Name: Professor Devinderpal Singh Bhullar
Incarcerated: 1995–‐Present, 18 years
Status: Awaiting Execution
Mr Bhullar whose best friends were killed and father was disappeared by the Punjab police in 1991, and whose family was repeatedly harassed, went to Germany in December 1994 to seek political asylum. The German immigration authorities returned him to India but in his absence a Higher German court overruled the decision (Verwaltungsgericht Frankfurt, Case 8E50399\94.A(1)).
Mr Bhullar has been in prison for the last 18 years since being arrested upon arrival after his deportation to India following an unsuccessful asylum application in Germany in January 1995
The Chairwomen of the Committee on Human Rights and Humanitarian Aid has made representations to the President of India, whilst declaring, “the German authority carrying out the deportation had committed grave procedural errors.”
The German government has been expressing its concern since the death penalty was first given by the TADA court in India. The German Embassy has been sending representatives to all the court hearings since.
Mr Bhullar was arrested, detained and tried under the Terrorist and Disruptive Activities (Prevention) Act (TADA), which is no longer in force. The United Nations condemned these laws as “disturbing and completely unacceptable.”
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.
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.
TADA requires the confession to be handwritten or an audio/video and a record of it to be kept. The authenticity of typed confessions is doubted in the courts. Contrary to procedure, the confession was neither handwritten nor recorded but typed on a computer by a police secretary, the ‘confession’ document was not saved.
Mr Bhullar was then taken before an ‘executive’ magistrate (appointee of the government). TADA requires the confession document be sent to the magistrate before appearance of the person so that the magistrate is in a position to examine it. The confession document was not sent to the magistrate.
The Delhi police transferred him to the infamous Punjab police for 2 months. The Punjab police is notorious for extra–‐judicial executions and torture. The Supreme Court itself has granted people
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.
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.
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. Upon his alleged confession Mr Daya Singh Lahoria a second defendant in the case was acquitted because the only evidence against him was Mr Bhullar’s confession which could not be relied upon in the case.
Leading Judge, Justice M B Shah, 3 judge bench, Acquitted by presiding judge, other two judges convicted him extraordinarily arguing: proof “beyond reasonable doubt” should be a “guideline, not a fetish.” And that procedure is only “a handmaiden and not the mistress of law”
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.
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 2001.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.
No corroborative evidence has been offered by the prosecution. None of the 133 witnesses produced by the prosecution identified him, many witnesses claimed he was not the man they had seen.
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 Addional 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.
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.”
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 Rapportuer 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.
MP Svend Robinson on the 3rd February 2003 has asked the House of Commons Canada “That this House call upon the government to urge the government of India to commute the death sentence imposed by a majority vote of the Supreme Court of India on Professor Davinderpal Singh Bhuller after the illegal rejection of Bhuller’s asylum request in Germany and urge that he be given a fair and open trial in accordance with international judicial norms.”
There has been no recovery of any incriminating evidence against Mr Bhullar and there has been no identification by any individual of the accused in connection with this case.
Many of the legal procedures set out by TADA were not followed, there have been serious errors.
Numerous Sikh religious and political bodies have made appeals to the Indian government seeking the release of Professor Bhullar.
Professor Bhullar has been sentenced to death and is awaiting execution.
Important news to read. Not only did 1 of the 3 Supreme Court judges (most senior one) acquit Prof Bhullar, but the Prosecutor that argued against Professor Bhullar also agrees with the Presiding Judge who acquitted him.
Public prosecutor turns surprise ally for Bhullar
Apr 18, 2013, 04.15AM IST TNN[ Manoj Mitta ]
Though two of the three judges on the Supreme Court bench upheld his arguments, senior advocate Anoop G Chaudhari said that he found himself agreeing with the dissenting verdict delivered by the presiding judge, M B Shah, who had actually acquitted Bhullar.
“Surprising as it may sound, I believe that Shah was right in not accepting my submissions in support of the trial court’s decision to convict Bhullar in a terror case, entirely on the basis of his confessional statement to the police,” Chaudhari told TOI. “Shah refused to acquiesce to the Delhi police’s presumption that they had a lot of margin for shoddy investigation because of the involvement of terror.”
A former advocate general of Madhya Pradesh, Chaudhari also said that it was “most inappropriate” for the majority verdict, delivered by Justice Arijit Pasayat, to have awarded death sentence to Bhullar despite the acquittal by a member of the same bench.
In any event, this “judicial error”, he said, should have been taken by the home ministry as a “strong ground” for commuting the death penalty, when it made its recommendation to the President on Bhullar’s mercy petition in 2011. “Did the home ministry think that the acquittal by a Supreme Court judge was meaningless?” Chaudhari asked.
But how could he be saying all these things in Bhullar’s favor, given his own role in the case? “After the judgment is delivered, I read it as a student of law and not a lawyer who appeared for one or the other party,” Chaudhari said. “If I can’t detach myself from the case and appreciate the judgment in its correct perspective, then I won’t be honest to my profession and my conscience”.
One of the major infirmities in the prosecution’s case pointed out by Shah was the failure of the police to find any corroboration for Bhullar’s confessional statement to them, even he had retracted it. “When Shah asked me about this lacuna during the hearings, I said that I could only argue what was on record and I could not step into the shoes of the investigating agency and explain why they had not taken the trouble of finding any corroborative evidence,” Chaudhari said.