United States

It is a strange thing what authority the opinion of mankind generally accords to the intervention of courts. It clings even to the mere appearance of justice long after the substance has evaporated; it lends bodily form to the shadow of the law.
-- Alexis de Tocqueville

The collective voices of society, polity, the state, media and legal fraternity have all hailed Mohammad Afzal Guru’s execution as a triumph of the ‘rule of law’.

Appalled by this macabre manifestation of jingoism (1), I wish to utilise this space to express my unhappiness over the collective failure of these hallowed institutions that are held up as the fulcra of democracy.

In the following paragraphs, I will scrutinise Afzal’s trial, the conduct of the legal fraternity and especially the lawyers whom the law and judiciary, in their ‘magnanimity’ and lip-service to legal aid, heaped on him despite his protestations, the flawed reasoning, reliance on erroneous precedent, and the sentencing caprice of the Supreme Court of India. I conclude that the act was nothing short of judicially-sanctioned murder, and that justice, instead of being triumphant, ended up being the loser.

Afzal Guru case: Justice ended up the loser

The gravamen of my indictment is this: the legal community, swayed by misconceived perceptions of patriotism, demonstrated its abject failure to adhere to its core ethics; the judiciary (from the trial court right up to the Supreme Court of India), carried away by bloodlust, the fantastic paranoia of the Indian state succumbing to the hegemonic concept of ‘terrorism’ and abjectly cavalier in its approach to judicial interpretation of ‘effective legal aid and assistance of counsel’ together were complicit in an insidious conspiracy. What makes the indictment all the more serious is the fact that the conspiracy was successfully executed in the garb of upholding a fair legal process, apparently under the aegis of the Indian Constitution!

‘Patriotic’ lawyers or ethical delinquents?

The parliament attack case was not the first instance where the legal community sprinted to prove its nationalistic and patriotic credentials, by adopting unanimous, vociferous and zealously enforced ‘resolutions’ prohibiting anyone from defending those accused of committing acts of ‘terrorism’. I put this term in quotes because post-9/11, 26/11, and a spate of similar events, we live in a world where dissent is punished as treason, where taking up cudgels for the cause of justice is deemed an insurrection. Those swearing by civil liberties and believing in cause-justice lawyering are pilloried and vilified, persecuted and even killed (2).  As John Ashcroft, George W Bush acolyte and ex-attorney general of the US who was the key legal mind behind the Guantanamo torture programme, said in 2005: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists.”

However, considering that certain bogeys created by the state, its allies and its agents are used as the perfect foil and reason for illegal wars and every kind of defenestration of human rights and civil liberties, it becomes imperative for any lawyer worth his salt to embrace and espouse the ‘jurisprudence of insurrection’ as was done by stalwarts like Roy Black, Thurgood Marshall and K G Kannabiran because both the bar and the bench are equally responsible for carrying the mantle of justice and rule of law. And when both abdicate their responsibilities, as they did in Afzal’s case, both become handmaidens of the gravest injustice.

One of the most eloquent statements on the duties of a lawyer came from Thomas Erskine in his defence of Thomas Paine when he was tried for seditious libel in 1792: ‘I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice… can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court… from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment…’

Lord Brougham, a tireless crusader of civil liberties, said in 1937: ‘An advocate, by the sacred duty which he owes to his client, knows in the discharge of that office but one person in the world -- the client, and no other… to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties… Nay, separating even the duties of a patriot from those of an advocate, and casting them if need be to the wind, he must go on reckless of the consequences…’

Nancy Hollander, past president of the National Association of Criminal Defence Lawyers (US), proclaims with pride and devoid of any compunction: ‘So let me say it: I am a terrorist lawyer, if that means I am willing to defend those accused of terrorism. I am currently defending two men imprisoned in Guantanamo and I defend others accused of terrorism.

‘Contrary to recent attacks by those who claim to be supporters of American justice, my defence of people accused of serious and sometimes horrific crimes is not an endorsement of those crimes. Rather, it is a testament to the strength of my belief in, and commitment to, the American system of justice.

