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” Fairness in investigation as also trial is a human right of an accused. The State cannot  suppress any vital document from the court only because the same would support the case of the accused.”

The above is part of the judgment of the Supreme Court in SD Kohli v. State of Maharashtra. In the case two dying declarations were recorded but however, the one recorded infront of the magistrate was not produced before the Court and withheld by the prosecution. Holding that this defies the very idea of a fair trial in criminal law, the Court acquitted the accused who was sentenced to life imprisonment by the lower court.

In criminal law, the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. Along with this the Court has now stated explicitly that the prosecution must disclose all the material in its possession to the accused so as to give him a fair trial. Idon’t think that this is the first time this principle has been enunciated by the Court and surely it should have existed as a principle in criminal procedure. But at the same time, this judgment is a first in that it has granted an acquittal from a life sentence on the application of this principle.

Another principle coming out of the judgment is that if there is evidence that convicts the accused and another evidence that supports him, the one that supports him shall be taken into consideration. In this case, it was the dying declaration that was earlier not presented before the Court. Both these points are valid and emphasise on the importance of a fair trial in criminal law.

Note : Judgement dtd . 18/12/2008 . CRIMINAL APPEAL NO. 637 OF 2006 . available on Judis.

Continuing from my previous post, it is high time that the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, be revisited by the Supreme Court. This I say, in light of the recent amendments to the Unlawful Activities and Prevention Act (UAPA). The Constitutionality of the most anti- terrorist laws is settled by the ratio in Kartar Singh’s case and when a change is made to these laws that wasn’t brought up in that case, the new principle of law cannot bask under its legality. In this post, I propose to examine the Constitutionality of the provisions of bail with regard to what was contented in Kartar Singh v. Union of India regarding bail.

In Kartar Singh’s case, the challenge to the provisions of bail was brought about by two main provisions; first the denial of anticipatory bail under S 438 of the CrPC by the addition of s. 20(7) of the TADA, 1985. The second was the induction of s. 20(8) that severely restricted the conditions of bail and stated;

“(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

This is totally different from completely denying bail to a foreigner till the time of his trial under the new amendment to the UAPA. The Amendment states that no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.

While numerous judgments were cited to explain the provision of anticipatory bail and the right to bail in India. As regards the non-applicability of s 438 CrPC, the Court declared it constitutional with its reasoning based on the lines below;

“para 328 – where a person accused of a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail?”

Coming to the more important aspect of severely restricting the conditions of bail, it was contented by the petitioners that that this subsection infringed the underlying principle of Articles 21 and 14 of the Constitution as the is made it impossible for even an innocent person to get bail when he is falsely charged with an offence under the TADA Act. Stating that it is a a salutary principle of criminal justice is that every person is presumed to be innocent till he is proved to be guilty, this provision under challenge goes diametrically contrary to that principle. Reliance was placed by the petitioners (para 339) on Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, wherein Krishna Iyer, J. has commenced his judgment with a prefatory note reading,

“‘Bail or jail?’ at the pretrial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion” and observed,

“The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19”

The Crux of the argument by Ram Jethmalani and VM Tarkunde in this case was the there is a constitutionally guaranteed right to bail that has been held to be entrenched in Article 21 and restricting it to conditions other than that mentioned in s. 437 of the CrPC are violative of the right. The State placed reliance on the fact that there was sufficient ratio to state that the right to bail has at its core the idea of protection of the public and justice concerns. Added to this he brought in the idea of community justice which the Court relying on held’

“para 351 – No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution.”

The Court in this case finally held that the right to bail was not totally denied to the accused but that only its conditions were limited by a special law. Based on the fact that it wasn’t totally denied, the above provisions were held constitutional in the case. The same reasoning was used by the Court while deciding the Constitutionality of the POTA in PUCL v. Union of India. The Court also held that irrespective of such limitations, the accused may approach the High Court under Article 226 to consider his application of bail. (Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271)

If this were the ultimate reasoning of the Court, then today when the Amendment completely denies bail to any foreigner, surely this provision must be in violation of the Constitution. Even if it is not in violation of the Constitution, inter alia, its constitutionality cannot rest on the ratio in Karat Singh’s case because that decision did not contemplate this factual situation. Worse, that if this not be addressed now, then the silence would be taken to mean that it is constitutional which may not be the case. It is sad that the constitutionality of a statute is decided in the garb of terrorism and not the rights enshrined in the Constitution. Time and again in Kartar Singh’s case reference is made as to the supremacy of community interest over the rights of a ‘terrorist’ and that the criterion of legality rests on it. This should not be the way the law works.

