PENALTY

a police officer inadmissible 31 —an implicit acknowledgment of the
prevalence of torture and coercion during investigation. But anti-terror
laws make confessions to a police officer admissible, so long as
the police officer is of a certain rank, the presumption being that
high-ranking officials will not be complicit in torture. 32
Disturbing decisions may result from the process. Illustratively,
Devinder Pal Singh Bhullar’s petition for clemency was rejected
by the President on 8 May 2011. 33 Bhullar’s wife then moved the
Supreme Court seeking commutation on the ground of delay and
because, while in prison, he had become mentally ill, and in keeping
with human rights norms, a person with mental illness should not be
executed. On 12 April 2013, a bench of the Supreme Court refused
relief, holding that the factor of delay in execution was inapplicable
in situations where the conviction was under the terrorism law or
similar statutes. 34 The court refused to accept the document on his
mental health condition, saying that it did not convince the court that
the convict was of unsound mind sufficiently to halt execution. On
31 March 2014, this decision was categorically set aside by a larger
bench of the Supreme Court, 35 but not before the vagueness in the
application of the law was revealed.
It seems clear that anti-terror laws are made in political contexts that
are invariably weighted against a distinctive community of people. In
1985, militancy in Punjab led Parliament to enact the anti-terrorism
law. People tried under this law were almost invariably Sikhs. And the
carrying out of the sentence of death could be understood to serve
the symbolic purpose of establishing that the state was dealing with
31 See Arup Bhuyan v. State of Assam judgment dated 3 February 2011, available from www.
indiankanoon.org/doc/792920/.
32 This provision, Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, which
makes admissible confessions made to a police officer, was upheld by the Supreme Court in
Kartar Singh v. State of Punjab in judgment dated 11 March 1994, reported in (1994) 3 SCC
569 even as, p. 687, paragraph 250.
33 For a brief setting out of the circumstances of Bhullar’s case, see Usha Ramanathan, “Futile
penalty”, Frontline, 25 August-7 September 2012, available from www.frontline.in/navigation/?-
type=static&page=archive.
34 Devinder Pal Singh Bhullar v. State of NCT of Delhi in judgment dated 12 April 2013, available
from http://judis.nic.in/supremecourt/imgst.aspx?filename=40266.
35 Navneet Kaur v. State of NCT of Delhi in judgment dated 31 March 2014, available from
http://judis.nic.in/supremecourt/imgst.aspx?filename=41363, exercising its “inherent jurisdiction.”
This is in the nature of a power given to the Supreme Court in the Constitution, Article 142,
for “doing complete justice.”
terror. Jinda and Sukha, who were tried and executed for the murder
of General Vaidya, were convicted on the basis of their alleged confessions.
36 They refused to appeal the decision, seeing their executions
as their martyrdom. Rajoana, convicted of the assassination of the
ex-Chief Minister of Punjab, has refused to appeal or claim clemency,
writing to the Chief Justice of the High Court that “the legal system,
judicial system of this Country and the rulers of this Country have
been discriminating” and that “slavery of such system is not acceptable
to me.” 37 That the death penalty has been counterproductive
in dealing with terrorist crimes is evident. Years after militancy in
Punjab had reached a quietus, the death sentences given to these
prisoners only served to reopen wounds.
The 1985 anti-terrorism law was applied in dealing with the aftermath
of the assassination of former Prime Minister Rajiv Gandhi in
May 1991. A total of 26 people were tried for the crime in a special
court; all 26 were convicted and sentenced to death. The Supreme
Court later acquitted 19 of the 26 of the capital offence. One person
was acquitted altogether, and 18 others were convicted of lesser
offences and released soon after the case concluded. The sentence of
death was confirmed for four of the prisoners. 38 None of the accused
who stood trial were at the core of the conspiracy. Till 17 May 1991,
the court observed in its judgment, only three people—Sivarasan,
Subha and Dhanu—knew the object of the conspiracy, which was to
kill Rajiv Gandhi. One of them was the suicide bomber, who died
on the spot; all three were dead before they could be sent to trial. The
four people, one woman and three men, who were given the death
sentence, were peripheral participants at best. Perarivalan, for instance,
was convicted of having purchased a 9-volt battery used in the explosive
device that killed Rajiv Gandhi. His knowledge, according to the
court, was that a 9-volt battery can be used to detonate an explosive
device; and, although the court did not attribute knowledge of the
crime to any of the accused before 17 May 1991 (the assassination
36 State of Maharashtra v. Sukhdeo Singh judgment dated 15 July 1992, available from http://indiankanoon.org/doc/1824507/.
37 Ruchi Gupta, “Why Balwant Singh Rajoana never appealed his death sentence”, Times of
India, 29 March 2012, available from http://timesofindia.indiatimes.com/india/Why-Balwant-
Singh-Rajoana-never-appealed-against-his-death-sentence/articleshow/12458451.cms.
38 State through Superintendent of Police, CBI/SIT v. Nalini judgment dated 11 May 1999, reported
in (1999) 5 SCC 253.
162 163