‘Why? Because in my defence of every client, I am defending the United States Constitution and the laws and treaties to which it is bound, and I am defending the rule of law. If I am a terrorist lawyer, I also am a rule-of-law lawyer, a constitutional lawyer and a treaty lawyer.’ (3)

Capital defence cases, legal aid, and the right to effective counsel

One man’s terrorist is another man’s freedom fighter, goes the saying. This aphorism holds true for Kashmir. For the sake of brevity, I am not going into Afzal’s history and background which has been mentioned, discussed, debated, and disputed ad nauseam in the media and elsewhere before he was thrown into the crosshairs of the police and judiciary. His lament, “I am Afzal for Kashmiris, and I am Afzal for Indians as well, but the two groups have an entirely conflicting perception of my being,” (4) makes it clear that his trial was a political one, as many cases of ‘terrorism’ usually are.

Justice in political trials is more tenuous than in any other trial, for it is not merely criminal procedure or substantive law, but values of democracy and liberty which are affected by the language and logic of the law.

The case of the parliament attack (5) on December 13, 2001, was no ordinary one. The Supreme Court regarded it as waging war against the state because the citadel of Indian democracy had been attacked. It was a case in which Mohammad Afzal, one of the accused and convicted of criminal conspiracy, was sent to the gallows. For, nothing less could have satisfied the ‘collective conscience of society’, as the Supreme Court was pleased to hold.

Afzal was too indigent to be able to afford a lawyer, and had exercised his fundamental right to demand legal aid from the state and the court. How the court dealt with it has been described later in this article, but before that one needs to understand that, in India, legal aid, despite all its trappings, is considered charity, not a bounden duty. Otherwise, how is it that there is not a single ruling laying down a set of minimum standards of legal assistance for the indigent accused?

Yug Mohit Chaudhry, who champions abolition of the death penalty, sums up the inextricable link between lack of effective legal aid and cases of mistrial and miscarriage of justice: ‘In the nine years from January 1, 2000, to December 31, 2009, the Supreme Court gave the death sentence in 30 cases. At least 14 of them were defended on legal aid, and many more had legal-aid lawyers in the earlier stages. Twelve of the 14 prisoners wrongly sentenced to death in the Ravji cases, including Ravji himself, who has been executed, were represented on legal aid.

‘In the US, where legal aid is more organised and better remunerated than it is in India, Justice Ruth Ginsburg of the US Supreme Court observed that she had never seen a death case coming in appeal to the Supreme Court where the defendant was well represented at the trial. It is hardly surprising, therefore, that most cases of miscarriage of justice, wrongful conviction and executions have been defended at some stage on legal aid. Prisoners facing the death sentence who are handicapped by poverty are doomed ab initio by a system that pays legal aid lawyers a pittance for their work.’ (6)

Monroe H Freedman in his seminal work, Understanding Lawyers' Ethics (1990), regards the right to counsel as the most important of all rights because it is inextricably linked to the ‘client’s ability to assert all other rights’ (7). Through adversarial advocacy, the lawyer functions to uphold the client’s rights, and protect the client’s autonomy, dignity, and freedom (8).

The right to effective counsel arises because ‘judicial justice with procedural intricacies, legal submissions and critical examination of evidence leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature and judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law’ (9).

In an atmosphere charged with such hate and prejudice as was the aftermath of December 13, 2001, continuing right till the end of the legal proceedings, if a lawyer appearing for any of the accused did not oppose the prosecution’s case tooth-and-nail on every question of fact and law, or conducted his duties in a cavalier manner, it would have been nothing short of forming an insidious allegiance with the prosecution. The accused will never be able to believe in equality before the law when he knows he is inherently disabled from proving the state wrong.

In the present jurisprudential framework, bearing in mind the myriad amoral and coercive tactics adopted by the police and prosecution, an accused needs, and is entitled to, effective legal representation from the very moment he is arrested or detained. This is because the machinations of prosecutorial malice are put to work much before the commencement of proceedings, and these have a crucial bearing on the outcome of the trial. Moreover, in a criminal case, what is blotted at the trial stage cannot be blotted on appeal, because appellate courts deal with questions of law, not fact, unless of course there is a re-trial, Afzal’s pleas for which were steadfastly rejected by the courts. Even a curative petition (filed to remedy a gross miscarriage of justice) was summarily dismissed.

