The possiblity of an erroneous outcome should have led the court to consider commuting Bhullars death sentence
A two-judge bench of the Supreme Court recently rejected the writ petition of convicted terrorist Devinderpal Singh Bhullar,paving the way for his execution. A lot has been said about the SCs decision to ignore the eight-year delay in the disposal of his mercy petition and the implications it has for those convicted in the Rajiv Gandhi assassination case. However,I would like to focus on three aspects of the judgment.
First,the idea that in terrorism cases,long delays in deciding mercy petitions do not constitute grounds for commuting the death sentence to life imprisonment. Justice G.S. Singhvi,speaking for the court,made it amply clear that 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. This is problematic. The death penalty can be imposed by the SC only in the rarest of the rare cases and therefore,does not allow for further sub-categorisations grounded on the nature of the offence. Consequently,it is not clear on what basis the SC decided to treat cases of terrorism separately from cases like bride burning,for example,especially given its observation that there is ample justification for awarding the death penalty in the latter situation. In so doing,it conflated,as never before,the two separate questions of the fact of delay and the type of offence.
Second,the idea of the bogey of human rights,raised by those who espouse the cause of terrorists. This is best represented by the courts observations that 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. Combined with similar statements on terrorism representing the changing nature of crime,the courts rhetoric reflects its view that terrorists human rights are somehow different from,and less than,the remainder of both the prison and outside population. In such a scenario,one is reminded of noted human rights lawyer and activist K.G. Kannabirans response when asked by a judge why he continued to defend Naxalites,who sought to overthrow the very Constitution they sought protection under. To this,he simply stated that when such cases come before the courts,it is our values that are on trial,and not those of the Naxalites or terrorists. After all,these values underpin our judicial systems commitment to democracy and the rule of law. If the right to a speedy trial is a fundamental human right,so is the right to the speedy execution of a sentence.
Finally,it is important to revisit the facts of this peculiar case. The SC detailed the history of Bhullars crime (killing nine people in a bomb blast in Delhi in 1993 and targeting Congress youth leader M.S. Bitta) and the conclusiveness of the finding of his guilt. Nevertheless,it omitted to mention certain key facts. Bhullar was convicted for his involvement in the terror attack and sentenced to death by a majority of the three judge bench on the basis of a sole,retracted confession. However,Justice M.B. Shah acquitted him,basing his doubts on whether the confession,as the sole basis of evidence,was made voluntarily or truthfully and questioning serious procedural lapses by the police. A further review petition was dismissed in December,2002 by the same three judges,with the same result. To now execute Bhullar would fly in the face of the SCs dictum in Bachan Singh vs State of Punjab,which limits the application of the death penalty to the rarest of rare cases when the alternative option is unquestionably foreclosed. This standard,subjective as it might be,takes the finality of the death sentence into account and attempts to limit this extreme sentence only for those who have,without doubt,committed the most egregious violations. Surely,the alternative option is not unquestionably foreclosed if one among three of our countrys top judges repeatedly doubts whether a conviction is justified. Bhullars conviction will stand. But the chance of an erroneous outcome signalled by Justice Shahs dissent should have prompted the court to consider the possibility of reducing the death sentence to life imprisonment.
We pride ourselves on having a constitutional culture committed to the rule of law and justice. Unfortunately,in deciding Bhullars case,justice seems to have lost some of its majesty,because we get a sense that some deserve less justice than others.
The writer is a Rhodes scholar reading for her BCL at Magdalen College,University of Oxford,UK