Do Judgments Need to Speak ?

(By P. Deepak, Advocate, High Court of Kerala)

‘Why do we call a bench of two judges a “division bench”?’The old counsel stifled a yawn and turned aside to confront the speaker. The whirr of the several pedestal fans placed along the side passages of the massive court hall was sleep-inducing and he had just snuggled deep into his uncomfortable chair and stretched his stiff knees with the smug certainty of an experienced hand that the immense bulk of the leaned counsel spilling over on all sides in the chair in front of him would shield him from the over-reaching judicial gaze. The query came from his keen and intrusive junior who had a knack of coming up with the most uncomfortable questions. He resented the intrusion and was on the point of chiding the boy in no uncertain means for having disturbed his peace when he realized that he did not know the answer himself.

Long forgotten mathematical operations whizzed through his mind. If a bench comprising a solitary judge is a ‘single bench’ he wondered how a bench comprising two judges could be a ‘division bench’. Why not a ‘double bench’ like a ‘double fault in tennis? Only stands to reason, he reflected. He was certain that one plus one equalled two. But that was ‘addition’ and not ‘division’. The junior was looking into his face searchingly for enlightenment and the old counsel realized that he had to come up with something really good lest the halo of a ‘know-all’ carefully spun around him would be ruptured irretrievably. He had to save his face.

‘Listen boy’, the old counsel began hesitatingly, ‘when you divide a thing wouldn’t you not get more than one of that thing?’ The junior agreed that this was definitely the case. His keen analytical mind conjured up the scene of breaking a stick down the middle which leaves one with two sticks. ‘Therefore’, the old man continued gathering courage ‘when you have two judges sitting together they constitute a “division bench”. The extreme note of finality and emphasis with which he finished the last sentence quelled whatever other queries that were beginning to burgeon within his junior. The old man closed his eyes and congratulated himself on his narrow escape.

‘Sir’, his junior’s hoarse whisper stirred him again. ‘Now what, the old counsel asked in a plainly annoyed tone. ‘Sir, I have been watching the proceedings all day, I am yet to see the junior judge put in a word edgeways.’ The old counsel was impressed. His junior appeared to be learning fast. The old man raised his head to scrutinise the scene being acted out on the judicial pulpit. The senior judge was frisking the papers, dictating judgment and tearing into counsel, all at the same time. Beside him sat his companion judge silent as a tomb with a beatific smile wreathed across his dazed face. Every now and then he would steal a glance at his elder brother, who, obviously oblivious of his presence, went about his business with extreme gusto.

The old man smiled. He was only too aware that his explanation of a ‘division bench’ had not gone down as convincingly with his junior as he would have liked. Now he chanced an opportunity to further dilate on his theme. The old counsel took a huge breath and concluded with a flourish- ‘Now, you know why it is called a ‘division’ bench and not a ‘double’ bench. The sum total of the effort of two cannot and should not exceed that of one.’ The junior was plainly too dazed at this ratiocination. The old counsel finished with a sigh and rose to go.

The slanting rays of the late afternoon sun streaked the empty corridors as the old counsel made his way to the stairway. He halted in midstride and listened to the sounds that came from a disused court hall. He peered inside to see men scurrying around arranging chairs and cross-checking the acoustics. He wondered whether the court hall was being readied for a new master. The bench strength had dwindled considerably by the recent spate of retirements and transfers and time was ripe for injecting some new blood. But the old counsel was sceptical about any tangible decision being taken by the present judicial conclave. His eyes wandered skyward searching for indications of any ‘white smoke’ emanating from the rooftops to signal anything to the contra. He peered closer into the hastily readied hall. It resembled more of a media-centre, a place for press-briefings, than a sombre court hall. His fingers unconsciously rummaged the cavernous pockets of his weather-beaten coat and touched the morning paper secreted inside. Pulling it out he read for the second time that day the unenviable plight of a judge of a neighbouring court ‘explaining’ and ‘clarifying’ to the media the sub­text of the judgment delivered by him the previous day and which had invited very unsavoury comments on the social network.