What if the accused happens to be someone like Afzal who was illegally picked up by the police, tortured in custody, then ‘shown’ as arrested on a later date, and made to narrate a ‘confession’ (10) in the full glare of the television cameras, surrounded by armed policemen? Then, to insist that the right to counsel becomes applicable only from the time ‘proceedings’ start in court would be the surest way to ensure a travesty of justice.

The accused has an inalienable right to be defended by a lawyer of his choice, and such representation and defence must be ‘effective’ -- this has been a part of Indian jurisprudence since 1956 (11). It traces its roots to American jurisprudence, where, in Powell vs Alabama (12), for the first time, the US Supreme Court allowed the right to counsel to three black teenagers who had been charged with rape and robbery of white women, and had been sentenced to death, because it was considered an ‘essential jurisdictional prerequisite’ to depriving a person of his life or liberty.

In 1945, regarding the standard of a counsel’s assistance, in Diggs vs Welch, it was held that assistance of counsel would not be regarded as effective if it reduced the trial to a ‘farce and mockery’ (13).  This was obviously too high a threshold to judge the counsel’s incompetence, hence in McMann vs Richardson (14) it was clarified that right to counsel means reasonably effective and competent assistance by the lawyer. The brightest beacon remains Gideon vs Wainwright, where Justice Hugo Black pronounced that an accused’s right to counsel is one of the fundamental principles of liberty and justice (15).

Why the Strickland Test fails

Strickland vs Washington (16) is what the Supreme Court of India decided to apply to Afzal’s case. It was gravely erroneous on two counts: one, as shown above, there already were existing precedents in Indian law, hence the adherence to Strickland was whimsical, and dispensable. Moreover, as proved below, Strickland was a study in prejudice.

In Strickland, a two-pronged test was laid down:

  • The accused must show deficient performance on the part of counsel.
  • This deficient performance prejudiced the defence so seriously as to deprive him of a fair trial, a trial whose results are reliable.

The court went on to stress that the evaluation of such assistance by counsel must be very ‘deferential’ and a strong presumption would be drawn that such assistance was reasonable and effective.

It does not require any explanation that adherence to such pre-judicial standards, which are so loaded against the accused, would more often than not result in ‘punishment by procedure’ (17), and for these very reasons the ‘Strickland standard’ has been subjected to trenchant criticism (18). The sole mitigating factors in Strickland were some of counsel’s basic duties. These included, but were not limited to: duty to advocate the case, and duty to consult with the accused on important decisions. As I shall demonstrate in the subsequent paragraphs, even redeeming aspects of the Strickland Test were overlooked by the Supreme Court.

Conduct of Afzal’s lawyers at his trial, and the Supreme Court’s injustice

Afzal had provided the special court with a list of four lawyers, and wanted to be represented by any one among them. Strangely, the trial court recorded that all four had refused, but no reasons were provided. There is nothing on record to even verify whether these four lawyers were approached at all, and what, if any, had been their grounds for refusal. Both the high court and the Supreme Court glossed over this strongly suspicious situation in the most blasé manner.

On May 17, 2002, the day the trial began, Seema Gulati, a person whom he had never met before, was assigned to Afzal. Gulati easily conceded that the prosecution had prima facie evidence to frame charges, and not only that, admitted without demanding any formal proof all the crucial documents and recovered items which later on were used as the basis for Afzal’s conviction. If this ‘performance’ does not belie credulity, there’s more.

On July 2, 2002, Gulati, without giving any reasons, withdrew her vakalatnaama in favour of Afzal and decided to appear for S A R Geelani, another accused in the same case. She assigned the case to her junior Niraj Bansal who made clear his unwillingness to represent Afzal. But the court, for ‘reasons’ which can at best befuddle, appointed Bansal amicus curiae (friend of the court), because he had experience in handling TADA cases! (Afzal was being tried under POTA, and charged with ‘waging war against the state’ u/s 121 of the Indian Penal Code. Both are far more draconian than TADA.) When there is dire need for a lawyer to withstand the prosecution’s onslaught, the court cherry-picked a ‘friend’!

