In a rather unusual development, Colin Gonsalves, who represented Mohammed Afzal in the high court has written an open letter to clarify about certain people “spreading a rumour that I did not defend Afzal in the High Court and instead asked for him to be put to death by lethal injection”.
Ram Jethmalani has defended Mr. Gonsalves and one discovers that the certain persons include Nandita Haksar, who has been defending Afzal!
This is my open letter, and the other two are reproduced below…
Dear Colin Gonsalves:
Those of us who are aware of the work you have done on several human rights issues would not for a moment doubt that you would not stand up for what you believe in.
It is commendable that you took up the case at the last minute and truly distressed to learn that Nandita Haksar could have said that you were suggesting a lethal injection for Afzal.
This is also surprising considering Ms. Haksar has braved flak and more for appearing for Prof. Geelani, the other accused. It is due to this reason that I believe an open letter is not such a good idea for this is the time that committed activists did not expose their differences.
If she has publicly accused you, you do have Ram Jethmalani's testimony and the court papers that you could have put before her. The onus would then be on her to clarify and, if need be, even apologise.
At this moment, it will only give grist to people to crib about ‘pseudo-secularists’ and ‘pseudo liberals’, of which incidentally you ought to proudly lay claim, given that the ‘pseudo’ has been added by certain political groups to legitimise their fake beliefs.
It is true that the “current champions coming on television were nowhere to be seen when they were needed most”. But I wish to draw your attention to the fact that these are media-created champions, drawn from glamorous activism. This is the unfortunate fallout of byte-sized news and large egos. However, among these people there are some who are deeply involved in various movements and must be given their due.
Publicity is a double-edged sword. Citizen’s activism is possible only if there is awareness.
In fact, the emotional appeals for Afzal denude the factual ground on which he can rightfully claim not only clemency but exoneration, too.
Colin Gonsalves’ open letter On Afzal Case
I was taken aback to hear that certain persons are spreading a rumour that I did not defend Afzal in the High Court and instead asked for him to be put to death by lethal injection.
I was asked by advocate Nitya Ramakrishnan who appeared for Shaukat in the High Court to defend Mohd Afzal. Apparently many persons were approached before me but were not available. I was brought in at the last moment, perhaps a couple of weeks before the arguments were to begin in the High Court. I was told that payment would not be possible and that I would have to do the case free.
I gladly accepted even though it meant sacrificing my other work because I am totally opposed to the death sentence for any person. This has been my consistent stand over years.
When I appeared for Afzal in the High Court, I found that there was nobody to help me in those days except for advocate Nitya who was more familiar with the case than I was since she had appeared in the Trial Court. Apart from her I found nobody interested in helping Afzal. I believe campaigns were conducted to help the other accused and also to raise money for them, but not one person met me during the six months of the day to day proceedings in the High Court. The expenses of the case came to about Rs. 40,000/- because volumes of materials had to be Xeroxed. About half that amount was reimbursed by Afzal's cousin. I am putting this on record to emphasize that all the current champions of Afzal coming on television were nowhere to be seen when they were needed most.
I argued before the High Court for three weeks continuously. I have never argued that Afzal accepts his guilt and that he prays for death by lethal injection. I have my written arguments which were filed before the High Court and anyone wishing to read them may contact me. In the 250 page written submissions there is not one word on death by lethal injection. In the High Court judgment there is not one word on that.
You must remember that in those days the High Court arguments were being covered by a battery of journalists on a day-to-day basis. Had I mentioned to the Court that I want Afzal to die by lethal injection that would have made sensational headlines.
I met Afzal in jail thrice. On the second occasion he told me that someone had informed him that I was asking for him to be put to death by lethal injection. I told him that I would never argue such a position. He was satisfied on that explanation and the issue was not raised with me thereafter.
I spoke to Mr. Jethmalani who was also in Court during that period and he has given me a letter which I am attaching with this document.
Letter from Ram Jethmalani
Date : 10-10-2006
Dear Mr. Gonsalves,
You appeared for accused Md. Afzal before the High Court of Delhi at the hearing of the Death Reference in which Md. Afzal and two others had been sentenced to death.
I watched with admiration the manner in which you defended your client. It is all the more creditable that you agreed to appear for him in the first instance and in the second place you did an honorary job. It was a very unpopular cause and many stalwarts had refused to represent him.
You acted at the request of a Human Rights Organization and your junior Nitya in the case. I believe she had appeared in the Trial Court too. You have acted in the best tradition of the Indian Bar and everyone should be proud of your performance.
I have with me the final summary of your submissions which you made to the High Court running into nearly 250 pages. I have preserved it for my education and the education of the young lawyers who keep coming to my Chamber for training in the art and practice of advocacy.
I can only imagine the amount of industry that must have gone into the preparation of this massive volume and the enormous energy that you used in your speeches as to the High Court over a long period of almost three months.
I write this because I have been distressed to learn that Ms. Nandita Haksar, an advocate has appeared before the media and made statements against you which have no content of truth at all. She is reported to have said that you did nothing for your client except to tell the Court that he deserves a lethal injection. The impression that she has created is that you made no effort to provide any legal assistance to your client.
While I cannot believe that Nandita has made these false statements with malice against you, I cannot but think that they are totally and recklessly false.
I remember your argument that the provision of our criminal law which sanctions death by hanging is a cruel and unusual punishment and is constitutionally impermissible. If this argument had succeeded there was no provision left for executing the death sentence. You were only suggesting to the Court that there are more humane methods of carrying out the death sentence and a lethal injection is one of them. You never suggested to the Court that your client is guilty but he should be given such an injection. I am quite sure Nandita did not understand what was being argued. It may be that she was wrongly informed by somebody else. Please forgive her.
I was quite impressed about by your eloquent argument supported by extracts from the record that your client did not get a fair trial. I regret that this argument did not succeed with the High Court. I am not sure whether it was pursued in the Supreme Court. It should have been and might well have produced a welcome result.
I do want that you should help Md. Afzal in his family's Petition invoking the presidential powers under Article 72 of the Constitution of India. That would raise your stature and will certainly add to the reputation of our legal system.
With warm regards