Perhaps, the old man reflected, the room was being readied for holding press-briefings where their lordships would, for the benefit of the media, explain and clarify their judgments before going to press. An interesting thought flitted through his mind—Very soon, he mused, the registry might insist that the memorandum of appeal shall be appended not only with a certified copy of the impugned judgment but also authenticated transcripts of the press-briefings given by the concerned judge ‘explaining’ and ‘clarifying’ his judgment. The appellate bench would then, undoubtedly, have the luxury of considering not only what the learned judge actually recorded in his judgment but also what he actually meant while recording the same. So much for language being a channel for communication!

The old counsel remembered reading somewhere that in the United States of America camera access to court room proceedings is permitted with the objective of promoting transparency, fairness and public awareness of the working of the judicial system. As far as he could say there was no express constitutional or statutory interdict against adopting such a procedure. In such a scenario, the old man reflected, the day would not be far away when learned counsel would insist on all court-halls being wired with close-circuit television to record the proceedings in the court room. Definitely not actuated with any lofty ideals of transparency or fairness; rather, to have digital recordings of the submissions and contentions urged by them during the course of hearing. It was only fair, the old man thought, that the judges, after having heard counsel and reserved judgment, while pronouncing judgment months (years?) thereafter, do not lightly gloss over inconvenient contentions or a fickle memory with that one liner- ‘No other points were urged or canvassed’. Along with the memorandum of appeal video footage of the proceedings in court can be appended to assail any such finding.

In the above scenario, reflected the old counsel, the law laid down by the Apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. ((1982) 2 SCC 463) and followed up to the present day that as regards what transpired at the time of hearing the record in the judgment of the court is conclusive of the facts so stated and cannot be contradicted on affidavit or by other evidence can then be safely consigned to flames. He moved on whistling under his breath that old Dylan strain.....’ if your time to you is worth savin’ then you better start swimmin’ or you will sink like a stone for the times they are a-changin!’

Judgments will cease to speak!

A Catena of Rulings for Reference

(By N. Subramaniam, Advocate, High Court of Kerala)

1. Equality and Arbitrariness are sworn enemies. 

2001 (1) Maharashtra Law Journal 63 (Para 6), Gulb v. Exe. Engineer (T.K. Chandrasekhar Das J.)

2. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial consciousness.   (AIR 1993 SC 1048, (Hotel Balaji v. State of A.P.) Para 10 Extract.(AIR1985 SC 1587 at 1587).

3. There is nothing called “Mild Lunatic”   (1996) 1 SCC 720= AIR 1996 SC 1002. (Karumanda Gounder v. Muthuswamy Gounder).

4. Rule of man should not be allowed to prevail over rule of law. (1998) 3 SCC5, ILR 1998 Kar. 1421 FB) (Central Board of Secondary Education v. Nikhil Gulati.)

5. Judgment of a court should not be interpreted as a statute  (AIR 2008 SC 2187 Para 19. (Dadudayal   Maha Sabha v. Mahant Ramnivas)

6. Court has to say under what section the court passes an order. Simply stating about the plaint and direction to pay additional court fees is not sufficient. CRP 1073 of 2007 dt. 26.6.2008 (M.Sasidharan Nambiar J. ) (unreported)((Minita Daphane Nitto v. Margaret Benedict Rodrigues)

7. Knowledge to counsel is knowledge to party. (2005) 7  SCC 300)  Para 11. (Damodaran Pillay v. South Indian Bank). But this principle is not applicable to a petition filed for setting aside an ex parte order. (2008) 7  SCC 663 (para 25) Rabindra Singh v. Financial Commissioner.

