Sunday, Oct 19, 2003
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Nandita Haksar, member, All-India Defence Committee for Syed Abdul Rehman Geelani, writes:
I am writing to you on behalf of the All-India Defence Committee for Syed Abdul Rehman Geelani with regard to your Editorial titled "For Liberty's Sake, POTA must go" dated Monday, September 29, 2003.
You have listed a series of incidents that reflect the misuse of POTA and in that context you write: "and the death sentence awarded to S.A.R. Geelani, a Delhi University lecturer, for an apparently marginal role in the December 2001 terrorist attack on Parliament are other instances that cause serious concern".
Mr. Geelani and his lawyers are not fighting against the death penalty. They are fighting for his acquittal because they believe there is no evidence to link him with the conspiracy to attack Parliament. According to Mr. Ram Jethmalani, senior counsel, appearing for Mr. Geelani, "This is a case of no evidence. The law of evidence has been treated as non-existent. The provisions of the Code of Criminal Procedure and Evidence Act have been flagrantly violated. Serious objections remain undisposed of. The accused did not know what case they had to meet".
There is no such thing as "an apparently marginal role" in a conspiracy. If a conspirator is part of the conspiracy he bears responsibility for the entire conspiracy. That is why the police invariably book people under conspiracy charges, especially when they wish to frame an innocent man. It is for this reason Judge Learned Hand once stigmatised conspiracy as the "darling of the modern prosecutor's nursery".
The prosecution has made much of the fact that Mr. Geelani had an acquaintance with the co-accused, namely Mohammad Afzal and Shaukat. Mr. Geelani has never denied this acquaintance and has maintained that the acquaintance was based on the fact that they were all from Baramulla district of Kashmir and they were all studying in Delhi University. The acquaintance is from a period long before the conspiracy and had nothing to do with the conspiracy to attack Parliament.
Many judges have pointed out the dangers of the law of conspiracy being misused in ways that threaten to undermine the right to fair trial of the co-defendant.
A charge of conspiracy is even more difficult to deal with when the defendant is being tried under laws such as the POTA.
A trial under POTA means the accused are denied the basic safeguards under ordinary criminal law.
The recommendations of the Malimath Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights looks upon the right to fair trial "as a part of the problem, rather than a part of the solution", according to Prof. Upendra Baxi. And that is the real danger to democracy.
The denial of basic safeguards and rights to an accused is not looked upon as major human rights violations. The courts in India look upon these violations as mere irregularities and thus the police get the impression that they can violate procedures with impunity. POTA institutionalises this process and the trial of the four accused in the Parliament attack case is a dramatic case of how the police has been allowed to violate all procedures, rules and regulations in the name of national security. As Mr. Jethmalani told the court: "That the investigation is riddled with illegality. The evidence discloses concoction and fabrication. All these have been glossed over and have resulted in a grave miscarriage of justice".
Lastly, we would like to point out that the obsession with national security at the cost of human rights has affected not only the courts but also the media that has been guilty of either printing only the police version of the case and court proceedings or of not reporting anything at all.
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