South Asia Citizens Web - 26 December 2006
N.D. Pancholi
Advocate A-5/8, Triveni Apartments,
Vasundhara Enclave,
Delhi -110096
Date: 26th December, 2006
To
The Managing Editor,
N.D.T.V.,
Archana Building,
Greater Kailash I,
New Delhi-110048
Sub:
Your repeated news bulletins on
Hindi channel on 16th & 17th December, 2006 displaying
Afzal’s statement video-taped by the Special Cell of Delhi Police
when AFZAL was in police custody.
This is with reference to your aforesaid news reports repeatedly
telecast in the news bulletins on your Hindi channel on 16th and 17th
December, 2006, wherein your reporters claimed to have got exclusive
possession of a video tape in which Mohd. Afzal Guru, who is facing the
death sentence in the Parliament attack case, is shown making
self-incriminatory statements.
Around 3 PM on 16th December, 2006, when I was in the High Court, I
received a phone call from one of your reporters, Ms. Sunetra
Chaudhary, asking whether I had seen the news about Afzal on NDTV. I
expressed my ignorance. She told me that the police had given NDTV the
video tape of a statement given by Afzal in police custody and that the
said tape was being broadcast by NDTV. I told her that any statement
given by an accused in police custody has no value and is inadmissible
in law and that the alleged confession of Afzal made in police custody
had been rejected by the Supreme Court. I also told her that media
conference organized by the police in December 2001, in which Afzal was
shown admitting to his involvement in the Parliament attack, was also
strongly disapproved of by the High Court and the police were
reprimanded for having conducted such an unlawful exercise. But she
said that the said tape was not of the media conference but of the
statement which Afzal had given to the police at the time of
interrogation -- and which NDTV has brought out for the first time. I
told her that before producing Afzal in the media conference he was
several times made to rehearse his statement as tailored by the police,
and that the said tape must be a recording of one such rehearsal. She
told me that she would send a reporter to me to get my comments. She
also requested me to provide her with a copy of the statement made by
Afzal in the Court under Section 313 Criminal Procedure Code, which she
said she would juxtapose along with his recorded statement in the news.
She also told me that Ms. Barkha Dutt had sent her a copy of the letter
written by Afzal to Shri Sushil Kumar, Senior Advocate, who had argued
his case in the Supreme Court, and if the "313 statement” of
Afzal was not available with me, she would use the contents of the said
letter in the news bulletins. She also asked me to see, on the news
bulletins, the tape which was being repeatedly shown by NDTV.
I came home and saw the news bulletins. An NDTV reporter also came to
my residence at about 5.30 PM and recorded my statement, both in Hindi
and in English. My statement was to this effect:
"The statement in the tape is a tutored
rehearsal which Afzal was coerced to make under threat and after
torture, that such statements in police custody have no value, that the
High Court had reprimanded the police for organizing a media conference
where Afzal made self-incriminatory statements, that the Supreme Court
had also rejected his so-called confession made in police custody, that
the police had never produced such a tape during the trial, that it was
the defence lawyers who had had the tape of the media conference of
Afzal produced in the Court to show how the conference was organized
and manipulated under the dictation of the ACP Rajbir Singh."
However, my aforesaid comments were not broadcast. All that was shown
was a small part of my statement, in a manner which distorted my stand,
while the tape was repeatedly telecast. The reporter said: "Advocate
says that the tape was not produced by the police in the court". All of
my other aforesaid comments were suppressed by your reporter. It was
obvious that your reporter, by producing only that small part of my
statement in a manner which removed it from its context, wanted to
convey to your viewers that non-production of the tape was only a minor
negligent act, a small mistake on the part of the police -- which
mistake was being rectified by your "investigative journalism" for the
sake of those who wanted the prompt hanging of Afzal.
The display of the tape was followed by suggestive comments by your
reporter such as, "You have seen the tape. See how natural, how
truthful, how fluent his statement appears!" ".Who can believe that
such statement can be given under torture?" The news was captioned
"Afzal Ke Badalte Hue Bayaan (Changing statements of Afzal)". In a
discussion of the tape your anchor declared, "If such a statement of
Afzal was made under coercion, then he must be a good actor."
