Trial Lessons From K G Kannabiran: Nitya Ramakrishnan Remembers Parliament Attack Case

[This lecture, originally titled "Justice Measured Out in Coffee Spoons: Parliament Attack Case" was delivered on 30 November 2020 as part of the KG Kannabiran Lectures on Law, Justice and Human Rights – organised by the family of KG Kannabiran (1929-2010) to celebrate his life, work and its futures].

[Abstract: Nitya Ramakrishnan reviews the legal challenges in the Parliament attack case, where she and the legendary lawyer KG Kannabiran had appeared for the defence. She speaks about what she learnt from Kanna who brought diverse perspectives to bear upon his remarkable advocacy].

Soft spoken, chuckling and benign, with somewhat wistful eyes, KG Kannabiran was a legend when I started practice. My collaboration with him was in just one case; the other in which we both appeared can scarcely be called a collaboration, for he was disapproving of any "outsider" coming to Hyderabad to argue the APCLC encounter matter, heard by a five-judge bench of the AP high court (AP Civil Liberties Committee vs Government of AP 2009 (2) ALD 1).

By contrast, I had no doubt that an "outsider" like Kanna should be invited to Delhi to conduct the defence for Shaukat Guru in the Parliament Attack case. I was asked to represent Afsan Guru in the case after the arrest of four "conspirators" – Afzal Guru, Shaukat Guru, SAR Gilani and Shaukat's wife Afsan. Reviewing the evidence, it seemed to me that one of the four, Shaukat Guru, was key to break the case of conspiracy. Who could handle the trial on his behalf? KG Kannabiran was the first name in my mind. His remarkable advocacy in the very many terror and waging war cases at both the trial and appellate stages made me think that he would set a tone to the defence as a whole. He did set that high tone of integrity and ability and the trial judge SN Dhingra did display both respect and affection for Kanna. "I think our 'Dingra' likes me", he once chuckled. (He pronounced the 'i' shortened as South Indians tend to).

It is hard to say whether Kanna was a criminal lawyer who had come to human rights, or a human rights lawyer who had come to criminal law. On the whole I think it was the second. He would insist on the most basic rights, which many might have not known at all or may consider trivial. They are, as Kanna taught us, not trivial at all. Applications by persons in custody need not be stamped. They should not be stamped Kanna would insist, and the insistence was as much to remind the judge, lawyers and the system what a serious thing deprivation of liberty was and the immense handicaps a person in custody faces.

The other useful tip he gave us was to study the applications for remand, "Remand notes" he would call them. The police are expected to substantiate the request for custody in these applications. They are not only a useful index of the progress of investigation, but often material on which later claims of "recoveries" and "disclosures" can be contradicted. He would tell me in Tamil… 'remand notes vecche case mudichoodalam', meaning, cases can often be consummately dealt with on the strength of remand notes alone.

Placing on the record questions disallowed by the judge was an important strategy that Kanna followed and taught us to follow. On the grant of sanction without understanding the difference between waging war (under the IPC) and a terrorist act under POTA, much was said even in the appellate courts. The basis for all this was Kanna's early introduction of the important difference between the two. The trial court disallowed the questions but they were on record as Kanna insisted. Though it did not serve to invalidate the sanction, it did serve in other important ways. The discussion on what amounts to waging war, in the Supreme Court judgment (State (NCT Delhi) v. Navjot Sandhu (2005) 11 SCC 600), was facilitated because Kanna had initiated the distinction at the trial.

Kanna did not believe in writing down questions to prepare for cross examination. That impedes the flow, he would say. I'm not sure. For myself I do need to have different sets of questions, in preparation even to ex temporise.

Kanna would turn up early in the morning of the case, I was a late riser. Holding in hand the police statement of the witness expected to take the stand that day, he would peer into the sheets as though internalising the substance, no doubt for the questions "to flow freely" in cross examination.

"Are you aware that you have magisterial duties while recording a confession?" Kanna asked the DCP who recorded the POTA confessions, in a memorable display of cross-examination. POTA, as you know, permitted as evidence confessions recorded by a police officer, otherwise not allowed under the law. The poor officer did not comprehend the question. He mumbled   "I have power under Section 32" of POTA. It was, Kanna, I think, who got him to admit that he had given only 10-15 minutes reflection time, which proved crucial in the eventual ruling out of the confessions by the Supreme Court.

