On Sentencing of Death to Bhullar
Byatha N Jagadeesha
After the judgment by Apex
Court on Devendra Pal Singh Bhullar, suddenly things flashed me in my mind what
was the freedom fight for? Can this freedom be defined as need for ‘justice’
and ‘fair procedure’? Did we not fight against
discriminatory rules of British Empire? If the answer is positive what are we
debating so much about Bhullar need to be hanged/ Terrorist convicted Bhullar
need to be hanged?
Bhullar case makes an interesting study to analyze if he has had the
privilege of “Fair Procedure” from his own Government and judicial system. Let’s
look at the Bhullar’s battle for justice or ‘Fair
Procedure’. It
is the prosecution version that on 11.09.1993 Mr. M.S. Bitta, the then
President of Indian Youth Congress (I) was in his office at 5, Raisina Road,
New Delhi. At about 2.30 p.m., Mr. Bitta
left the office and the car in which he was travelling came out of the main
gate of 5, Raisina Road and one pilot car, in which security personnel provided
to him were sitting, was ahead of his car.
The pilot car slowed down in order to take right turn on Raisina
Road. In the meantime, one bus came on
Raisina Road, from the side of Windsor Palace. At
that time, there was an explosion in a car parked outside 5, Raisina Road. Though,
Mr. Bitta was not hurt badly, a number of other vehicles parked on the road and
footpath caught fire. Because of the
bomb blast nine persons succumbed to the injuries and 29 other persons sustained
injuries. During the course of
investigation, it was learnt that Kuldeep, Sukhdev Singh, Harnek, Devender pal Singh and Daya Singh
Lahoria, all members of KLF, a terrorist organization, were behind this blast
and their aim was to assassinate Mr. Bitta. It was also alleged that he made
attempt to fled away from India and based on the information supplied by the
Indian authorities he was taken into custody at Frankfurt Airport and deported
to India and on the night of 18/19.1.1995, and on his arrival, he was handed
over to IGI Airport police authorities by Lufthansa Airlines Staff and
immediately he was arrested.
He was also
tried along with the Daya Singh Lahoria but Daya Singh was acquitted by the
Designated Court on the ground that there was no evidence against him and that
he has not made any confessional statement. The Court also observed that there
was no iota of material on record to corroborate confessional statement made by
accused Devender Pal Singh against his co-accused Daya Singh Lahoria and
prudence requires that in absence of corroboration, benefit should go to Daya
Singh Lahoria.
The argument
addressed on behalf of Bhullar is that except the so called confessional
statement, which was retracted and explained in what contest these things were
taken by his latter to the court dated 21.04.1995 and the 313Cr.P.C. Statement,
there is no other evidence against the appellant and the said confessional
statement is neither voluntary nor true and in any case there is no
corroborative evidence. However the designate court convicts him, though the
Supreme Court also see the point come to conflicting opinion on this and one
Judge decides to acquit him and the other two judges confirm the sentence
imposed on him by the Designated court. Justice Shah[1]
elaborately listed in the manner Bhullar was implicated in this case and the
manner the alleged confession statement was recorded and the legal implications
of the same.
If one looks
at the Majority judgment written by Justice Arijit Pasayat has gone in to the
object of the TADA and the threat of Terrorism and the academic discussion on
the definition of Terrorism and so on. What seems to have missed out is the
convict Bhullar was not challenging the validity of TADA he was merely
challenging the convection for him in the absence of any other substantive
material and conviction for him in the absence of acquittal of co-accused who
was charged along with him for ‘Criminal Conspiracy’ of the alleged act. This
appears the Judgment was delivered or the Bhullar was convicted to death only
to full fill the collective conscious.
Now the
question really is, is this really ‘fair
procedure’? This is one set of defeat not for just Bhullar but for ‘Fair Procedure’ itself.
Let us look at
the other legal battle in which Bhullar engaged:
The Review Petition
was filed against this order and the same was also dismissed by its order dated
17.12.2002. Thereafter on 14.1.2003 he has sent a Petition to the President
under Article 72 of the Constitution. Pending adjuration of Petition under
Article 72 by the President, Curative Petition (Crl.) No. 5 of 2003, filed by
the Bhullar was also dismissed by the Apex Court on 12.3.2003.
