Criminal Law and Human Rights: 'Distinctive Discrimination' and Article 21 Rights to Fair Trial

Abstract: Advocate BB Mohan discusses his work with KG Kannabiran in the TADA STF cases, the Coimbatore Serial Blasts case, the Nallakaman case and the experience of understanding the intricacies of criminal conspiracy through conducting trials in cases that exhibited the bias of 'distinctive discrimination'. In providing this eye-opening account, he opens out the connections between human rights, criminal justice and Article 21 rights in trial courts.

After finishing my law course, I wanted to join the office of NT Vanamamalai. He told me that I must go to the grassroot level and start my work there. I started my practice and especially, started to work with the tribal people. I have taken up many cases of tribal people from the Western Ghats. It was during that time that I saw that in the name of nabbing Veerappan innocent tribal people have been subjected to excesses in the hands of the Special Task Force of Tamil Nadu and Karnataka. I took up the case of Cholagar Dhotti, where tribal people were living. You might know this place, about which even Balamurugan has written a novel. The people of this area were taken to the STF camps and subjected to inhuman torture at the hands of the officers -- even shocks were administered to them – and they were let off on 17 February 1996. Forty people, whose bodies were badly injured. That is when EP Gunasekaran, the president of the tribal association and I took them to the hospital and then to the district collector. Both of us represented the case but no one took us very seriously. Gunasekaran said that something must be done.

In 1996, Protection of Human Rights Act was passed in the Parliament. Human Rights organisations, Human Rights courts and State Human Rights councils had been formed. Therefore, instead of going to the High Court I decided to file a private complaint at the Erode CJM court that was designated as the Human Rights Court at the time. Justice Thanikachalam was elevated as a High Court judge at the time. So, I filed a private complaint under 212 Cr.P.C that these people have been subject to torture and must be given treatment and compensation and other things within the extent of my knowledge. Justice Thanikachalam then said, "of course this is a Human Rights Court and it has been designated as a Special Court but where are the rules of practice? Under what provision of law can I take up the complaint and where is the penal provision for me to act under?" So, he returned the private complaint. I represented the complaint again. There is a board there that says 'Human Rights Court' because this is the place I can raise a complaint. Mr. Balamurugan who was one of the secretaries of the PUCL at the time was my junior in the office. He took up the matter and sent the complaint to Justice VR Krishna Iyer, who was after his retirement in Kochi. He read the complaint and got very riled up about the way in which it was treated. So, he sent a letter to KA Swamy who was the Chief Justice then of the Madras High Court. Chief Justice KA Swamy then went through the letter written by VR Krishna Iyer and constituted a suo moto revision under the Indian Constitution under Justice Karpaga Vinayagam. This suo moto revision was taken up by the high court and summons issued to all solicitor generals, all public prosecutors, all human rights organisations and all. That time only Suresh, President of Tamil Nadu PUCL engaged KGK to attend the case and all. That was the first time we got an opportunity to participate with him and attend all the seminars and hearings.

That was the first time I got the chance to meet such a great man. He was such a simple man, a humble man but at the same time an entire think tank. So, first he participated in a seminar, just one day prior to the hearing where he patiently listened to all the views. All the senior counsels appeared there in the PUCL meeting organised by them. We also participated in the discussion. At that time we were practising at the district level and magistrate level courts. I had not even attended the High Court. KGK patiently heard all the views on the Human Rights Act and explored the way in which it was to be taken forward. He also addressed the meeting, where he brought out a lot of international laws and spoke of a lot of other things. Then, before the court, Justice Janarthanam who was well-versed in criminal law and the CrPC, he brought out the ways in which the case could be addressed and stayed within the bounds of the criminal law. But when senior KGK started his arguments in front of the court he started from UDHR, ICCPR and the international struggle for human rights. He then compared the Indian constitution and Fundamental Rights and Directive Principles to the UDHR, and 1966 covenants and all, and convinced the court that the Human Rights Court was the first court to take up the cases for trial and issue punishments – he beautifully presented the case. We participated in six submissions. Almost all the judges, learned seniors and solicitor generals from the central government and all the public prosecutors, NGOs and human rights organisations participated there. That is the first time we heard his submissions before the court with all his conviction and that is when we found out that he participated in international seminars and movements and human rights organisations and all. Suresh has played a huge role in bringing him into the discussion and the very trial we had filed before the court. It was dismissed, but anyway, only after the judgement of that case (V.P. Gunasekaran v. Government of Tamil Nadu) all the human rights courts all over India started functioning. Till then, because no rules were present, all the courts were kept idle. The functioning started only with the judgment passed by the Madras High Court -- that is a historical contribution there. That time we were with KGK and of course his constitutional expertise has been received by me in a great way.

