It was “most inappropriate” and “judicial error” to confirm death sentence in Prof. Bhullar’s case: Public Prosecutor


Free Professor Devender Pal Singh Bhullar

By 

Published: April 18, 2013. sikhsiyasat.com
    • New Delhi, India (April 18, 2013): It is a known fact that Prof. Devender Pal Singh Bhullar was sentenced to death by the trial court solely on the basis of a fractured and uncorroborated confessional statement extracted by the Delhi police in custody through torture. Prof. Bhullar’s case was heard by three judges bench of the Supreme Court of India, that confirmed the conviction in a split decision – with majority of 2:1.

Free Professor Devender Pal Singh Bhullar

Free Professor Devender Pal Singh Bhullar

Justice M. B. Shah – the presiding judge of the three judges bench had acquitted Prof. Devender Pal Singh Bhullar; while two other judges Arijit Pasyat, J. and Aggarwal, J. had confirmed the death sentence.

The 2002 decision of the Supreme Court of India, confirming death punishment in a split decision was being view as a “judicial error” – and it was expected that the President of India would take it’s notice while deciding the constitutional review petition. The President of India took eight years to decide the petition moved on behalf of Prof. Bhullar but suffered the failure to take notice of the judicial error and cleared the execution of Prof. Bhullar in 2011.

In it’s recent judgement declared on April 12, 2013 the Supreme Court of India has again upheld the death sentence awarded to Prof. Bhullar.

It seems as if whole Indian system has turned blind eye towards the “judicial error” committed in this case. But there are few dissenting voices also that have dared to oppose the ominous unity among various organs of the state favouring execution of Prof. Bhullar.

Recently, the Press Council of India’s chairman Justice Markandey Katju wrote a detailed letter to the President of India. Citing the basic flaws in the decision confirming death sentence in Prof. Bhullar’s case; J. Katju has demanded pardon for Prof. Bhullar.

As per recent media reports Senior Advocate Anoop G. Chaudhari, who was the public prosecutor against Prof. Bhullar while his case was being heard by the SCI in 2002, has admitted that the minority judgement of Justice M. B. Shah acquitting Prof. Bhulalr was good in merit.

According to a news report by Times of India:

“[t]hough two of the three judges on the Supreme Court bench upheld his arguments, senior advocate Anoop G. Chaudhari said that he found himself agreeing with the dissenting verdict delivered by the presiding judge, M. B. Shah, who had actually acquitted Bhullar”.

“Surprising as it may sound, I believe that Shah was right in not accepting my submissions in support of the trial court’s decision to convict Bhullar in a terror case, entirely on the basis of his confessional statement to the police,” Chaudhari reportedly told TOI.

“Shah refused to acquiesce to the Delhi police’s presumption that they had a lot of margin for shoddy investigation because of the involvement of terror”

– Advocate Anoop G. Chaudhari

As per news report, a former advocate general of Madhya Pradesh, Chaudhari also said that it was “most inappropriate” for the majority verdict, delivered by Justice Arijit Pasayat, to have awarded death sentence to Bhullar despite the acquittal by a member of the same bench.

In any event, this “judicial error”, he said, should have been taken by the home ministry as a “strong ground” for commuting the death penalty, when it made its recommendation to the President on Bhullar’s mercy petition in 2011.

“Did the home ministry think that the acquittal by a Supreme Court judge was meaningless?” Chaudhari asked.

But how could he be saying all these things in Bhullar’s favour, given his own role in the case? “After the judgement is delivered, I read it as a student of law and not a lawyer who appeared for one or the other party,” Chaudhari said.

“If I can’t detach myself from the case and appreciate the judgement in its correct perspective, then I won’t be honest to my profession and my conscience”, he reportedly added.

One of the major infirmities in the prosecution’s case pointed out by Shah was the failure of the police to find any corroboration for Bhullar’s confessional statement to them, even he had retracted it.

“When Shah asked me about this lacuna during the hearings, I said that I could only argue what was on record and I could not step into the shoes of the investigating agency and explain why they had not taken the trouble of finding any corroborative evidence” Chaudhari said.

