Author: Bhadresh Harikant
The rules and principles of case law have never been treated as final truths but as working hypothesis, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment, and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered.
~Hon’ble Justice Benjamin N. Cardozo
The sovereign roots of the country were shaken and the tranquil fabric covering her was shorn and torn, when some persons- a physical embodiment of the devil himself, set foot in the limits of her sovereignty. The terrorist attack on India, an episode which unfolded itself into what will be known in the history as the bloodiest rampage, started on 26th day of November, 2008 and lasted for four days. One of the accused got apprehended by the authorities and trial began. Finally, the matter reached the Supreme Court of India and in a detailed and comprehensive judgment drafted across 398 pages, the matter was disposed of upholding the every facets of rule of law and the democracy. The hearing which was spread over 13 weeks witnessed an arduous and erudite delivery by the respective learned senior counsels and their teams which is well noted and appreciated in noble words by the bench in the judgment. The judgment spans across multiple edges of the laws. It is a hallmark judgment which upholds the fair trial and its indispensable and intrinsic character guaranteed by the Constitution. The ‘right to seek legal representation’ and ‘right against self-incrimination’ of an accused have also been discussed comprehensively and the importance drawing parallels with the Constitution, however, conservatively. With some ancillary issues of law which have been given finality, the judgment reaches at discussing the death penalty jurisprudence concocted in the Bachan Singh case and later on given a deft contour in the Machhi Singh case. However, one finds a palpable legal hiatus in the means used to achieve an end – an end of confirming the death sentence passed by the trial court and upheld by the High Court which will be discussed in the latter part of this commentary with necessary criticality.
THE BACKGROUND: A BALLAD OF BLOODSHED AND VIOLENCE
The attack began on November 26, 2008 at about 9.15 PM and it ended when the last of the attackers, who was holed up in Hotel Taj Mahal Palace, was killed by Indian security forces at about 9.00 AM on November 29. There were ten terrorists in totality. They killed one hundred and sixty-six people and injured, often grievously, two hundred and thirty-eight people. Of those dead, at least seven were killed by the appellant himself and seventy-two were killed by him in furtherance of the common intention he shared with one Abu Ismail (deceased accused no.1) .The loss to property resulting from the terrorist attack was assessed at over Rupees one hundred and fifty crores. The appellant volunteered for the confessional statement to be recorded and gave a vivid and detailed statement mentioning everything right from his childhood to his joining of Lashkar-E-Toiba. He also told about the details related to his training and the part of bigger conspiracy hatched across the borders in Pakistan. He told a brief profile of his handlers and collaborators and his sea travel from the shores of Karachi till Mumbai and the hijacking of an Indian boat called ‘Kuber’ which followed halfway across the travel to sail in the deep waters. The terrorists mainly attacked at CST Railway Station, Leopold Café, Hotel Taj, Nariman House and Hotel Oberoi. Soon after landing at the Shores of Mumbai, they divided into five pairs and headed different destinations as per the part of a previous plan.
ANALYSIS: A REASONABLE DICHOTOMY
The ratio decidendi of the judgment begins by delving into the principles of procedure established by law. It held that the rules of Miranda v. Arizona had a limited application in India which first came to be discussed in the Nandini Satpathy case. It is appropriate to hold that in India the Criminal Justice Delivery System works in a different fashion than in the US. The Miranda decision itself makes a mention of Indian Supreme Court decision in Sarwan Singh v. State of Punjab as “to avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate…………..”. Therefore, the protection granted to the accused from coercive and violent interrogation tactics of the enforcement authorities are present in Indian context long before the pronouncement of Miranda case. It is important that there must be a harmonious coalition of the individual rights of the accused guaranteed by the Constitution and the State’s or larger society’s interest to be protected from the perils of the socially-eccentric endeavors of the accused. In a complex mechanism, where the custodial violence and inhuman interrogatory techniques are nothing fremd, if not more, it is necessary that Courts of law must craft the necessary legal arsenal to deal with the vice and protect the body of the accused from such Constitution-vary practices.