There are
numerous judgments which talk about the role of the President under Article 72
of the Constitution of India. In fact Justice Arijit Pasayat himself in his
judgment at para 60 of Bhullar’s case makes an important observation in
connection to Justice Shah’s acquittal of the Bhullar and quotes from the
previous judgment’s Ramdeo Chauhan v. State of Assam[2]
“56. But, a question that remains to be considered further are
the effect of conclusion arrived at by my learned Brother Mr. Justice Thomas. Is the accused remediless; that remains to be seen. Few provisions in the Code of Criminal Procedure
(for short the Code) and other in the Constitution deal with such
situation. Sections 432, 433 and 433A of
the Code and Articles 72 and 161 of the Constitution deal
with pardon. Article 72 of the Constitution confers upon the President
power to grant of pardons, reprieves, respites or remission of punishment or to
suspend, remit or commute sentence of any person of any offence. The power so conferred is without prejudice
to the similar power conferred on the
Governor of the State. Article 161
of the Constitution confers upon the Governor of a State similar power in
respect of any offence against any law relating to a matter to which the
executive power of the State extends. The power under Article 72 and Article
161 of the Constitution is absolute and cannot be fettered by any statutory
provision such as Sections 432, 433 and 433A of the Code or by any Prison
Rules.
57. Section 432 of the Code empowers the appropriate Government to
suspend or remit sentences. The
expression appropriate Government means the Central Government in cases where the sentences or order relates to the
matter to which the executive
power of the Union extends, and
the State Government in
other cases. The
release of the prisoners condemn
to death in
exercise of the
powers conferred under Section
432 and Article 161 of the Constitution does
not amount to interference with due and proper course of justice, as the power of the
Court to pronounce upon the validity, propriety and correctness of the
conviction and sentence
remains unaffected. Similar power as those contain in Section
432 of the Code or Article 161 of the Constitution can be exercised before,
during or after trial. The power
exercised under Section 432 of the Code is largely an executive power vested in
the appropriate Government and by
reducing the sentence, the authority concerned thereby modify the judicial
sentence. The Section confines the power of the Government to the suspension of
the execution of the sentence or remission of the whole or any part of the
punishment. Section 432 of the Code
gives no power to the Government to revise the judgment of the court. It only
provides power of remitting the sentence. Remission of punishment assumes the
correctness of the conviction and only reduces punishment in part or whole. The
word remit as used in Section 432 is not a term of art. Some of the meanings of the word remit are
to pardon, to refrain from inflicting to give up. It
is therefore no obstacle in
the way of the
President or Governor, as the
case may be in remitting the sentence of
death. A remission of sentence does not mean acquittal.
58.The power to commute a sentence of death is independent of Section 433A.
The restriction under Section 433A of the Code comes into operation only
after power under Section 433 is exercised. Section 433A is applicable to two
categories of convicts:(a) those who could have been punished with sentence of
death and (b) those whose sentence have been converted into imprisonment for
life under Section 433. It was observed
in Mura Ram vs. Union of India [1981 (1)
SCC 106] that Section 433A does not violate Article 20(1) of the Constitution.
59. In the circumstances,
if any motion is made in terms of Sections 432, 433 and 433A of the Code and/or
Article 72 or Article 161 of the Constitution as the case be, the same may be
appropriately dealt with. It goes
without saying that at the relevant stage, the factors which have weighed with
my learned Brother Mr. Justice Thomas
can be duly taken note of in the context of Section 432(2) of the Code.
At para 61
Justice Pasayat said “61 the principal set out above have application to the
present case. What is the impact of this observation?
Did President
while passing an order under Article 72 of the Constitution have considered
this aspect? It appears that Bhullar has failed at this junction as well. The
President seems to have forgotten the principal of ‘Fair Procedure’ while
deciding on Bhullar’s Mercy Petition. Unfortunate for Bhullar, his freedom as a
citizen for ‘Fair procedure/Justice’ is denied for second time and now it’s
through President’s rejection of his mercy petition.
That’s brings
us to Third time where ‘Fair Procedure’ was denied to him this time again by
the Apex court while dismissing his petition in which he challenged the
rejection order passed by the President under article 72 of Indian
Constitution. Let us see what Court did this time.
Court started with an excellent note, the beginning line of the judgment
by Justice Singhvi.G.S. "Human life is perhaps the most precious gift of
the nature, which many describe as the Almighty" at Para 8, the Judgment,
went on to talk about the movement against death sentence, and said "Even
after the judgments in Bachan Singh’s case and Machhi Singh’s case, Jurists and
human rights activists have persisted with their demand for the abolition of
death penalty and several attempts have been made to persuade the Central
Government to take concrete steps in this regard. It is a different
story, that they have not succeeded because in recent years the crime scenario
as changed all over the world. While there is no abatement
in the crimes committed due to personal animosity and property disputes, people
across the world have suffered on account of new forms of crimes. The
monster of terrorism has spread its tentacles in most of the countries.
India is one of the worst victims of internal and
external terrorism. In the last three decades, hundreds of innocent lives have
been lost on account of the activities of terrorists, who have mercilessly
killed people by using bullets, bombs and other modern weapons"
This is where the Learned Judge set the motion to full fill the
‘Collective-continuous’ and this is precisely to break the ‘fair procedure’ though it was argued by
the senior counsel, who assisted the Court as an Amicus at Para 11 and 12 and
also argument advanced by the petitioner intervener the court consider to
address the following question at para 16:
(a) What is the nature of power vested in the
President under Article 72and the Governor under Article 161 of the
Constitution?
