3 May 2023 5:59 AM GMT
In a significant development, the Supreme Court on Wednesday refused to commute the death sentence of Babbar Khalsa terrorist Balwant Singh Rajoana to life imprisonment on the ground of the long pendency of the mercy petition before the President of India. The BKI operative was convicted for his role in the assassination of the former chief minister of Punjab, Beant Singh, in August 1995....
In a significant development, the Supreme Court on Wednesday refused to commute the death sentence of Babbar Khalsa terrorist Balwant Singh Rajoana to life imprisonment on the ground of the long pendency of the mercy petition before the President of India. The BKI operative was convicted for his role in the assassination of the former chief minister of Punjab, Beant Singh, in August 1995.
Reading out the operative portion of the judgment, Justice Vikram Nath said :
"The stand of the Ministry of Home Affairs to defer the decision on the Mercy Petition of the petitioner is also a decision for the reasons given thereunder. It actually amounts to a decision declining to grant the same for the present. It is, however, directed that the competent authority, in due course of time, would again as and when it is deemed necessary, may deal with the Mercy Petition, and take a further decision".
A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol was hearing a writ petition seeking for his death sentence to be commuted by the court on the ground of a long delay in considering the mercy petition filed for him. The bench reserved its verdict earlier this year, in March.
The petitioner's lawyer, senior advocate Mukul Rohatgi, relied on the decision in Sriharan @ Murugan in which the top court had held that a long pendency of a mercy petition could be a ground to commute the death penalty. However, the bench was not swayed by Rohatgi's argument regarding the alleged pendency of Rajoana's mercy petition. It noted that the petitioner himself had never submitted any such petition and the clemency appeal had been filed by Shiromani Gurdwara Parbandhak Committee (SGPC) in 2012. Not only this, but after the union government's 2019 announcement, on Guru Nanak Dev's birth anniversary, that it would commute the death sentence of the convict, the process was initiated. While considering the proposal, the government decided to keep the commutation proposal pending till the final disposal of the appeals filed by a co-accused as well as the Central Bureau of Investigation, which would have a bearing on the current proposal and could be a relevant factor to account for while deciding it. Further, after the December 2020 and May 2022 directions passed by the apex court, the matter was again considered by the competent authority, which decided to defer the question of commutation in view of the reasons given in an affidavit filed by the Ministry of Home Affairs. In view of this series of developments, the bench headed by Justice Gavai held, "It cannot be alleged that there has been an inordinate delay in the disposal of the mercy petition." It also observed:
"The decisions relied upon by Mukul Rohtagi in support of his submission regarding inordinate delay in disposal of the mercy petition and resultantly commutation in such cases having been granted by this court, do not help the petitioner in view of the facts and situation being different in those three cases and in the present case."
Notably, the apex court deferred to the wisdom of the home ministry inasmuch as the feasibility of allowing the mercy petition was concerned. It noted that after its orders to dispose of the petition, the ministry, upon material consideration of various reports from its different branches, came to the conclusion that the consideration may be deferred. This was because the Ministry of Home Affairs gathered that finally deciding on the petition could allegedly compromise the security of the nation or create a law and order situation. The court, however, refused to interfere with the findings and conclusion of the ministry, saying:
"It would not be within the domain of this court to delve upon the decision of the competent authority to defer taking of any decision at present. It is within the domain of the executive to take a call on such sensitive issues. As such this court does not deem it appropriate to issue any further directions."
On August 31, 1995, the then-chief minister of Punjab, Beant Singh and 16 others were killed in a deadly suicide bombing at the Chandigarh secretariat complex. The assailant was one Dilawar Singh, a police officer, who along with two other officials of the Punjab police, namely, Rajoana and one Lakhwinder Singh, had, allegedly in response to Operation Bluestar and the anti-Sikh pogrom in Delhi in 1984, been tasked with executing the Congress leader, known for his robust counterterrorism policies. Rajoana, a police constable, was not only responsible for ensuring that Singh reached the chief minister after crossing the security ring in the complex but was also equipped with a backup explosive device in case the first plan failed. Separatist group Babbar Khalsa International, whose primary goal is to establish a sovereign homeland called Khalistan for people of their faith, took responsibility for the assassination.
In 2007, a special Central Bureau of Investigation court, handed death sentences to Rajoana, as well as one Jagtar Singh Hawara, who was reportedly the mastermind behind the operation. At the same time, co-accused Shamsher Singh, Gurmeet Singh, and Lakhwinder Singh were awarded life imprisonment. The verdict was delivered inside the high-security Burail jail in Chandigarh.
The cop-turned-militant was supposed to be hanged in March 2012, but his execution was stayed by the then-United Progressive Alliance government, after the Shiromani Gurdwara Parbandhak Committee, a Sikh religious body, filed clemency appeals on his behalf. Rajoana, currently lodged in Central Jail, Patiala, has been incarcerated for the last 27 years. Notably, the death row convict refused counsel and refused to defend himself against the charges levelled by the State, in a display of open derision of the Indian judicial system.
The petitioner claimed that the Union government had announced in 2019 that it would commute Rajoana’s death sentence to life imprisonment, besides sanctioning the premature release of eight Sikh prisoners serving life and other sentences as a humanitarian gesture to mark the 550th birth anniversary of Guru Nanak Dev. However, the union home minister Amit Shah later informed the Lok Sabha that Rajoana had not been freed from death row.
The present writ petition for commuting the death sentence to a life sentence has been pending in the apex court since 2020. In May of last year, a bench headed by Justice Uday Umesh Lalit (as he was then) had urged the centre to decide the mercy plea filed on behalf of the death row convict within two months, notwithstanding the pendency of the appeals filed by other convicts. However, despite repeatedly being pulled up by the top court, the central government has not disposed of Rajoana’s prayer for the commutation of his death sentence.
During the final hearing, senior advocate Mukul Rohatgi, appearing on behalf of the death row convict, firmly contested the State’s claim that Rajoana’s sentence had not been commuted yet because of ‘security concerns’ and the pendency of an appeal filed by a co-accused. He argued:
“To keep a prisoner on death row for so long violates their fundamental rights according to judgements of this court and is a ground for their sentence to be commuted. Rajoana is entitled to be released from death row forthwith. The moment he gets his commutation order, he can apply to be released since he has already spent 27 years behind bars. It is inhuman. Alternatively, if you wish to wait for the government’s response to the mercy appeals, then at the very least, grant the petitioner parole. He wants to go to his village, and he will stay there.”
He also submitted, “They are working in a contemptuous fashion and this court may take action against them...but that is a separate thing. The petitioner’s liberty is in question and there should be an order of commutation in his favour.”
Appearing for the centre, Additional Solicitor-General for India, KM Nataraj, objected to Rohatgi’s submissions, saying that the outcome of the appeal of his co-accused would have an implication on the decision of the president with respect to the mercy plea. “It is not true that we have not decided. We have decided to wait,” he explained. Justice Gavai countered, “So, the government has taken a decision to not take a decision?” Yes, the additional solicitor-general responded. Other than this, the law officer also pointed out that the mercy petition under consideration had not been filed by Rajoana himself, but another organisation. Rohatgi protested against both lines of arguments, saying that they were ‘hollow contentions’. Notably, the bench also expressed its displeasure with the central government's failure to comply with its earlier order and decide Rajoana’s fate swiftly.
Balwant Singh v. Union of India & Ors. | Writ Petition (Criminal) No. 261 of 2020
Citation : 2023 LiveLaw (SC) 391
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