THE CASE OF PROFESSOR DAVINDERPAL SINGH BHULLAR

Transcription

1 THE CASE OF PROFESSOR DAVINDERPAL SINGH BHULLAR Name: Professor Davinderpal Singh Bhullar DOB: 25 May 1964 Age: 48 Education: Electronics Occupation: Lecturer Deported: from Germany January 1995 Imprisoned: India since Years Current Sentence: Death Row Tihar Jail New Delhi Son of: Balwant Singh Bhullar (deceased) Background Professor Bhullar was a known political dissident who out of concern in the early 1990s investigated the disappearances of forty-two of his university students. The students were suspected to have been abducted by the Punjab police and extra-judicially killed. Bhullar s investigations led to harassments from the police and had claimed that his life was at risk in India because of his political activism. His family was persecuted as evidenced by the 'disappearance' and extra-judicial killings of his father Balwant Singh Bhullar, uncle and best engineer friend by the notorious Punjab Police in January Mr Bhullar a lecturer at Guru Nanak Engineering College (GNE) Ludhiana decided to escape India for safer places. He went to Germany to seek asylum and reached on 18/12/94. He was detained, as the authorities were not convinced of his claim apparently because of false papers on him. He was deported under escort on 17/01/95 and handed over to the Indian police at Indira Gandhi airport, New Delhi by the Lufthansa staff. The Indian authorities gave specific assurances to the German authorities that Professor Bhullar had nothing to fear if he was returned to India and that he would not be tortured. He was arrested, detained and tried under the Terrorist and Disruptive Activities (Prevention) Act (TADA) upon arrival and he has now been in prison for over 18 years with the last eight years in solitary confinement with the daily threat of the gallows. The Professor's mental health has deteriorated over the last two years and it has become life threatening. In his absence the German courts (Verwaltungsgericht Frankfurt, Case 8E50399\94.A(1)) ruled that he should not have been returned as his life would be in danger in India - overruling the prior decision. By deporting someone to a death-penalty prone country Germany violated the European Convention on Human Rights and remains morally obliged to do all it can to seek the Professor's immediate release. He has a wife with whom he lived for a mere 16 days before these unfortunate circumstances intervened. His wife is now in Vancouver, Canada and continues the fight for his release.

2 Case facts and commentary Mr Bhullar was charged with carrying false documents upon him under sections 419, 420, 468 and 471 of IPC and section 12 of Passport Act. He then allegedly disclosed to his involvement in an incident of attempted assassination of Maninderpal Singh Bitta (a congress politician in India). The attempted assassination of Mr Bitta occurred on 11/09/93. It involved an explosion in a parked car. Mr Bitta escaped with injuries, while some of his guards and associates died. Based on Mr Bhullar's confessional statement, Daya Singh Lahoria, was extradited from USA as co-accused on 23/08/95 for charges under section 20(A)(ii) of the TADA Act. However his co-accused Daya Singh Lahoria, who was charged on the basis of Mr Bhullar's statement, has been acquitted by the same designated court because Mr Bhullar's confessional statement could not be relied upon! 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 are 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. The 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. According to the prosecution he had a cyanide pill on him upon arrival from Frankfurt that he tried to commit suicide with. 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. 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. 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. The investigating officer, who is alleged to have obtained Bhullar s statement, denied in court that the said statement was not the one he had actually taken from the accused. The officer went as far as saying that even his signature on the said statement had been forged. Mr Bhullar has continually maintained that he has never made any said statement. There has been no recovery of any incriminating evidence against Mr

3 Bhullar and there has been no identification by any individual of the accused in connection with this case. The 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 Mr Bhullar, many witnesses claimed he was not the man they had seen. One prosecution witness, a rickshaw worker in Delhi, informed the court that he had no knowledge of the case but he was forced and threatened to provide a false statement by the police. The court proceedings On 24/08/01 Mr Bhullar was convicted by a 'Designated' court which then passed the death sentence on 25/08/01. Designated courts are special courts enacted under TADA. Under TADA an accused is considered guilty unless proven otherwise! Under Indian Evidence Act, a confession statement to the police in the absence of a magistrate cannot be submitted as evidence. However under TADA this is admissible in Designated Courts. Therefore the sole evidence produced is unsound according to normal Indian judicial procedure. The Designated court considered the apparent suicide attempt by cyanide as 'further' evidence. The Supreme Court verdict: 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 judgments. 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. 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. 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 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.

4 The 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 Rapporteur 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. Recent activities 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 Additional Sessions Judge held that there 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 new Indian President, Pranab Mukherjee, under article 72 of the Constitution of India even though previous pleas to the President have failed. Each day for the last eight years the Professor has been held in solitary confinement spending 22 hours in a 9x7 cell and he now wakes up thinking this will be his last day. This has been a torture worse than death and it is no surprise that his mental state has been very poor for the last two years.

5 Final decision on Professor Davinderpal Singh Bhullar... On 20 February 2013 the Supreme Court linked the fate of a number of other death row convicts where the mercy plea has been rejected by the Indian President to Mr Bhullar s case. In April 2012 Mr Bhullar s lawyers moved in the Supreme Court to commute the death penalty on the ground that he had become a mental wreck, vacillating between life and death, during the eight years for which his mercy petition was kept pending before being rejected by the President in A two-judge bench had heard arguments on behalf of Mr Bhullar and perused records of all mercy pleas decided and pending with the President and governors before reserving verdict 10 months ago in April On 20 February 2013 the Supreme Court took note of the fact that the judgment on Mr Bhullar's petition had been reserved and pushed for it to be delivered soon a few weeks. From information available to us the fear was the political pressure was to rule against Mr Bhullar, although his case if very different (controversial split judgement, conspiracy case based on dubious confession, extradited from Germany etc.). On 12 April 2013 the Supreme Court rejected commuting the death penalty against Professor Davinderpal Singh Bhullar and this has also opened up the hangings of many others in the next few days and weeks.