is the most important guarantee there is in the Constitution. No doubt the more privileged among us rely not only on the law for our protection, but also on our class background, our connections with those in power and so on. But the poor have only the law to depend on — and that is where the guarantee of the procedure prescribed by law comes in.
Many among us detest the death penalty. Legal processes are fallible, but execution cannot be revoked to restore justice. Be that as it may, at least the process by which the penalty is imposed needs to be fair. The seminal requirement of this fairness is that the person facing a death penalty be represented by a lawyer. How would we like it if we entered a court room, when arraigned as an accused, without a lawyer? Journalists facing defamation, newspapers facing contempt, business tycoons locked in legal battles are all represented by very senior lawyers. What if a person facing the death penalty were to be unrepresented by a lawyer?
In order to avoid such an eventuality, the Constitution was amended in 1976 to introduce the Right to Legal Aid for indigent people as a directive principle of state policy. The Supreme Court has held the Right to Legal Aid for an accused facing a trial which could lead to deprivation of life or liberty. The government enacted the Legal Services Authority Act 1986, to ensure that legal aid is available to indigent people.
And yet, Afzal went to trial for a capital crime without adequate representation. From his arrest till he made a so-called confession, he was not represented by a lawyer. He gave a list of four lawyers who he would have liked to have represented him. Judge Dhingra, who finally found him guilty of conspiracy to wage war against the country, records that two of the named lawyers refused to represent him. There is no record of the other two being asked. When produced in court, he was told that a lawyer, who he had never met, who had not visited him in jail to get a first-hand account of what happened, would represent him. He is then said to have admitted documents identifying the five dead persons and the post mortem reports. It seems that the die was cast then: if he admitted to knowing the five who were dead, he must have been be part of the conspiracy.
Sometime early in the trial, the lawyer withdrew her appearance and represented another accused. Afzal was told that her junior would represent him. During the trial, he noticed, that the young lawyer was denying facts he had admitted, at which point he said that he did not want the lawyer in question.
From then on, the record indicates that he was cross-examining witnesses against him himself and that too without being given copies of the depositions. The court, in the meantime, appointed the very same lawyer in whom Afzal had expressed no confidence as an amicus curiae. Amicus curiae means “a friend of the court”!
Now that Afzal’s curative petition has been dismissed by the Supreme Court, there will be far-reaching consequences for thousands of people in this country. To send a man to his death without legal representation is not only unconstitutional but also barbaric. Why go through an elaborate trial if the accused is not represented by a lawyer? One might as well be judge, prosecutor, and counsel for the accused anyway and pronounce judgment.
The tragedy is that Afzal is not the only one in these circumstances; there are hundreds like him, deprived of liberty without adequate legal services. The legal profession is privatised, regulating its own fees. The legal aid on offer provides no more than Rs. 3,000 to the counsel representing an indigent accused for the entire trial. Can one really hope to get adequate representation for that fee? It is pointless to argue that lawyers should appear free of charge in an otherwise unregulated profession.
A well-funded Legal Services Authority should pay its legal aid lawyers better to attract talent to legal aid. There are many young lawyers committed to providing legal services to the poor, who need to be backed by a proper legal aid system. There is no lack of finances with the authority; the question is how the money is spent. On conferences and airfares, or on providing legal services to the poor?
I am aware that these questions have been raised in the appeal and the review petition. But review petitions are rejected without reasons and without a hearing. The law laid down by the Supreme Court visualises the filing of a curative petition to cure a miscarriage of justice.
That was done by Afzal — to no avail. Now, only the President of India can have the last word.
We can only give opinions that there has been a gross miscarriage of justice.
(The writer is a senior advocate.)