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Succumbing to the bogey of fear -Anup Surendranath
-The Hindu


In the Bhullar case, the Supreme Court has created a category of ‘terrorists' among those sentenced to death without providing a constitutional basis for it

Writing on extra-judicial killings in the Economic and Political Weekly in March 1996, K.G. Kannabiran narrated a very interesting anecdote from his experience on the Civil Rights Committee appointed by Jayaprakash Narayan to investigate fake encounters orchestrated during the Emergency against naxalites. While interacting with people in Giraypalli village (where some of the killings had taken place), Kannabiran suggested to them that the killing of four naxalites by the police was perhaps justified by the fact that the naxalites had killed a local moneylender. Kannabiran recollected an "undernourished, half-naked shepherd" replying, "sir, what are the courts there for?"

Kannabiran contrasted the nuanced response of the shepherd to a question posed by four young advocates in the Bar Association at the Andhra Pradesh High Court the very same day. In response to their question why naxalites should be given the protection of the very Constitution whose legitimacy they deny, Kannabiran's reply was "their parents had wasted hard-earned money on educating them."

Not nuanced

Unfortunately, the argument of the four young advocates also lies at the heart of the decision by a two-judge Bench of the Supreme Court in Devender Pal Singh Bhullar v. State of N.C.T of Delhi. The Supreme Court in Bhullar was asked to decide whether a delay in deciding a mercy petition under Articles 72 or 161 of the Constitution would, by itself, be a sufficient ground for commuting a sentence of death to life imprisonment. There were many ways in which the Court could have decided that central question but what is on display in its judgment is certainly not a rigorous and nuanced constitutional reasoning. In paragraph 40 of the judgment the Court holds the jurisprudence developed by earlier judicial decisions, that undue delay could be one of the factors that leads to commutation, to be inapplicable for those sentenced to death under TADA and similar anti-terror legislation. In effect, the holding of the Court is that undue delay in execution has no impact on the death sentence for ‘terrorists' but has constitutional relevance for everyone else sentenced to death. The Court sees a paradox in ‘terrorists' seeking mercy under the Constitution when they showed no mercy themselves. The Court of course offers no reasons for viewing that as a paradox while adjudicating constitutional rights or why that very same consideration does not apply to non-terrorists sentenced to death. Apart from invoking rhetoric that is familiar to us from shallow television debates, the Supreme Court's decision in Bhullar raises significant constitutional concerns and is difficult to reconcile with its earlier decisions.

A belief in the values protected in the Indian Constitution is not a condition precedent to invoking the protections contained therein. Nor is an active denial of the legitimacy of the Constitution a ground for denying constitutional guarantees. It is the very basis for a rule of law society and a Constitution would be meaningless if it were to be otherwise. In that context, it is surprising that Justices Singhvi and Mukhopadhaya view mercy petitions and the claim for commutation due to delay as a paradox when filed by ‘terrorists.' The only reason the judgment provides for viewing it as a paradox is the nature of the acts committed by the ‘terrorists.' In the judgment there is no critical engagement with problematic trends in prosecutions under various anti-terror laws and the abuse of such legislation. What seems to be in play is the rather un-nuanced assumption that all those who are sentenced to death under anti-terror legislation are these evil individuals who planned, plotted and executed mass murder. Even a cursory glance at the convictions under anti-terror legislation will show that the sentence of death is imposed for far less.

The judgment invokes the imagery of terrorists killing hundreds of innocent civilians, police personnel and soldiers losing their lives, waging war against the state, using bullets, bombs and other weapons for mass murder, demonstrating complete lack of respect for human life and utter disregard for the extremely tragic consequences for the kin of the people they kill. All of those images are true of India's struggle against terrorism but none of that justifies the conclusion of the Supreme Court that undue delay in execution has no constitutional significance for ‘terrorists' sentenced to death. The Supreme Court does admit that undue delay in execution is a relevant factor for commutation in all cases other than terrorism. What the judgment fails to do is show us the constitutional basis for such a distinction. For large sections of our society, acts of terrorism might come attached with a much higher degree of moral abhorrence than other crimes that attract the death penalty, but the judgment provides no reason why this popular sentiment must find its way into constitutional reasoning.