8. If order is pronounced in the presence of  both sides it is enough. It is knowledge to party. (1994 (1) KLT 82=1993(2) KLJ 1057, Selvi v. Nataraja Mudaliar ( 1992(2) KLT 206 = 1999(2) KLJ 216)  Moorthy v. Ramachandran.

9. There can be a lease without consideration (AIR 1947 Cal. 440, [Rabindranath v. Jog Joban), AIR 1925 Nagpur 90 at 92.(Amarchand v. Sardar Singh)

10. Principle that “King can do no wrong” is not applicable in India. (2000) 3 SCC 195) (paras 17,20).

11. The Counsel for a party echos the Cride Coeur of his client (case of client) the warp and woof of the same (2013 (1) MLJ 426 para 2). M. Murugan v. D. Shanmugham.

12. Decreeing a suit on basis of assertions in plaint even if there is no rebuttal or contra evidence is illegal. Plaintiff has to prove his assertions (2012) 5 SCC 611 - M. Ramachandrappa v. C.C. Chandra Gouda).

13. Long standing and constitutionally affirmed decision or concepts are presumed to be settled and must be accepted. Not proper to depart (1995) 6 SCC 326 (B),  1993(1) KLT 619 = 1993 (1) KLJ 603), S.M. Thirumala Dewaswam v. Land Tribunal ( 1994) 4 SCC 8 para 4, AIR 1992 SC 2003).

14. Stay of execution of decree can be obtained in anticipation of execution, even if appeal is filed but not registered.(AIR 1933 Bom.118 at 121,(Lakshmanan v. Shidhar) AIR 1952 All. 682 at 686,(Dhusia v. Mohd. Tasa Dduq Husain) 41 Cal. Weekly Notes 374.

15. Initials as against full signature is legal. (Endorsement in pronote). (AIR 1957 Mad. 8 (para 33), Meenakshy Achi v. P.S.M. Subramaniam Chettiar.

16. Undated Medical Certificate is not acceptable in evidence unless the doctor who issued the Medical Certificate is examined. (ILR 2011 Kar. 2763), (Section Officer Hescom Ltd. v. Parawwa).

17. In some courts in Kerala, some time plaints, written statements, affidavits, interlocutory applications are not seen dated. If these are not dated, they need not be received by court. (2011(3) KLT 91 (K.T. Sankaran J.), Maya R. Nair v. Chirayil A.S. Krishnan).

18. Details of Registers to be kept in Registry Office. Rule 14 of Kerala Registration Rules. Appendix I

Book No.l - Registration of non testamentary documents relating to immovable property.

Book No.2 - Record of reasons for refusal to register.

Book No.3 - Register of wills and authority to adopt.

Book No.4 - Miscellaneous.

19. Registration of a document in a particular volume has a bearing on its interpretation whether it is a will or a settlement (1959 KLJ 912  (Ammukkuty Amma v. Krishnan Nair), 1956 KLT 516 (Janaki v. Mathevi Nochi).    

Abolition of Death Sentence - Clarion call Falling on Deaf Ears ?

(By P.Rajan, Advocate, Thalassery)

Fervent plea for removal of death penalty as the severest punishment, from the statutes; resultantly extreme sentence of death, is gathering momentum, of late,  in the length and breadth of the nation; makers being not only Human Rights Activists, Political and Social Groups, even – former Supreme Court Judges too join in the chorus. Death sentence is stipulated as extreme mode of penalty not only in the Indian Penal Code 1860  but in several other enactments which came in to force recently like Defence of India Act 1971, NDPS Act 1985, TADA Act 1987, to name a few. The basic principle to award death sentence formulated by the Supreme Court normally in murder cases is that the case must be ‘rarest of rare’ and the authoritative pronouncement underlining this principle is promulgated by the apex court as early in 1973. Subsequently Supreme Court ruled in another case also that the dictum laid down in the earlier ruling reiterating that the case must be rarest of rare considering the crime alleged and proved ( Bachan Sing v. State of Punjab (1980 (2) SCC 684). Another judgment also fortifying this view is similar in line. (Machhi Sing v.State  (1983 SCC (3) 470). In all these rulings formula for imposing death sentence is identification of guidelines spelled out to hold that the case on hand is rarest of rare. Later on also when the question of awarding or confirming capital punishment arose the earlier reasonings though gained acceptance the term rarest of rare has not lost its elasticity even at present. 