 

 

CRPP Statement of on Death Sentence to Bhullar


Committe for Release of Political Prisoners

That the conviction of Davinder Pal Singh Bhullar was solely based on a confession statement attributed to him which he had denied in the court makes the decision even more regressive thus exposing even the fallacious claims of the SC that capital punishment should only be given in the ‘rarest of rare’ cases. Significantly, when Mr. Bhullar was being extradited from Germany it was assured by the Government of India that he won’t be condemned to death.
It was in 2001 that Bhullar was sentenced to death by the trial court. He has been in prison since 1995 after his extradition. Thus, Bhullar has already spent more than eighteen years in prison, which is longer than a life term. Thus, by refusing to consider the inordinate delay as a reason for the commutation of death sentence, the Supreme Court is violating the Fundamental Right guaranteed by Article 20(2), that no person shall be punished twice for the same offence.
The ten-year long delay in disposing the mercy petition by the President of India was the ground on which Bhullar had sought commutation of his death penalty as it was a blatant violation of Article 21 of the Constitution of India while at the same inflicting further pain and cruelty on him through the prolonged incarceration after the Supreme Court upheld his death sentence.
As in effect, Bhullar has already served a life term and is now on death row. What is even more alarming is that there are seventeen convicts on death row and the rejection of Bhullar’s plea is going to have an adverse effect on all these seventeen cases. The Indian ruling classes and their politics of jingoism and hate is definitely on the slippery slope heading for an orgy of judicial executions, which was triggered by the secret executions of Ajmal Kasab and Afzal Guru.
Similar to the case of Afzal Guru, the conviction of Bhullar is also on shallow grounds. Bhullar was convicted under the draconian TADA. On appeal, a three-member bench of the Supreme Court upheld the decision of the TADA Court under a split verdict of 2 to 1. The presiding judge Justice MB Shah had acquitted Bhullar of all charges under TADA. His confession, which was found to be concocted, was also rejected as it was at odds with the testimony of the prosecution witnesses. Thus, the split verdict should have been a good reason for the President to accept the mercy petition and for the Supreme Court to commute death to life. However, it was rejected in 2011 on a completely arbitrary basis eight years after it was filed. The prolonged incarceration had its toll on the health of Davinder Pal Singh Bhullar as he was undergoing treatment for mental illness. Needless to say that to hang someone who is mentally ill speaks more about the overall depredation of the ruling classes of India to the vast sections of the toiling masses.
It is with intrigue one would look into the contradicting positions taken by the Supreme Court vis-à-vis its stand on death sentence. Just a week after the Supreme Court had stayed temporarily the death sentence of 8 people another bench of the same court has rejected the plea of Davinder Pal Singh Bhullar to commute his death sentence to life. A few months before the SC had in retrospect observed that Capital Punishment can only be given in the rarest of rare cases after making it doubly sure that the evidence provided in reaching the conclusion that the said case is the rarest of the rare should be impeccable while ensuring that the law has been upheld in reaching the above said conclusion. This introspection had also brought forth the glaring facts that in ninety nine percent of the cases of award of death sentence there was a terrible miscarriage of justice. While staying the death sentence of 8 people temporarily on the first week of April 2013 the SC had observed the need to follow procedures while executing the death sentence thus partially admitting the glaring anomalies in the ‘secret’ hanging to death of Mohd. Afzal Guru.
It is well established that death penalty – being neither a deterrent nor reformatory in nature- serves no cause other than that of retributive justice. Most civilized countries (more than 140) have banned death penalty. Even though the Supreme Court of India has enunciated the jurisprudence of the “rarest of the rare”, the hard reality is that the Indian Courts have awarded death penalty at the rate of 133 per year over the last ten years. So the rarest of the rare cases are decided by the Indian courts once in every three days!
In the seventy page judgement rejecting the plea to commute the death penalty given to Davinder Pal Singh Bhullar, the Supreme Court bench quotes generously from the 35th Report of the Law Commission as it states “…Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.” [p-3] This above mentioned quote selected by the bench from the Law Commission Report explains the Court’s burden of civilizing the inhabitants in the vastness of the subcontinent through the instrument of death penalty! And this colonial mindset also explains considerably why the rhetoric of rarest of the rare has metamorphosed to be the common thing in the practice of jurisprudence in India.
As long as the lived reality of inequality endures in the Indian subcontinent through the systematic dog-eat-dog policies of various governments, such a reality may be weighed against the consequences its legal system evokes in the name of its people’s. If the Indian state continues to embrace [capital punishment] in the name of retributive or utilitarian values, then inequality remains not just a “tolerable” value for the government and the policy makers who vouches unabashedly by a system based on greed and unrequited accumulation especially in the era of Liberalisation, Privatisation and Globalisation. Inequality remains a value that is acted upon and thus preserved inextricably through the state’s persistent willingness to use the punishment of death.
We condemn strongly the act of the Indian state to enforce violence on people through the instrument of death penalty! Without a strong upsurge of the people against such draconian and barbaric instruments of violence of the State we will be condemned to be at the receiving end of a penal state that is increasingly becoming fascist. We demand that the DEATH SENTENCENCE ON DAVINDER PAL SINGH BHULLAR BE IMMEDIATELY REVOKED!
In Solidarity,
SAR Geelani
President

