Mercy denied

ON April 12, the Supreme Court of India dismissed death-row convict Devender Pal Singh Bhullar’s writ petition seeking commutation of his sentence on the grounds of inordinate delay in rejecting his mercy petition by the President. The dismissal of the petition by a two-judge Bench comprising Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya has disappointed those who expected the court to expand further the human rights of death-row prisoners.

Bhullar was suspected to be responsible for the attack on the cavalcade of the then president of the Youth Congress, Maninderjit Singh Bitta, in Delhi on September 10, 1993. Forty kilograms of RDX was used for the blast, in which nine persons were killed and 17 injured. Bitta escaped with injuries.

Apprehending arrest and possible elimination by the police, Bhullar left for Canada. However, he was taken into custody at the Frankfurt airport and deported to India by Germany. Bhullar was convicted and sentenced to death by a TADA (Terrorist and Disruptive Activities (Prevention) Act) court, and the sentence was confirmed by a three-judge Bench of the Supreme Court in a 2:1 judgment in 2002.

Justices Arijit Pasayat and B.N. Agrawal, constituting the majority of the Bench, found no merit in Bhullar’s plea that his confession on the basis of which he was sentenced to death by the trial court was neither voluntary nor true. The presiding judge, Justice M.B. Shah, however, dissented and said that there was nothing on record to corroborate Bhullar’s confessional statement, recorded by a police officer, and that when the co-accused who were named in the confessional statement were not convicted or tried, this would not be a fit case for conviction.

Bhullar’s review petition was also dismissed by the same Bench. Justices Pasayat and Agrawal dismissed Bhullar’s claim for retrial made on the grounds that Justice Shah had found him innocent. Justice Shah, on the other hand, agreed that the finding on Bhullar’s guilt could not be altered because of the majority verdict, but held that his sentence could be commuted to life imprisonment, because his dissent had established that his was not the “rarest of rare” case deserving imposition of the death sentence.

Bhullar submitted a mercy petition to the President on January 14, 2013, for commutation of his sentence. The governments of Germany (which deported him to India from Frankfurt) and Canada had made strong representations for clemency for Bhullar. Germany had pointed out that it had already abolished the death penalty and in terms of Section 34C of the Extradition Act, 1962, the death penalty could not be imposed if the laws of the state which surrendered or returned the accused did not provide for the imposition of the death penalty for such crime.

The Punjab Human Rights Organisation and the Movement Against State Repression, Chandigarh, had pleaded for the commutation of Bhullar’s death sentence on the grounds that in the case of the Mumbai underworld don Abu Salem, the Indian government had given an assurance to the Government of Portugal that on his deportation, Salem would not be awarded the death penalty as Portugal insisted on such an assurance as a member of the European Union, which had abolished the death penalty. In addition to these representations, the government had received seven mercy petitions on Bhullar’s behalf from eminent individuals and groups from India and abroad and several representations from foreign diplomatic missions in India and from various Sikh forums from Punjab and the United Kingdom.

The Ministry of Home Affairs (MHA) first recommended to the then President, A.P.J. Abdul Kalam, to reject Bhullar’s mercy petition, on July 11, 2005. His petition remained pending at the end of Kalam’s tenure, as he had ignored the MHA’s recommendation because of his disagreement with it. Kalam could have sent it back to the MHA for its reconsideration. However, had the MHA reiterated it, it would have been binding on Kalam. Therefore, Kalam saw merit in using his pocket veto against the government.

Kalam was succeeded by Pratibha Patil as President in 2007. The MHA did not review Bhullar’s case until he approached the Supreme Court in 2011 seeking relief on account of the inordinate delay in disposing of his mercy petition.

On April 29, 2011, the government requested the President’s Secretariat to return Bhullar’s file. On May 10, 2011, the then Home Minister, P. Chidambaram, opined that those convicted in cases of terrorism did not deserve any mercy or compassion and thus recommended the rejection of Bhullar’s mercy petition. On June 13, 2011, the then President, Pratibha Patil, rejected his mercy petition accordingly. Bhullar then amended his writ petition, challenging her rejection.

Bhullar’s counsel argued before the court that because of prolonged detention Bhullar had become mentally sick, and that the inordinate delay had rendered the death sentence cruel, inhuman and degrading, and that was nothing short of another punishment inflicted upon him.

The court, however, held that the grounds of inordinate delay could not be invoked in cases where a person was convicted for an 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 right to seek commutation of a death sentence on the grounds of inordinate delay in disposing mercy petitions has been granted by the Supreme Court’s five-judge Constitution Bench in Triveniben vs State of Gujarat in 1989. That Bench did not deny this right to those convicted of terrorism-related offences.

Therefore, observers wonder how the two-judge Bench could overrule a binding decision, rendered by a five-judge Bench, and disentitle a category of prisoners, convicted under anti-terrorism laws, to their constitutional right to seek commutation of their sentences.

Ironically, the Singhvi Bench attributed the inordinate delay in the Bhullar case to the unending spate of petitions on behalf of Bhullar by various persons, although one of the five judges in the Triveniben Bench, Justice G.L. Oza, had clearly held that the time spent on repeated mercy petitions at the instance of the convict should not be considered.

The Singhvi Bench also held that the MHA had failed to take appropriate steps to remind the President’s Secretariat about the dire necessity to dispose of the pending petitions. It found that Bhullar’s file remained pending in the President’s Secretariat for six years between 2005 and 2011, partly because of the immense pressure brought upon the government in the form of representations made by various political and non-political functionaries, organisations, and individuals from other countries. Ironically, while reaching this conclusion, the Singhvi Bench did not provide Bhullar the opportunity to challenge this finding, which was erroneous.

The Singhvi Bench found evidence that Bhullar had suffered physically and mentally on account of prolonged detention in jail but refused to hold that his mental health had suffered to such an extent that the sentence awarded to him could not be executed. Observers have expressed surprise that the Bench has given such a reasoning to deny relief to Bhullar, because his counsel’s argument was not that mentally ill convicts could not be executed, but whether it was fair to do so.

Anti death-penalty activists are worried about the impact of this judgment on Bhullar and other death-row prisoners who have invoked the grounds of inordinate delay in disposing of mercy petitions to seek commutation of their death sentences. Although the government has promised that it will consider the fresh mercy petitions filed on behalf of Bhullar, its sincerity has become suspect because not only has the Home Minister, Sushilkumar Shinde, publicly defended secrecy in the hanging of death-row prisoners, but the President’s Secretariat has refused to share with the media details of the President’s decisions on pending mercy petitions.