16 Apr INDIA CASE STUDY: DEVENDER PAL SINGH
“It is for the accused to show and satisfy the court that the confessional statement was not made voluntarily,” Supreme Court response to Devender Pal Singh’s allegations of torture, March 2002.
Devender Pal Singh (also known as Davinder Pal Singh Bhullar) was arrested by police at New Delhi’s international airport in January 1995 for travelling on false documents. In December 1991, his father and uncle had been abducted and killed by Punjab police (for which a number of police officials have since been indicted) looking for Devender Pal Singh in connection with a bomb attack carried out in support of an independent Sikh state in Punjab. He attempted to flee to Canada in 1994 after hearing that he was wanted by Punjab police in connection with terrorist offences, but was arrested in transit at Frankfurt airport and applied for asylum in Germany. His application was rejected and he was returned to India where he was immediately arrested at the airport.
Police claim that following his arrest at New Delhi airport, Devender Pal Singh confessed to being involved in a 1993 bomb attack in Delhi that killed nine people – a statement which was made when he was first detained and had no access to a lawyer. Devender Pal Singh later retracted the confession, stating that he had been “physically manhandled, threatened with encounter extinction [extrajudicial execution] and was forced to sign several blank papers”. He filed a petition with the Supreme Court which refers to “coercion and torture” in extracting the alleged confession. In his statement to the Supreme Court, Devender Pal Singh said that on the way to the magistrates’ court hearing, “he was told that if he made any statement to the Court [about being tortured], he would be handed over to Punjab Police who would kill him in an encounter.”
Devender Pal Singh was tried under the 1987 Terrorist and Disruptive Activities (Prevention) Act (TADA), a law which lapsed in 1995 following widespread criticism from national and international human rights organizations because it had been misused to arbitrarily arrest, detain and torture thousands of people. Despite its lapse, prosecutions under the Act continue against people suspected of terrorist offences committed prior to 1995. The only evidence against Devender Pal Singh was his retracted confession.
Under ordinary Indian law, confessions are admissible as evidence only if they are made before a judicial magistrate; those made to the police are not. TADA, however, made confessions to police admissible at trial. Devender Pal Singh was taken before a judicial magistrate who was supposed to verify whether his confession was made voluntarily. However, the judicial magistrate asked only one question – whether the statement was recorded on the particular date. The magistrate did not actually see the statement, and allowed police officials to be present during the hearing.
In August 2001, a special TADA court convicted Devender Pal Singh of committing a terrorist act resulting in death, conspiracy to murder and various other offences and sentenced him to death. Ordinarily, all death sentences passed by a trial court are reviewed automatically by a High Court, with a possibility of further appeal to the Supreme Court, but under TADA, appeal is only to the Supreme Court. The conviction and death sentence were confirmed by the Supreme Court in March 2002. However, one of the three judges found Devender Pal Singh not guilty, concluding that there was no evidence to convict him and that a dubious confession could not be the basis for awarding a death sentence. A further review petition was dismissed by the same Supreme Court judges, again by a 2 to 1 majority, in December 2002. A clemency petition to the Indian President was rejected in May 2011 but on 23 August 2011 the Supreme Court admitted a petition seeking to commute the sentence because of the President’s delayed rejection of the mercy plea.”
UPDATE: In January 2014, the Supreme Court of India permitted Bhullar’s curative plea seeking to commute his death sentence to life imprisoment. On 31 March 2014, the bench of the Supreme Court headed by Chief Justice Sathasivam, commuted Bhullar’s death sentence to life Imprisonment on the grounds of inordinate delay in deciding his mercy petition and his diagnosed schizophrenia.
ADPAN: When Justice Fails – Thousands executed in Asia after unfair trials, (2011), p17-18 (https://adpandotnet.files.wordpress.com/2011/11/adpan-unfair-trials-asa-010232100-final-pdf.pdf)