If the available statistics is any indication nearly hundred countries have abolished death sentence and in a nation like India with strong socialistic views and convictions, whether capital punishment is necessary to check escalating number of different types of crimes is the subtle question now doing the rounds. Death Sentence being constitutionally valid,  the sigh of relief for a death row convict hitherto was the President’s pardon under Art.72 of the Constitution of India.  Many persons whose death sentence was confirmed by the apex court invoking this Presidential Power got alteration of their sentence from capital punishment to life imprisonment. Several other condemned prisoners also escaped from the gallows since their mercy petitions submitted before the President of India got delayed to consider. Such delay Supreme Court treated as inordinate and further held that it is a valid ground to commute the death sentence to life imprisonment, then.  This lapse treated as legal issue came for consideration before the Supreme Court,  whether Review as envisaged under Art.72 of the Constitution by the President resulted in delay, is a valid ground for commutation, irrespective of horrendous nature of the crime. Recently, Division Bench of the Supreme Court has held that this is no reason to commute the sentence of death, immaterial the period of delay occurred Devender Pal Singh Bhullar v. State of N.C.T.  of  Delhi ( 2013 (2) KLT 353 (SC)). The President’s power is constitutional responsibility and not a matter of grace or privilege, observed the Court. 

The process of sentencing is a very sensitive exercise of discretion. The present view of the Supreme Court is that life imprisonment means the whole life of the convict as stated in AIR 2013 SC 1163. The question of remission under S.57 of the Indian Penal Code is also not applicable in the matter of life sentence and Governor’s Power under Art. 161 of the Constitution cannot be resorted to for the purpose of remission as the present view stipulates, but the point to ponder is the primary reasons relating to punishment for any offence being multifarious – punitive , preventive, retributive and reformative, rule of existence of legal annihilation be restored. The theory of ‘eye for eye’ is being followed as the basic aspect for awarding punishment in certain countries but desired result by such approach they gained or not is a matter of evaluation of crime occurrences basically. Even now certain courts award death sentence without considering the guidelines repeatedly given by the Supreme Court. In a reported ruling as the facts reveal, the highest court has to set aside death penalty awarded by the Trial Court, confirmed by the High Court as the reason for imposing extreme penalty is that   the offender belongs to a far off State ( 2013 Crl.L.J. 997). Reasoning in short is expression of geographical allergy by the courts, unmindful of the rarest of rare dictum. 

The repeated demand to alleviate capital sentence by social groups is justifiable, worth considering but the opinion being expressed by retired judges, after going public will do more harm than good- needless to say, will send wrong messages. Justice Krishna Iyer and Justice Katju, while serving as Supreme Court Judges were not averse to capital punishment. Such judges after stepping down raise the voice like others regarding matters within the realm of judiciary means questioning the wisdom of the judiciary even if the request is honest.  Populist judges in such circumstances enter in to prohibited provinces and becoming self appointed evaluators of justice dispensation. Such volte- face of one time judges will affect the integrity of the present administration of justice as their opinions will be viewed seriously even for matters of comparison. Sentencing process needs careful evaluation at the trial level itself as plea bargaining system though stipulated is not in practice as the steps are hard to contemplate and resort to. Double life imprisonment being legal considering the charges proved and remission or parole  inapplicable by court’s order, imagine the convict’s prison period irrespective of his age, social status and favourable back ground compared with reasons for the crime.  A person aged 60 or 70 is directed to undergo double imprisonment or without any parole directed to serve life sentence in its strict sense means, his end within the prison walls, no opportunity for any reformation – means sentence is mindless. Resilience of an offender after the crime by continuous incarceration even for few years is possible.  Circumstances led to the crime and of the criminal deserve consideration to award adequate sentence.  Inordinate delay in investigation and disposal of cases is a serious matter and after several years’ agony or anguish an offender getting extreme sentence or any other harsh punishment will only defeat the very purpose of sentencing process  in a modern society. There are persons who after serving sentence persued disciplined life as law abiding citizens. 

