COMMENTARY

Afzal Gurus Case

The Undiscussed Aspect
Anurag Bhaskar

The Supreme Court is often

regarded as infallible. But judges
are human and the Courts
verdicts should not be immune to
criticism, particularly when they
pertain to the death penalty. The
apex courts verdict which
sentenced Afzal Guru to death
may not stand ground if examined
in the light of the treatment of
evidence in a later case.

n February this year, there was outrage when some students of the
Jawaharlal Nehru University organised a protest to mark three years of the
hanging of Afzal Gurusentenced in
the Parliament attack case (State (NCT of
Delhi) v Navjot Sandhu 2005). The students were branded anti-national and
denounced for defaming the Supreme
Court. Anti-India slogans are definitely
uncalled for, and observing Republic Day
as Black Day and celebrating Gandhis
assassination (Hindu 2016a and 2016b)
should be criticised.
Having said that, there is nothing
wrong in criticising the Supreme Court.
There are several judgments that need
to be criticised. One such disappointing
verdict of the Court was in the ADM
Jabalpur case, AIR 1976, SC 1207, where
it ruled that in Emergency
No person has any locus to move any writ
petition under Article 226 before a high
court for habeas corpus or any other writ or
order or direction to challenge the legality of
an order of detention on the ground that the
order is not under or in compliance with the
Act or is illegal or is vitiated by mala fides
factual or legal or is based on extraneous
considerations.

The Supreme Courts latest disappointing verdict was in the Rajbala v State of
Haryana, AIR 2016, SC 33 case. The judgment upheld the constitutional validity
of Haryana Panchayati Raj Amendment
Act, 2015 debarring illiterate people,
those with unpaid dues to electricity
boards or unpaid loans to state cooperative banks, from contesting elections.
Matter of Life

Anurag Bhaskar (anuragbhaskar007@gmail.

com) is a student at Dr Ram Manohar Lohiya
National Law University, Lucknow.
Economic & Political Weekly

EPW

AUGUST 6, 2016

Scrutiny, and criticism, if necessary, becomes all the more imperative in matters related to death penalty. Life once
taken cannot be given back. The apex
court has, in fact, admitted to committing mistakes. Examples of such admission include the UP Lokayukta appointment case (Indian Express 2016) and
vol lI no 32

Arunachal Pradeshs ongoing constitutional crisis (FirstPost 2016). But of what

use is an admission of error when it
comes in cases of death penalty?
In 2012, 14 retired judges wrote to the
President, pointing out that since 1996
the Supreme Court had erred in giving
death penalty to 15 people, two of whom
were hanged. In 2009, the Supreme
Court itself admitted that it had wrongly
sentenced 15 people to death in the
past 15 years (Frontine 2015). The Court
made this admission in the Santosh
Kumar Shantibhushan Bariyar v State of
Maharashtra (2009), 6 SCC 498, in which
the following judgments were held to be
per incuriam (out of error or ignorance):
(i) Ravji @ Ram Chandra v State of
Raja sthan (1996), 2 SCC 175
(ii) Shivaji @ Dadya Shankar Alhat v
State of Maharashtra (2008), 15 SCC 269
(iii) Mohan Anna Chavan v State of
Maharashtra (2008), 11 SCC 113
(iv) Bantu v State of Uttar Pradesh
(2008), 11 SCC 113
(v) Surja Ram v State of Rajasthan (1997),
CriLJ 51
(vi) Dayanidhi Bisnoi v State of Orissa
(2003), CriLJ 3697
(vii) State of Uttar Pradesh v Sattan
(2009), 4 SCC 736.
These judgments were contrary to the
binding rarest of rare doctrine, propounded in the Constitution Bench judgment in Bachan Singh v State of Punjab
(1980), 2 SCC 684.
Prabha Sridevan, former judge, Madras
High Court, said, There can be no
graver miscarriage of justice than this.
The Supreme Courts admission of error
was too late for them. They were
hanged because of erroneous judgments
(Telegraph 2015).
Parliament Attack Case
The apex courts verdict in the Parliament attack case is often taken as the
ultimate affirmation of Gurus culpability.
However, Justice Ajit Prakash Shah,
former Delhi High Court Judge and
former Chairman of the Law Commission of India, regards the sudden and
secretive hanging of Guru as a mistake
by the government. He has described
the verdict as completely political
(Indian Express 2015).
19

COMMENTARY

In the Parliament attack case, the

Supreme Court bench of the then Justices
P Venkatarami Reddy and P P Naolekar
had rejected senior counsel Ram Jethmalanis plea that Guru could not be
convicted as there was no direct evidence. But the verdict did acknowledge
that the evidence was circumstantial.
One of the main circumstantial evidence
on the basis of which Guru was held
guilty was frequent telephonic contacts
between Guru and Mohammed, one of
the terrorists killed during the attack.
The Court had rejected the following
contention regarding the admissibility
of electronic telephonic records:
It is contended by Mr Shanti Bhushan, appearing for the accused Shaukat that the
call records relating to the cellular phone
No 919811573506 said to have been used
by Shaukat have not been proved as per
the requirements of law and their genuineness is in doubt. The call records relating to
the other mobile numbers related to Gilani
and Afzal are also subjected to the same
criticism. It is the contention of the learned
counsel that in the absence of a certificate
issued under sub-Section (2) of Section 65B
of the Evidence Act with the particulars enumerated in clauses (a) to (e), the information
contained in the electronic record cannot be
adduced in evidence and in any case in the
absence of examination of a competent witness acquainted with the functioning of the
computers during the relevant time and the
manner in which the printouts were taken,
even secondary evidence under Section 63 is
not admissible
Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic
records, there is no bar to adducing secondary evidence under the other provisions of
the Evidence Act, namely Sections 63 and
65. It may be that the certificate containing the details in sub-Section (4) of Section
65B is not filed in the instant case, but that
does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 and 65.

