The Tandoor diary (Delhi)

Saturday, 10 March 2018 | Saatvik Jha

Retired policeman Maxwell Pereira fleshes out one of India’s most horrific killings after 22 years, Saatvik Jhalistens in.

Retired policeman Maxwell Pereira

For a generation raised on Agatha Christie and Conan Doyle, Maxwell Pereira presents Indian readers with a real-life ‘whodunnit’, straight from the heart of the capital city,” declared veteran journalist Rajdeep Sardesai while introducing The Tandoor Murder. The book chronicles Naina Sahni’s gruesome murder at the hands of her husband, Sushil Sharma, early in July 1995. A Congress youth leader and MlA, Sharma was primed for a meteoric rise in the political sphere. “Had I not murdered her I would have been a union minister today,” lamented Sharma to a colleague of Sardesai’s back when the UPA government was still in power. Suspecting his wife of infidelity, Sharma shot her with a revolver while enraged. This became pretext for the politician's defence of his act as ‘a crime of passion’. In an attempt to cover his tracks, Sahni’s body was chopped up by Sharma and set ablaze in a tandoor at Baghiya restaurant — giving the case its notorious title.

Most readers first encountered Pereira’s writing at a Times of India column called ‘The Middle’, published literally in the middle of the newspaper. “Witty, ironical, irreverent, Pereira was a skilled writer. The spark he showed in his ‘Middles’ has became a flame in this book,” remarks Sardesai. Having sampled the book beforehand, the journalist expresses incredulity at the attention to detail present in the chronicle. Upon inquiry, Pereira disclosed the secret behind the vivid details preserved in his book, despite being published 22 years after. “As it turns out,” reveals Sardesai, “the book was written at the time of the murders itself! Fresh from the eyes of Pereira, the investigating officer, the Tandoor Murder is a real page turner.” Sushil Sharma was sentenced to life imprisonment by the Supreme Court in October 2013, commuted from the death sentences passed by lower courts. Previously unpublished in interest of fair trial, Pereira’s gripping chronicle was read out loud in Sardesai’s resounding voice to the audience gathered at the book launch.

Sushil Sharma

Before exiting the stage, Sardesai observed how the Tandoor case was distinct when viewed from the lens of 2018. “Sharma was a relatively powerful politician, photographed with even more powerful politicians. Yet, Sushil Sharma was viewed as a criminal, not a politician. In today’s age, this would inevitably have become a Congress versus BJP tussle,” noted Sardesai to a round of laughter from the gathering. “Private news television had just emerged then, growing slowly,” continued Sardesai, counting the news channels present in 1995 on his fingertips, “This put the Tandoor Murder before the ‘breaking news’ era. The media didn’t broadcast the lurid details of Naina and Sushil’s lives to the public. Thus, one could say the Tandoor Murder occurred in an age of innocence.” No one has written about the Tandoor case in such vivid detail hitherto, and nor was it possible for anyone else to produce such a work. Sardesai sealed the stamp on the novelty of Pereira’s book, concluding, “Pereira’s is a book for the age of the breaking news era about a story from the pre-breaking news age.”

Sardesai’s enthralling introduction was followed by a panel discussion, featuring Pereira in conversation with journalists Rini Simon Khanna and Sunetra Choudhury. Early on, Choudhury highlighted, “The media was very much a part of the Tandoor case.” Pereira’s responses corroborated this instantly: “Influenced by tabloid media, the forensic specialist in-charge ruled out the possibility of firearms being used on Sahni’s body. This created yet another hurdle for us in establishing Sharma’s culpability — representative of the problems faced by Indian policemen.” On that note, Pereira added, “There’s a great lesson to all investigative officers in this book: how important the links are.” It appears the police in India are often content to merely have traced the origins of a crime after due investigation. Pereira’s remarks pointed out that frequent negligence in duly documenting all the links and evidence caused a lot of solved cases to see culprits walking scot-free once the matter reached criminal courts.

Choudhury went on to ask, “Sushil Sharma has behaved really well during his internment, lobbying now for release after 22 years. Would you support itIJ” With this, discussion had reached an inevitable juncture. As is often the case in Indian polity, the definition of life imprisonment — Sharma’s sentence — is not taken on face value by many. The Criminal Procedure Code provides for state governments to remit life sentences to a shorter duration, a minimum of 14 years. In the face of rising maintenance costs, many state governments exploited this feature to remit all life imprisonments under their ambit in this manner. Such widespread malpractice had, in earlier years, given rise to the misconception that all life sentences are a duration of 14 years. Such misuse of the provision has, to some degree, abated. However, it remains a continued practice to reduce life sentences on a case-to-case basis. “It’s a tradition in Tihar jail [where Sharma lies imprisoned] to not detain an inmate for more than 25 years,” mentioned Pereira. Sunetra interviewed Sharma while writing Behind Bars: Prison Tales of India’s Most Famous. In this context, she expressed sympathy towards the pleas of a man who has spent over two decades imprisoned. Alas, the panel conceded that no conclusion could be reached on the matter until the courts give their verdict on Sharma’s appeal.