It is interesting to note that the Court referred to a significant part of the judgment delivered in Nandini Satpathy case wherein it was held that “if however an accused expresses the wish to have his lawyer by his side at the time of examination, this facility shall not be denied, because, by denying the facility, the police will be exposed to the serious reproof that they are trying to secure in secrecy and by coercing the will an involuntary self-incrimination. It is not as if a lawyer’s presence is a panacea for all problems of self-incrimination, because, he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried and to caution his client where incrimination is attempted and to insist on questions and answers being noted where objections are not otherwise fully appreciated.” But the Court seems to have had a casual take on ensuring the lawyer’s presence being proactive to sheath the accused from the vices of the police interrogation and the discussion ends up on paraphrasing in somewhat conservative words used in D. K. Basu case as regards to the presence of the counsel during the interrogation which limited the latter’s participation during the police examination of the accused. The Court further held that according to our system of law, the role of a lawyer is mainly focused on court proceedings, which, however is a true exposition but is far from going a mile extra to leverage the services of a lawyer as a shield for the accused. However, with all due reverence, it may be observed that the judgment appears to run paradoxical taking parallels consisting of mutually hostile narratives. As, on one hand, the Court takes judicial note of the implementation paralysis of the Court’s words, often observed on ground zero with the outrageous violations of the criminal laws but on the other hand, it goes no more farther than merely observing the provisions in criminal laws of the country as being adequate to help save the accused from custodial vices, in the words which reads as:
“We find no flaws in the provisions in the statutes books, but the devil lurks in the faithful application and enforcement of those provisions. It is common knowledge, of which we take judicial notice, that there is a great hiatus between what the law stipulates and the realities on the ground in the enforcement of the law. The abuses of the provisions of the Code of Criminal Procedure [Cr.P.C.] are perhaps the most subversive of the right to life and personal liberty, the most precious right under the Constitution, and the human rights of an individual. Access to a lawyer is, therefore, imperative to ensure compliance with statutory provisions, which are of high standards in themselves and which, if duly complied with, will leave no room for any violation of Constitutional provisions or human rights abuses.”
The Court had laid a selective emphasis holding that the absence of a legal representation pre-trial i.e. during recording of the statement under Section 164 of the Cr.P.C. or if the accused wants to make a confession or even at the stage of Section 167 when the accused is remanded either to judicial or police custody, will not vitiate the trial but it might make the delinquent magistrate liable for the disciplinary proceedings or giving the accused a right to claim suitable compensation from the State. It was held that the trial could be said to be vitiated only if it is shown that some material prejudice has happened with the accused due to absence of legal representation pre-trial and that being judged on the peculiarity of the facts of each case. Such stance by the learned Court has the potential of making the road to justice for an accused impregnated with extreme tribulations, as now, the accused also have to prove before the Court that he was not treated according to the procedure established by law and also that such has caused “material prejudice” to him along with proving himself innocent during the trial. It makes him undergo a mental, physical and psychological trauma and causes for him, justice a distant dream, especially when justice remains inaccessible to the poor as they cannot afford to approach the courts. And, also frequent adjournments, often sought only to delay cases, are an inconvenience and a form of a justice tax on poor and less well-off litigants. The methodology laid down by the Hon’ble Court in reckoning the scope of the right to legal representation will not only result in unreasonable trimming of the wide ambit of Article 22(1) but will also have far reaching policy ramifications. As it is a settled premise that judges are entitled to exercise an essentially legislative discretion, and through an appeal to their personal conceptions of the relative importance of various extra-legal considerations, play an active role in the formulation of social policy by the creation of new legal standards. Such decision will also affect the adjunct right of the accused against self-incrimination as the there is a large gap to be bridged between the criminal statutory safeguards and the realities in the field which can only be done by a proactive judicial conscience.
