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TRUTH   JUSTICE   FREEDOM

BASIS:
PROOF BEYOND REASONABLE DOUBT A GUIDELINE NOT A FETISH
PROCEDURE IS THE HANDMAIDEN NOT MISTRESS OF LAW
EVIDENCE:
AN ALLEGED FABRICATED CONFESSION ON BLANK PAPERS SIGNED UNDER TORTURE AND THREAT OF DEATH


Davinderpal Singh Bullar
The sentence of death was upheld in August 2002 by majority of the Supreme Court of India, on 42 year old Professor Davinderpal Singh Bhullar. The case against him is based on an unsubstantiated confession allegedly obtained under torture and threat of death. Despite this the two judges who upheld the death sentence have found this confession admissible. The presiding judge of the three-judge bench however acquitted the accused, finding that he was not guilty of participating in the 1993 car bomb attack in New Delhi targeting the then Youth Congress leader M S Bitta and too much doubt remained on the authenticity of the alleged ‘confession’ to the police. However, in stark contrast, the other two judges convicted him arguing, extraordinarily 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.”

Virtually every legal system around the world is based on ‘proof beyond reasonable doubt’ and respects procedures to obtain ‘safe’ evidence. The Supreme Court of India seems to have departed from these in the most important of all cases, that of death penalty, thus setting a new precedent for Indian law. While the leading Judge, Justice M B Shah concentrated on the facts of the case in acquitting him, Justice A Pasayat chose political rhetoric to find Davinderpal Singh guilty, resulting in contradictory arguments and judgements. Justice Shah went on to say that Davinderpal Singh could not be found guilty of conspiracy as this would require by definition that he conspired with another and as others named in the confession statement are acquitted, it is impossible for him to conspire with himself. He was also not convinced by the authenticity of the confession. Contrary to procedure, the confession was neither handwritten nor recorded but typed on a computer on which it was not saved.

In cases of a split decision, the death penalty is not handed down. However, while Mr Bhullar’s case was being considered by the Supreme Court, Kashmiri militants attacked the Lokh Sabha (the lower house of the Indian parliament) on 13th December 2001.Many observers believe that heightened rhetoric about the threat of “terrorism” in India and a hardening of government views and policies may have influenced the judges’ decision.

Case facts and commentary:

Facts
Mr Bhullar has been in prison for the last 12 years since being arrested upon arrival after being deported to India following an unsuccessful asylum application in Germany in January 1995. Mr Bhuller whose best friends were killed and father was disappeared by the Punjab police in 1991, and whose family was repeatedly harassed, went to Germany in December 1994 to seek political asylum. The immigration authorities returned him to India but in his absence a Higher German court overruled the decision.
Mr Bhullar was arrested, detained and tried under the Terrorist and Disruptive Activities (Prevention) Act (TADA), which is no longer in force. The United Nations condemned these laws as “disturbing and completely unacceptable.”

Witnesses
The case against him is based on information that is highly dubious. No corroborative evidence has been offered by the prosecution. None of the 133 witnesses produced by the prosecution identified him, many witnesses claimed he was not the man they had seen.

Evidence
On being handed over to the Indian police in Delhi by airline staff, Mr Bhullar was taken into detention. The police allege that he volunteered a confession, which was typed on a computer while Mr Bhullar spoke but according to the authorities the secretary forgot to save the confession on the computer. TADA requires the confession to be handwritten or an audio/video record of it to be kept. The authenticity of typed confessions is doubted in the courts.
Mr Bhullar argues that he was made to sign on blank pieces of paper, which were later filled by a statement written and typed in by the police, under threat that if he did not sign he would be terminated by the Punjab Police in a false encounter, which is a very real threat. His own father had been disappeared by the Punjab police. Amnesty International has stated “Since 1983…scores of those arrested have been tortured to death or have otherwise been deliberately and unlawfully killed in Custody…while others have simply “disappeared”, the security forces refusing to acknowledge that they had been arrested.”

Court Proceeding
Mr Bhullar was then taken before an ‘executive’ magistrate (appointee of the government). TADA requires the confession document be sent to the magistrate before appearance of the person so that the magistrate is in a position to examine it. The confession document was not sent to the magistrate nevertheless the magistrate went on to ask him if he had made the confession. According to Mr Bhullar, he was forewarned by the police that he would be eliminated by the Punjab police if he said anything other than yes. The Delhi police transferred him to the infamous Punjab police for 2 months. The Punjab police is notorious for extra-judicial executions and torture. The Supreme Court itself has granted people the protection of the Central Reserve Police Force, against the Punjab police.

Mr Bhullar wrote to the court at the first opportunity of release from Punjab police custody to judicial custody, claiming that the ‘confession’ was involuntary and obtained under torture and fear of death. There has been no recovery of any incriminating evidence against Mr Bhullar and there has been no identification by any individual of the accused in connection with this case.

Mr Bhullar was examined by a police assigned medical doctor. Although a highly educated man, Mr Bhullar’s medical examination document is co-signed by him by a thumb print. Upon his alleged confession Mr Daya Singh Lahoria a second defendant in the case was acquitted because the only evidence against him was Mr Bhullar’s confession which could not be relied upon in the case.

Legislation
TADA was a controversial law that was not only contrary to international law, but considered to be unconstitutional by some authorities. Although allowed to lapse under international pressure, cases predating its lapse are still tried. TADA was strongly condemned by the United Nations and virtually every international institute that examined it. In it the burden of proof is transferred to the accused. Designated courts under TADA are the only courts in which a confession made to a police officer is admissible evidence, this deviates from the Indian Evidence Act sections 25 and 26, under which confessions made to police officers are not admissible. The procedures laid out in TADA resulted in 76,000 detentions, less than 1.8% of which actually reached conviction, despite this highly extraordinary rate of failure, the Supreme Court of India has relaxed these procedures further.
Despite being a signatory to the Convention Against Torture, which is yet to be ratified by India, it is well known that torture remains a pervasive and daily practice in every one of India’s 25 states, as acknowledged by Amnesty International, Human Rights Watch and the State Department (US). This was made even more apparent by the statement of Nigel Rodley (UN Special Rapportuer on Torture) that “torture is endemic in India.” The Chahal case brought this very fact to the attention of the European Courts where the Judges unanimously considered that human rights violations in India were gross enough to stop Mr Chahal being sent back there by British authorities saying that while they respected the assurances of the Indian authorities to treat him according to law, they could not rely on them.

In order to come to a safe decision in any criminal case the court must find the facts, evidence and witnesses collaborating beyond reasonable doubt, however these most basic legal rules have been suspended by the Supreme Court of India in the case of Mr Bhullar.

While he was waiting for the death sentence, Mr Bhullar was convicted of other charges by the Punjab Police. However on the 1 December 2006 in the Chandigarh and Haryana High Court the judge acquitted Mr Bhullar on the basis of lack of evidence. Sh R.S. Baswana Addional Sessions Judge held that their was no evidence on file to link the accused with the other alleged crimes and despite the fact that the prosecution had 15 years to gather evidence against Mr Bhullar, they were unable to produce evidence linking Mr Bhullar to the case against him.

Irrespective of this Mr Bhullar has been sentenced to death by execution. Mr Bhullar’s only hope of clemency now lies with the Indian President, A J P Abdul Kalam, under article 72 of the Constitution of India. 

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