It is a misconception that death penalty means achievement of absolute justice. Harbouring for capital sentence- nod for noose need reconsideration at the executive level. Law makers can only be law changers. Regard for moral and social imperative even at the nascent stage of certain laws, candign result without undermining human dignity will lead to better administration of justice. Abolishing death penalty from certain statutes, resorting to alternate punishment method with proper perception, safeguarding the interest of the victims, chance for re-thinking for the crime-doers, no flee-bite sentence,  by speedy trial and deserving punishment  will do better law enforcement by way of trial and punishment instead of sending a person to the gallows after a couple of decades by retaining him in prison as a under trial or a death row prisoner. The axiom every saint has a past and every sinner a future has not lost its sheen even now. 

Protecting The Outer Space Environment

(By Thulasi K. Raj, IV BSL LLB Student, I.L.S. Law College, Pune)

The issue of environmental protection of outer space including the moon and other celestial bodies has been a subject of considerable discourse. The definition of global commons as ‘areas outside the jurisdiction of any nation or group of nations has been applied to a plethora of environments including the high seas, outer space, and parts of Antarctica.₁ The basic premise of commons lies in the term res communes: the idea that these areas are for the benefit of all nations and, as such, every nation shares a common interest in them.₂ The problem of global commons being susceptible to outer space has been addressed on various forums.  Global commons are susceptible to overuse and become, in effect, a target for over exploitation.₃ 

In International Space Law, the Outer Space Treaty₄ and the Moon Agreement₅ govern the legal status of these environments. Article IX of the Outer Space Treaty requires that State Parties conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth.₆ Paragraph 1 of Article VII of the Moon Agreement lays down that States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise.

However, most of the terms used in the above provisions are not adequately defined by the Treaties themselves or any other instrument subsequently. This has affected the enforceability of these provisions to a great extent.  The question is whether International Environmental obligations extend to space law as well. Jurists consider them to be applicable. Article III of the Outer Space Treaty also seem to render support.

It is important to note that the Outer Space Treaty came into force in 1967 before the Stockholm Declaration₇, the first international movement towards environmental protection. However, the provisions of the Moon Agreement of 1979 also do not seem to represent the contemporary environmental concepts. 

States have an obligation to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.₈ based on the principle of sic utere tuo ut alienum. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to areas beyond the limits of national jurisdiction has been laid down in International law by the Rio Declaration₉ The contention that the declarations do not have binding force as per Article 39 (1) of the Statute of the International Court of Justice₁₀ may seem prima facie like an attractive argument. But, this duty has deep roots in customary international law.₁₁ This general obligation has been recognized by the International Court of Justice₁₂ as part of the corpus of international law relating to the environment.₁₃

The imperative need to protect the most essential common property of mankind makes it incumbent₁₄ upon State Parties to not allow activities within its jurisdiction cause harm to lunar environment. These principles of environmental law thus are part of customary international law forming the sine qua non for human survival.₁₅ Moreover, the obligation to avoid harmful contamination of outer space including the moon and other celestial bodies and adverse changes to earth environment, as provided in Article IX of the OST has assumed a binding character as a customary rule of International law.₁₆

In view of growing commercialization of Outer Space by the nations, it is imperative that there must  be an attempt to lay down obligations of space faring nations. It is pertinent to note that the lack of definitions of precise terms used in both the Outer Space Treaty and the Moon Agreement coupled with the absence of guidelines based on environment in International Space Law can lead to damaging consequences, which may be irreparable.