The next limb of the ratio decidendi deals with the death penalty jurisprudence to confirm the death sentence meted out to the accused by the Trial Court. However, at this juncture, the endeavor of the author is not to argue that accused could not have been given a death sentence but the discussion is one of analyzing a nebulous jurisprudence built and furthermore, imported to judge on the offence of waging war with Government of India. The Court has interpreted the expression “Government of India” occurring in Section 121 and the relevant subsequent sections to signify the notion of sovereignty wherein it is deemed to vest in the people of the territory and exercised by a representative government. The Court then went on to mention the Navjot Sandhu case to thrust its judicial paradigm into a direction to fathom the construction and modalities of the offence of waging war. However, such case does very little to analyse the Section 121 in the backdrop of the aspect that the provision provides for both death sentence as well as life imprisonment. It is very important to order the degrees of the commission of offence under Section 121 and somewhat to concoct a mechanism to be able to measure the magnitude on a slider to determine the sentence. Nevertheless, it is interesting to note that the Court, aligning itself aloof from the Navjot Sandhu decision which held acts of terror being a manifestation of waging war, orchestrated a comparative picture of the ‘terrorist acts’ and ‘waging war’ of having overlapping tendencies and also, sometimes, showing mutually exclusive features. However, it must be kept in mind that Section 121 only prescribes for waging war and anything less than that would escape its net. The Court took a swift departure from formulating a sentencing policy peculiar to the offence under Section 121 based on the varying modalities and transplanted the Bachan Singh death sentencing framework without necessary amputation to uphold the death sentence under Section 121. If such would be the approach, then there would be no hesitation in saying that each time a person is booked for waging war against Government of India, it would result in him being extended death penalty. Even, the “Rarest of rare” principle formulated in Bachan Singh case, could have an universal application but the yardsticks to provide necessary flexibility to the doctrinal fabric must be constructed with respect to the ingredients, nature and characteristics of each offence providing for death sentence. The dynamics of the aggravating and mitigating factors must change and materialize according to the changing contours of the offence. Given in a slew of judgments, the Apex Court has observed that the sentencing jurisprudence has evolved over numerous cases and brutality of an offence cannot be considered as the sole ground for determining appropriate punishment. However, we fail to see such evolution in the case in hand and the sentencing has an overshadowing glow on the brutality of the offence while the mitigating factors being ostensibly sidelined, especially for the charge under Section 121.
CONCLUSION: A BALANCING APPROACH
Although the case is a shining example depicting the amount of reverence for the rule of law and the democracy in the Indian judiciary. But, at the same time, there is no gainsaying in the fact that some edges of the laws still remain crude and unpolished which might result in prejudicial ramifications to those who come to seek justice. The aspect of right to legal representation and defended by a lawyer seems to have gotten a retrogressive step. The sentencing policy did not witness required metamorphosis and had been transplanted with its intrinsic irregularities to the offence, especially under Section 121 and when the current death sentencing doctrine is mired in its own legal conundrums at the trial level and not an ideal framework. The accused got death sentence on five counts and anyway his being commuted to life imprisonment looked a shy possibility but the argument is one of the reasoning and applying appropriate premises of law to mete out the sentence and not one of advocating for the accused.
 Criminal Appeal Nos. 1899-1900 of 2011. Decided by Aftab Alam, J. and Chandramauli Kr. Prasad, J.
 Bachan Singh v. State of Punjab, (1979) SCC (Cri) 830.
 Machhi Singh v. State of Punjab, (1983) 3 SCC 470.
 Miranda v. Arizona, 384 US 436 (1966).
 Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424.
 Sarwan Singh v. State of Punjab, AIR 1957 SC 637 (644).
 Dilip K. Basu v. State of West Bengal, (1977) 6 SCC 642, the Court held that that the interrogation of the respondent may be held within sight of his advocate or any person duly authorized by him, with the condition that the advocate or person authorized by the respondent might watch the proceedings from a distance or from beyond a glass partition but he would not be within hearing distance, and the respondent would not be allowed to have consultations with him in the course of the interrogation.
 TNN, Justice still not accessible to poor, Times Of India (July 1, 2020, 08:57 PM), https://timesofindia.indiatimes.com/india/Justice-still-not-accessible-to-poor-Law minister/articleshow/49707358.cms.
 Rolf Sartorius, Social Policy and Judicial Legislation, 8 JSTOR 151(2008).
 State (NCT of Delhi) v. Navjot Sandhu, (1981) 1 SCC 627, The Court observed that “…though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war”.
 Ravi v. State of Maharashtra, (2019) 9 SCC 622 ; Panchhi v. State of U.P., (1998) 7 SCC 177.
 National Law University Delhi, DEATH PENALTY SENTENCING IN TRIAL COURTS 17 (Project 39A 2019).