Afzal’s repeated pleas that he had no confidence in Bansal’s performance and requests for another lawyer went unheeded. He had no option but to cross-examine most of the witnesses himself because most of Bansal’s questions were perfunctory, at best. So we had an accused, who had no training in the law, staring at death, forced to do the best he could and fight a Titanic battle because he had been deprived of a basic right by none other than the court!

In one of the most astounding displays of institutional self-referentialism, the Supreme Court went on to perpetrate a greater violation. It found nothing wrong with Gulati’s conduct and instead held that she had ‘exercised her discretion reasonably’. When the law mandates holding someone to an inviolable standard of ‘duty’, can anyone even conceive of the exercise of ‘discretion’?

As for the complaints regarding Bansal’s lackadaisical approach, the court was content to follow the ‘deferential’ path of Strickland, receive an annexure (which contained the list of questions he had asked during cross-examination) from the prosecution, and without even bothering to examine those, condemned Afzal by ruling that he had received a ‘fair’ trial.

In the high court, when Afzal protested again against Bansal’s now-proven incompetence and unwillingness, a human rights lawyer offered to represent him, and he accepted. However, this ‘benefactor’ started his argument by asking the court not to hang Afzal but to order his death by lethal injection (19)!

(Saurav Datta is an independent legal researcher and faculty, Symbiosis Law School, Pune. A shorter and modified version of this article was published here: http://kafila.org/2013/02/20/punishment-by-procedure-saurav-datta/)

Endnotes
1 The Parliament attack case was the first litigation I was part of. I was a student intern in the chambers of Kamini Jaiswal, who was briefing Ram Jethmalani. I got to see and understand the case from the closest of quarters, and maybe that exacerbates my indignation at this egregious miscarriage of justice
2 Like Shahid Azmi (http://kafila.org/2012/11/24/remembering-shahid-azmi-can-the-love-of-justice-be-assassinated-arvind-narrain-saumya-uma/ ) or Jitendra Sharma, whom the NIA (National Investigation Agency) is hounding because he was defending people accused of naxalism (yet another of those terms thrust into the vocabulary of terror by a tyrannical state). http://daily.bhaskar.com/article/MP-BHO-nia-targeting-lawyer-who-represents-terror-accused-4164462-NOR.html
3 ‘A Terrorist Lawyer, and Proud of It’, NYT, March 24, 2010. Available at http://www.nytimes.com/2010/03/24/opinion/24iht-edhollander.html?_r=0&pagewanted=print
4 ‘Mulakat Afzal’, Caravan, February 9, 2013. Available at http://caravanmagazine.in/reportage/mulakat-afzal
5 State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru (2005, Supreme Court of India)
6 ‘Legal Aid’, Frontline. Available at http://www.flonnet.com/fl2917/stories/20120907291702800.htm
7 p 13
8 Id, pp 15-17
9 Madhav Hayawadanrao Hoskot vs State of Maharashtra, AIR 1978, SC 1548, para 3
10 This confession was discarded by the Supreme Court, but by then the damage had been done. The prosecution had a free hand in concocting ‘evidence’ -- something that was never challenged by his lawyer in the trial court!
11  Hansraj and Ors vs State AIR, 1956, all 641; affirmed in State of Madhya Pradesh vs Shobharam and Others, AIR 1966, SC 1910
12 287 US 45 (1932)
13 Diggs vs Welch, 148 F 2d 667, 670 (D C Cir 1945)
14 397 US 759 (1970)
15 372 US 335, 341 (1963)
16 466 US 668 (1984)
17 Per Gideon, supra
18 See, for instance, Victoria Nourse, Gideon's Muted Trumpet, 58 Md L Rev 1417 (1999), where a very cogent claim is staked for debunking Strickland and reviving Gideon
19 ‘A Collaborator in Kashmir’, psp 172-182 in Amitava Kumar, Evidence of Suspicion -- A Writer’s Report on the War on Terror, Picador (2010) at 178

Infochange News & Features, March 2013