Judgment on Bhullar Needs Reconsideration 

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

“To assert in any case that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good….”                                      -- Albert  Camus

The Supreme Court decision in Bhullar’s case  (2013 (2) KLT 353 (SC)) is a severe setback to the Human Rights movement and the criminal jurisprudence in the country.  Though it would appear as a critique of the Presidential delay in the context of mercy petitions, in essence, it exhibits a shocking rapport with the enthusiasm shown by the political executive for activating the gallows. The judgment calls for a review and reconsideration, especially in view of subsequent pronouncement on 1.5.2013 by which the same bench consisting of Justice Singhvi and Justice Mukhopadhaya commuted the death penalty imposed on Mahindra Nath Das to life imprisonment, on the ground of delay.

It was only recently that Mr.K.T.Thomas, a former Judge of the Supreme Court who was party to the Bench that confirmed the death penalty to the accused in Rajiv Gandhi Assassination case made a public statement that the execution should not be carried out after such a long lapse of time.  It was not a mere gesture of introspection.  The former Judge relied on the reformative ratio in Santhosh Kumar Satish Bariyar’s case (2009) 6 SCC 498).  In Bariyar’s case, the Supreme Court expanded the scope of the judgment in Bachan Singh’s case ((1980) 2 SCC 684) by underlining the need to develop a “principled approach in sentencing” motivated by “the spirit of Article 14 and Article 21”. The Bench noted that the “Constitution prohibits excessive punishment borne out of undue process”. 

Ibsan, in a play, boldly proclaimed that majority is always wrong.  The popular perception of crime and punishment need not necessarily reflect a constitutional or even a humane approach and the Bench in Bariyar’s case rightly said that in such situations, to a good extent, the constitutional role of judiciary would be even “counter majoritarian”.

In my view, the judgment on Bhullar suffers from ten major deficits:-

(i)  The judgment has ignored the ‘error factor’ in the process of conviction. The conviction and sentence on Bhullar was confirmed by the Supreme Court on 22.3.2002. The senior most Judge in the three judge bench, Mr.Justice M.B Shah had even found Bhullar innocent and acquitted him of blame. Though the majority confirmed the conviction and sentence, the minority judgment is a vital and fundamental factor in deciding the question of clemency. There are indications to this effect even in the original verdict on Bhullar (2002). This is probably the soul of the judgment. Not technically, but substantially, a minority view is always an indication of possibility for error in the majority judgment. The minority judgment is relevant in the context of remission under S.432 of the Criminal Procedure Code (Cr.P.C.) as well. The present judgment does violence to the legal principles including the principle laid down in Bhullar’s own case in 2002. Even the majority of judges had held that the dissent by Justice Shah is a relevant material which could be considered by the Government while deciding the question of commutation under Section 432 of Cr.P.C.  This aspect is totally and shockingly overlooked in the present judgment.

(ii) The legality of death penalty or identification of ‘the rarest of rare’ case was not a matter in issue in Bhullar’s case.  But Paragraphs 1 to 8 of the judgment, i.e., 18 out of the 53 pages in the print copy of the judgment contains unwarranted reiterations of the pro-retention precedents. This is unconnected with the basic issue involved in Bhullar- Whether long delay in execution is a reason for commuting death penalty into life imprisonment?

(iii)  On the basic issue, the respective counsels have placed Indian precedents of binding nature and foreign decisions of persuasive value.  (Please see paragraphs 10 to 14 of the judgment).  In the light of T.V.Vatheeswaran v. State of T.N. ((1983) 2 SCC 68),K.P.Mohammed v. State of Kerala (1983 KLT 380 (SC) = 1984 Supp.SCC 684),Javed Ahmed v. State of Maharashtra  (1984) 1 SCC 275,and Sher Singh’s case  (1983)  2  SCC 344),  it was argued that even 8 years’ delay in disposal of mercy petition would constitute a legal ground for commutation of death penalty into life imprisonment.  One fails to understand why the Bench did not follow the decisions cited in the instant case where the accused suffered much longer period of imprisonment, facing humiliating uncertainty which ultimately led to unsoundness of mind.    The judgment does not give coherent or valid reasons for taking a different stand or reaching a different conclusion in the instant case, which on facts, would call for a more sympathetic consideration. 

