Whatever the technicalities, while delivering its verdict in the matter of the writ petition of Devinderpal Singh Bhullar — the terrorist who tried to blow up Congress leader M.S. Bitta back in 1993 — for commutation of his death sentence following the rejection of his mercy petition by the President, a bench of the Supreme Court held on Friday that a terrorist crime leading to deaths of people fell in the “rarest of rare” category.
Effectively, this means that if the evidence was right, the sentencing would be death by hanging.
It is not clear if such observations made in the course of giving a judgment amount to the enunciation of a principle, or at least a working principle of sorts, at the level of technicality. For now, however, the statement of the bench is likely to influence terrorist-related matters in the high courts and at the level of the initial tiers of the judiciary until such time as it meets effective challenge.
The obiter dicta pertaining to the crime of terrorism is likely to be resented by many, in particular human rights organisations or pacifists. (We do not count here those who oppose the death sentence per se, as they oppose the death sentence even in non-terror cases). But without a shadow of doubt, the view of the bench may be expected to be to the liking of a majority of the people in a country like India which has been at the receiving end of terrorist violence for more than a quarter century. The bench pithily noted the irony that lies in the fact that those who kill ordinary people without mercy seek pardon when faced with a death sentence. If anything, the court’s view in this regard is likely to be factored in by the President in disposing of mercy petitions.
Interestingly, the bench of Justices G.S. Singhvi and S.J. Mukhopadhyaya has also noted that but for the rise in terrorist violence, India too may have moved towards dropping the death penalty from the statute book. This is suggestive of the fact that commutation of the death sentence upheld by the President (by rejecting mercy pleas) in non-terrorist cases is not unthinkable if the case is argued appropriately.
There is a further implied suggestion here that the judges on the bench may not ordinarily be averse to the idea of dropping the death penalty in non-terrorism cases, eschewing even the “rarest of rare” category, which of course is determined subjectively by judges as there can be no objective category to decide a matter such as this. It is perhaps time for Parliament to get into the act and take the cue from the Supreme Court.