Mohammad Afzal Guru

New Delhi: Even as his mercy petition is pending with President A.P.J. Abdul Kalam, Mohammad Afzal Guru has filed a curative petition in the Supreme Court seeking reconsideration of the death sentence awarded to him in the Parliament attack case.

The petition, for reconsideration by a larger Bench of at least four judges, is likely to be heard in the chambers on Thursday.

A curative petition filed by Shaukat Hussain, who was awarded 10-year rigorous imprisonment, is also pending consideration.

The death penalty was slapped on Afzal in August 2005 by a two-judge Bench. His petition seeking a review of the judgment was dismissed on September 22, 2005.

Afzal said he was denied a fair trial in the sessions court as the judge failed to follow the procedure laid down by the Delhi Legal Aid Rules. Despite his opposition, counsel not of his choice was appointed amicus curiae.

The denial of counsel of his choice resulted in a constitutional error because it affected the framework within which a trial proceeded and required no proof of prejudice.

"Miscarriage of justice"

Afzal said there was a miscarriage of justice as the August 4, 2005 judgment departed from the norms laid down by the apex court and thereby violated the fundamental right of the petitioner to have competent legal representation.

Quoting rights contained in the International Conventions, in particular the International Convention on Civil and Political Rights, he said a person accused of a criminal offence had a right to be defended by an effective counsel during detention, trial and appeal.

The European Court of Human Rights held that the essence of legal aid did not end with the nomination of a lawyer and extended to replacing him in case he was unable to fulfil his duties.

Right to representation

Under Article 21 of the Constitution, no person could be deprived of his life or personal liberty except according to the procedure established by the law, Afzal said.

The right to representation by a legal practitioner of one's choice guaranteed under Article 22 (1) was always regarded as vital and fundamental for safeguarding personal liberty in all legal systems.

The impugned order and judgment under challenge were liable to be set aside on account of the failure of the sessions court to follow the procedure.

He prayed for a stay on the operation of the death sentence.

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