Kanna's cross examination on the identification of faces was superb. From the prosecution's point of view, this was a very important piece of evidence. But, Shaukat's landlord came a complete cropper. While doggedly identifying the dead terrorists as visitors to Shaukat's house, he was unable to describe or identify anyone else including other tenants. Kanna successfully proved that he was a complete liar. This dubious identification of the dead men to implicate Shaukat was disbelieved by the High Court and the Supreme Court, and went a long way towards securing Shaukat's eventual acquittal of terror charges.

He was uncomfortable with modern gadgets and was happy to leave cross-examination on electronic evidence to me.

The first strategy, that Kanna agreed with, soon after he arrived in Delhi before the first day of the trial, was to challenge the admissibility of the telephone conversations that the police claimed to have taped. POTA had a code on wiretapping and the stipulation that evidence taken contrary to it was inadmissible. The Special Cell's tapes were not compliant with this law at all. We raised the objection (by applications that we carefully refrained from stamping, for our clients were in custody!) and the judge and the opposition were pretty stumped. In arguing the point, however, my stress differed from Kanna's. He was once again the human rights lawyer stressing on the PUCL judgment on privacy and phone taps, and I emphasised more on process and consequence of unlawful seizure, namely the "fruits of a poisonous tree" line. In the event, the trial court rejected us lock stock and barrel and showed equal disinterest in the various approaches that Kanna and I had enjoyed disagreeing about. Our challenge to this, even as trial was progressing succeeded in the Delhi High Court.

Kanna did not appear in the high court, but cracked a joke assuring me that I would succeed. The high court judge had been a colleague of the trial judge, but had already risen to the higher forum. It was unlikely, said Kanna, that he would uphold the trial judge's order. He will rule in our favour. He did rule in our favour but I'd like to believe that it was advocacy that did it! Though the Supreme Court diluted the effect of this ouster of wiretapped evidence, the initial knock to the 'taps' stood the defence in good stead right till the end.

He had the broad-brush view of the human rights lawyer. He told me that the phone conversation between husband and wife was privileged, and no one could lead evidence about it. I was more cautious in argument, believing that it was only the spouse who was protected and prevented from giving that evidence. He disagreed with my view that the charge framed in the alternative against Afsan was more an opportunity than a threat. I hope I have been proven right.

His reading of history and literature was impressive and he brought this to bear on a case at hand. The judge eagerly heard his anecdotes while he would give us youngsters short shrift. Kanna's arguments were a sort of a mosaic – a combination of democratic principles, criminal jurisprudence and incidents of history. At one point, he argued that an attack on a building, even if it was a Parliament building, does not constitute "waging war." His arguments may not have yielded immediate results, but did serve in other important ways..

At the final hearing, he brought up the analogy of the Reichstag fire. Conspiracy, he said, in a case like this, cannot turn only on a reading of 120B IPC. We have to see it against the limits of permissible dissent. I remember his written submissions quoting Anderson v Liversedge ([1942] AC 206). He was trying to bring to bear upon the judge, broader principles, and even if it didn't work in this case, I am sure it was a salutary education that leavened the judge.

Shanti Bhushan was meticulous, heroic and brilliant beyond belief, in his efforts for Shaukat in the High Court and the Supreme Court. Shaukat was acquitted by the Supreme Court of all terror offences and sentenced only under S.123 IPC for concealing information, leading eventually to his release. This was a feat only Shanti Bhushan could have achieved. But, there was no denying that the foundation of that success was planted by Kanna.

What was the Parliament attack case, all about? On December 13, 2001 five men in an Ambassador car, loaded with explosives, entered Parliament House compound when Parliament was in session. The security men foiled the bid, no damage was caused to the building or the members but the five intruders were shot dead. Eight security men died. The incident had a huge impact on the national psyche. There is no denying that. Mobile phones and fake identity cards were seized from the bodies of the five intruders. All the ID cards mentioned one number. I still remember the number. It's 9811489429. Examination of the call records of this number showed calls to two other numbers on the day. And surveillance of these two., led to the arrests. By 15^th December, four people were in custody and by the 17^th, a case under POTA has been registered. By the 20^th, police claimed to have recorded the confessions of Afzal and Shaukat. Based on the phone conversations, evidence of shopkeepers, and landlords and remnants of explosives claimed to have been recovered from the residence of Afzal, the prosecution was launched..

Eventually, the trial court awarded the death sentence to three of the four – Afzal, Shaukat and Gilani – and convicted Afsan only on the charge of concealing the evidence to "wage war" and imposed a five-year imprisonment upon her. The High Court acquitted her completely and also acquitted Gilani. The Supreme Court, while upholding these acquittals, further acquitted Shaukat of terror charges and sentenced him to 10 years of imprisonment for concealing the design to "wage war."

