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.
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