In the morning news of 17th December, 2006, I saw that the families of
security men killed during the attack on Parliament had been brought on
the programme and, after showing the tape to them, your reporter asked
their opinion about the hanging of Afzal. Their expected reply was duly
telecast. Your reporters stationed in some cities were shown gathering
the opinion of the public about the hanging of Afzal in the light of
the tape telecast by NDTV. These telecasts were repeated many times
during the day and viewers were asked to send SMS messages to NDTV.
I met Afzal in jail on 20th December, 2006 and told him about the tape
and the repeated performance of NDTV. He was amused. He told me that
there was not one such tape but several, as before producing him at the
media conference the police had forced him to rehearse his
"Bayaanâ" (statement) five or six times. Before that he had been
brutally tortured for about two days. Urine was forced into his mouth.
He was given repeated beatings. Once he was kept completely naked
throughout the day, and on that day one of the public witnesses who was
to give evidence against him later in the Court also participated in
the beating. He was also hung by ropes. The next day he was given a
written statement and was made to rehearse it five or six times. Rajbir
Singh, ACP, instructed him,"Iske Aage Nahin Batana, Iske Peechhe Nahin
Batana (Do not add anything to or remove anything from this
statement)". Afzal was told that his brother Hilal was in the custody
of the STF in Kashmir and that if he wanted the safety of his brother
and family, he should speak in the media conference on the lines of the
"Bayaan" tailor-made by the police. Each rehearsal was video-recorded.
However, the portion in the "Bayaan" relating to co-accused S.A.R.
Geelani created a problem. The police wanted Afzal to implicate Geelani
in his statement before the media, which Afzal found himself unable to
do. He faltered at the Geelani point in each rehearsal. So ACP Rajbir
Singh instructed that he should keep silent if the issue of Geelani
cropped up in the media conference. But a deviation occurred when a
reporter asked Afzal about the involvement of Geelani in the attack.
Afzal replied that Geelani was innocent. This angered Rajbir Singh, who
shouted at Afzal ordering him not to say anything about Geelani. Rajbir
Singh also requested the media persons to delete this part of the
statement while presenting it to the public. By and large, the media
obliged the police in a truly nationalistic spirit.
But the media conference ultimately misfired. There was an
unintentional leak by the "Times of India", and after a couple of
months the TV channel "Aaj Tak" telecast the complete conference --
without realizing that this would be to the detriment of the police
case. The defence lawyers of Geelani were quick to pounce upon such
lapses of the media and had the entire video tape of the conference
produced in the court. Shams Tahir of "Aaj Tak" was summoned on behalf
of the defence lawyers to give true account of what happened in the
conference, and his evidence earned for the police a strong reprimand
from the High Court for organizing the media conference. It also
contributed to the acquittal of Geelani.
I am narrating these facts in detail as your reporters seem to be
ignorant of various salient features of the Parliament Attack Case.
Your repeated news bulletins over two days reduced the issue of the
hanging of Afzal and his Mercy Petition pending with the President to a
very simplistic solution "Show repeatedly the video tape (an unlawful
piece of evidence) of the alleged confession of Afzal recorded in
police custody as breaking news, convince the viewers that it has
brought out the ultimate truth, ask them to send SMS messages to NDTV
conveying their opinions about the "˜Phansi" (hanging) of Afzal,
and then pour out the "˜collective opinion" gathered in this
manner to pave the way for the prompt hanging of Afzal."What a simple,
quick solution of an issue involving the life and death of a citizen!
I am constrained to refer to what the Supreme Court has said in such a
situation, one of a death sentence and a mercy petition. This aspect
has not been highlighted by any legal luminary in any of the debates or
discussions organized by any channel. This aspect also assumes
importance when the "pro-hangers", including their legal "pundits",
assert that after the Supreme Court had found Afzal guilty, the merits
of the issue cannot be reopened as the matter has been decided once and
for all by the highest court. This was also the stated opinion of the
then President of India when he rejected the mercy petition of Kehar
Singh, sentenced to death in the Indira Gandhi murder case. The order
of the government in that case said:
"The President is of the opinion that he
cannot go into the merits of a case finally decided
by the Highest Court of the Land."
