Meet Dayan Krishnan – Special Public Prosecutor in the Delhi Gang Rape case

As reported by Bar & Bench, all the four convicted in the December 16, Delhi gang rape and murder have been awarded the death penalty. Noted criminal lawyer Dayan Krishnan, played a vital role in this conviction, as the special public prosecutor. Given the widespread anger and intense public scrutiny following the incident, Krishnan and his team were tasked with responsibility of securing a conviction. For the last nine months, Krishnan had been keeping a very low profile, and avoided the media..Now, following the conviction, the criminal lawyer talks about his experience during the trial, his decision to take up the case, intense media and public pressure and death penalty as a deterrent..Bar & Bench: Your thoughts on the judgment?.Dayan Krishnan: There is a tradition that prosecutors don’t speak about the judgment. We have a dispassionate work to do..B&B: Your decision to take up this case..DK: I was asked by some high-level authorities whether I would be willing to take up this case. At that time, the agitation was going on across India and the authorities said they wanted to announce the name of the prosecutor. They were looking for someone who has had experience in handling cases in India as well as abroad for the Government. So I said ‘yes’..B&B: We understand that you did not charge any fees for this case..DK: The very nature of that incident meant that this was a case where, I don’t think, anybody in the right senses would have charged fees. One cannot but be horrified by the brutality of the gruesome act. In such a situation when you are asked what are your terms and conditions, anybody in my position would say “nothing”. So I just did what anybody else in my place would have done, [there was] nothing unusual about it..B&B: The trial was completed in a span of about 7 months. How was your experience?.DK: It was tough but it was good. It is a job taken up and job done. It is another case, that’s it. There was lot of pressure but it was a good experience..B&B: Were you affected by the incidents of brutal violence involved in this case?.DK: As a prosecutor you don’t let it affect you but in terms of brutality, in terms of injuries at least in my experience I have not seen any case like this. Even the doctors who testified also told the court that in their experience they had never seen such injuries. That was a distinguishing feature from the range of criminal cases that I have handled. Here, the injuries were too horrible to describe..B&B: There was a lot of media and public pressure around the case and the trial proceedings. How did you handle this?.DK: Very simple – I never went to the media. From day one, I told media that I will not be talking about this case. Till date I have not come on any electronic media. Whatever little interaction I had was with the print media and that is how it should be. The prosecutor should not have anything to do with media. For the last two months I have avoided watching media to keep myself away from what was being discussed. The best way to deal with the media is to avoid them..B&B: There are those who say that the present case was a classic example of a trial by media. Your thoughts?.DK: I don’t think so because I think we were particularly careful to avoid that. The media might have had a lot of interest in it, but from the point of view of the prosecution, we kept them completely out of our thought process because that was one thing that was worrying me the most. We shouldn’t fall in the trap of the media and allow them to decide what we do. I even tried to keep them off the trial but the Delhi High Court went against me..However, the Delhi High Court judgment was a very good judgment because Justice Rajiv Shakdher allowed what he called “calibrated access”. It sort of regulated the kind of people who came and none of them were sensational. They were responsible so I think from the side of the prosecution I did my best to ensure that the media interest remained with the media and did not affect our trial. As a public prosecutor you have to balance the rights of the victim, the rights of society and the rights of the accused. I hope we have done that. I don’t think even the accused can have any cause for complaint against the prosecution; we waited for hours and hours for the defense lawyers to arrive in the court. I made sure that their rights are protected..B&B: If media had not covered this incident, would the judgment have been any different?.DK: No way. The judgment has nothing to do with the media. Media’s interest is totally irrelevant to this judgment. In fact, the media to me was more of a hindrance because I was always worried – you had to be over cautious to ensure the rights of the accused. The media has had no role at all in either influencing anything that happened in this trial or in our work. To me, the media is an irrelevant entity. It is there to disseminate whatever news comes out, it is their job they are doing it; but as far as I am concerned they continue to be irrelevant to my work because otherwise I would have been out giving those sound bites which I find most prosecutors doing..B&B: The judge, Yogesh Khanna must have faced intense media and public pressure no matter how partial and objective he tried to be. What are your