Monday, June 3, 2013

The curious case of Devendar Pal Singh Bhullar

On 12.04.2013 the Supreme Court of India rejected the Petition filed by Devendar Pal Singh Bhullar for commutation of his sentence from death to life imprisonment on the basis of long delay in deciding his mercy petition which has been pending before the President of India since 2002.

The Supreme Court also held that the principle laid down regarding the delay and commutation of sentence in the case of Triveniben by the Supreme Court was not applicable to cases under TADA or similar statutes. Thus the Supreme Court of India has created a new category of persons who cannot be given the benefit of delay in deciding their mercy petitions. The reasoning is not clear apart from the fact that it is a terrorist act and the person has been tried under special law.

In the case of Triveniben which was decided by the constitutional bench of the Supreme Court, it had held that ‘Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but , this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusion reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into Imprisonment for life. 

Thus the judgement in the case of Bhullar which has been decided by a 2 judge bench of the Supreme Court is contrary to the law laid down by the Constitutional bench in the case of Triveniben.

Though the facts of the case were not open for discussion at the stage of deciding the latest petition filed by Bhullar, it was important that various courts who had decided the case at various stages and the President of India who considered the mercy petition ought to have looked in the merits of the case.

When the Special Leave Petition of Bhullar was decided by the Supreme Court in 2002 Justice M.B. Shah who was one of the judges of a 3 judge bench which decided the case held that Bhullar should be acquitted. Yet the other 2 judges held that Bhullar should be given the death sentence. During the hearing of the review petition also Justice Shah held that death sentence should not be awarded and the other 2 judges again held that Bhullar should be sentenced to death. There should be a unanimous decision on the issue of sentence at least when one of the judges has held that Bhullar should have been acquitted.

Apart from a confession to a police officer, there is no evidence against Bhullar in this case. The incident occurred in 1993, and Bhullar was arrested from Airport after he was deported from Germany in 1995. Within a few hours of his arrest, it is alleged that he agreed to give a confessional statement. It is this very confessional statement which Justice Shah termed unreliable. Justice Shah, in his dissenting judgement observes that none of the facts laid down in the confessional statement have been corroborated by the testimony of any witnesses or any independent evidence. He also observes that Bhullar’s father and his father-in-law were arrested and tortured in police custody, and that this could have compelled Bhullar to make the confession.

Since the court had found the confessional statement of Bhullar unreliable and insufficient to convict his co-accused, though TADA permitted the use of his confessional statement even against his co-accused, it ought not to have convicted Bhullar solely on the basis of his uncorroborated, retracted and forced confessional statement.
 Confessional statements to police officers are inadmissible under Indian law and in this case it was admissible because the accused was charged with the draconian Terrorist And Disruptive Activities (Prvention), Act, which made confessions to police officers admissible.

It is a well known and documented fact that the police extract confessions on the basis of threats and inducements, and the courts have rightly held that confessional statements should be corroborated by other independent evidence.

Considering the overall circumstances, the evidence against him, and the mental condition of Bhullar, it is in the interest of justice that Bhullar’s death sentence is commuted to life imprisonment. 

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