This opinion was challenged by Kehar Singh, and the five-judge bench of
the Supreme Court (AIR 1989 SC 653) held that the opinion formed by the
President was wrong, that a decision of the Supreme court can also be
wrong and that "it is open to the President to scrutinize the evidence
on the record of the criminal case and come to a different conclusion
from that recorded by the court in regard to the guilt of and sentence
imposed on the accused."
Thus the President can also determine whether the convict is guilty or
not -notwithstanding the findings of the courts, including the Supreme
court in this respect.
A few excerpts from the full-bench judgment of the Supreme Court:
"All powers belong to the people and it
is entrusted by them to specified institutions and functionaries with
the intention of working out, maintaining and operating a
constitutional order. To any civilized society, there can be no
attributes more important than the life and personal liberty of its
members. That is evident from the paramount position given by the
courts to the Article 21 of the Constitution. These twin attributes
enjoy a fundamental ascendancy over all other attributes of the
political and social order and consequently, the Legislature, the
Executive and the Judiciary are more sensitive to them than to the
other attributes of daily existence. The deprivation of personal
liberty and the threat of deprivation of life by the action of the
State is in most civilized societies regarded seriously and recourse,
either under express constitutional provision or through legislative
enactment is provided to the judicial organ. But, fallibility of human
judgement being undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been considered
appropriate that in the matter of life and personal liberty, the
protection should be extended by entrusting power further to some high
authority to scrutinize the validity of the threatened denial of life
or the threatened or continued denial of personal liberty. The power so
entrusted is a power belonging to the people and reposed in the highest
dignitary of the state.
" is open to the President in the exercise of the power vested in
him by Article 72 of the Constitution to scrutinise the evidence on the
record of the criminal case and come to a different conclusion from
that recorded by the court in regard to the guilt of, and sentence
imposed on the accused.
"It is apparent that the power under Article 72 entitles the President
to examine the record of evidence of the criminal case and to determine
for himself whether the case is one deserving the grant of relief
falling within that power. The President is entitled to go into merits
of the case notwithstanding that it has been judicially concluded by
the consideration given to it by Supreme Court" (emphasis added).
The Supreme Court, in its aforesaid judgment, noted with approval the
following remarks of the judgment of the U.S. Supreme Court in the
matter of "Ex-parte Philip Grossman (1924) 267 US" where Chief Justice
Taft explained:
"Executive clemency exists to afford
relief from undue harshness or evident mistake in the operation or
enforcement of the criminal law. The administration of justice by the
courts is not necessarily always wise or certainly considerate of
circumstances which may properly mitigate guilt. To afford a remedy, it
has always been thought essential in popular governments, as well as in
monarchies, to vest in some other authority than the Courts power to
ameliorate or avoid particular criminal judgements...."
I have reproduced the above excerpts for the benefit of those who are
clamouring for the head of Afzal on the ground that his guilt and
sentence have been finally decided by the Supreme Court and cannot
therefore be questioned. A full-bench decision of the Supreme Court has
held that this cannot be the case and that its judgment can be
re-examined by the President, who is empowered to come to a different
conclusion about the guilt as well as about the sentence.
Afzal, in his petition to the President under Article 72, has pleaded
that the President may go through the entire evidence of the case and
come to his own conclusion about the guilt and the sentence imposed on
him.
I have taken the consent of Afzal before writing this letter to you,
and on his behalf I request you to faithfully present his side also to
your viewers, without any suppression or distortion.
I hope that the above contentions on behalf of Afzal, on facts and law
both, will be truthfully presented by you to your viewers to enable
them to make a responsible judgement on the issue.
N.D.Pancholi
Counsel for Mohd. Afzal, lodged in solitary
confinement in the High Security Ward of
Jail No.3 of Tihar, Delhi.
Return to
South Asia Citizens Web