thoughts? .DK: I thought he was a very good judge. He was a very tough judge to the prosecution in the sense he probably felt that the media should not affect the rights of the accused. Therefore, he expected us to prove everything beyond any reasonable doubt. So he put us to a hard test. I think he did a fair job..B&B: Any major challenges during the trial?.DK: One major challenge we had was the CD, which was recorded by the media after the charge sheet was filed where one of the witnesses spoke in a TV interview. So we had to go all the way to the Supreme Court to get that piece of evidence blocked because otherwise it would have been a very dangerous precedent for criminal law that the media decides or creates evidence. That was a very important challenge for me because I felt not only for this case but for all criminal cases if the media is given right to create evidence then the criminal justice system will collapse. Fortunately, the Supreme Court upheld that point of view of ours and that was a significant moment for this trial..B&B: What do you have to say about the conduct of the Defence Counsels?.DK: They did definitely try to delay the trial. Probably one of their agendas was to ensure that this trial is not completed in time. I don’t want to talk about fellow counsels..B&B: Do you think the trial could have been completed a lot faster?.DK: We had effectively 130 half-days at our disposal. Even though it was a fast track court, the judge was burdened with about 200 cases. So even though he give us priority he could only take up the case at 2pm. So I had only 130 half days to finish 84 witnesses of the prosecution, 17 witnesses of the defence, and 313 statements. So, I think if we had done a trial faster than this, it would have been travesty. I think we did it the quickest possible way that the law allows. If it had been done faster than this it would have been to create records and it wouldn’t have been in accordance to law..Another foolish thing I had been hearing was various people including a former judge of a High Court saying that it is an open and shut case. There is no open and shut case in criminal law. This was certainly not an open and shut case and we had to prove quite a lot. We had a lot of DNA evidence. And for DNA evidence you need to prove trails; where the sample had been picked up. We had samples of the girl, we had samples from the accused, we had samples from the dumping spot, and we had samples from the bus. With respect to each of these, we had to prove where it was picked up, how it was sealed, where it was taken, where it was preserved, how DNA was tested, how it was brought back. If the trail fails the entire scientific evidence falls. I did need each one of these 84 witnesses, not even one witness was dispensable. So if anybody has seen the kind of evidence, which was led here which was basically scientific they would understand why 84 witnesses were required because the eye witness was a partial eye witness he came in the bus but he was pinned down. So we needed a lot of science to prove this..B&B: Do you think that the death sentence will act as a deterrent in the future?.DK: This whole debate on the death sentence is an irrelevant debate as long as death remains on the statute. There are number of judgments which say, both judges and prosecutors, whatever be their personal thoughts on death penalty, have to exercise this option as long as it is there in the statute. So, there is a lot of noise made about the death penalty. If people feel it should be removed from statute, so be it; remove it; but as long as it is there, it has to be exercised in fitting cases and prosecutors have to press for it in fitting cases. I think this is a debate in the air. It is a debate that should be done in legislatures or the courts should strike it down; they have that choice. As long as it is Constitutional, as long as it is still in the statute book, it is a wholly irrelevant debate..A prosecutor in a case of capital punishment has no option but to prosecute where he feels it is a “rarest of rare” case. I certainly feel that this was a case of extreme brutality. So whether it is a deterrent or not, [this decision] is left to the judiciary and the legislature. When I mean judiciary I mean a Constitutional court dealing with Constitutionality because several judgments have said that the individual philosophy of a judge is irrelevant. So in a way if X judge doesn’t believe in death penalty but he is hearing the death case, he will have to go [for it] if it is rarest of the rare by the statute or he should not hear it so. The larger debate should be done in the legislature. If the Supreme Court tomorrow decides to send this whole issue of death penalty to a larger Bench and strikes it down so be it. But till then I don’t think this is a debatable issue..B&B: The juvenile in the Delhi gang rape has been sentenced to three years in a special home. Should the Juvenile Justice Act be amended to reduce the age of juvenility?.DK: Juvenility at the age of 18 is not right although it is part of international conventions. Having dealt with a fair amount of prosecution work, you realize that today because the age of juvenility is 18, criminal gangs are using children between 16 and 18 to commit crimes. In a large number of terrorism cases and other criminal