The Parliament attack case is significant for very many reasons. It is emblematic of POTA. At a time when parliamentarians were reluctant to pass such a law which had many provisions of the erstwhile draconian TADA, POTA was brought in October 2001, by way of an ordinance and the incident happened two months later. This was then cited as absolute justification for such a law and yet it could not be passed except in a joint sitting of both the Houses of Parliament.

The trajectory of the case too was interesting. The trial court acquitted one accused of terror charges and imposed a lesser punishment for another offence, the HC acquitted two completely while the SC further acquitted a third of all terror charges. This, at a time when the entire process could have been overwhelmed by nationalistic hype. But the trajectory shows that there was introspection as well as analysis in the entire process.

Having said that, I would also have to say that the case has seen dilution of norms of due process. Therefore, it was a sort of mixed bag-- but significant.

The case itself touches upon important issues of the substantive penal law, the law of evidence, criminal procedure and principles governing general law versus special law. It will remain a reference point on law relating to terror as also in mapping judicial responses to issues affecting human rights, custodial rights and due process. The SC did uphold principles of due process, while dealing with confessions and custodial rights. On the other hand, the rigour with which electronic evidence has to be appreciated and the investigative integrity that needs to be followed have been diluted. Then, though the SC did uphold the due process norms, subsequent cases have not followed the same -- examples being the Haren Pandya case and the one involving the attack on the American Centre.

I will explain what I mean. There are three important aspects relating to special versus general law, in respect of due process and construction the offence, and of evidence.

Either by design or by accident, the FIR registered on December 13 2001, made no mention of offences under POTA. On the December 13 and 14, evidence was generated based on wire taps but no code mentioned in POTA in regard to this was followed. Right from the trial court to the Supreme Court, the prosecution argued that they need not have followed that code because the FIR made no mention of POTA. Therefore, by simply omitting the mention of POTA in the FIR, the police, state and the prosecution managed to evade the rigour of following the prescribed code (on wiretapping) which is meant to safeguard the accused.

If ever there was a terror attack, this was the one: five men, travelling in a car loaded with explosives, enter the Parliament building, eight security men are killed, the incident itself became a justification for POTA but the FIR omits it, to provide that expediency to the police.

On the other hand, on December 17, invoking the provision of POTA, the prosecution justifies confessions made to the police. Look at the duplicity. Choosing to invoke the provisions of a special law when it suits the police and evading it when it comes to ensuring safeguards for the accused. Unfortunately, the judicial decision making process did not condemn it.

The other aspect concerns the substantive penal provisions. The code in POTA is complete. It has defined the maximum punishment, which is life, to anyone who is found guilty of conspiracy and abetment. For someone who has to be awarded death sentence, the provisions are clear: the accused should have been present at the spot, done the act with specified weaponry and caused the consequential damage or death. So, the argument was, that unless someone was present at the spot and did the act as envisaged, the maximum punishment could be only be life and not death. The second argument was that since this is a special law, one cannot fall back on IPC 302 to invoke the death penalty. The Supreme Court, while agreeing that the provisions of POTA could not be invoked to award the death penalty (since none of the accused were present at the spot), fell back on IPC to do it. Look at how the special law works. When it comes to assisting the rhetoric of the state, it has its full play. But, when it comes to the inbuilt safeguards for the accused, which are few and far between, they are given a go by.

Let me now deal with other aspects of evidence — confession. POTA was an improvement over TADA in that it clearly prohibited use of police confessions against the conspirators or the co accused. In view of this conscious omission, both the High Court and the Supreme Court ruled that confessions of A could not be used against B. This was an excellent and well-reasoned interpretation. The SC went on to say more. In cases where custodial rights are not respected in that the accused has been denied to access to a lawyer or family and there was no assurance of judicial custody over police custody, confessions cannot be relied upon.

The Supreme Court held that where a person suffered from the lurking fear of going back to police custody, a confirmation of the confession too cannot be trusted. From a situation when courts were routinely accepting police confessions under TADA– from that line of judgements – to forthrightly and completely ruling out reliance on confessions was a remarkable achievement and extremely salutary for the protection human rights. The Supreme Court also said that the tone and tenor of the confession is important. For instance, the court said it was difficult to believe that Shaukat could have voluntarily implicated his pregnant wife. Given the reputation of the Indian police and the continuing complaints against them, the court felt it was sad that the admissibility of a police confession was even considered in any law. It was an indictment of sorts and thus in the first case under POTA, such a confession was thrown out. Unfortunately, it was not followed in most judgements that followed. It was taken into account in the Akshardham case but not in the Haren Pandya case. What is it that prevents such principles from entering the system sufficiently for it to become a part of the code is something we need to ponder about.