Amit Bhattacharyya
Secretary General

P. Koya
Vice President

MN Ravunni
Vice President

Rona Wilson
Secretary, Public Relations

 

PRESS RELEASE- PUDR on Rejection of Devinder Pal Bhullar’s plea by the Supreme Court


Peoples’ Union For Democratic Rights (PUDR)

Date: 12 Apr. 2013,

Press Statement

Re: Rejection of Devinder Pal Bhullar’s plea by the Supreme Court

 

PUDR strongly denounces the Supreme Court’s dismissal this morning of Devinder Pal Singh Bhullar’s plea for commutation of the death sentence awarded to him to life. The issues at stake in this dismissal are multiple, that of clemency, death penalty, miscarriage of justice and precedence.

Bhullar was sentenced to death in 2003 for carrying out a bomb blast outside the Delhi Youth Congress office which killed nine people in 1993. He has been deemed mentally unstable. The High Court’s decision of upholding the death sentence was not a unanimous decision. After he was given the death sentence by the Supreme Court, he appealed to the then President of India for clemency in 2003. The President, after a lapse of over eight years, dismissed his mercy plea in 2011. Bhullar had sought commutation of his death penalty to life sentence by the Supreme Court on the ground that there was inordinate delay by the President over his plea for clemency.

The principle of jurisprudence lays down that a person cannot be punished twice for the same crime. Bhullar has already served 12 years in jail and now the consequent execution would strictly violate this principle of jurisprudence. Prolonged incarceration of a death row convict awaiting his execution qualifies as cruelty and violates Article 21 of the Indian Constitution.

Ideally there should have been a norm governing the delay in judicial processes and the relief granted thereof. In some instances, convicts have received relief for delays of 2 years, two and a half years, etc.In  T.V.Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68 and Ediga Anamma vs. State of Andhra Pradesh (1974) 4 SCC 443 it has been held that a delay of two years was permissible beyond which the sentence ought to be converted to life.  In Bhagwan Bux Singh & Anr. vs. The State of U.P. (1978) 1 SCC 214 similar observations were made with respect to a delay of two and a half years and in Sadhu Singh vs. State of U.P. (1978) 4 SCC 428 to a delay of three and a half years. Whereas, in the present instance, even if the delay in handing over the penalty (rejection of clemency) is 12 years, the convict is not entitled for any relief.

It is appalling to note that Supreme Court in its rejection of mercy plea has disregarded the mental health of Bhullar. Awarding death penalty to a person mentally unstable is a crime against humanity. The Supreme Court order hence stands as a serious miscarriage of justice and also dangerously escalates the possibility of such unjust judicial trends becoming the norm. On 6 April 2013, the Supreme Court in a progressive move ordered a temporary stay on the execution of 8 convicts on death row. Not just the apprehension of the present order in case of Bhullar affecting the fate of other prisoners of death row is daunting; equally alarming is the ambiguous position of Supreme Court on death penalty vacillating between two positions, one of relief due to delay in the delivery process and the other of no relief for the same.

In a democracy that guarantees the right to life as a fundamental life, death penalty should find no rationale. In fact, the state should see the execution of someone in its custody abhorrent. Death penalty is an act of retribution and presents the state as an arbiter of retributive justice. The very notion of justice is lost in the act of taking away a life to avenge the loss of another life. PUDR sees death penalty as a form of state violence and an escalator of a culture of hate. It infuses a sense of vengeance in society and reinforces the cycle of violence.

PUDR, while condemning the dismissal of the SC order, reiterates the dangers of having death penalty as sanctioned form of punishment and puts forward a demand for total abolition of the death penalty.

 

 

D. Manjit, Asish Gupta

Secretaries, PUDR

 

Archives

Kractivism-Gonaimate Videos

Protest to Arrest

Faking Democracy- Free Irom Sharmila Now

Faking Democracy- Repression Anti- Nuke activists

JAPA- MUSICAL ACTIVISM

Kamayaninumerouno – Youtube Channel

UID-UNIQUE ?

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 6,227 other followers

Top Rated

Blog Stats

  • 1,848,578 hits

Archives

October 2021
M T W T F S S
 123
45678910
11121314151617
18192021222324
25262728293031
%d bloggers like this: