Courting anger

Dara Singh outside a special court in Bhubaneswar. A file photograph. - AFP

Civil society forces the Supreme Court to expunge its remarks made while confirming the life sentence of the killers of Graham Staines.

FACED with severe criticism from civil society over certain remarks made in its January 21 judgment confirming the conviction of and upholding the life sentence awarded to Dara Singh by the Orissa High Court, the Supreme Court was forced to expunge portions of its judgment four days later.

The Supreme Court Bench comprising Justices P. Sathasivam and Dr B.S. Chauhan ruled in its judgment: In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur.

Civil society was disappointed with the judgment not because the Bench dismissed the Central Bureau of Investigation's plea for the death penalty for Dara Singh and his accomplice Mahendra Hembram and confirmed the lesser punishment, but over its reasoning that the triple murder did not qualify as a rarest of rare case to warrant capital punishment as it was committed out of anger at religious conversion.

The Supreme Court found both Dara Singh and Hembram guilty of killing the Australian missionary Graham Staines and his two sons when they visited a church at Manoharpur village in Keonjhar district in Orissa on January 20, 1999. The court found evidence that Dara Singh and Hembram had set fire to the van in which Staines and his sons were sleeping.

It held that both the trial court and the High Court had rightly accepted Hembram's confession and upheld his involvement and participation in the crime along with Dara Singh, which involved rioting and arson and the murder of Staines and his sons. The court also pointed out that all the eyewitnesses examined by the prosecution consistently stated that the miscreants had raised slogans such as Dara Singh Zindabad when the incidents took place at Manoharpur. The slogans, according to the Supreme Court, corroborated the identification of Dara Singh by the witnesses before the trial court. In addition, all the witnesses mentioned the blowing of the whistle by Dara Singh.

Although the trial court sentenced Dara Singh to death, the High Court, after considering all the material and finding that it was not a rarest of rare case, commuted the sentence to life imprisonment. The Supreme Court said: Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.

In a signed statement, eminent citizens such as Anand Patwardhan, Harsh Mander, Praful Bidwai, Ram Puniyani, Shabnam Hashmi and Seema Mustafa took strong exception to the gratuitous observations of the court that Dara Singh's intention to teach Staines a lesson was a mitigating circumstance in favour of commuting his death penalty. They observed: The statement is patently unconstitutional as it goes against the guarantees of freedom of faith on the one hand and seems to acknowledge vigilante actions of criminals such as Dara Singh who take upon themselves to teach lessons' to persons serving lepers and the poor. Did the SC ever take into consideration the report of the Wadhwa Commission, which was set up to probe the murder of Graham Staines and which had observed, There has been no extraordinary increase in the Christian population in Keonjhar district [in which Manoharpur falls] between 1991 and 1998. The population in that district had increased by 595 during this period and could have been caused by natural growth'.

The signatories to the statement expressed the concern that the Supreme Court judgment might send wrong signals to courts trying cases of religious violence in Kandhamal and in other places. It also tended to pre-empt possible challenges to the black laws enacted by many States in the guise of Freedom of Religion Bills, they lamented.

The statement added: The secular India looks at Supreme Court and other judicial forums as its last hope to preserve constitutional guarantees given to religious minorities and other marginalised groups. It is, therefore, understandably disturbed when judgments such as this one and the Allahabad-Lucknow Bench ruling on Ayodhya are made and interpreted as supporting the bigoted point of view of right-wing fundamentalists such as the Sangh Parivar. The state cannot abrogate its responsibilities to ensure the secular fabric of the country. We expect the government to ask the Supreme Court to expunge the unnecessary, uncalled for and unconstitutional remarks.

On January 25, the Supreme Court Bench sought to amend its judgment suo motu by removing the controversial passage referring to Dara Singh's intention to teach a lesson to Graham Staines and replacing it with the following sentence: However, more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced (to the death penalty) in view of the factual position discussed in the earlier paras.

Another portion of its January 21 ruling said: It is undisputed that there is no justification for interfering in someone's belief by way of use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other. On January 25, the Bench said: This portion is now replaced with the following sentence: There is no justification for interfering in someone's religious belief by any means'.

THE AMENDED JUDGMENT

Although the Christian community by and large had no quarrel with the judgment upholding the life sentence for the convicts, the amended judgment still left many dissatisfied. The Bench's reliance on the passage of 12 years since the commission of the crime as a mitigating factor in favour of commutation of the death sentence has surprised many observers.

If what the Bench suggests is that the passage of 12 years is an unjustified delay in the conclusion of the case and therefore a mitigating circumstance, there is no judicial precedent for such a course.

In any case the long passage of time cannot prevent the crime from being considered a rarest of rare case. Therefore, the Bench's reliance on this illogical factor as a mitigating circumstance has not only made Dara Singh's conviction and sentence vulnerable but left its reasoning absolutely inconsistent with the judicial principles on the death penalty laid down by the Supreme Court in previous landmark cases such as Bachan Singh (1980) and Machhi Singh (1983).

Secondly, the replacement of another sentence in the judgment has left its critics equally bemused. One would have thought that criticism of the January 21 judgment would have had a sobering effect on the Bench and this might have led to its decision to correct its judgment. Instead, the correction appears to have aggravated the grounds for criticism of the judgment. The January 21 judgment, critics say, at least specified the grounds when interference with another person's religious beliefs would not be justified. The January 25 correction seeks to do away with the limitation of the specified grounds and imposes an absolute bar even on legitimate means that may be used to enable one to voluntarily convert from one religion to another. By adding this sentence, the Bench has only hinted that it stood by its January 21 judgment.

Staines was not found guilty of forcibly converting anyone. Even the trial court and the High Court, while finding Dara Singh guilty, did not think it necessary to deal with allegations of forcible conversion against Staines. Therefore, the Supreme Court's indictment of conversion is intriguing.

John Dayal, secretary-general of the All India Christian Council, himself an opponent of the death penalty, wrote in his blog:

The real root cause of strife in which Staines lost his life with his two kids was a misunderstanding of conversion. Senior Supreme Court advocates have told me that there is enough cause to go back to the Supreme Court to seek clarifications on what it means by the term interference in someone else's religion. Is talking about your own religion interference or is evangelisation interference? This suddenly gains in importance in view of the Somasekharan Commission report on the Karnataka attacks on churches in which it calls for drastic measures to regulate church activity, including registration of churches.

The High Court had acquitted 11 accused who were convicted by the lower court in the Staines murder case. The Supreme Court upheld these acquittals, calling the accused poor tribals. It is perhaps for the first time that the apex court has considered the socio-economic background of an accused as a mitigating factor to justify his/her acquittal. This is again contrary to established principles of criminal justice.