Then, there is identification of evidence. For instance, identification of the five dead "terrorists" by Afzal. No Indian law permits admissibility of a statement by someone in custody but every court held it against Afzal. Unless there is identification in court, no identification while in police custody, even by a witness or a police officer, is admissible. Disbelief in the voluntariness of a confession in a custodial situation is built into the system. What was held against Afzal? That he identified the five dead men and, therefore, he knew them. And, therefore, he was guilty of incriminating conduct under Section 8 of the Evidence Act even if it cannot be considered as a statement under Section 27 of the Evidence Act. But, the point is that Section 8 rules out any 'statement'. And, what is the statement? "I identify this man." A statement and that too spoken to a police officer. The fact is what is plainly inadmissible in law has been rationalised/ratified to be used against Afzal. It is not fair to blame the amicus or Afzal's counsel as is sometimes done. This was the most disconcerting aspect of the judgment.

As it turned out, the court did not rely upon the evidence given by Shaukat's landlord that the five dead terrorists visited his house because he could not identify anyone else but relied upon a custodial statement of identification by Afzal.

Let's now deal with disclosure and discovery. The trial court adopted a specious argument which the prosecution continued to espouse but the High Court and the Supreme Court would have none of it. Under the Evidence Act, no statement given to the police by an accused is admissible unless there is a discovery based on that statement – as a consequence of such a disclosure. But an extraordinary argument was put forth by the prosecution based on a specious logic adopted by the trial court. It is like this: Accused A makes a statement referring to a certain fact and accused B refers to it in his statement given later and, therefore, this amounts to confirmation. This, they claimed, is a subsequent ratification. Fortunately, both the High Court and Supreme Court said NO. They went back to the judgments of the Privy Council and held that this cannot be accepted.

On a very, very detailed analysis of laws governing conspiracy, it was made clear that mere knowledge is not enough. That there was not enough evidence to establish that Shaukat was in touch with the five dead men and that it was perfectly okay for him to be in touch with Afzal, the latter being his cousin. The Supreme Court went back to its traditional and careful position and acquitted Shaukat of all terror charges while holding him guilty for concealing the design to "wage war."

The fact, however, remains that there was unwillingness on the part of even the Supreme Court to acknowledge how easily electronic evidence can be changed and how courts should ensure the integrity of evidence. For example, the laptop supposedly seized from the truck of Shaukat showed access one month after he and others were in judicial custody and the laptop was in the safe custody of the police. Even today, we don't have a code governing electronic evidence – how to seize, how to preserve and so on – despite its growing importance as evidence.

In sum, I would say, this case will remain an important reference point -- from the point of view of due process norms, human rights and the judicial dynamics in a case having such a huge nationalistic hype, but nevertheless retaining the fidelity to certain principles even though courts were hesitant to go into other areas as if not to castigate the prosecution. It was a mixed bag.

But, the more disquieting aspect is that even the safeguards maintained by the Supreme Court in this case are not being followed by courts as a matter of rule. Here, I go back to the distinction brought out by Kanna as to what can be construed as waging war and what is a terror act under POTA. The Supreme Court dealt with it and went back to much older instances including a 1951 case when an English judge said that even if a section of police commits mutiny and takes over the armoury, we will not call it waging war unless the intent was to acquire state power. All these principles have been looked at. That every act of violence cannot be construed as an act of terror or waging a war unless the intent is established. Tragically, these distinctions have not been brought to bear on subsequent cases. For instance, in the American Centre case, wherein two motorcycle borne men attacked some guards, it was accepted as an act of waging war without question.

The real struggle is in ensuring that these distinctions/principles become a part of the jurisprudence. It is in this course that we miss Kanna greatly.

[Nitya Ramakrishnan is a Delhi based lawyer known for her criminal law practice including many terror trials]

This is the fourth lecture of K G Kannabiran memorial lecture series.

First Lecture by Justice B Sudershan Reddy, former Supreme Court Judge -Death Of Democratic Institutions: The Inevitable Logic of Neo-Liberal Political Economy & Abandonment of Directive Principles of State Policy.