The death penalty has been and still is a widely debated topic. On one side we have the abolitionists who want to do away death penalty and believe a human cannot order the end of another human’s life and on the other end are the retentionists who advocate the retention of the same. Deciding between the two is difficult. In the following case, a similar tug of war is witnessed between the continuation of the death penalty and the commutation of the same into life imprisonment. The petitioner of this case was initially sentenced to a death penalty by the TADA Court, appealed to the Supreme Court, and then to the President under Under Article 72 of the Indian Constitution which allows the President to grant pardons, respites, remissions, commute the sentence of a convicted.
In the Supreme Court of India
|Name of the Case||Devender Pal Singh Bhullar v. State of NCT Delhi|
|Citation||(2002)5 SCC,(2013) 6 SCC,(2014) 7 SCC|
|Year of the case||2002, 2013, 2014|
|Petitioner||Devender Pal Singh Bhullar|
|Respondent||State of NCT of Delhi|
|Bench/Judges||B.N Agrawal and Arijit Pasayat JJ, MB Shah (2002) G.S. Singhvi, Sudhanshhu Jyotimukhopadhyaya (2013) P. Sathasivam, C.J, R.M. Lodha, H.L. Dattu and S.J. Mukhopadhaya (2014)|
|Acts involved||Terrorist and Disruptive Activities (Prevention) Act (TADA)|
|Important Sections||Sections 72, 161 of the Constitution, Sections 120-B, 302,307,326,324,323, 436, 468 of the IPC 1860, Sections 3(1) and 4 of TADA Act, Section 313 of CrPC|
- ACMM: Additional chief metropolitan magistrate
- Review petition: a review petition can be filed by the parties aggrieved by the court’s decisions that are binding on them.
- Curative petition: when a review petition gets dismissed one can file a curative petition
- Commutation: the act of reducing a judicial sentence to a less severe one
- Clemency: mercy
Article 72 of the Indian Constitution gives power to the President to grant pardons, respites, or remissions or to suspend, remit or commute the sentence of any person convicted of any offence. In the case of Devender Pal Singh Bhullar v. State of NCT Delhi, Devender was convicted in the 1993 Delhi Bomb blast case for offences under TADA. He was awarded a death sentence by the Supreme Court. He moved a petition to the President under Article 72 of the Constitution pleading the commutation of his sentence. The delay in the execution of the sentence and its effects on a death penalty are mentioned hereafter.
Devinder Pal Singh Bhullar was convicted in the Bomb blast that killed 9 people and injured several others. Under the TADA Act, he was awarded the death sentence. He appealed and filed review petitions to the Supreme Court initially for acquittal and later on for commutation. He even gave a mercy petition to the President. His appeals and petitions were dismissed one after the other and his sentence was not carried out for at least 8 years. Finally, in 2014 a curative petition filed by his wife got accepted and he stands imprisoned presently.
Facts of the Case
- On 11-9-1993, an explosion of a bomb took place in a car, 9 people died, and several others were injured, including Khalistani separationists critic and Youth Congress President Maninder Singh Bitta, the assumed target of the bomb blast. 5 people including Devender Singh Bhullar were behind the same.
- Bhullar fled to Germany to seek asylum soon after the incident. He was refused asylum and sent back to India. On reaching the airport, he was handed over to the ACP.
- The ACP stated that he made a disclosure statement agreeing to his involvement in many crimes as well as the bomb blast and thus presented him before the ACMM. The ACMM interrogated him as well and he is said to have made a disclosure statement again accepting involvement. However, he expressed his will to make a confession in writing the next day.
- Bhullar made the confessional statement to the DCP which was to be recorded. He was presented before the ACMM again on 24-1995, with no copy or original of the confessional statement being produced before him. The ACMM asked if his statement was recorded by the DCP to which Bhullar answered affirmatively and was thereafter taken by the Delhi Police.
- In his statement under Section 313 of CrPC, Bhullar stated that he did not make any application expressing an intention to confess and also denied making any confessional statement before the DCP and claims that he was made to sign blank and partly written letters under threat and duress. He also stated that he was threatened to be killed in an encounter if he made any statement to the court and thus made a statement out of fear before the ACMM.
