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Q hangs for new Prez
 India’s
first woman president Pratibha Patil will have a file staring at her
which flummoxed even his well-equipped predecessor APJ Abdul Kalam —
the dossier about mercy petitions of nearly 50 death row convicts.
Among these is the case of Devinder Pal Singh Bhullar. Sections of
the Indian media have reported that one of the last notings that
Kalam signed a day or two before demitting office was one in which
he wrote, “These files may be put up to my successor for a
decision.” Kalam had earlier raised a storm when he was found to be
in unison with leading NGOs and Human Rights groups, and had adopted
the same line which was being vociferously advocated by Shiromani
Akali Dal (Amritsar).
Kalam actually wrote to the Union Home Ministry advocating calling
for pardon for most of these convicts.
Bhai Devinder Pal Singh Bhullar was convicted for an alleged attack
on that paragon of human rights Maninderjit Singh Bitta, the clown
prince of India’s fight against terrorism.
“He is also understood to have asked that the convicts be treated
with compassion, be provided counselling and spiritual guidance
instead of the gallows, and allowed to spend their remaining years
with their families,” The Indian Express reported while commenting
on the issue this Sunday. Official India
however stuck to its guns and the Union Home Ministry got back with
the recommendation that the Government’s stand remained unchanged in
all these cases: that these were not fit for Presidential pardon.
During his regime Kalam only decided on rejecting one mercy petition
— on the advice of the Home Ministry — was in the case of child
rapist Dhananjay Chatterjee who was on August 14, 2004, became the
55th person to hang since Independence.
Although Article 72 of the Indian Constitution says that “the
President shall have the power to grant pardons,” it’s been
interpreted to mean that, like in most matters, the President is
bound by whatever advice the Council of Ministers gives on mercy
petitions as well.
These files have been pending for a while, some for as long as 10
years — Kalam himself inherited 12 mercy petitions from ex-President
K R Narayanan, the number almost doubled during his five-year
tenure.
Kalam’s aides are understood to have raised the issue of the
unsigned mercy files with him during his last days in office but his
reaction was the same philosophical one: “If I cannot give life to
anyone, I don’t see why I should give death.”
Contrary to reports, the mercy petition of Parliament attack accused
Afzal Guru has not reached Rashtrapati Bhavan since the advice of
the Ministry of Home Affairs on whether the case is fit for
Presidential pardon or not is still awaited. The Sikh quom has been
waiting for years now.
On 17 December 2002, several years after P rofessor Davinderpal Singh
Bhullar first sought asylum from Germany, the Supreme Court of India
confirmed the death sentence and he now waits in death row in Tihar
Central Prison, New Delhi, India. Prof. Davinderpal Singh Bhullar, a
Sikh political activist had sought asylum from Germany’s fast track
system but was rejected. Bhullar was a known political dissident and
had claimed that his life was at risk in India because of his
political activism. His family were persecuted as evidenced by the
“disappearance” of his father, uncle and best friend.
Germany was morally obliged to intervene because Bhullar’s case
exposes weaknesses in the German asylum system which has led him to
face the death penalty. A mass-signed petition was handed over to
German authorities and a 4 million person petition against the death
penalty was presented to the United Nations by Sant Egidio church.
The other bizarre part of the case is that Bhullar was
deported from Germany in 1995, even when Germany fully realised that
deporting someone to a death-penalty prone country violates the
European Convention on Human Rights. Afterhis deportation, the court
of appeal in Frankfurt admitted his appeal and said that he should
not been deported as he would face torture, harassment and death in
India and were he to re enter to Germany he would be given asylum. (Verwaltungsgericht
Frankfurt, Case 8E5039994.A(1). Upon entering India he was arrested
and subjected to torture.
The death sentence on Davinderpal Singh Bhullar has been passed on
the basis of a confession given before a police officer President
Kalam’s reaction was always philosophical: “If I cannot give life to
anyone, I don’t see why I should give death.” The fact remains that
Kalam had taken a high moral ground by arguing against capital
punishment. Will Patil take the pedestal, or will she rubber stamp
the official India’s stance on the issue. which under normal
criminal law is not admissible as evidence. Not a single witness,
out of the 133 witnesses identified him. His two coaccused have been
set free. For the first time in India’s Supreme Court criminal
jurisprudence history, the Supreme Court ordered execution of
someone on the basis of a split judgement. The presiding judge,
Justice Shah totally acquitted the accused whereas the other two
judges, Justice Aggarwal and Justice Passayat upheld the death
sentence.
The Supreme Court of India upheld the decision of the lower court.
Two Indian Supreme Court judges of the three-judge panel upheld the
death sentence arguing that proof “beyond reasonable doubt” should
be a “guideline, not a fetish,” and that procedure is only “a
handmaiden and not the mistress of law.” The presiding Judge,
Justice M. B. Shah acquitted Professor Bhullar and substantiated his
decision by stating that the conspiracy theory falls flat as the
“rest of the accused who are named in the confessional statement are
not convicted or tried.”
While Justice Shah concentrated on the facts of the case, Justice
Pasayat chose to decide the case with political rhetoric and find
Professor Bhullar guilty based on contradicting arguments and
judgments. The police, in contravention of the law, failed to send
the confessional statement at the earliest opportunity to the
magistrate concerned. The other two judges upheld the confession
admissible saying that neither proof beyond reasonable doubt nor
procedure was important.
A review petition was filed in the Supreme Court in December 2002,
questioning the legitimacy of the rejection of Davinder Pal Singh
Bhuller’s appeal. The review petition was heard by the same three
judges, who upheld their original decision. It was again a majority
decision, with the same senior judge again expressing dissent. There
seems to be a complete media blackout in India of the case. The Case
Qhangs for new Prez
1 August, 2007
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