by Avirook Sen
Lawyers’ fees in the Supreme Court can be bizarre: Rs 10 lakh to Rs 15 lakh per appearance is the norm at the very top. Subrata Roy, India’s chit fund king, for instance, might well have to write off a hotel or two to pay his Supreme Court lawyers as he tries to accumulate the thousands of crores he is required to deposit to get out of the cooler. The thing about the Aarushi case, however, was that some top lawyers chose to do it for free.
Rebecca John told me she was moved and convinced by the Talwars’ story. Connections within the family led them to Salve. Salve was unaffordable, but he agreed with a nod (rather than the theatrical bow he reserves for the Supreme Court) and no money. Not everyone was free, however. But not everyone operated by card rates either. I happened to overhear a brief negotiation (the boss lawyer is never involved in these, it’s the job of his assistants) where a fee of just under Rs 3.5 lakh was agreed upon for one appearance by a prominent Supreme Court lawyer, substantially less than ‘card’.
In the lower courts, the financial arrangements were different. Here, livings had to be earned in the present continuous. In the Allahabad High Court, where the Talwars went first, they spent about Rs 1 lakh in fees each time they litigated.
In Ghaziabad, a set of four lawyers usually appeared on their behalf. All of them honest, committed professionals who knew the system and were also trying to make a living. The two people who featured through the trial were Manoj Sisodia, an amiable man whose tiny office was the hub of everything the defence did—including press briefings—and Satyaketu Singh, whose 10 foot by 10 foot space was down the same lane.
From what I gathered, the Ghaziabad lawyers were paid on a retainer basis and, with additional costs, the Talwars were spending anywhere between Rs 50,000 and a lakh a month. This, of course, didn’t include the fees of their criminal lawyer Tanveer Ahmed Mir who would come to the case a few months after the trial had begun.
Where did they get the money from? Rajesh Talwar said he and Nupur—just out on bail—were grateful for patients who were still loyal to them. Their consultation fee was Rs 500, but, as anyone who’s been to a dentist knows, the costs of dental work can add up. The earnings from his clinic covered living expenses, Rajesh told me. I visited the Hauz Khas clinic a few times, and found the place slightly derelict and in disrepair. A neglected aquarium held a few fish struggling to survive—but what else would you expect given their situation?
The Jalvayu Vihar flat, where they lost what was most precious to them, continued to give them a rental return in the region of Rs 20,000 a month. They later also rented out the Hauz Khas clinic, and these rents covered the salaries of employees like their driver Umesh and Rajesh Talwar’s man Friday, Vikas Sethi.
That still left a substantial shortfall. Rajesh said that he was grateful to ‘friends and family’ for financial support. One friend based abroad sent him a large sum of money at the beginning of the trial, and had promised to wire more. The Talwars had also sold their clinic in Noida to a member of the family for around Rs 70 lakh, and this helped them stay afloat. Additionally, the savings of Dinesh and Vandana Talwar were also almost depleted by the Talwars’ legal costs.
Tanveer Ahmed Mir had advised his clients to go even further: sell their properties. He believed that it was the only chance they had. This wasn’t greedy lawyerspeak. Mir believed that lawyers worked best if you paid them.
Pro bono work, noble as it is, has direct disadvantages for the client—especially in a case like the Talwars’. Lawyers who offer their time and energy for this kind of work usually do it for issues of wide public interest, say, high-level corruption or big environment cases. The defence of the Talwars in the mysterious murders of their daughter and servant didn’t fit the standard definition of ‘public interest’. It appeared more to be a case of something the public was interested in.
When the public interest aspect is overshadowed by ‘personal tragedy’, pro bono work is of a different nature—it becomes, without being overly cynical, about favours to individuals in need. The contract that binds the paid-for lawyer to his client isn’t there, and even if the lawyer’s conscience urges him to help, he might find that his time has already been paid for by others who require his services.