- The other co-accused who was arrested was acquitted due to insufficient evidence and no confessional statement. The court held that since there is nothing to verify the appellant’s claim against the co-accused, he shall be acquitted.
- Bhullar was convicted under Sections 3(1) and 4 of the TADA Act and Section 120-B along with Sections 302, 307, 326, 324, 323, 436, 427, 419, 420, 468, and 471 of the IPC and was awarded a death sentence as well as a fine of Rs 10,000.
- Bhullar then made his first appeal in the SC in 2002 before a 3-judge bench consisting of Arijit Pasayat, B.N. Agrawal, M.B Shah. The appeal was dismissed, and a review petition was filed by Bhullar before the same bench on 17-12-2002 which was also dismissed.
- Soon after the dismissal of the review petition the petitioner submitted a mercy petition under Section 72 to the President dated 14-01-2003. On 12-03-2003 he filed a curative petition which got dismissed.
- On 11-07-2005 the Central Government recommended to the President to dismiss the mercy petition filed on 14-01-2003. Thereafter no decision was taken by the President for 5 years and 9 months.
- On 29-04-2011 the Ministry of Home Affairs(MHA) brought to the attention of the President all the pending mercy petitions along with that of Devender’s.
- On 10-05-2011 the MHA made its recommendation to the President that all offences of a grave and heinous nature should not be granted clemency. Acting on this recommendation, the President dismissed Devender Pal Singh Bhullar’s mercy petition on 13-06-2011.
- In 2013 Bhullar filed a writ petition in the SC pleading commutation of his sentence before the 2 judge bench consisting of G.S Singhvi and Sudhanshu Jyotimukhopadhaya. This petition was dismissed on 12-04-2013.
- He again filed a review petition before the same bench which got dismissed on 13-08-2013.
- In 2014, his wife Navneet Kaur filed a curative petition before the 4-judge bench consisting of P. Sathasivam, C.J, R.M Lodha, H.L Dattu, and S.J Mukhopadhaya. This petition was accepted, and his death sentence was commuted into life imprisonment.
- Whether the absence of verification of the validity of the confessional statement published a reasonable ground for setting aside the order passed by the court?
- Whether 8 years delay in the disposal of mercy petition under Article 72 and 161 is a reasonable ground for commutation of death sentence into life imprisonment?
- Whether there is rationality between distinguishing between an offence under the IPC and The TADA Act?
Constitution of India
- Article 72: This Article grants power to the President to grant pardons, to suspend, remit or commute sentences in certain cases
- Article 161: This Article grants the governor the right to grant pardons, suspend, remit,or commute sentences in certain cases relating to a matter to which the executive power of the state extends.
The Terrorist and Disruptive Activities (Prevention) Act, 1985
- Section 3(2)i: This section states that anyone who commits a terrorist act shall be punishable with death or imprisonment for life and be liable for fine as well if such an act has resulted in the death of a person.
- Section 4: This section states that anyone who commits or conspires to commit or abets, advocates, advises the commission of any disruptive activity shall be punishable with imprisonment for a term not less than five years which can be extended to life imprisonment and can be liable for fine.
Indian Penal Code, 1860
- Section 120-B: Under this section, anyone who is a party to a criminal conspiracy punishable by death, life imprisonment or imprisonment of 2 years and above, where there is no provision in the Code for the punishment of such conspiracy shall be punished as if he abetted such offence and any person who is a party to a criminal conspiracy of an offence other than the previously stated offence, shall be punished with imprisonment of either description for a term not exceeding 6 months.
- Section 302: Under this section whoever commits murder shall be punished with death or imprisonment for life and shall also be liable for fine.
- Section 307: Under this section, anyone who attempts to commit an act which if executed would have resulted in the death of a person is guilty of attempt of murder and shall be punished by life imprisonment or as mentioned in the Code before.
- Section 326: Under this section, whoever by the use of dangerous weapons, heated substance, fire, poison, any corrosive substance, explosive substance or any substance which on inhalation by a human can affect the body badly, voluntarily causes grievous hurt shall be punishable with imprisonment for life or for imprisonment of either description for a term which may extend to ten years and also be liable to fine.
- Section 323: Under this section, whoever except under Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year or a fine which may extend to one thousand rupees or with both.