Ram Jethmalani stated that no lawyer should deny legal aid to Kasab, the lone terrorist apprehended in the Mumbai attcks, and that doing so would be a denial of justice.

The noted lawyer has made a point in this regard. Apart from having a constitutionally guaranteed right to legal aid, the Advocates Act forbids a lawyer to deny legal aid to anyone on the ground that they think he committed the offence. This is a fundamental practice in our legal system because no one is an accused until the court pronounces them as such.

Meanwhile, as Kasab pleads to the Pakistan govt. for legal aid, it must be understood that his trial cannot proceed without him having a lawyer. The way things are going on, any lawyer who defends him would be framed as a terrorist sympathiser. This is a catch 22 situation since lawyers are already refusing to defend him.

Readers may also read this piece on the Right to Legal Aid in India and on why Kasab must not be denied it.

Noted legal scholar Martha Nussbaum wrote a post on the Univ of Chicago Law School Blog terming the Mumbai Attacks a cloud over India’s muslims. Her post makes some sense and as a believer of free speech, she has the right to do so.

Her article focusses on the fact that terrorism in India is not peculiar only to Muslims and thatradical hindu groupsalso engage in terrorist activities in India. She cites the Gujarat carnage and the recent incidents in Orissa as examples to show that such happens in our country. Her argument is that even though these incidents take place, there is a targetting of the muslim population that is taking place in India similar to that that happened in USA after 9/11. To quote her here,

“All of this is terrorism, but most of it doesn’t reach the world’s front pages. When it does make it into newspapers outside India, the word “terrorism” is rarely used. The result is a perception, in India and abroad, that Muslims are the bad guys in every incident of terrorist violence.

Such stereotypes are so prevalent that many state bar associations in India refuse to defend Muslims accused of complicity in terrorism — despite the fact that India’s constitution guarantees all accused a cost-free defense.

Meanwhile, Muslim youths are often rounded up on suspicion of terrorism with little or no evidence, an analogue to the current ugly phenomenon of racial profiling in the United States.”

Martha Nussbaum has a point here and to appreciate that, we need to focus on a definition of terrorism in general. Once we agree to the fact that terrorism in not related to the muslim religion as such, we can understand her views.

The comments to her article however, do not show any signs of acceptance. One reader writes,

I cannot believe the indian students in Chicago are not knocking on Nussbaum’s door demanding an apology for the insensitivity she has shown in this article towards India. It seems to me that she is justifying the actions of the terrorist by citing the actions of Hindus. So, the pakistanis’ have come to avenge the treatment the Muslims in India get? It was just as horrifying to read her opinion in LA times as it was looking at pictures of the dead in Mumbai. Indians don’t need to be hurt anymore than we already are.

Scott comments on the post as,

“I view Nussbaum as a terror apologist who intentionally misdirects readers away from the true nature of the Mumbai attack and its root causes. Previous comments have addresed various aspects of her actions. I will limit my comment to the most recent post in which the writer defends her by pointing out that she ultimately seeks punishment for those responsible. As Nussbaum says…”Let’s go after criminals with determination, good evidence and fair trials,…”.

I have a MAJOR problem with her (mis)characterization of the actions as being merely “criminal” in nature. At the time she wrote her op-ed,it was publicly known that the terrorists were singling out Westerners and and Jews as primary targets. It was also known that specific victims were also singled out and tourtured. In short, she denies the global Jihadist nature of the attack despite the facts!”

While the comments on the post are quite interesting to read and the readers vehemently attack her. Nobody seems to repudiate her ultimate conclusion that some Muslims are criminals. But that this does not in any way justify demonizing Muslims, any more than the violent acts of the Hindu right justifying stereotyping all Hindus as rapists and murderers. She asks the readers and governments to go after criminals with determination, good evidence and fair trials, and to stop targeting people based on their religious affiliation.

Justice KT Thomas in his speech has stated that the results of the Narco- analysis test cannot be considered as evidence before a court of law. He states that such tests are “inhuman and barbarian’’ and the evidence collected from this test could not be considered as full of truth. Wonder if this would have any impact on the Court’s judgment. Meanwhile, these tests are conducted time and again by the crime branch on accused to give out evidence and are accepted in a court of law.