[Reader-list] Kashmir lawyer issues "open appeal" to SC against Ajmal Kasaab's conviction |

[Pawan Durani]

26/11 verdict: Kashmir lawyer’s open appeal to SC

Ishfaq Tantry
Srinagar, May 07: Questioning the legality  and the admissibility, as
evidence, the tapped inter-country mobile conversations  in the trial
of Ajmal Amir Kasab, an eminent criminal and constitutional Kashmiri
lawyer has said introduction of such evidence may be against the
"essence of various conventions for the Protection of Human Rights and
Fundamental Freedoms, to which India is a party".


Advocate Syed Tassaduq Hussain, in an open appeal to the Supreme Court
of India,  has asked that the link between various human rights
conventions and national legislation should be "subjected to inquiry
and fresh re-thinking".

Says the Valley-based senior High Court lawyer, “The May 6 verdict,
condemning Ajmal Kasab, is the exhibition of naked failure of Indian
judicial system in a homogeneous dimension, showing that the trail
procedures adopted in this case transgress basic norms of decency and
fairness, without which the civilisational  values often get
jeopardised.”

Saying the indictment of an accused  on 86 counts in a rolled-up
manner is procedural error, Hussain in his appeal stated: “This
failure of the Indian judicial system underscores the point that,
according to several judgements of the Court of Appeals in England and
some judgements of the US Supreme Court, the indictment of an accused
on 86 counts in a rolled-up manner is procedural error of great
magnitude which vitiates the trial of a youngish illiterate or
semi-literate 20-year-old offender.”

Stating that the offender has a constitutional right to silence, he
adds, “The second count which taints the investigations and the
consequent indictment is that constitutional mandates allow right to
silence, so police has no right to sustained  interrogation of a
suspect. Court of Appeal in England is categorical that illegality of
collection of evidence, should, open the doors for exit of such
evidence from the trial procedures.”

Hussain questions the legality of the telephonic conversations as
evidence, saying, “The fatal flaw in the verdict of Ajmal Kasab is
that the trial of facts was swayed by the evidential value of
telephonic messages, said to have been  received by Kasab. According
to the implications of the Case Law, without an express treaty between
the countries, introduction of inter-country mobile telephonic
communications as evidential  material may be highly flawed.”

The HC lawyer says Kasab's is a test case and “the introduction of
such evidence  may be against the essence of various conventions for
the Protection of Human Rights and Fundamental Freedoms, to which
India is a party”.

“The link between the various Human rights Conventions and national
legislations should be a subject of inquiry and fresh rethinking by
the Supreme Court of India and the International Commission of
Jurists,” the Kashmiri lawyer in his appeal to the Apex Court adds.

He hopes that the “Supreme Court  of India is expected to issue Suo
Motto Habeas Corpus Rule Nisi in such a high-profile politicised case,
that compelled the Home Minister of India to issue his commendatory
certificate to the trial procedures and the judgement, something
unheard of in the past.”