The question of availability of someone like Harish Salve came up several times in Supreme Court matters. The Talwars either waited for a window or paid for a replacement. Although the latter meant spending money, the former—working dates in sync with their ace’s schedule—may well have been more costly. The CBI inevitably brought the charge that the Talwars were deliberately delaying things, to the point that it was about the only thing the Supreme Court heard.
***
Events over the months of July, August and September illustrated how multilayered a murder trial can be. The Talwars were fighting their case at three different courts—the trial court, the Allahabad High Court and the Supreme Court. The most pressing case in the Supreme Court was getting bail for Nupur. The CBI, however, wanted Rajesh back in jail and had moved the Allahabad High Court. The two pleas mirrored each other. Nupur pleaded that she should be granted bail because she had been charged with the same offences as Rajesh, and he was free. The CBI argued that Nupur had been sent to custody, so why shouldn’t Rajesh be treated the same way?
The CBI told the Supreme Court that Nupur Talwar was likely to influence witnesses if she was let out of jail. The court asked for a list of those the agency felt were vulnerable, and 13 names were provided. It then directed that the testimonies of these 13 be recorded expeditiously over the following month.
This was a stiff target given Mohapatra’s lengthy and complicated testimony. The defence needed a lot more time to deal with Mohapatra and the 13 additional witnesses. Completing this before the Supreme Court’s 17 September deadline seemed near impossible.
There were other things to contend with, like strikes, or forced holidays on occasions like Valmiki Jayanti. Caste is a big factor in the Ghaziabad bar elections, and the lower castes are a sizeable constituency. Gender is a big factor too; the bar shut the court down for Karva Chauth so that its female members were not inconvenienced. Also, there seemed to be an unfortunate pattern: on an average two lawyers seemed to depart the Ghaziabad bar forever each month and the court could not be allowed to function during ‘condolence’.
The defence had other troubles as well. It needed the expertise of its counsel G.P. Thareja, a lawyer who understood forensics, for Mohapatra’s cross-examination. Thareja, a former judge, was a grandfatherly figure who would arrive in court drenched in sweat from his assignments in Delhi, slip on a pair of sandals and begin work. (The judge couldn’t see his footwear under his robe.) Thareja worked closely with Dinesh Talwar, and seemed to have a genuine affection for Nupur, whom he addressed as ‘beti’, as he drew her aside to speak to her in what privacy the court allowed. He was doing the case pro bono, but was available only on two days of the week.
This created a peculiar situation in court. As the trial judge urged its lawyers to begin cross-examination, the defence filed an application saying they were not competent to conduct it without Thareja. Mohapatra, in a sharp blue shirt, his bag of papers on the table in front of him, kept waiting.
Keeping the Supreme Court deadline in mind, the defence moved another application pleading the forensics man’s cross-examination—a crucial piece in the case, but bound to be lengthy—be taken up after the trial court was done with the 13 witnesses named by the CBI. Judge Shyam Lal rejected this application.
The defence put up the application once again, this time in greater detail. It said Mohapatra’s cross-examination would take at least six or seven court dates and that the Talwars had just one lawyer competent to conduct it. Also, the volume of material to be gone through was massive. Thareja had to be given a fair amount of time to prepare.
The CBI replied that repeated applications were being filed ‘just to delay the trial’. Commenting on the fact that the defence had kept a witness waiting for a whole day, the tr
ial judge issued a terse directive. He said ‘in the interest of justice’ he was giving the Talwars one ‘last opportunity’ to cross-examine the witness on 21 August.
There seemed to be a distinct bias against the defence team. They would, for example, never be given any indication as to which prosecution witness would appear at the next hearing and then be expected to cross-examine them the day they appeared. Frustrated by the daily surprises being sprung on them, the Talwars pleaded with the court several times to direct the prosecution to let them know which witness was being called on the next date. Giving the other side this information isn’t just a matter of form, they argued, it impacted preparation for cross-examination. The prosecution never did this—even via a telephone call.