cases, the profile of the criminal is becoming younger and I think that is also deliberate. So, I seriously think it needs a re-look. This particular case is wholly irrelevant because whatever re-look happens will only have impact for the future. But I think keeping in mind the fact in terrorism cases you are getting larger number of younger people, there needs to be a complete re-look but it has to be in a scientific way..I was recently in Saket in a seminar of judges discussing the criminal law amendments. I somehow feel that incident specific amendments are always dangerous. Regarding the criminal law amendments that have come, I am personally not very happy with them and therefore any amendments on the law that comes immediately after the incidents are many times not fully thought about or deliberated. There is no wider debate. I think whatever the debate they want do on juvenility or the criminal law amendments must involve sessions judges, must involve prosecutors, must involve law officers at various levels who actually work in the system. If it is going to be law made on the basis of struggles of various different groups, I would say that is not how law is made. For example, the amendment to Section 146 of the Evidence Act post this incident has actually whittled down what was there earlier. I just feel all these things have been done in great hurry and the damage to the criminal justice system will be felt 10 years later not now. I think with juvenility – whatever is to be done must be done after a wider debate and a lot of thought..B&B: Can you talk about your team that assisted you in this trial and the choice of assistant prosecutors?.DK: I had five very good assistants in this case. On the selection process, Rajiv Mohan who has done a lot of work for Special Cell and other agencies was appointed by the Government. Madhav Khurana was suggested by ASG Siddharth Luthra and I had absolutely no doubts because he had worked with me earlier. I was very happy to have him. Then AT Ansari was the court prosecutor of Justice Yogesh Khanna’s court and after seeing his performance in the court in other matters I was so impressed that I told the Government that we need to have him in our team and singularly he is proved to be the best..Ansari and Madhav have been my two crutches through these difficult times. They have done extremely well. Then my own juniors Swati Goswami, Manvi Priya and Nikhil Menon worked were very hard on this. They have all given their blood and sweat for this case. I am getting the credit but it should really go to all of them. From the police also I had very good assistance; Rajinder Singh was an outstanding officer and so was Anil Sharma who was the main investigating officer in the case. I had a team of 40 people but this was my core team that I depended on..B&B: How does it feel now that the trial is concluded?.DK: I feel relieved that I have done my job. The whole process is over though it has been quite long. Apart from that, there is a sense of relief..B&B: Initial years of your career..DK: I came to Delhi in 1993. I am from first batch of National Law School of India University, Bangalore. I joined Santosh Hegde who later became judge of the Supreme Court. I was with him from 1993 to 1999 and then started independent practice. Well, I can say I am proud of the fact I am self-made. The institutions and the people have been kind to me. This case was one way repaying the city of Delhi..B&B: So, do you handle a lot more criminal matters?.DK: I have handled range of matters starting from consumer cases to telecom cases to regular civil matters. Most of my criminal work has been prosecution work. I have done very interesting stuff in criminal law no doubt. I had handled various cases of the CBI. I also was part of the interrogation team for NIA to interrogate the man involved in the Mumbai attacks, Davide Headley. I have done a lot of extradition work outside the country. I have done more trials out of the country than here..B&B: One of the most debated topic, the Judicial Appointment Commission. What are your thoughts?.DK: I really hope that a system, which is fair, and equal where every lawyer from every background has a chance, stays. I don’t want to debate on the merits and demerits of either system because I am not sure how either system works. But they should strive towards more equality so that a larger [section of the] Bar is also taken into consideration. To be honest, I have not been following or studying the issue because I have been literally buried under this case for the last 8 months..B&B: You have been practising for almost twenty years? Are you looking forward to becoming a senior advocate?.DK: All these things come from the court. I don’t think it is right to aspire for all those things. If in the wisdom, the courts feel like bestowing such honor to you, they will do it..B&B: If you get an opportunity to become a judge, would you take it?.DK: I don’t think on those lines. When you are self-made you tell yourself don’t anticipate the future because you don’t know what is in store for you. Just do your work today and go home and if possible early..B&B: Interests other than law..DK: I like reading. I love music and I listen to Jazz. I spend a lot of time with my family. Even if the heavens fall on my head I don’t work on Sundays.