Subsequently Mr. Nakkeeran Gopal, editor of the bi-weekly ventured into the forests and his reporters got an interview of the forest brigand Veerappan.   The interview was about the Former Chief Minister Jayalalithaa and she got very wild. She even included in her manifesto that if she came to power she would arrest Nakkeeran Gopal and put him behind bars. She then came to power and started filing a lot of cases against him for which I was representing him in Coimbatore, Erode and western regions. He then discussed with me the cases which Jayalalitha was filing against them and that is when I said that this is the case where senior Kannabiran should come and argue. At the same time, Murasoli Maran MP of the DMK also advised Mr. Nakkeeran Gopal that there was only one person in India- Mr. KG Kannabiran who could handle this case – so get him to the Madras High court. At the time Justice Subhashan Reddy was the Chief Justice of the Madras High Court.   That is when I stayed with him for about four hearings in the hotel and the experience was something great for me. Even though Subhashan Reddy was from AP and close to KGK, he always pushed the case and said it would be put up for special listing – he did this four times. This is because Subhashan Reddy feared to take up the case. He knew that if KGK opened his mouth then he would speak a lot of things. That is when I noticed that even judges were frightened of him and did not know why at the time.

All of us know about the serial bomb blasts of Coimbatore that took place on 14 February 1998 where in 12 places bombs exploded. Al Ummah were blamed for it and banned subsequently. That was the case which changed the entire scene of Coimbatore, Tamil Nadu. Because of the explosion, 58 people died, 252 were injured, and a number of properties were destroyed. Total 12 FIRs were registered; 75 people were accused in the case; 158 people were arrested; and the chargesheet ran into about 17000 pages. In that case, the accused Abdul Nasir Madani, A 14 involved four states, Kerala, Tamil Nadu, Karnataka and Andhra Pradesh. Three states except Kerala requested me to represent them and I accepted. They even petitioned before the high court that even the accused can be represented by counsels having experience of seven years or more. So in that way 26 advocates were appointed. In that case I also sought the support of my senior P. Thirumalairajan and he also came to the trial. The trial started in 2002 and 220 charges were framed against the accused and 1200 witnesses were examined. It was a rather tedious case. In a caged way the accused were kept within bars; we would examine the witnesses and no one was allowed to go there. In the case, me, my senior Thirumalairajan, Abu Bakr and others also participated in the examination.

We knew very well that the accused were charged on the basis that 18 Muslims were brutally murdered and shot by police and other Hindutva people and in order to take revenge for those 18 Muslims these Al Ummah people had conspired in different places like Kerala, Coimbatore, Chennai. They procured the explosives from Andhra Pradesh and Mysore and other things to create explosive devices and as such they have planned the attack on the eve of the visit of LK Advani. After the 18 Muslims were butchered by the police, the subsequent murder of the police officer Selvaraj that happened on 29 November 1997 was the first case of retaliation. In the trial court all were convicted and three were on death row and in the referred trial all acquitted.

According to the prosecution this was the motive behind the bomb blasts. The trial was not conducted in a fair manner. It was not an open trial because the minute I went to see the witness the man accompanying me was taken into custody. Hence, we could not do anything and the trial was a prejudiced one. Even though the accused were given the opportunity to engage us as defence counsels we were not given an opportunity to meet and know the witnesses. So out of 168 accused only one was a Hindu man, the rest were all Muslim – there was a definite bias.

I discussed then with my seniors that we should engage the services of our senior KGK because it was not a mere criminal case and has got some political background because BJP came to power at the centre and they played a huge role to ensure punishment in the case. If KG Kannabiran came and argued the case then the case would be seen in a new light. Then someone said it wouldn't be easy for him to go through 1200 witnesses but I said that we will take care of that part and he needs to be here to argue the case of criminal conspiracy only. My seniors went to Hyderabad and engaged him and the senior came and stayed here at the Murugan Lodge in Coimbatore. I used that as a chance to engage my juniors to come and see the way in which we were going to prepare. That's when he noticed the number of youngsters there. Mr. Kalaiarasan and Mr. Pavendran who were present throughout played a huge role in the case. He sat with us and discussed the case and asked the juniors to read the scheme. This is the case in which I saw his geniusness as a strategist. That's when I saw that he was not only a human rights or a criminal lawyer but a role model and mentor for youngsters to learn from. He invited all the advocates to express their views about all the items. We entrusted him with the responsibility of taking care of only criminal conspiracy under 120B.

