Afzal’s defence rested on two gross infirmities: one, it was a trial by media; two, he was denied a lawyer. Before his trial could begin, the police called in the media to broadcast a nationwide ‘confession’ on prime-time TV. Such a ‘confession’, though inadmissible as evidence in court, had a huge popular impact and a fair trial became nigh impossible. ACP Rajbir Singh stated in his testimony: “I allowed media to interview accused Afzal in my office under the consent of my senior officer, namely DCP.”
The High Court observed that it has become a disturbing feature that the accused are “brazenly paraded before the press and are exposed to public glare in cases where test identification parade arise, weakening the impact of identification. What is fundamentally disturbing is the fact that custody is given by the court. This custody is not to be misused.”
Afzal was not given a lawyer in the trial court. He wrote to the judge saying he needed a competent senior advocate and suggested four names. The judge inquired from two of the advocates present in court, who declined, and proceeded to appoint a lawyer for Afzal. When Afzal said he did not want that lawyer and the lawyer informed the court that he wished to withdraw, he was appointed to assist the court. Assisting and defending are two things. No lawyer should be forced to proceed with a trial, especially in a capital case, against his wishes.
The Constitution permits the sentencing to death according to Sec. 354(5) of the CrPC, but only by hanging. If this section is struck down as constituting ‘cruel, inhuman or degrading treatment’, there will be no law by which life can be taken, and consequently the sentence of death cannot be executed. The challenge to this section was pleaded in Afzal’s case with a view to having the section declared null and void. No argument was made that Afzal be given the lethal injection.
I cannot understand why people who showed no interest in Afzal’s fate through all these years of trial and appeal, are now spreading the canard that I asked for his death by lethal injection. It distracts from the presentation to be made before the President and does grave disservice to Afzal.
The record of the trial court shows he did not receive a fair trial. The arguments before the President should proceed on the basis of the evidence on record that would shock anyone’s conscience.
Colin Gonsalves is a senior advocate, Supreme Court.