In late July, the court directed the CBI to give the defence adequate notice. This was to no avail: the defence was never given the names of the witnesses, and almost every hearing would begin with the same recriminations.
The witnesses could not just come on their own, so how were they appearing? The answer to this was in a set of certified copies of summons issued by the court to these witnesses. The forms contained the name of the witness and the date on which he/she needed to appear. Sometimes the forms were ready days in advance. This meant the prosecution knew who would appear. The judge signed the summons, so the court knew as well. The only party left in the dark was the defence. That’s how it worked.
Meanwhile, the Supreme Court reviewed the progress made in the examination of the 13 CBI witnesses. On 17 September it heard that some witnesses had been dropped, others were yet to be found, and so on. Additional Solicitor General Sidharth Luthra argued for more time, and said the trial would be over by the year end. Not much time to go, so why not keep Nupur in jail?
To which Harish Salve, appearing for the defence, said wryly: ‘Let’s keep the trial in Ghaziabad.’
By then, the court’s mind appeared to have been made up. Bail would be granted. So Luthra begged for more time for the examination of his witnesses. The CBI got eight more days. Nupur Talwar would be out on bail on 25 September.
Salve viewed this seeking of an extra week of detention as mean-spirited. Outside, he told Luthra, ‘Cry baby CBI asks for just a few more days. Cry baby CBI.’ Luthra didn’t know how to react, and mumbled something about winning some and losing some.
It seemed to me an interesting exchange. Salve was one of India’s leading lawyers; Luthra wasn’t in the same bracket as him. That Salve would react in this manner told me how polarizing this case was. A month earlier, there had been much fist-pumping in the Supreme Court on the other side, when Nupur Talwar’s stay in jail was extended till the examination of the 13 witnesses was done. But the reactions in the Supreme Court were barely remarkable in comparison with the bitterness that by now was on view daily in Ghaziabad.
***
K.K. Gautam, the retired policeman, arrived without warning just after B.K. Mohapatra’s lengthy cross-examination had been completed.
Gautam did exactly what the prosecution hoped for. He testified that Dinesh Talwar’s friend Dr Sushil Choudhry had called him to ask whether he could use his influence to prevent the word ‘rape’ being mentioned in the post-mortem report. He also told the court that he hadn’t conducted any ‘formal inspection’ of the crime scene, and that he had no idea why the CBI investigators from the earlier team had included so many things in his statement to them that he had not, in fact, said.
And what about the fact that he had lied to investigators in the first place? That his involvement began on the morning after the murders, and not a day later [with the discovery of Hemraj’s body]? Gautam coolly replied that his statements were the ‘same’, but with ‘some differences’. The court was satisfied. R.K. Saini was beaming.
***
On 3 September 2012, Bharti Mandal turned up in court, as usual without warning to the defence. Her testimony was vital to the CBI and her importance was explained to me by the CBI inspector Arvind Jaitley. Jaitley was a tall man in his late thirties with an air of casual calm about him. He stood out among the prosecution’s team because of his sense of propriety. He was convinced about the Talwars’ guilt, but he didn’t see this as a reason to get nasty. At the tea stall outside the court, a lawyer was asking Jaitley about his belief in the parents’ guilt. Jaitley told us he didn’t want to get into the merits of the case. But the CBI, he felt, had just one task to accomplish to win it: It had to convince the court that the Talwars’ flat was locked from the inside when Bharti Mandal rang the bell at 6 a.m.
Once the court was made to understand this, the prosecution was home. This was perfectly reasonable. If the door was found locked from the inside in the morning, it would stand to reason the murderer was still in the flat. The burden of explaining the murders would now shift to the Talwars. It would be up to them to tell the court the story behind every bloodstain, fingerprint, bottle of liquor, missing key, lost phone. The CBI didn’t have to prove anything, not even a motive or what the murder weapons were. Four in the house. Two are killed. Either or both the survivors were therefore responsible for the murders. It was like one of Agatha Christie’s closed-door mysteries.