- Section 324: Under this section, whoever except under Section 334, voluntarily causes hurt by the means of any instrument for shooting, stabbing, or cutting, or any instrument used as a weapon of offence, is likely to cause death, or by means of any explosive substance or by means of any substance which is harmful to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
- Section 436: Under this section, whoever commits mischief by fire or any explosive substance knowing it will cause destruction of any building which is likely a place of worship or is a human dwelling area for the custody of property shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine.
- Section 468: Under this section, whoever commits forgery, intending that the document forged shall be used for cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
· Code of Criminal Procedure
- Section 313: This Section grants the court the power to examine the accused1)The court may question him after the prosecution witnesses have been examined and before he is called on for his defence. No oath shall be administered to the accused when he is examined under sub-Section (2) and the accused cannot be held liable for not answering such questions or by giving false answers to them. The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
1. Bachan Singh v. State of Punjab
In this case, it was declared that death sentence can be awarded only in the rarest of rare cases. It held Section 302 as unconstitutional and void as it provides for the imposition of death penalty as an alternative to imprisonment for life which is violative of Articles 14 and 21 of the Constitution.
2. Macchi Singh v. State of Punjab
In this case, mentioning the rarest of the rare principle of the Bachan Singh case, it was decided that this case qualifies as the rarest of the rare and hence they felt that life imprisonment was not enough and the death sentence imposed on them by the Sessions Court and the High Court confirmed the same and their appeals were dismissed.
3. Sher Singh v. State of Punjab
In this case, it was considered that every case has to be decided upon its own facts, and that delay in justice defeats justice.
4. Triveniben v. State of Gujarat
This case stated that the Court while examining the matter, cannot take into consideration the time taken for disposal of any petition by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was an undue long delay in disposing of mercy petition, whether the State was guilty of slow conduct and delay for no reason. The inordinate delay may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor can it invalidate the heinous offences committed.
5. Shatrughan Chauhan v. Union of India 2014
In this case, it was held that mercy petitions should be disposed within a reasonable time and when the delay caused is unreasonable, unexplained, it is the court’s duty to consider this aspect. The right to seek mercy under Articles 72 and 161 is a constitutional right and is not at the discretion of the xecutive. Every constitutional duty must be carried out with due diligence and care otherwise the judiciary can interfere to uphold the Constitution’s values. In view of the above statements, the judgement disposed of the writ petitions and commuted the death sentence into life imprisonment.
- The first appeal was filed before the bench consisting of Arijit Pasayat, B.N Agrawal, and M.B Shah in 2002. The case of Bachan Singh v. State of Punjab[i] and Macchi Singh v. State[ii] was referenced to support the principle that when the collective conscience of the community is shocked immensely, it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion and the same can be awarded. It was further asserted that the acts committed were so cruel in conception and execution that forgiving the same will be invalidating the purpose of the TADA Act itself. One of the judges, M.B Shah however had a dissenting opinion. According to him since the rest of the convicts named in the confessional statement have not been convicted or tried, convicting the accused only based on a confessional statement recorded by the police officer is insufficient and cannot be the basis for awarding death penalty. In regard to this dissent the other judges referenced the Ramdeo Chauhan case[iii] that stated “If any motion is made in terms of Section 432, 433 and 433-A of the Code and/or Article 72 or Article 161 of the Constitution as the case may be, the same can be appropriately dealt with. It goes without saying that the relevant stage, the factors which have weighed with my learned Brother Mr. Justice Thomas can be duly taken note of in the context of Section 432(2) of the Code.” Thus, the majority view that the confessional statement of the accused can be relied upon for his conviction and that there is no further verification required was held in the judgement and the appeal was dismissed.