The outcomes of this case were two-pronged. For her part, Choudhury prudently observed that Naina Sahni was often vilified in the media outcry that ensued after the murder. “Vilification of the woman victim remains a consistent aspect of crimes committed in India till date,” said an exasperated Choudhury while recounting similar instances. Adding to Choudhury, Pereira exclaimed, “One needn’t even go as far as murder. Every time a rape is discussed on television news, one or the other party unfailingly finds faults in the victim.” Pereira went on to elaborate on the other major outcome, “Criminalisation of politics, which became a feature of this case, has not changed.” In 2018, nearly half the cabinet and over a hundred MP’s have criminal records. Thusly expressed, the outcomes mentioned serve to render the Tandoor case into a lynchpin of features which have gone on to characterise crime in India. “We are complacent,” said Pereira wistfully, “nobody cares about crime until it comes knocking on their door.”

Source: https://www.dailypioneer.com/2018/vivacity/the-tandoor-diary.html (Accessed 24 December 2018)

Tandoor Murder Case accused goes from death sentence to lifer to parole, but still jailed

By IANS Friday, 18 September 2015 14:42 Bar, Bench & Litigation

The Delhi high court on Thursday pulled up the state government for not releasing on parole former Youth Congress leader Sushil Sharma, convicted for the murder of his wife Naina Sahni and disposing of her body in a restaurant tandoor. Justice Siddharth Mridul expressed unhappiness that despite court’s orders, Sharma was not released from the jail. 

The court on Tuesday had ordered Sharma’s release on parole while observing that he has been in jail for over 20 years. The court had said that till his plea seeking remission and premature release is decided by the competent authority, he will remain out of jail. Sharma’s counsel moved the court that despite its order, authorities did not release him. The government however, during the hearing, assured the court that its order will be implemented. Sharma, the prime accused in what was popularly known as the ‘Tandoor murder case’, had his death sentence commuted to life imprisonment by the Supreme Court in October 2013. 

Sushil Sharma

Suspecting his wife of infidelity, Sharma, in a fit of rage, shot her dead at their residence in Gole Market in New Delhi area on July 2, 1995. He then cut her body into pieces, stuffed it into a gunny bag and took it the open-air Bagiya Restaurant inside the erstwhile Ashok Yatri Niwas hotel and tried to burn it in the tandoor with the help of his friend, the restaurant manager.

Source: https://www.legallyindia.com/Bar-Bench-Litigation/tandoor-murder-case-accused-goes-from-death-sentence-to-lifer-to-parole-but-still-jailed (Accessed on 19 December 2018)

The danger in precedents

February 26, 2014 01:33 IST 

Opinion: The Hindu 

It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty The recent judgments of the Supreme Court have shifted the focus back to capital punishment in India. The jurisprudence of death penalty is as inconsistent as it is confounding in most cases. The recent cases have, however, tried to usher in greater clarity in dealing with the death penalty law and its execution. The decision of the Tamil Nadu government to set free the assassins of former Prime Minister Rajiv Gandhi has added another dimension to the debate. In the light of these developments, it is important to take stock of the evolution of capital punishment in India while evaluating the probable ramifications of the Tamil Nadu government’s decision. 

The ‘rarest of rare’ test The ‘rarest of rare’ test was laid down by the Supreme Court in 1980 in the Bachan Singh case. The judgment also made it incumbent on the state to adduce sufficient evidence that there is no scope of reform for the accused in the slightest. Further, an analysis of the aggravating and mitigating circumstances must be made to ascertain if death alone is the most appropriate punishment in a given case. Therefore, the significance of the judgment also lay in seeking to strike a balance between the crime and the criminal in doling out the sentence by the courts. However, as was pointed out by the Court in Santosh Bariyar (2009), many subsequent cases have focused only on the crime while looking away from the criminal while awarding the death penalty. 

