Asia-Pacific, Crime & Justice, Headlines, Human Rights

DEATH PENALTY-INDIA: Clemency Denial Opens Can of Worms

Ranjit Devraj

NEW DELHI, Jun 2 2011 (IPS) - In a country where capital punishment is rare, human rights activists are surprised by a sudden move to hang a Sikh separatist militant convicted for bombing attacks on a senior police officer and a Congress party politician in the early 1990s.

Devinder Singh Pal Bhullar, a member of the Khalistan Liberation Force, was sentenced to death on charges of conspiring to kill Punjab police superintendent Sumedh Singh Saini in 1991 and Congress party leader Maninderjit Singh Bitta in 1993.

On May 25, Indian President Pratibha Patil, who holds a largely ceremonial position, suddenly denied him clemency after keeping frozen for more than eight years his petition for mercy. The decision has stirred up a political storm in the northwest Indian state of Punjab, which faces provincial elections next year.

“This is surprising because the Indian government has shown reluctance to resort to the death penalty, and has been seen as moving in the direction of eliminating capital punishment,” Maja Daruwala, director of the Commonwealth Human Rights Initiative, told IPS.

Punjab is currently ruled by the Sikh Shiromani Akali Dal (SAD) political party in alliance with the pro- Hindu Bharatiya Janata Party (BJP) on a common stand of opposing the professedly secular Congress party that rules at the centre.

SAD members, who have been sympathetic to the cause of autonomy, if not independence, for Punjab, as well as local leaders of the Congress party unit there, have appealed for a review of Bhullar’s clemency petition.

In a petition, SAD has sought the direct intervention of Prime Minister Manmohan Singh, himself a Sikh, to save Bhullar’s life “on grounds of humanitarianism and civilised concern and, above all, the national interest.”

SAD’s petition said intervention by the prime minister would ensure that the “atmosphere of acrimony, suspicion and estrangement between the Sikhs and the Centre is not vitiated any further.”

SAD was referring to the 1984 anti-Sikh pogrom that engulfed the national capital after Prime Minister Indira Gandhi was assassinated by her Sikh bodyguards to avenge the army raid she ordered on the Golden Temple in Amritsar in Punjab. That raid aimed to remove separatist militants who had turned Sikhism’s holiest shrine into an armed fortress.

A trial court sentenced Bhullar on Aug. 25, 2001, sorely testing India’s justice system as well as the principle laid down by the Supreme Court that the death penalty should be awarded only in the “rarest of rare” cases.

On Dec.17, 2002, Bhullar’s death sentence was upheld when two of the three-member Supreme Court bench voted to convict, while presiding judge M.B. Shah voted to acquit.

Navkiran Singh, general secretary of the Lawyers for Human Rights International (LHRI) based in Chandigarh, the capital of Punjab and Haryana, said the split decision showed that Bhullar’s case did not satisfy the principle that, in cases where the death penalty is awarded, proof should be “beyond reasonable doubt.”

Singh told IPS that it is noteworthy that Bhullar was the first person in independent India to be condemned to death on a split verdict by a Supreme Court bench. Judges Arijit Pasayat and B.N. Agarwal, whose majority decision prevailed, had controversially ruled that the principle “beyond reasonable doubt” should be a “guideline and not a fetish.”

There were other controversies surrounding Bhullar’s case. After he was deported in December 1995 from Germany where he had sought asylum, a court in Frankfurt ruled that he should not have been sent back to India because his life would be in danger.

Singh said Germany had, by deporting Bhullar, violated the European Convention on Human Rights and blamed weaknesses in the German asylum system for landing him on India’s death row.

But the flaws in the Indian justice system appear far more glaring, and the LHRI has listed some of these in an appeal to the President, dated May 25.

According to the LHRI petition, Bhullar’s father and maternal uncle were arrested in 1991 and tortured to death while in police custody. The Punjab and Haryana High Court ordered the filing of cases against Saini, a member of the elite Indian Police Service, for the custodial deaths.

Bhullar was charged with plotting to kill Saini but was acquitted by a lower court in Chandigarh in December 2006 for lack of worthwhile evidence, the LHRI petition pointed out.

Bhullar’s conviction rested entirely on a confession, made under duress, which becomes admissible as evidence under the draconian Terrorist and Disruptive Activities Prevention Act (TADA). Normally, confessions made in police custody are not admissible as evidence in Indian courts.

The LHRI noted that Daya Singh Lahoria, Bhullar’s co-accused in the case relating to the bomb attack on Congress party leader Bitta, was acquitted.

Lahoria could not be tried under TADA because that was a condition imposed by authorities in the United States to which he had fled and from where he was extradited. In fact, dissenting Supreme Court judge Shah pointed out that since the “rest of the accused, who are named in the confessional statement, are not convicted or tried,” there could not have been a conspiracy.

“It is trite to say that one person alone can ever be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself,” Shah had ruled.

Daruwala said she hoped the Indian state would stand firm against any pressure, political or otherwise, to abandon its stand on the death penalty, that it should be resorted to rarely, and that guilt should be proven beyond reasonable doubt.

Activists say India could play a key role in furthering the cause of human rights internationally, as underlined by its election on May 11 to the 47-nation United Nations Human Rights Council, winning 181 votes from 189 countries.

However, ahead of the election, the London-based Amnesty International urged the Indian government to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.