(b) Whether delay in deciding a petition filed
under Article 72 or 161 of the Constitution is, by
itself, sufficient for issue of a
judicial fiat for commutation of the sentence of death into
life imprisonment irrespective of the nature and magnitude of the crime
committed by the convict and the fact that the delay may have been
occasioned due to direct or indirect pressure brought upon the Government by
the convict through individuals, groups of people and organizations from within
or outside the country or failure of the concerned public authorities to
perform their duty?
(c) Whether the parameters laid
down by the Constitution Bench in Triveniben’s
case for judging the issue of delay
in the disposal of a petition filed under Article
72 or 161 of the Constitution can be applied to the cases in which an accused
has been found guilty of committing offences under TADA and other similar
statutes?
(d) ) What is the scope
of the Court’s power of judicial
review of the decision taken by the President under Article
72 and the Governor under Article 161 of the Constitution, as the case may be?
"
it is
interesting reason what the Apex court says at para 40 “We are also of the view that the rule
enunciated in Sher Singh’s case, Triveniben’s case and some other judgments
that long delay may be one of the grounds for commutation of the sentence of
death into life imprisonment cannot be invoked in cases where a person is
convicted for offence under TADA or similar statutes. Such cases stand on
an altogether different plane and cannot be compared with murders committed due
to personal animosity or over property and personal disputes. The
seriousness of the crimes committed by the terrorists can be gauged from the
fact that many hundred innocent civilians and men in uniform have lost their
lives. At times, their objective is to annihilate their rivals including
the political opponents. They use bullets, bombs and other weapons of
mass killing for achieving their perverted political and other goals or wage
war against the State. While doing so, they do not show any respect for
human lives. Before killing the victims, they do not think even for a
second about the parents, wives, children and other near and dear ones of
the victims. The families of killed suffer the agony for their entire life,
apart from financial and other losses. It is paradoxical that the people who do
not show any mercy or compassion for others plead for mercy and project delay
in disposal of the petition filed under Article 72 or 161 of the Constitution
as a ground for commutation of the sentence of death. Many others join the
bandwagon to espouse the cause of terrorists involved in gruesome killing and
mass murder of innocent civilians and raise the bogey of human rights”
When it comes to the issues with respect to the scope of the Court’s power of judicial review of the decision taken by the President under Article 72 and the Governor under Article 161 of the Constitution the apex court seems to have missed the real issues which need to be address and seems to have decided to ignore the principal of ‘Fair Procedure’ in the context of the crime at para 41, it says
“While examining challenge to the decision
taken by the President under Article 72 or the Governor under Article 161 of
the Constitution, as the case may be, the Court’s power of judicial review of
such decision is very limited. The Court can neither sit in appeal nor exercise
the power of review, but can interfere if it is found that the decision has
been taken without application of mind to the relevant factors or the same
is founded on the extraneous or irrelevant considerations or is vitiated due to
mala fides or patent arbitrariness –"
Again it admits to the extent the delay in
disposal of the case and makes the following observation at para 44,
“It is true that there was considerable delay
in disposal of the petition filed by the petitioner but, keeping in view the
peculiar facts of the case, we are convinced that there is no valid ground to
interfere with the ultimate decision taken by the President not to commute the
sentence of death awarded to the petitioner into life imprisonment”
But missed out
the larger question raised and the judicial review is not limited to delay in
disposal of the petition but the act of president to consider the petition in
just and fair manner and fallow the Principal of ‘Fair Procedure’ and no
comment/ observation have been made to that extent which is very crucial from
the factual angle of this particular case and also in general.
This is also
contrary to the law already laydown by the Apex court, the Courts have struck down decision
taken by the President / Governor on the grounds that all relevant
considerations were not taken into account while exercising clemency powers
under Article 72 / 161. See, for example, K.M.
Nanavati V/s The State of Bombay 1960 1 SCR 497; Kehar Singh and Another
V/s Union of India (1989) 1 SCC 204; Swaran
Singh V/s State of U.P. and Others. (1998) 4 SCC 75; Satpal and Another V/s State of Haryana (2000) 5 SCC 170; Epru Sudhakar and Another V/s Govt of A.P. (2006)
8 SCC 161; Dhananjoy Chatterjee v. State
of W.B, (2004) 9 SCC 751; Narayan Dutt and
Others V/s State of Punjab (2011) 4 SCC 353.
If even given the little more attention to
what is said in the Majority judgment while imposing the death penalty Bhullar
this court could have consider that president has not acted with the full
knowledge and the manner in which sentence was awarded.
I think this is
where Bhullar lost the fight again for 3rd time and again he has
lost the fight to full fill the collective conscious as against the “fair procedure”
for what many people fought for many years.