A rather obvious constitutional concern is the basis on which the Court has drawn a distinction within the category of individuals who have been sentenced to death. In reaching the conclusion that undue delay in execution is irrelevant while considering commutation of death sentences of ‘terrorists,' the Court had the obligation to demonstrate why ‘terrorists' must be placed in a worse-off position compared to other death row prisoners. The larger issue is the impact of the undue delay in execution on death row prisoners as such.

The Court needed to do at least one of two things to establish the distinction that it has ended up making: i) show that the ‘terrorists' on death row are not in the same category as others on death row and by virtue of that are entitled to lesser constitutional protection in the context of undue delay, or ii) show that the physical and mental effects arising from undue delay in execution impacts ‘terrorists' differently when compared to others on death row. Clearly, the Court has not chosen to go with the second option because that is an impossible argument to make. That argument would take us very close to the dangerous argument that ‘terrorists are not human beings' and the Court is not willing to bite that bullet. It chooses to base its reasoning on the first option and does so without sufficient constitutional rigour. It lacks constitutional rigour because the Court ends up creating a super-category of ‘terrorist' death row prisoners within the larger category of all death row prisoners. It is a category unknown to Indian constitutional law and criminal jurisprudence. Indian death penalty jurisprudence and the judicial decisions on the effects of undue delay on death row prisoners do not recognise any such different category within death row prisoners. All death row prisoners, irrespective of whether they are ‘terrorists' or not, are deemed to have committed ‘rarest of rare' crimes. And once that is established, they are subject to the same deprivation of liberties and protection of the Constitution as everyone else on death row.

Three cases decided by the Supreme Court before Bhullar are relevant to the discussion on the impact of undue delay in execution for commutation. In T.V. Vatheeswaran v. State of Tamil Nadu (February 1983), Justices O. Chinnappa Reddy and R.B Misra held that a delay in execution of the death sentence beyond two years would entitle the death row prisoner to a commutation under Article 21. However, in March 1983, a three-judge bench of the Supreme Court in Sher Singh v. State of Punjab over-ruled Vatheeswaran on the limited point that it was not possible to lay down a rigid time period after which undue delay in execution would entitle a death row prisoner to commutation. The judgment in Sher Singh was clear that undue delay in execution would continue to be one of the important factors and along with that the Court would also look into the nature of the offence, impact on contemporary society, motivation of the crime, etc., before finally deciding the issue of commutation. A five-judge bench in Triveniben v. State of Gujarat (February 1989) confirmed the ruling in Sher Singh and held that undue delay in execution would not, by itself, entitle a death row prisoner to commutation.

Precedent misapplied

The judgment in Bhullar misapplies these precedents because the ruling in the cases is used to come to the conclusion that undue delay in execution cannot be taken into consideration for those convicted under anti-terror legislation. The judgments in Sher Singh and Triveniben require that every claim for commutation is considered in its particular context and within the framework of the relevant considerations. It strongly reinforces the need for individualised consideration and certainly does not support the conclusion that undue delay in execution is an irrelevant factor for a certain category of death row prisoners. The Court found the two-year rule in Vatheeswaran to be problematic because it did not allow for individualised consideration and the judgment in Bhullar commits the same error by taking away undue delay as a relevant factor for all ‘terrorists' sentenced to death.

If one were to go by what Justices Singhvi and Mukhopadhaya state in the last line of paragraph 40 of the judgment, this article might well be joining "the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights." The extremely strong suggestion that the cause of protecting the constitutional rights of ‘terrorists' must not be espoused is unbecoming of the Supreme Court of the world's largest democracy. Irrespective of whether one subscribes to the extremely conservative opinion of the Justices on protecting the human rights of ‘terrorists', the above analysis demonstrates the constitutional infirmities with the opinion in Bhullar.

(Anup Surendranath is an Assistant Professor of Law at National Law University, Delhi)