He just read all charges and the prior motive is only the murder of 18 Muslims, none of the chargesheets filed under 173 Cr.P.C. however had who tortured these 18 Muslims. So through the course of the reading the materials he would say "Mr. Mohan you go and take 1940 Mirza Akbar, Ajay Agarwal cases." Like that his memory was really great. So I got old books from a retired lawyer in Madurai. He sat and discussed with us what is criminal conspiracy; the chapter 5A was not in statute book as enacted by Macaulay. It was enacted in 1938 to suppress the national movement only. He described the ingredients of criminal conspiracy and then read the charges. He heard everyone and all the seniors. Prior to the trial he wanted us to go see the atmosphere of the Court and he borrowed the coat from one of my friends and came to the court. Utrapathy was presiding officer at the time. KGK went to the court and stood up on the dais and said "I am KG Kannabiran." Immediately the judge said "I have read your book Wages of Impunity", which we got very happy about. Then the day for our arguments came and the first sentence he said was that,

"In my career in conducting cases throughout India and in the international arena this is the first case where I can see that there is a distinctive discrimination on the score that the accused are all Muslims, minority people. I find that they are all kept like lions in a cage and this is not a fair trial. Section 327 CrPC says that trials should be open unless and until there are special reasons for it, like in cases filed against TADA and POTA however, this is a case filed under the Indian Penal Code, Explosives Substances Act and Arms Act."

"The investigation itself should be flagged," he said. "Fair trial under Article 21 of the Constitution includes a fair investigation." He brought out many judgments not only Indian but also ICCPR and international laws and stated what constituted a fair trial. The judge himself praised the points raised. "On one score the investigation itself was not of fair nature, and on the other hand the trial was also not a fair trial. I don't deny the offence took place that the bombs exploded and people were injured but the trial is not as per the constitutional obligation under Article 21." He convinced the entire court and even Judge Uthrapathy has written in his order that if all the accused got an opportunity to be represented by a lawyer like him then the order could have turned the other way. The death sentence was not imposed in the case because the investigation and trial were not upto the mark and this in itself was a huge turning point in the case.

My friend Mr. Raju, HRPC read in the newspapers the very next day the point about the distinctive discrimination in the trial and that made him and lot of other young advocates very happy. Then the senior asked the prosecutors, "who were the perpetrators of the murders of 18 Muslims? You say that this is the retaliation for the killings of the 18 Muslims, so you must place before the court who the murderers were." Then he spoke about the confessions and said he was setting them aside because it is said in law that to prove the charge of conspiracy, the conspirators' confession is inadmissible under law. So from 1940 Mirza Akbar to Keher Singh so many cases he quoted and said that the court should not proceed on the basis of a confession statement; he even cited the first case which was 1951 Birey Singh v. State which provided this direction to all the courts. Then he said that of course, criminal conspiracy under 120 A means that two or more persons agree to commit an illegal act through illegal means. Invoking section 10 of the Evidence Act his evidence is admissible because the very basis, sine qua non of proving conspiracy is that two or more persons should agree to commit illegal acts through illegal means and there should be a meeting of minds. He beautifully argued for the next 6 hearings. His points were like a class where he was teaching the court from different points. Eight to eleven witnesses were presented as key conspirators. He asked juniors to read the submissions. According to my knowledge these 6 hearings turned the entire case in our favour.

I can't go on about the case because it is still pending in the Supreme Court and out of 167 only 18 people are inside and of course, state has also appealed. In that case the youngsters, seniors and court learnt so much. After that I met the Justice Utharapathy who is retired now and he praised him a lot and said he learnt a lot about the basic criminal jurisprudence from him.

The Nallakaman case took place on 1^st February 1982 in which an ex-serviceman, a colonel was in Vadipatti and his wife, a teacher. It was a tenancy problem. A policeman was the owner and in order to vacate the tenants the then SI Premkumar brought the wife to the police station and questioned her rigorously. When the husband heard the news that the wife was taken to the police station he also came there and saw that his wife was mistreated and questioned in a vulgar manner. So the husband got angry and slapped the policeman. Then Nallakaman and his son's clothes were stripped and they were handcuffed and paraded on the street from the bus stand to the police station.

The whole town of Vadipatti has seen such an ugly scene of the police beating them black and blue. The people got angry and they also filed a petition in front of the RDO. At that time 176(1A) had not been incorporated into the CrPC. So, RDO has conducted enquiry and also filed a case. Nallakaman, his wife and son were also implicated in a case in counter that in the trial court ended in the conviction. This involved a long-drawn battle in the sessions court and supreme court. The case was then taken on appeal and that is when my friend Raju said let us engage Advocate Kannabiran and we went to Hyderabad but he wasn't keeping well at the time and said that wasn't possible. When we narrated the incidents and the inhumane torture he agreed to come in the year 2006 to Madurai. We discussed the case in the room and all seniors came. This was an appeal against conviction and a case in counter.

