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Rule of Law
Jagmohan Singh
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In this open letter to leading prison inmates- Devinder Pal
Singh Bhullar and Afzal Guru, the author makes a stinging
comparison of the interpretation of Rule of Law in the Supreme
Courts of India and the United States of America, offering hope
and succour to those whom the world has largely forgotten. |
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 Dear Devinder
Pal Singh Bhullar and Afzal Guru:
Greetings from
the world at large.
The
anxiety-ridden note of Afzal Guru, the near forgetfulness of the
Devinder Pal Singh story, the implication of Sumedh Saini in an
abduction and murder case, the recent move of the Pakistan Prime
Minister to commute death sentences of more than 7,000 detenues on
the death row to life imprisonment, the petitions of Nalini and
others in the Rajiv Gandhi case for commutation of death sentences
to life imprisonment on grounds of delay and the recent ruling of
the Supreme Court of India about the application of rule of law for
detainees in the Guantanamo Bay prisons has prompted me to write
this open letter.
The core
question that I will share with you today is the subject of rule of
law and the need for Hope as this affects your life and death.
 While you remain
in the condemned prisoners cells of the high security Tihar jail in New Delhi,
the world is witnessing many changes. Though you may be abreast of
some of these in a rather sketchy manner, knowledge about you and
your travails is also minimal in the outside world. Except for a
few activists and your family members, the world is oblivious to the
pain and agony of life in a prison and more so of those who are in
condemned cells.
The race of
material gains, livelihood, political upmanship, economic progress,
development and fashions dominate our lives to such an extent that
mundane things like life in prison does not seem to interest even
the media and the thinking elite. In any case, the number of
readers and concerned people was few and far between in this country
and thanks to satellite television, we now have more “viewers” than
readers. Today, everybody views things and that is why the murder
of a teenage Arushi is given more space and time than what her
perhaps wrongly accused father must be going through within the four
walls of the nondescript prison where he is de tained.
I write to
inform you that all is not lost. While we are struggling in the
outside world to eke out a living and make sense of what is
happening all around, hope abounds. Having lived in prison myself
for some time, I understand and am sure you will agree that the one
world which keeps a prison inmate going is HOPE. Every prayer,
every thought and every move in prison is directed towards one
destination and that is Hope. It is only when the situation becomes
HOPELESS that Afzal Guru is forced to seek death sooner than later.
It is only when the political shenanigans fail to deliver justice
that people turn to the judiciary with Hope.
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“The
majority judgment of the US Supreme Court is a heartening
assertion of judicial authority and independence in the face of
outrageous claims of the executive and is a courageous
vindication of the Rule of Law.” |
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When the
judicial system is also not fair and honest and fails to protect the
Rule of law due to lack of diligence, or buckles under sectarian
bias or political pressure, we turn to God with Hope. At many a
point in prison life, Hope itself become destiny. Perhaps that is
the beauty of it. I have no hesitation in thinking that living in
a dingy 10 x10 cell with bare minimum facilities in the sweltering
July-August humidity; you must be looking with Hope to God Almighty
to relieve you of the travails of injustice –injustice first
delivered by those who were to protect the rule of law and then made
worse by slow justice resulting in bouts of Hope and Hopelessness.
It must come as
a relief to you that the Prime Minister of Pakistan Yousuf Raza
Gilani has proposed that the death sentence of thousands of
Pakistani prisoners be commuted to death sentence. India
is still grappling with making such a decision. To my mind, the
inordinate delay in executing the death warrant in many cases since
the last few years is a positive sign. Like all things that this
country does, delay is a significant factor. Unable to make a
forthright announcement of deleting capital punishment from the
statute, inspite of opposing the abolition of death sentence in
international forums, India seems to be toying with the idea of
abolition or atleast a moratorium on it.
I write this
with Hope.
India’s
large scale intervention in the case of Sarabjit Singh, who is on
the death row in Pakistan and the subsequent muted comparison of his
case with that of Afzal Guru, by India’s Home Minister Shivraj Patil
should be seen as an indicator of which way the scene is developing.
There is no
doubt that you have to wrest and grapple with Hope and
Hopelessness. Uncertainty can be a more sinister thing than death
itself. However the two of you are religious persons and the ethos
of religious indoctrination is Hope and submission to the Will of
Almighty. Till this country decides one way or the other you will
have to bear the cross of delay.
A question which
has been paramount in both your cases has been the issue of Rule of
law. Not the rule of law mentioned in the Constitution of
India or the Indian Penal Code or in various others texts on the
statute, but that Rule of law which is practiced by the highest
court of the land. The duplicity and dichotomy of court
rulings particularly in cases of ethnic minorities and the
underprivileged has arraigned the Supreme Court of India in the eyes
of those who hold jurisprudence as a corner stone of democracy.
For the first time in
India's Supreme Court criminal jurisprudence history, the Supreme
Court sentenced Devinder Pal Singh Bhullar to die on the basis of a
2-1 split judgement.
 In
something which should shock the justice-loving world, two of the
judges who sentenced you to die said, “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." While
Justice Shah concentrated on the facts of the case, Justice Pasayat
in his judgement resorted to political rhetoric than legal
argument. In fact, the Parliament attack case in which Afzal Guru
has been sentenced to die became the basis for sentencing Devinder
Pal Singh Bhullar in view of the “spectre of terrorism”. When Afzal
Guru’s trial came up, he was not given a lawyer of his choice! His
entire case was a mockery of justice.
Contrast this with what Justice Kennedy observed in the US Supreme
Court regarding the application of Habeas Corpus writs in Guantanamo
Bay prison in Cuba.
Justice Kennedy
observed that in adjudging detention imposed to prevent acts of
terrorism “the courts must accord appropriate deference to political
branches” always keeping in mind that “security subsists, too, also
in fidelity to freedom’s first principles, chief among them being
personal liberty and freedom from arbitrary and unlawful restraint.”
This is not to
say that there were no Justice Pasayats in the US. Chief Justice
Roberts’s opinion was that Rule of Law would not be enhanced and
lawyers would “arguably have a greater role than military and
intelligence officials in shaping policies for alien enemy
combatant.” This is the typical cynicism that one sees whenever a
bold judgment emanates either at the High Court or Supreme Court.
Many Indians are fed with the notion of “the morale of the forces
would be lowered if the likes of KPS Gill and Sumedh Sainis would be
held accountable.” Harjinder Singh Jinda and Sukhdev Singh Sukha
were executed under TADA and within a few months after their
execution, the Supreme Court of India invalidated the provisions of
the anti-terrorist law. Did any one hear a loud travesty of justice
call?
Commenting on
the US Supreme Court judgment, the former Attorney General of India,
Soli Sorabjee has said that “The majority judgment is a heartening
assertion of judicial authority and independence in the face of
outrageous claims of the executive and is a courageous vindication
of the Rule of Law.”
As I mentioned
earlier, prison life is all about Hope. For the two of you and many
others struggling to cope with nagging solitary confinement, solace
lies in prayer and hope. Let us hope that the lesson of the US
Supreme Court is learnt by all tin-pot republics from
Zimbabwe to
India. The US Supreme Court was categorical that “the unqualified
control by the US over Guantanamo Bay for over 100 years and by the
lease with
Cuba
“the nation’s basic charter cannot be contracted away.”
I wish and pray
that you and those in similar positions as you may also get to taste
the true meaning of Rule of Law.
With best wishes
and prayers,
Yours sincerely
Jagmohan Singh
Jagmohan Singh
is a human rights activist based in Ludhiana. He may be contacted at
jsbigideas@gmail.com
9
July, 2008
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