Punishment by Procedure: Saurav Datta
Guest post by SAURAV DATTA
“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…” – Lord Brougham, “Law and Other Things”, Cambridge University Press (1937)
“Beneath this face that appears so impassive hell’s tides continually run.” – Walt Whitman,“You Felons on Trial in Courts”
“Nothing rankles more in the human heart than a brooding sense of injustice.” Justice Brennan’s words keep on ringing in my ears when I see the manifestly violent injustice meted out to Mohammad Afzal- the Courts tore to smithereens his inalienable right to a fair trial. The Parliament attack case was the first litigation I had been part of – I was a student intern in the chambers of Ms. Kamini Jaiswal, who was briefing Mr. Ram Jethmalani. I got to see and understand the case from the closest of quarters, and that maybe that exacerbates my indignation at this egregious miscarriage of justice.
Threshold of a lawyer’s duty in defending terror-accused
Justice in political trials is more tenuous than 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 the logic of the law.. In such situations, a heavier, but not onerous or odious burden is cast upon the judiciary to ensure that not even an iota of injustice besmirches the edifice of Rule of Law.
The case of the Parliament attack  on 13 December 2001 was no ordinary one- it was one which the Supreme Court had regarded as waging war against the State because the citadel of Indian democracy had been attacked. It was a case where Mohammad Afzal, one of the accused and convicted of criminal conspiracy, was sent to the gallows, for nothing lesser could have satisfied the “collective conscience of society”, as held by the Supreme Court.
In the “Age of Terror”, when dissent is punished as treason, an equal responsibility is cast upon the lawyer who is defending a terror-accused. Then, a lawyer’s role in a fair trial does not remain confined to procedure; rather, he is required to resist the claims of the State’s natural and inevitable superiority. As the US Supreme Court held in Gideon v Wainwright , the right to counsel, and an effective one at that, is one of the fundamental tenets of liberty and justice.
In an atmosphere charged with such hate and prejudice as it was in the aftermath of December 13, 2001 and continued 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 would never be able to believe in equality before the law when he knows he is inherently disabled from proving the State wrong.
A critical examination of why Afzal’s trial was a study in prejudice is called for even though the Government presented us with a fait accompli. This is necessitated because the right to free legal aid is a Fundamental Right, indeed a core part of the right to Life and Personal Liberty. And unless the courts arrive at a flawless understanding of what “effective” legal aid would mean, how it is to be evaluated, not only the lives and liberties of the accused, but the very foundations of criminal justice, democracy and rule of law shall remain susceptible to being irreparably jeopardized.
Why do we need “effective counsel” and what are the standards?
When does this need arise? 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 a lawyer from the very moment he is arrested or detained. 
Because the machinations of prosecutorial malice are put to work much before the commencement of proceedings. These have a crucial bearing on the outcome of a trial. Moreover, it is trite that in a criminal case, what is lotted 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 retrial, Afzal’s pleas for which were steadfastly rejected by the courts Even a curative petition (filed to remedy if there is 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 then made to narrate a “confession”  in full glare of 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.
Such a right was alien to Indian law; it only had “free legal aid” and none had bothered to look into how effective such aid was, until Labhu Laxman vs State Of Gujarat  and subsequently in Dineshbhai Dhemenrai vs State Of Gujarat . In both these cases, the Court had followed the precedent set by the US Supreme Court in Strickland v Washington  . Strickland was not the first to deal with the right to counsel, but was the first to lay down a “test” for effective representation.
Much before that, in Powell v Alabama , 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 v Welch , it was held that assistance of counsel would not be regarded as effective if it reduced the trial to a “farce and mockery”.  This was obviously too high a threshold to judge counsel’s incompetence, hence in McMann v Richardson  it was clarified that right to counsel means reasonably effective and competent assistance by the lawyer. The brightest beacon remains Gideon v Wainwright, where Justice Hugo Black pronounced that an accused’s right to counsel is one of the fundamental principles of liberty and justice .
A two-pronged test was laid down:
The accused must show deficient performance on the part of counsel
This deficient performance prejudiced the defense 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 prejudicial standards, which are so loaded against the accused, would more often than not result in “punishment by procedure”, and for these very reasons the “Strickland standard” has been subjected to trenchant criticism. 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.
And it was this same Strickland test which the Supreme Court blindly went by, without even examining if such precedent really fit the case before it. Why Supreme Court failed to see the inherent prejudice so evident in Strickland is anybody’s guess.
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 he wanted to be represented by any one among them. Strangely, the Trial Court recorded that all four had refused, but no reason was 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 chose to remain oblivious to this glaring judicial error.
On 17th May 2002- the day the trial started, Seema Gulati, someone whom he had never met before, was assigned to him. 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 of Afzal’s conviction. If this “performance” does not belie credulity, there is more.
On 2nd July 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 then case to her junior Niraj Bansal, whom the court, for “reasons” which can at best befuddle, appointed as amicus curiae (friend of the court) , because he had experience of handling TADA cases! (Afzal was being tried under POTA, and charged with “Waging War against the State” u/s 121-A of the Indian Penal Code. Both are far more draconian than TADA). When there is a dire need for a lawyer to withstand the prosecution’s onslaught, the court cherry picks 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 was deprived of his basic right by none other than a court.
So much for a fair trial, or even an “adversarial” system, because only equals can be adversaries.
In one of the most astounding displays of institutional self-referentialism, the Supreme Court went on to perpetrate a higher degree of 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’, who can even conceive 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 caring to examine those, condemned Afzal by ruling that he had received a “fair” trial.
Such an abdication of bounden duties by all the courts compels one to remember Alexis de Tocqueville:
“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.”
There is yet another aspect of the Government’s skullduggery and subterfuge which has gone relatively unnoticed. Turns out that a petition filed by Afzal was pending before the Supreme Court (details available here) in which notice had already reot been issued. So while we hear triumphant cries of the rule of law having taken its course because all judicial processes had been exhausted, this just adds on to the travesty of justice.
(Saurav Datta is a legal researcher lecturer in Jurisprudence and Media Law and Policy. He lives in Mumbai.)
 State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru (2005, Supreme Court of India)
 372 US 335 at 341 (1963)
 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 which was never challenged by his lawyer in the trial court!
 (1999) 1 GLR 889
 (2001) 1 GLR 603
 466 U.S. 668 (1984), hereinafter “Strickland”
 287 U.S. 45 (1932)
 Diggs v Welch 148 F. 2d 667, 670 (D.C. Cir. 1945)
 397 US 759 (1970)
 Gideon v Wainwright 372 US 335, 341 (1963)
 Per Gideon , supra.