Ajmal Kasab has appealed before the Mumbai High Court against the death sentenced awarded to him by the trial court. The Government spent crores on the Arthur Road high security prison in Mumbai to guard this terrorist against any attempt to eliminate or save him. His cell is reported to be bullet proof and bomb proof. The State has also passed an order under section 268 of the Criminal Procedure Code that Kasab shall not be removed from the prison, having regard to the special circumstances in this case. In view of this, the High Court which decided to hear Kasab’s appeal daily from 18 October, directed the state government to provide videoconferencing facility in the court and the jail so that Kasab can attend the proceedings without being physically present. On 18 October, when the appeal was taken up in the High Court, Kasab threw, his by now well-known, tantrums by arguing with policemen and spitting on the webcam. The judges reprimanded him on his conduct. On Tuesday, he demanded that he be taken to the court to be present during the appeal hearings. The judges said that there was no requirement of law to allow Kasab to remain present during the appeal proceedings, and that if he did not want to hear them, the court cannot help it.

There are some parallels between this trial and another high profile trial which took place some time back. In the Rajiv Gandhi assassination case, 26 accused had been arrested and along with twelve who had committed suicide and the three LTTE leaders, including their chief Prabhakaran, charge sheeted before the trial court. Of the 26 accused that faced charges, 25 agreed to be represented by lawyers. 10 lawyers represented these 25 accused. Murugan, the LTTE cadre who was married to Nalini, did not agree to take a lawyer to defend him. He said he will defend himself. He proved to be a shrewd defendant, cross examining all witnesses, some of them in great detail, exhibiting his knowledge in arms, explosives and intelligence operations.

The trial had started on 19 January 1994. In October 1994, Murugan boycotted the proceedings on some pretext. The trial was being conducted by a designated TADA court, and while there were provisions to conduct the trial in the absence of the accused or his lawyer, subsequently, if the accused returned to the court, he could summon the witnesses already examined to cross examine them. As there already had been a lot of delay in starting the trial due to various security related matters, and we were certain that Murugan would later join the trial proceedings and exercise his right of cross examining witnesses further delaying the trial, we filed an application in the court requesting the court’s direction to forcibly get the presence of Murugan. The court only directed the jail superintendent to produce the accused, without any instructions to use force. The jail superintendent refused to use force without specific court instructions.

We then moved the High Court of Madras against the order of the Designated Judge. A Division Bench of the High Court summoned Murugan, and explained to him the importance of his presence as he was defending himself, and that he should exercise the right of cross examination of the witnesses who would depose in the court. They further explained that by forfeiting his right to cross-examine witnesses he was losing a valuable opportunity to defend himself. But Murugan was adamant and refused to attend the court.

The High Court then pronounced a landmark order in which the Hon’ble Judges said “ The right to cross-examine a prosecution witness, thus appears to be a Constitutional safeguard against any arbitrary deprivation of life or personal liberty…When a right is afforded, a duty is cast upon the person concerned to utilise it…a person deliberately and wilfully refusing to exercise his right for appearance and cross-examination, in spite of his having been made aware of the consequences, cannot be heard at a later point of time, to contend that he had lost a valuable opportunity of cross-examining certain witnesses and hence they should be recalled and tendered for cross-examination…”

The trial then proceeded without Murugan. But as we had suspected, he returned to the Court after about 8 months, by which time, we had examined 85 witnesses. After some time, just as we had anticipated, Murugan gave a petition for recalling 20 witnesses for cross-examination. We objected vigorously and the court dismissed his petition. Murugan then sent a letter to the Hon’ble Supreme Court, as appeals against the order of the Designated Judge lay with the Apex Court. The Supreme Court took this letter as a Special Leave Petition, appointed amicus curiae to represent Murugan, and after hearing the petition, finding no merit in it, dismissed it.

The difficulty we faced in Murugan’s case was that he was not being defended by a lawyer, he was defending himself. His presence in the court was therefore important. In the case of Kasab, there is no such difficulty, as he has a lawyer to defend his case. His absence in the court, or his refusal to use the videoconferencing facility to witness the proceedings in the High Court, is therefore of no consequence to the state.