This is why Bharti Mandal’s testimony had so much riding on it. It was she who had rung the doorbell that morning. It was she who was the first witness at the crime scene. It was she who could tell the court whether the Talwars’ door was locked from within.
***
Bharti hadn’t been issued summons. She said that CBI personnel had simply picked her up and brought her to court. This was done in secrecy, through an access from the rear to avoid any chance encounters with the media. Dressed in a bright yellow sari, Bharti looked tentative. This was an ‘event’ in her life, but she wasn’t sure whether it was a good one or a bad one. She began her deposition. She had been on leave the previous day, but arrived at the flat at 6 a.m. on 16 May and rang the bell, she told the court. And then:
I touched the iron [outermost grill] door but it did not open . . . Then I pressed the bell again, whereupon aunty [Nupur Talwar] opened the wooden door and stood behind the [second] mesh door and started talking to me.
She asked me where Hemraj had gone and I replied that I didn’t know . . . Thereafter, aunty told me that Hemraj must have gone to fetch milk from Mother Dairy . . . She also told me that Hemraj must have locked the wooden door [mesh door; emphasis added] and gone to fetch milk . . .
Aunty told me that you sit down, when Hemraj comes back he will open the door for you . . . I then told aunty you give me the keys I will open the door and come in . . . Aunty said all right you go down I will throw you the keys.
I went downstairs and from the balcony aunty told me that the door isn’t locked, it’s only bolted . . . But I told aunty that she better give me the keys, because if it is locked then I will have to come down again . . . Then aunty threw the long key [to the middle mesh door] from the balcony.
Thereafter, when I came up and put my hand on the outer [grill] door, it opened . . . Then I unbolted the mesh door.
Nupur Talwar had left the innermost wooden door open, and Bharti entered the flat. ‘I felt some thief had entered the house and that is why Uncle and Aunty are crying,’ she testified. ‘Aunty threw her arms around me and started crying, when I asked her why are you crying so much, she said go inside and see what has happened . . .’
The CBI scenario emerged. The reason the outermost grill door wouldn’t open was that it was locked from the inside. ‘I touched the door but it would not open,’ Bharti had said. Nupur Talwar threw the keys down to her maid and, in the couple of minutes Bharti took to come back up, she used the door in Hemraj’s room, entered the passage, unlatched the outer door, and bolted the mesh door to make it appear someone had locked them in their house from the outside. She then walked back exactly the way she came.
When Bharti Mandal reached the flat again, she said, ‘I returned to the door and put my hand on it and it opened.’
Case solved. Or was it?
***
There were some obvious circumstances that everyone seemed to have overlooked. The first was that even if the Talwars were guilty, it really wasn’t necessary for Nupur to play out the elaborate door-latching/key-throwing scene with Bharti Mandal. If her aim was to give the impression that someone had bolted the middle mesh door from the outside, locking them in the house, this could have been achieved far more simply, at leisure and without risk.
Why wait for the maid to turn up? Wouldn’t it have been much easier to bolt the middle door well before she arrived? What if the maid had turned back up the stairs for some reason and found Nupur locking and unlocking doors? Would she not be running the risk of confirming guilt right there? The Talwars were cast as sharp, calculating killers. If that were the case, surely they would have realized the worthlessness of the deception. There was easy access to the outer grill door and the middle mesh door through Hemraj’s room. Wouldn’t it be naive of them to think that nobody would notice this? And did that not make the bolt on the middle door irrelevant?
It did, but the CBI’s case was that the outer grill door had been locked from the inside, presumably by the killers who could only be the parents. ‘I touched the iron door and it did not open,’ Bharti had said, as had been suggested to her. There was one more thing to consider about that morning’s exchange between Bharti and Nupur. It was Bharti who suggested that Nupur throw down the keys from the balcony. She knew the house, but she did not suggest Nupur use the access through Hemraj’s room to let her in. The simple explanation is that it didn’t occur to her—or to Nupur—because that access was never used.