Differing with his brother judges, Justice M.B. Shah had actually voted to acquit Bhullar
His plea for mercy on the grounds of delay may have been rejected by the Supreme Court last week but there is one more argument his lawyers can make in their final push to save Devender Pal Singh Bhullar from the gallows: the two judges who confirmed the death sentence in a 2:1 split verdict delivered in his original appeal before the Supreme Court on March 22, 2002 had indeed wanted the President to commute his death sentence.
Despite showing no mercy on Bhullar themselves, Justice Arijit Pasayat and Justice B.N. Agrawal directed that the President should consider his mercy petition after seeking a report from the Presiding Judge of the Supreme Court, which confirmed his conviction and death sentence. The Presiding Judge was Justice M.B. Shah, who had differed with his brother judges on the Bench not just on the death sentence but on the very question of guilt: in his dissenting opinion, he had actually voted to acquit Bhullar.
While Justices Pasayat and Agrawal found no merit in Bhullar’s plea that his ‘confession’ on the basis of which he was sentenced to death by the trial court was neither voluntary nor true, the dissenting Presiding Judge, Justice Shah, had concluded that there was nothing on record to corroborate Bhullar’s confessional statement, and that when the co-accused who were named in the confessional statement were not convicted or tried, this would not be a fit case for conviction solely on the basis of such a statement recorded by a police officer.
In Paragraph 60 of the majority judgment, Justice Pasayat said: “However, a question arises as to the effect of Brother Shah, J. holding the accused (Bhullar) innocent, while deciding the question of sentence. Observations made by this Court in Ramdeo Chauhan v. State of Assam ((2001)5 SCC 714) are relevant. It was inter alia observed as follows: (SCC pp.749-50, paras 56-59)....”
Justice Pasayat went on to reproduce Paragraphs 56, 57, 58 and 59 of the judgment in Ramdeo Chauhan and concluded in Paragraph 61: “The principles set out above have application to the present case.”
This makes the case of Ramdeo Chauhan — which went through various twists and turns before ending in commutation — of direct and immediate relevance to the question of whether Bhullar’s death sentenced should be commuted to life.
Chauhan was found guilty of killing four persons of a family. His appeal against the death sentence was heard by a two-judge Bench comprising Justice R.P. Sethi and Justice K.T. Thomas, which dismissed it on July 31, 2000.
Chauhan’s review petition was admitted on the ground that his claim of being a juvenile during the commission of the crime was not heard earlier. This was decided by a three-judge Bench comprising Justice Sethi, Justice Thomas and Justice S.N. Phukan on May 10, 2001. Justice Sethi dismissed his review petition. Justice Thomas dissented and commuted his death sentence to life imprisonment.
Justice Phukan agreed with Justice Sethi, but added that the factors which weighed with Justice Thomas could be duly taken note of in the context of Section 432(2) of the Code of Criminal Procedure (Paragraph 59, which was reproduced by Justice Pasayat later). Justice Phukan, on whose concurrent judgment Justice Pasayat relied, was clear that under Section 432, the government can revise the judgment of the Court, and remit the sentence of death, and that a remission of sentence does not mean acquittal.
Section 432(2) of the Code deserves to be reproduced verbatim:
“Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.”
In a recent judgment in Sangeet v. State of Haryana, the Supreme Court found this statutory procedure quite reasonable in as much as there is an application of mind to the issue of grant or refusal of remission.
In January 2002, the then Governor of Assam commuted Chauhan’s death sentence to life imprisonment on the intervention of National Human Rights Commission. In May 2009, the Supreme Court struck down the commutation of Chauhan’s death sentence saying the Governor’s order was not reasoned, and that the NHRC had no locus to intervene in the matter. However, in a judgment delivered on November 19, 2010, the Supreme Court reversed its ruling, and found that the NHRC was well within its mandate to intervene even after the Supreme Court had confirmed the death penalty, and upheld the Governor’s decision to commute Chauhan’s death sentence to life imprisonment.
Coming back to Bhullar, the Bench comprising Justice Shah, Justice Pasayat, and Justice Agrawal agreed to hear his review petition at length, and gave an equally reasoned set of two separate judgments. On December 17, 2002, Justice Pasayat dismissed the review petition, holding that just because one of the three Judges had dissented could not be a ground for reopening the case. Justice Shah, on the contrary, held that his dissent only showed that the case was not the rarest of rare, and therefore, Bhullar’s death sentence could be commuted on this ground alone, even if the finding of Bhullar’s guilt could not be altered because of the majority verdict.
Justice Shah and the other two judges have since retired from the Supreme Court. The government could well have come under legal compulsion to accept Bhullar’s mercy petition, had it sought Justice Shah’s opinion, and reasoning under Section 432(2) of the Cr.P.C, and as directed by the majority judges in the case in 2002.
It is clear from the mercy petition files obtained by RTI activist Subhash Agrawal in 2011 that the former President, Pratibha Patil, and the then Home Minister, P. Chidambaram, both ignored the clear direction of the Supreme Court to invoke Section 432(2) of the Cr.P.C. while considering Bhullar’s mercy petition. Ms. Patil rejected Bhullar’s mercy petition on May 25, 2011 on the basis of the Ministry of Home Affairs’ recommendation.
Ms. Patil’s predecessor, Abdul Kalam, too had received MHA’s recommendation to reject Bhullar’s mercy petition on July 11, 2005. Dr. Kalam, who did not act on the recommendation till the end of his tenure — apparently because he disagreed with it — also appeared to have missed the significance of this direction of the Supreme Court.
Bhullar’s lawyers challenged Ms. Patil’s rejection of his mercy petition in the Supreme Court on the ground that there was inordinate delay, which made him eligible for commutation. Inexplicably, his counsel did not find it necessary to challenge the President’s failure to follow the Supreme Court’s direction to invoke Section 432(2) of Cr.P.C. The Supreme Court’s April 12 judgment, which dismissed Bhullar’s petition against the President’s rejection, also conveniently avoided this question.
Ironically, this is one aspect of Bhullar’s saga for justice which has the potential to secure commutation of his death sentence, and would be consistent with the Supreme Court’s 2002 split judgment in his case.