Editor,
The recent incidents in several parts of India reacting to the internal matters of an independent country Bangladesh is a matter of serious concern. These heightened reactions are primarily aimed to address the internal electorate, but has the potential to damage the interests of India in medium to long term. It is a fact that Bangladesh is our neighbour, and both countries share mutual trade and human relations. Both the countries have multiple diplomatic consulates, besides the embassies in respective capitals.
There is no denying that there are reports of atrocities and attacks on minorities in Bangladesh. However, these are best addressed through diplomatic endeavours, through bilateral and global forums. Increasing tensions by attacking Bangladeshis in India and their diplomatic missions, India, the bigger brother, would only be making its case worse. Already, its relationships with almost all its neighbours is precarious. China is building bridges with all of India’s neighbours, with several inviting incentives.
It would be worthwhile to remember that Bangladesh was, comparatively, a friendly neighbour with India for the last two decades or so. With such a frenzy, our neighbours would only fall into the lap of China, which would not augur well for Bharat.
Yours etc.,
D Bhutia,
Guwahati
Supreme Court advocates for effective legal aid for the poor
Editor,
While delivering its judgment on a rape case dating back to 2009 the Supreme Court said that legal aid for the poor should not be ‘poor’ in quality since lack of access to legal aid affects the fundamental rights of the accused. The Supreme Court acquitted a man accused of rape and murder of a 10 year old girl in 2009, after noting several irregularities including lack of effective legal representation during the trial. The apex court observed that imposing capital punishment in such a case shocks the conscience of the Court. The Court also added that if legal aid is provided only for the sake of providing it then it will serve no purpose and if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21 of the Constitution
Justices Abhay S Oka and Ahsanuddin Amanullah and Augustine George Masih said that after perusing the records of the case they found a very disturbing feature where the State failed to provide timely legal aid to the appellant. The other issue is about the quality of legal aid. Apart from provisions of Article 21 and Article 39A of the Constitution, the law on the issue of the right to legal aid has been evolved by the Court through its landmark decisions.
The Justices observed that legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent to conduct the trial efficiently, the rights of the accused will be violated, the bench said.
Dealing with the appeal by Ashok whose death penalty was commuted by the Allahabad High Court to life term, the court noted the evidence of more than one prosecution witness was recorded in the absence of the legal aid advocate. At the stage of framing charges, he was not represented by an advocate. The Court observed that it was surprising that the examination-in-chief of the prime witness (father of the girl) was allowed to be recorded without giving legal aid counsel. Hence a valuable right of the accused to object to the questions asked in examination-in-chief is being deprived. The accused is also deprived of the right to object to leading questions, the bench observed
In this case the prosecution relied upon evidence of the victim’s seven-year-old cousin who allegedly saw the girl being forcibly taken to the tubewell where the offence was committed. The court, however, held this witness cannot be solely relied upon and that it is unsafe to base conviction only on his testimony. Even if his testimony is correct, his evidence can, at best be the evidence of ‘last seen together.’ The bench also rejected the recovery of the victim’s slipper and underwear allegedly at the appellant’s instance and held that the appellant’s guilt beyond reasonable doubt has not been established.
In statement recorded under Section 313 of the CrPC, the bench noted that the contents of the incriminating documents were not put to the appellant. Also, the witnesses may have deposed in a language not known to the accused. In such a case, if the material circumstances appearing in evidence are not put to the accused and explained to him/her in a language understood by him/her it will prejudice the accused.
The court pointed out the date of occurrence of the rape is May 27, 2009. After such a long gap (15years), it will be unjust if the appellant is now told to explain the circumstances and material specifically appearing against him in the evidence. Above all the appellant had been incarcerated for about 12 years and nine months before he was released on bail. Therefore, considering the long passage of time, there is no option but to hold that the defect cannot be cured at this stage, the bench observed.
Even assuming that the evidence of the victim’s cousin can be believed, the appellant is entitled to acquittal on the ground of the failure to put incriminating material before him in his examination under Section 313 of the CrPC, the bench said. The apex court observed that it is surprising that both the Trial Court and High Court have overlooked non- compliance with the requirements of Section 313 of the CrPC. In fact, the Trial Court imposed the death penalty in a case which ought to have resulted in acquittal, the bench stated.
Highlighting the role of public prosecutor, the bench said the officer has to play an active role in ensuring that every trial is conducted in a fair manner and in accordance with the law.
The Supreme Court also issued a slew of directions on the role of the Public Prosecutors and the appointment of Legal Aid Counsels in upholding procedural fairness and the fundamental rights of the accused in criminal trials. The Court said that the Public Prosecutor must assist the Trial Court in recording the accused’s statement under Section 313 of the CrPC, ensuring all incriminating material circumstances are presented to the accused. While ensuring offenders are punished, the Prosecutor must also prevent infirmities in the trial that could prejudice the accused, the court added.
Yours etc.,
Yash Pal Ralhan,
Via email