(iv) If at all there is any reason stated for deviating from the ratio of earlier decisions, it is based on the ‘TADA’ factor.  In paragraph 40 of the judgment the Bench said - "Triveniben’s case and some other judgments (sic, holding) that long delay may be one of the grounds for commutation cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes”.   I am afraid that this is a proposition with enormous Human Right ramifications. Applying this ratio, any political crime which is labelled as a terrorist activity would fall within a new species of ‘rarest of rare’ case and therefore would even cease  to get the benefit of the law declared by the larger benches of the Supreme Court on earlier occasions on the question of commutation.  Conventionally, political crimes were not seen as more brutal than individual crimes.  One can have different opinion on this issue.  But the fact remains that the Constitution, vide Article 72/116 or Criminal Procedure Code vide Section 432 does not draw such distinction and therefore the rationale of the Apex Court is unsupported by law.  Thus paragraph 40 of the judgment that gives undue weightage to a draconian legislation like TADA is disturbing.  Though TADA was upheld in Kartar Sigh v. State of Punjab (1994) 3 SCC 569, it is a statute which the Parliament was constrained to repeal.  Justice Rangnatha Misra Panel that studied the ‘misuse’ of the law even found that between May 1985 and March 1993, there were a total of 52,998 arrests under TADA and only 434 (i.e., 0.8%) among the arrestees were found by the competent courts to have some connection whatsoever with terrorist groups. If, as proclaimed by Justice Holmes, “life of the law is not logic, but experience”, TADA is the country’s bitter experience. The Supreme Court ought not to have evolved a fresh category for gallows, ignoring the humiliating delay, on the basis of a misused and repealed enactment.  TADA is regarded as the harshest post independent statute that led to massive infringement of Fundamental Rights. In the matter before the Supreme Court, it is the repeal of the Act,and not the decision in Kartar Singh which validated the Act that warranted cognizance. 

(v) The judgment is apparently unkind while considering Bhullar’s illness. He suffered long imprisonment in the shallow of death. Even the documents showing his illness were discarded by the Supreme Court without a proper or valid reasoning. In paragraph 46 of the judgment, the court held,

“Though the documents produced by Shri K.T.S. Tulsi do give an indication that on account of prolonged detention in jail after his conviction and sentence to death, the petitioner has suffered physically and mentally, the same cannot be relied upon for recording a finding that the petitioner’s mental health has deteriorated to such an extent that the sentence awarded to him cannot be executed.”.

This is vulnerable to legal and ethical scrutiny. Long delay in sentencing has been a matter of judicial concern for the Supreme Court in T.V.Vatheeswaran (1983),Sher Singh (1983),Tribeniben (1988) and Jagdish (2009).  The European Court of Human Rights takes the view that belated execution is a double punishment and therefore to be averted. The Supreme Court directives run counter to the interdictions of Article 5 of the Universal Declaration of Human Rights stating “no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment”.  The reasons for departure from the earlier decisions are not convincing, especially in the facts of the case.

(vi) The judgment is neither introspective nor sensitive to the post Afsal Guru Critique of the Indian State against the background of death penalty.  The former Solicitor General of India Mr.T.R.Anthyarujina described it as “the most callous death sentence carried out by the Government of India” (The Hindu, 19.2.2013). The State acted in horrendous secrecy. 