Justice Selvam, a judge of integrity and honesty was the judge then in the Madurai bench of the Madras High Court. Senior Kannabiran placed his submissions before him which took me back to the early days in Madurai when myself, Justice Tarkunde and others were demonstrating against the emergency and we were attacked. That's when we came to know of the incident when the demonstrators were beaten like anything and assaulted. He brought those pictures to the court and demonstrated the human rights violations on the part of the Khaki people. Then he came to the case at hand and put forth what happened in the case, the conviction against Premkumar SI was upheld and the case went up to the Supreme Court. We could fight the case till there because of the way he put forth his arguments in the court.

His presentations in the court and discussing with the youngsters before the trial is something we should learn from him. He used to say "don't fear any judges sitting on the dais, he doesn't know everything. It is the duty of the advocate to educate them which is why you must prepare and have deep knowledge about the case. Then you must study the law and other factors also like human behavior which you should know about before presenting before the court." These are all cases in which we have learnt from him how a lawyer should be. In the Bombay Blast case the death sentence was imposed and confirmed also, but in the Coimbatore blasts the whole case turned around because of the arguments made by comrade and senior KGK. So, these cases we, the juniors, seniors, and jurists, judges have learnt a lot from him. He was not only a human rights lawyer and criminal lawyer, he was a humanist. My friends Pavendran and Mr. Kalaiarasu all would talk about him. Having seen that there were a number of juniors with me he gave me a mandate that I take as my life long role model. He said, "I see here Mr Mohan that there are many juniors with you. So why don't you create 100 human rights lawyers in your career to fight for the marginalised people." That's why in my career I used to pick up youngsters especially from the marginalized sections and teach them whatever I knew. I would also take them to the trials and even when I took classes, I would take them to the classes. In such a way he has done a lot.

When he came to the Coimbatore Bomb Blast case he heard that anti-Coca Cola agitation was happening in Plachimada, Palakkad and Abu Bakr arranged a vehicle for us to go there to express our solidarity as the senior requested. This was an international movement of sorts and I have seen his anger against the exploitation by the corporate people and his sympathies towards the common people. He came and sat patiently for many hours and started speaking. His name itself is magical for us, an icon, and acts as an inspiration for us. That's why I take it as an honour to speak about Mr Kannabiran.

Now I am appointed as a special PP in a number of SC/ST cases for which he is a role model. He fought not only for the accused behind bars but even for victims as a special PP and his role in having a formulation in the encounter cases is a very important one. Nowadays it is very easy for us to say that when there is an enounter the police should register the case. But he is the champion in these cases. When he fought against fake encounters in Andhra Pradesh he filed a number of cases and after which the NHRC has filed guidelines. On these aspects with great respect I submit that in the cases which he conducted with which we were associated, we learnt a lot. The point that he wanted to make us understand was done in a simple way. Myself and Mr. Balamurugan have conducted at least eleven murder cases, six innocent youngsters were accused and we got them acquitted. We understood the intricacies of criminal conspiracy from our experience of working with him. So, we had really pleasant memories and I am grateful to Kalpana Kannabiran to give me a chance to share them.

Cases Cited

Tamil Nadu Pazhankudi Makkal Sangam represented by V.P. Gunasekaran, General Secretary v. Government of Tamil Nadu represented by the Home Secretary, and others Crl.R.C.No.868 of (1996).

R.R.Gopal @ Nakkheeran Gopal vs State on 5 March, 2003 CRL.O.P.NO.4254 OF 2003 AND CRL.O.P.NO.4255 OF 2003

Abdul Nazar Madani vs State Of Tamil Nadu & Anr.AIR 2000 SC 2293; (2000) 6 SCC 204: 2000 SCC (Cri) 1048.

Mirza Akbar vs Emperor (1941) 43 BOMLR 20.

Ajay Agarwal vs Union of India and Ors 1993 AIR 1637, 1993 SCR (3) 543.

Kehar Singh & Ors vs State (Delhi Admn.) 1988 AIR 1883, 1988 SCR Supl. (2) 24.

Birey Singh vs State AIR 1953 All 785

K. Premkumar vs The Revenue Divisional Officer Crl. O.P No.6693 of 2000  

Fifth lecture by Justice K Chandru : Need For More Kannabirans Felt Now With Ever Increasing Human Rights Violations : Justice K Chandru