- The appellant filed a writ petition before the bench consisting of G.S Singhvi and Sudhanshu Jyotimukhopadhaya in 2013 pleading for the commutation of his sentence into life imprisonment. It was stated that while imposing punishment for murder and similar offences, the court has to take into consideration the nature of the crime. If the crime is of an extreme, cruel nature the court can be justified for awarding death penalty and that the exercise of power by the President or governor under Article 72 and Article 161 to not grant mercy in such cases cannot be called unreasonable. It was further asserted that the cases of Sher Singh[iv] and Triveniben[v] used in the counsel’s arguments for pushing forth the notion that long delay can be a ground for commutation of sentence cannot be compared to cases like the current one. Crimes committed by terrorists cannot be compared. They are the reason for cold-blooded mass murders and have no respect for human lives. Such people claiming delay as a reason for the commutation of sentence when they do not show mercy to others is paradoxical. On these grounds, it was held that although there was a long delay in disposal of the petition, the same cannot be a reason for commutation. During the time the petition stayed pending before the President, there was immense pressure on the Government by various political and non-political functionaries as well as organisations and several individuals from other countries. This is one of the reasons why the file remained pending in the President’s secretariat. The facts of the case are sufficient to state that there is no valid ground for commuting the sentence of the petitioner and hence this judgement dismissed the writ petition.
- In 2014, Bhullar’s wife Navneet Kaur filed a curative petition before the 4 Judge bench consisting of P. Sathasivam, C.J, R.M Lodha, H.L Dattu and S.J Mukhopadhaya. They referenced the cases of Shatrughan Chauhan, Bachan Singh v. State of Punjab, and Triveniben among various others. It was held that there is no good reason to disqualify all TADA cases from relief on account of delay and that each case requires consideration of its own facts. Further, a letter dated 8-2-2014 brought to the court’s notice from the Institute of Human Behaviour and Allied Sciences stated that the accused Devender Pal Singh Bhullar was examined by the Medical Board on 5-2-2014 and was diagnosed with severe depression with psychotic features, hypertension and has shown inconsistent response to the treatment. Applying the principle in the Shatrughan Chauhan case[vi], the court decided that the accused cannot be executed with said health conditions. Hence this judgement allowed for the commutation of death sentence into life imprisonment.
The case was centered around the commutation of a death sentence. It considered all the factors related to how the delay affects a person who has been awarded the death sentence, as well as the factors for such delay and whether such factors were reasonable or not. Some parts highlighted that the nature of certain crimes are such that their punishment cannot be reduced due to the mere fact that there was a long delay in proceedings while other parts highlighted that a long delay in execution of a sentence can cause mental torment and make one ill and hence at that state the sentence must be commuted. All in all, the concept of death penalty and its commutation is not a one-size-fits-all concept and it needs to be decided on the examination of the facts unique to each case.
- https://www.satp.org/satporgtp/countries/india/document/actandordinances/Tada.htm#:~:text=(2)%20Where%20any%20person%20is,where%20such%20trial%20ends%20in 120-B IPC
- https://indiankanoon.org/doc/1540253/ 326 IPC
- https://indiankanoon.org/doc/724142/#:~:text=%E2%80%94Whoever%2C%20except%20in%20the%20case,poison%20or%20any%20corrosive%20substance%2C 324 IPC
- https://indiankanoon.org/doc/455468/ 307 IPC
- https://indiankanoon.org/doc/1011035/#:~:text=323.,thousand%20rupees%2C%20or%20with%20both. 323 IPC
- https://indiankanoon.org/doc/1517318/#:~:text=%E2%80%94Whoever%20commits%20mischief%20by%20fire,be%20punished%20with%201%5Bimprisonment 436 IPC
- https://indiankanoon.org/doc/556166/#:~:text=468.,also%20be%20liable%20to%20fine. 468 IPC
- https://indiankanoon.org/doc/767287/ 313 CrPC
- https://indiankanoon.org/doc/1008926/ Article 72 of the Indian Constitution
- https://indiankanoon.org/doc/873751/ Article 161 of the Indian Constitution
- [i] https://indiankanoon.org/doc/307021/ Bachan Singh v. State of Punjab
- [ii] https://indiankanoon.org/doc/545301/ Macchi Singh v. State of Punjab
- [iii] https://indiankanoon.org/doc/1656850/ Ramdeo Chauhan case
- [iv] https://indiankanoon.org/doc/1166797/ Sher Singh v. State of Punjab
- [v] https://indiankanoon.org/doc/751831/ Triveniben v. State of Gujarat
- [vi] https://indiankanoon.org/doc/59968841/ Shatrughan Chauhan v. Union of India