(vii) The judgment indirectly is an intrusion to the President’s power under Article 72 of the Constitution.  The power to decide a mercy petition would include the power not to take a decision as well, for no time limit is constitutionality prescribed.  The power under Article 72 is amenable to judicial review. (Vide  Epuru Sudhakar v. Government of Andhra Pradesh, 2006). There is no constitutional impediment in reconsidering a mercy petition after long lapse of time despite its initial rejection. In that case, the question of delay would be a material factor warranting anxious consideration. There are divergent views by the Supreme Court on the cause for delay and its impact on commutability. But the judgment on Bhullar can have a reductionist impact on the exercise of executive/political discretion in future.  No president can hereafter afford to take a decision on any mercy petition, untrammelled by the Bhullar judgment. The observation in para 47 of the judgment that the President will dispose of the mercy petitions without unreasonable delay is not supported by the express words in Article 72/116 of the Constitution.

(viii)  The clemency proceedings under Article 72/161 are essentially different from judicial proceedings. The executive could take the moral, social or even political factors into consideration in deciding a mercy plea. The judgment tries to foreclose such accommodative discretion vested with the executive by attaching too much of rigid standards on clemency jurisdiction. 

(ix) 97 countries have abolished death penalty by law and 35 have practically done so by moratorium, either formal or informal. (See the report by the Amnesty International,2012) Even countries like Nepal and Bhutan have chosen to be abolitionists. This ‘global move’ was rightly and relevantly noticed by Justice S.B.Sinha in Santhosh Kumar Bariyar’s case (2009). The judgment on Bhullar takes a reverse direction.

(x) Repeated submission of mercy petitions is seen as a reason for delay in execution as per paragraph 45 of the judgment. Even after the judgment, Justice Katju has placed a fresh plea for mercy before the President, on behalf of Bhullar.  The political content of the matter and its linkage with mercy plea is overlooked by the court.  True that it need not be the court’s concern.   But it could be the concern of the executive, which the court ought to have realised and accordingly left open.

What makes Bhullar’s case different from the plea put forward by M.N Das? Capital Punishment on  Das was confirmed by the Supreme Court in 1999. Das filed the mercy petition in the same year, which was rejected by the President only in 2011. Das is now rightly given “the benefit of delay.” Therefore, the judgment on Bhullar becomes all the more unreasonable and unjustifiable. The “political crime” by Bhullar is stated to be committed on 11.9.1993. He was in prison for about eighteen years. Das was in jail for fourteen years which the Supreme Court sympathetically considered. 

Bhullar’s antecedents also are relevant. He was deported back from Germany where he sought political asylum after the conviction. According to the reports, he was also a victim of misfortunes. Reports say,

“German government had informed it would not have deported death row convict Devinder Pal Singh Bhullar from Frankfurt in 1995, had it known that he would be punished with the death penalty.....The German President has written that his country together with European Union advocates worldwide abolition of the death penalty. Under German law, no one could be extradited or deported from Germany who might face death penalty in his own country”.                              (Nagendar Sharma, Hindustan Times, New Delhi,  15.4.2013).

Comparison of the plight of Bhullar with that of Das who committed an individual crime of murder would expose the fragility and irrationality of the verdict on Bhullar. Technical explanations in the judgment on Das cannot cover up the egregious folly committed on Bhullar.

In India, an average of 132 persons is sentenced to death, every year, according to report of Asian Centre for Human Rights.  Though between 2001 and 2011 there was only one instance of execution, the scenario is radically changed, after hanging Kasab and Afsal Guru. What bothers one is not the delay in deciding the mercy petitions, but rather the haste with which they are rejected by a‘political’ President who rejected 18 mercy petitions within a short span of time. The proactive role of the executive and major political parties in subverting the principles of clemency will only be accelerated by the Bhullar judgment. It has a populist, majoritarian tone. The Supreme Court has, to a good extent corrected the mistake in Das and it is all the more the reason why Bhullar should not be sent to the gallows. After all, unlike religious canons, the Constitution is meant for non-believers as well.