However, the Supreme Courts ruling

two years later in the Anvar P V v P K
Basheer (2014), 10 SCC 473 made such
circumstantial evidence inadmissible.
The full bench comprising Chief Justice
R M Lodha, Justices Kurian Joseph and
Rohinton F Nariman, overruled the
Parliament attack verdict and reinterpreted the application of Sections 63, 65,
20

and 65B of the Indian Evidence Act,

1872. To quote the judgment:
The evidence relating to electronic record,
as noted herein before, being a special provision, the general law on secondary evidence
under Section 63 read with Section 65 of the
Evidence Act shall yield to the same. Generalia special bus non derogant, special law
will always prevail over the general law. It
appears, the court omitted to take note of
Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and
65 have no application in the case of secondary evidence by way of electronic record; the
same is wholly governed by Sections 65A
and 65B. To that extent, the statement of law
on admissibility of secondary evidence pertaining to electronic record, as stated by this
Court in Navjot Sandhu case (supra), does not
lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the
requirements under Section 65B are satisfied.

In the Parliament attack case, while

considering the printouts of the computerised records of the calls pertaining to
the cell phones, the Court had ruled that
even if the certificate containing the
details as required under Section 65B
was not filed in the case in question, the
evidence could be adduced if the law
permits such evidence to be given under
other relevant provisions, namely, Sections 63 and 65. This was a mistake and
the Court corrected it in the verdict on
the Anvar P V case. But it is too late now.
Had the judgment in the Anvar P V case
been delivered before the hanging of
Guru, his fate might have been different.
He may not have been hanged as the
Court was clear that the Parliament
attack case was decided on the basis of
inadmissible evidences and overruled
the decision to that extent. There was a
technical error in the judgment.
Question of Nationalism

structurally supreme. His contention

was that though the concept of judicial
infallibility is valid, but a legal pronouncement need not always be the last
word on a given subject (Hindu 2012).
The judiciary is prone to making mistakes. It, after all, consists of human beings.
It is not infallible. Therefore, the ordinary
man has a right to disagree with the Supreme Court, the importance of which
can be reflected by Justice Khannas dissenting opinion in the ADM Jabalpur case:
A dissent in a court of last is an appeal to the
brooding spirit of the law to the intelligence of a
future day, when a later decision may possibly
correct the error into which the dissenting
judge believes the court to have been betrayed.

References
FirstPost (2016): Arunachal Pradesh Crisis: Supreme
Court Recalls Notice Issued to Governor Jyoti
Prasad Rajkhowa, 1 February, http://www.
firstpost.com/politics/arunachal-pradesh-crisissupreme-court-recalls-notice-issued-to-governor-jyoti-prasad-rajkhowa-2606396.html.
Frontline (2015): A Case against the Death Penalty,
6 February, http://www.frontline.in/social-issues/
general-issues/a-case-against-the-death-penalty/article6805120.ece# test.
Hindu (2012): River-engineering and the Courts,
13 March, http://www.thehindu.com/ opinion/op-ed/riverengineering-and-the-courts/article2985193.ece.
(2016a): Hindu Group Observes Republic Day
as Black Day, Hindu, 28 January, http://www.
thehindu.com/news/national/other-states/hindu-group-observes-republic-day-as-black-day/
article8154921.ece.
(2016b): Hindu Mahasabha Celebrates Gandhijis Death Anniversary, 30 January, http://
www.thehindu.com/news/national/otherstates/hindu-mahasabha-celebrates-gandhijisdeath-anniversary/article 8172086.ece.
Indian Express (2015): Afzal Guru, Yakub Memon
Hangings Send Signals of Weak Government:
Justice Ajit Prakash Shah, 5 September, http://
indianexpress.com/article/india/india-others/
afzal-guru-yakub-memon-hangings-send-signals-of-weak-govt-justice-ajit-prakash-shah/.
(2016): Uttar Pradesh: SC Recalls Its Order,
Appoints New Lokayukta, 29 January, http://
indianexpress.com/article/india/india-newsindia/supreme-court-recalls-order-appointingformer-judge-virendra-singh-as-up-lokayukta/
Telegraph (2015): You Were Wrong, My Lords,
2 August, http://www.telegraphindia.com/
1150802/jsp/7days/story_34917.jsp.

This aspect has not been discussed when

it comes to the debates on death penalty,
especially in the Parliament attack case.
The omission has perhaps to do with
nationalism. It is dangerous when nationalism overrides rationality. One of the
best judges of the apex court, Justice
V R Krishna Iyer once observed, What
the Supreme Court decides is final not
because it is infallible; it is infallible
because it is constitutionally final and
AUGUST 6, 2016

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