Fair and impartial

Gopal Subramanium (right), who represented the Maharashtra government, and Raju Ramachandran, amicus curiae in the Ajmal Kasab case, soon after the Supreme Court upheld the death sentence for Kasab, in New Delhi.-R.V. MOORTHY Gopal Subramanium (right), who represented the Maharashtra government, and Raju Ramachandran, amicus curiae in the Ajmal Kasab case, soon after the Supreme Court upheld the death sentence for Kasab, in New Delhi.

Interview with Gopal Subramanium, counsel who argued in favour of the death sentence for Ajmal Kasab in the Supreme Court.

GOPAL SUBRAMANIUM was Solicitor General of India and Chairman of the Bar Council of India until last year. As a Senior Advocate of the Supreme Court, he is known for his unique argument style, marked by clarity of expression and high deference to the court. He represented the State of Maharashtra in the Supreme Court when it heard the appeal of the lone convict in the 26/11 terror attack case, Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid, against the death sentence imposed on him by the trial court and confirmed by the Bombay High Court. According to observers, the hearing of Kasabs appeal by the Supreme Court enhanced the public credibility of the court in a magnificent way and set a benchmark for what Supreme Court advocacy should mean: calm atmosphere, no passions, careful debate, complete sobriety, and high-quality presentation.

Excerpts from an interview he gave Frontline recently on the many facets of the Supreme Courts judgment in this case:

The court has said that Kasab was provided legal assistance of a standard and quality that is not available to the majority of Indian nationals approaching the Indian Supreme Court. Why did the court have to say this explicitly?

The purpose of the court in saying this was to demonstrate effectively that Kasab was being given an absolutely fair, unbiased, impartial and judicious trial and that no kind of public opinion was going to influence the judicial process. In this case, the Supreme Court followed the time-honoured practice of analysing the entire evidence. It appointed Raju Ramachandran, a distinguished Senior Advocate, as the amicus curiae to assist the court, along with Gaurav Agrawal, a young and brilliant advocate. The court wanted to confirm that the evidence was adequate, coherent, well-made-out and without any taint, and for that purpose, it was necessary that the best possible legal assistance was rendered to Kasab. The purpose of making that statement was to affirm that the rule of law had supremacy in our country, and not the rule of public opinion. Thus the Supreme Court wanted to make it clear that whatever be the public perception, it would undertake the examination of the material strictly according to the processes of law and decide on evidence including the principle of proving guilt beyond reasonable doubt.

The hearing started on January 31, 2012, and concluded on May 7, 2012. Every piece of evidence, oral and documentary, was read and considered by the court. The tapes and the video footage were seen by the court. And the court was able to arrive at the final conclusion. It is an important principle of fair trial that fair legal representation must be made available to an accused irrespective of the fact that the person may not want any legal representation. That is a universally accepted principle of human rights obligations under various international treaties and conventions, including the European Convention on Human Rights.

So the court wanted to make sure that whoever read this judgment was convinced that the Indian judicial system was unfazed by public opinion and public debate, and instead proceeded to its duty strictly according to law. When the court appoints a person to defend an unrepresented accused, it chooses one of the competent lawyers. In my view, this must be a universal standard in all criminal cases, and it is possible to achieve this by maintaining a very strong commitment to legal aid on the part of senior lawyers who practise criminal law in sessions courts, in high courts and in the Supreme Court. Senior lawyers must consider it a privilege to be appointed amicus curiae. This must become a trendsetter.

Unique Contribution

What, according to you, is the unique contribution of this judgment to our jurisprudence?

This judgment makes a significant advance in constitutional law. It now makes it mandatory that right from the stage of arrest, a person is entitled to legal aid. As a consequence of this, any person, even a poor person, will first have to be offered the right to consult a lawyer by the police and the investigating agency. In this case, the finding was not that there was a failure to provide legal aid. The facts were that Kasab was offered legal aid. At the time of his arrest also, he was offered legal aid. In this case, the case diary showed that he was offered legal aid and that he refused it. Even after he was produced before the magistrate, he was again offered legal aid, and he refused an Indian lawyer and wanted to be represented by a Pakistani lawyer. Even that request was forwarded to the Pakistan government. But there was no response.

The judgment records Raju Ramachandran as saying that it was not explained to Kasab that he was entitled to legal aid under the Indian Constitution.

Well, that is a matter of articulation. What is important is the essence of the right must have been explained to the accused. In what form it was explained was not important. What is relevant is that the right should be told clearly to the accused. In this case, the evidence suggests that he was clearly communicated the right, and the accused understood what that right meant.

Does the refusal of an accused to accept legal aid at the pre-trial stage weaken the defence? Is the court bound to provide legal aid despite such refusal?

The refusal of legal aid at the pre-trial stage does not affect the trial as such. A trial commences from the cognisance of an offence. Cognisance is taken upon a charge sheet, which is a summary of the investigation conducted by the police. The defence is available to the accused once the trial starts.

Is a foreigner-accused not entitled to advice from an Indian Court or authority as to his rights under the Indian Constitution? Did the Supreme Court justify the absence of such advice to Kasab?

A foreigner-accused is as much entitled to protection under the Indian Constitution as an Indian citizen is with respect to the right to liberty. In the present case, Kasab was treated like an Indian citizen entitled to complete constitutional protection under Article 21. There is no exception to any person who is going to be tried in the territory of India for any criminal offence that he will be tried in a manner not sanctioned under the Constitution. He will be entitled to as much the same constitutional safeguards relating to a fair, impartial and judicial trial as any other citizen. The courts observation has to be read in the context that since Kasab rejected legal aid, there is no further duty to compel him to accept legal aid prior to the commencement of the trial. It was in that sense.