The Supreme Court felt in Gurvail Singh (2013) that the time was ripe to develop the legal position to be socially more accommodative, while moving a step away from the “principled stand” as propounded in the Bachan Singh case. Gurvail Singh has been referred to in the Ram Singh case, dealing with the December 16 Delhi gang rape, where the sessions court took note of the exceptional depravity and extreme brutality of the crime which aroused “intense and extreme indignation of society.” The ‘extreme misery’ suffered by the victim and ‘grave impact’ of the crime on the ‘social order’ were stated as the reasons behind the ruling. The result is that there is a tilt towards the crime as compared to the criminal. 

On the other hand, the Supreme Court in the Sushil Sharma case held that death penalty is entirely avoidable given that there are grounds of reform available for the convict. In the case of Shatrughan Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture. However, the case of Devinder Pal Singh Bhullar took the death penalty jurisprudence to another level in ruling that there was a difference in treatment to be meted out to convicts under the Indian Penal Code and those convicted under special terror laws. For the latter, undue delay cannot be a valid ground to commute the death penalty. In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down per incuriam. It is noteworthy as it buttresses the extremely high limit set to achieve the threshold of ‘rarest of rare,’ albeit implicitly. 

From the above discussion on judicial precedents, it is evident that there is great subjectivity involved in deciding what constitutes the gravest of circumstances that could justify the state to take away life. The Tamil Nadu government has decided to set free the convicts in the Rajiv Gandhi assassination, exercising its power under Sections 432 and 435 of the Code of Criminal Procedure, 1973. This assumes further significance as Section 435 mandates consultations with the Union government when the conviction is under central laws. Acknowledgment of the grave injustice in the undue delay in execution by the highest court of the country does not wash away the fact and gravity of their crime that has been proved beyond reasonable doubt. In deciding to release them, the Tamil Nadu government is surely entering a risky territory which may set loose a politically-charged atmosphere and set a dangerous precedent. 

The governments concerned must handle such cases with astute political wisdom and maturity, as it is their responsibility to ensure citizens’ safety. If there is relaxation shown to a criminal convicted of something as deplorable as the assassination of the former Prime Minister, then it begs the question as to what could be an effective deterrent for criminals in the future. This stand puts our internal security at peril, when communal and left wing forces are on the rise, in addition to the sustained terror threats from across the border. Against this backdrop, it is important to consider the cases of Ajmal Kasab and Afzal Guru. Both these cases marked a break in the so-called self-imposed moratorium on death penalty by the Indian judiciary. And both cases involve matters of national security and instances of terrorism. 

This itself proves that accompanied with executive expediency, death penalty has been justified for the perpetrators of grave criminal and terrorist activities — at least till the time that it exists in our legal system. Retention of death penalty A key question to ask at this juncture is whether it is too ambitious to expect a correlation between the crime rate and death penalty in a jurisdiction where the wheels of justice are eternally slow. For us to be able to fairly introspect on the justifiability of the death penalty, a lot rests on the executive promptness in dealing with existing cases. By creating an additional ground for commuting the death sentence solely because of the lack of executive promptness, the Supreme Court may be subtly pushing India into a territory of no capital punishment, but the legislative intent is ostensibly at deviance. 

India voted against the Record of Votes on the U.N. General Assembly Moratorium Resolution, 2012, just as it had in the past. The Human Rights Council recommended in its Universal Periodic Review 2012 that India should establish an official moratorium on execution. While trying to move towards abolishing the death penalty completely, India should also commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. Both of these recommendations India did not agree with. There seems to be greater judicial clarity in cases of mandatory death punishments in India. Recently, the Bombay High Court ruled in the India Harm Reduction Network case that the mandatory death penalty for drug offences was “unconstitutional.” However, instances of specific legislations still upholding death penalty still subsist. For example, the Piracy Bill has a provision of death penalty, as does the Narcotic Drugs and Psychotropic Substances Act of 1985. Clearly, the Union Legislature seems decided about retaining capital punishment, at least for the time being. 

Every time a crime captures the national imagination, there is a hue and cry to overhaul the legal system, and bring in place more stringent norms. But what is often not really emphasised is the lax implementation. There is hardly a sustained clamour for a better managed police system of the country. There is no serious effort at a fast-paced judiciary to clear the immense backlog of cases. It is this laidback implementation that is often hidden behind the grandiose idea of ‘rule of law.’ Accountability of public institutions and functionaries needs to be strengthened. It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty. 

(Abhishek Tripathy is a lawyer.) 

Source: http://www.thehindu.com/opinion/op-ed/the-danger-in-precedents/article5726541.ece [accessed 24 April 2014]