What is the ideal duration for a counsel to prepare the defence of the accused during trial? Raju Ramachandran has argued that Kasabs counsel, Abbas Kazmi, did not get sufficient time to prepare his defence during the trial. But the court has dismissed this argument on the grounds that Kazmi himself did not complain that the time he got was inadequate.

Usually, there is no standard duration for preparing a case. But courts generally give adequate time when a person is representing an accused under legal aid. In a murder case, at least 10 to 15 days clear time must be given so that the lawyer is able to go through the papers. In a criminal case, all the preparation is not done in just 10 days. The lawyer continues to work on the examination of the witnesses when the trial unfolds. Therefore, there is no straitjacket rule on the amount of time. It is open to the counsel to ask for time, and the court can accommodate that request, and it is a cardinal principle of justice that the defence counsel must have adequate time to prepare. In this case, the defence counsel did have adequate time.

Abbas Kazmi, according to Raju Ramachandran, wanted four weeks time, but he got only eight days to prepare his defence. And the Supreme Court found eight days to be reasonable.

In sum and substance, the counsel for the accused did get four weeks by the time the trial started.

The court has held that Kasab was guilty of waging war under Section 121 of the Indian Penal Code rather than of committing a terrorist act under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). What will be the impact of this ruling?

The court came to the conclusion that Section 121 of the IPC is for a stand-alone offence. In other words, waging war is a principal offence in itself with unique characteristics. While some of these characteristics and trappings may be similar to a terrorist offence under the UAPA, Section 121 was for an offence of its own kind. Where there was an attack on the sovereignty of India, sovereignty of India did not only mean the Government of India but also the people of India. It is a great advance made by the court. The court has used the principles of public international law to signify sovereignty as the basis for the state. So, waging war against India means waging war against the people of India. It gives shape to the collective identity of the people of India. This interpretation acknowledges the integrity of India. So, in an offence whereby the integrity of India is violated, the purpose of waging war is attacking India. It may be important installations or people or a mixture of both. The mobility of the people of India is also a part of the integrity of India. So the court has taken the right view that a case under Section 121 is made out. This is the first case of its kind.

Theory of mitigation

The court has held that since Kasab did not show any remorse, he is not capable of reformation and, therefore, is not entitled to commutation of the death sentence to life imprisonment. This does not appear to be convincing enough.

An accused can confess to guilt at any stage in the proceedings. In this case, there was an attempt on the part of Kasab to admit to some of the actions, but the said admission was not a complete confession. Therefore, Special Public Prosecutor Ujjwal Nikam rightly urged the court not to terminate the proceedings on the basis of the statement. There has been no apology by Kasab for the offence he committed. But if an accused person expresses apology for an offence, it is for the court to consider the circumstances in which the apology is being tendered, and whether the apology is indicative of the reformative or rehabilitative potential of the individual.

Apologising for a crime is not a way to escape the due process of law. Suppose, if one kills 25 people and says sorry, that apology by itself may not mean anything. The magnitude of the offence is relevant while the court considers whether an apology is acceptable. Even if an apology is offered, it is only in extreme cases that the court may consider the apology as indicative of some kind of mitigating circumstance.

What the court means to say is to ask whether his conduct exhibits remorse. It is only to show that the person showed no sense of guilt at any stage, even after the crime was committed.

If two sentences are possible, the court may be inclined to award the lesser sentence. In this case, when the prosecution as well as the defence listed the factors, the court almost applied mathematical criteria. The court went very precisely into each feature relating to the offence: the magnitude of the offence, the manner in which the offence was committed, the motive and circumstances of the offence, and the conduct of the accused persons. Above all, it was clear to the court that there was no circumstance which was sufficiently of a mitigating nature. An argument was made that he is young, and that he was brainwashed by people. These are mitigating factors, in the sense that they have to be taken into account and may influence the court not to give the death sentence.

But the court can be satisfied that he was fully capable of having a mind of his own and that he fully knew what the consequences of his action were. He had remorselessly involved himself in the murder of the Indian navigator on the boat in the journey from Pakistan to India. He had so much time to have actually changed his path. There was no material before the court to show that he was in a state of doubt or he wanted to act differently from others or that he was a captive of circumstances. There were no mitigating circumstances of that kind in the present case.

Being young is only an example. It is only one of the factors. Suppose a young person kills 50 people in a park, the fact that he is young doesnt mean anything. You have to remember that an offence has an impact. The impact here is loss of human lives. The court cannot say that the loss of 50 lives is irrelevant and that this mans youth is more important.

The theory of mitigation is that there is something by which it can be said that he must be given some degree of allowance, or some degree of accommodation in sentencing, that his life should be preserved, or that this case is one which doesnt fall in the rarest of rare cases.

The mere fact that the person is poor does not entitle him to get away from punishment. The position of a person in society may not always be relevant. But sometimes poverty can be a relevant factor, if poverty can be said to have retarded his understanding of his actions. Therefore, we have to go on a case-by-case basis to come to a conclusion whether mitigating factors exist. The court spent a great deal of time in assessing the law and policies of sentencing all over the world.

There has been considerable criticism of the death penalty jurisprudence of our Supreme Court that there is no consistency in awarding the death sentence.

I dont quite agree with that criticism. I think the courts are careful while awarding the death sentence. The courts actually look at the quality of evidence when they award the death sentence.

The Supreme Court has justified the death sentence to Kasab because his actions have shaken the collective conscience of the Indian people. Does not collective conscience mean public opinion?

Collective conscience of Indian people is said in a jurisprudential sense. It does not mean public opinion at all. Collective conscience of society means something which is fundamental to human existence; its shaking means abhorrence to its principles.