There was a time, not long ago, when Indians could be proud of having a strong and independent judiciary. They were particularly proud of the Supreme Court of India, The Supreme Court, however. Gradually lost its reputation by a series of decisions unworthy of the highest tribunal in the land, including the decisions in the Habeas Corpus case. The Court reached its nadir when a Bench of three judges confirmed the conviction of Kehar Singh and the death sentence passed upon him in the Mrs Gandhi murder case.

Kehar Singh was charged with having entered into a conspiracy with Beant Singh and Satwant Singh 10 commit the murder. He was not present when the murder was committed and no overt act was attributed to him in connection with the commission of the offence. He was convicted merely on circumstantial evidence. Even a tiro, in criminal law knows that certain basic rules of evidence are to be followed before a person can be convicted of a criminal offence.

Rules Flouted to Convict Kehar Singh

The guilt of the accused must be established beyond any reasonable doubt. Mere suspicion should never be allowed to take the place of evidence. When a person is convicted on merely circumstantial evidence, as in Kehar Singh’s case the chain of circumstances must be so complete that it excludes every hypothesis constituent with the innocence of the accused. The accused must be acquitted if the circumstantial evidence in its totality does not exclude a reasonable possibility of his innocence. All these rules were flouted when Kehar Singh was convicted of murder and sentenced to death.

When a person is convicted of murder by the Sessions Court and his verdict is confirmed by the High Court as well as the Supreme Court, a reader would naturally assume that there must have been adequate evidence to justify the verdict. It is necessary to emphasize that this natural assumption is wholly unjustified in Kehar Singh’s case. The evidence against him was so meager that it would not support, as the saying goes, the hangings of even a dog.

The evidence on which the Supreme Court relied in confirming the conviction of Kehar Singh was this. He was the uncle of Beant Singh’s wife. The two families had friendly relations. On 17.October 1984, a fortnight before the murder, Kehar Singh had gone with his wife to Beant Singh’s house for a meal. On that occasion, Kehar Singh and Beant Singh had a private discussion for about 15 minutes on the roof of the house, beyond the hearing of their wives. Nobody heard what was discussed. However, Beant Singh’s wife later asked them what the discussion

“The evidence against him was so meager that it would not support, as the saying goes, the hanging of even a dog.”’

was about and Kehar Singh replied that it was about Amrit being taken by someone. Beant Singh’s wife felt, rightly according to the Judges, that taking of Amrit could not be a matter which required a secret discussion.

Secondly, Beant Singh had taken Amrit on 14.10.1984 probably in the presence of Kehar Singh, because a golden Kara and a ring, belonging to Beant Singh (golden comments are not used on the occasion of taking Amrit) were later found in Kehar Singh’s house. Somehow the Judges felt that taking of Amrit by Beant Singh had a connection with the murder later committed by him and that Kehar Singh’s presence at the time of the ceremony showed his complicity in the murder.

Hundreds of Sikhs Felt like He Did

Thirdly, on 20.10.1984 Beant Singh and Kehar Singh had gone with their wives to Amritsar and during their visit Kehar Singh and Beant Singh had gone to the Akal Takht on two occasions without taking their wives along.

There is no evidence of why they did when they visited the Akal Takht. That is all the “relevant” evidence against Kehar Singh prior to the commission of the murder. After the offence, when Kehar Singh learnt about the assassination of Mrs. Gandhi he is reported to have said whosever would take confrontation with the Panth, he would meet the same fate ” There must be hundreds of religious minded Sikhs in the country who might have entertained or expressed such a view. Religious people tend to attribute mundane events to the divine will Can it possibly be stated at the above flimsy evidence establishes the complicity of Kehar Singh in the offence of murder beyond a reasonable doubt? Does the evidence lead to anything more than a vague suspicion? Can it possibly be said that these circumstances constituted a chain of events which excludes a reasonable possibility of Kehar Singh not being involved in a conspiracy to commit the murder?

Judge Presumed Accused Guilty

And yet, despite the utter superficiality of this evidence, one of the Judges of the Supreme Court says that this evidence was “stronger as evidence of guilt than even direct testimony.” Such a conclusion can be reached only if the Judge started with the presumption not that the accused was innocent, but that he was guilty.

 It is passing strange that a conviction based on such meager and unsubstantial evidence should have been upheld by both the High Court of Delhi and the Supreme Court of India,. The only reason one can think of in support of this verdict, consistent with judicial honesty (of which this writer has no doubt), is that the Judges were dealing with the murder of the Prime Minister of India, whose son also happens to be the present Prime Minister. It appears hardly possible that the same verdict would have been given if the victim were an ordinary person. But the rules of evidence do not change according to whether the deceased is an ordinary individual or a Y.LP. It must therefore be concluded that Kehar Singh’s conviction was wholly unjustified.

Even supposing there was some justification for the conviction of Kehar Sigh, was this a case in which he should have been sentenced to death? He was not directly concerned with the commission of the offence. Even supposing that he knew about the murder to be committed by Beant Singh, there was no evidence whatever that he encouraged Beant Singh to commit the offence. The Supreme Court had already held that even though the imposition of a death sentence is not unconstitutional, it should be confined to the rarest of rare cases. Certainly the case of Kehar Singh was not such that a death sentence should have been imposed. And yet the Supreme Court refused to reduce the sentence to one of imprisonment for life.

The position was retrieved by the Supreme Court to some extent when the matter came before a 5 Judges Bench for deciding the scope of Article 72 of the Constitution v h gives power to the President to grant pardons and to remit or commute sentences, Mercy petiuons filed on behalf of Kehar Singh had been rejected by the President on the ground that he could not go into the merits of a case finally decided by the highest court in the land. The Supreme Court held that it was open to the President under Article 72 of the Constitution to scrutinize the evidence on the record of the case and come to a

“Law professors ought to tell their students that the decision was patently wrong and that it does little credit to the highest tribunal in the country.”

different conclusion in regard to the guilt of the accused and the sentence imposed upon him. On this view, the mercy petitions filed on behalf of Kehar Singh were sent back for the President, but they were again rejected by him. It is well established that in such cases the President has to act accordingly to the advice of the Council of Ministers.

Judiciary Not Executive Should Have The Final Say

While it is true that the Supreme Court retrieved its Position to some extent by remitting Kehar Singh’s case back to the President it must be said that the power of pardon and of remission or commutation of sentences given by the Constitution to the President and the Governors is a serious encroachment on the judicial function and is liable to be abused for political ends in the absence of appropriate safeguard.

The Constitution should provide that in those cases where the President or the Governor feels that the conviction or the sentence is wrong, either because of the discovery of additional evidence or otherwise, the proper course for him is to send the case to the Judges with a suitable recommendation and it should be left to the Judges concerned to take a final decision. It is not proper that the executive should have a final say in judicial matters. This writer knows that the power of pardon has been misused on some occasions in the past on political considerations. The Constitution is required to be amended to ensure that such misuse of power is prevented.

Decision Was Patently Wrong

It is to be hoped that the decision of the 3 Judges Bench of the Supreme Court confirming the conviction of Kehar Singh and the sentence imposed upon him, will not be a precedent to be followed in the future. Law professors ought to tell their students that the decision was patently wrong and that it does little credit to the highest tribunal in the county.

PM Doesn’t Want A Solution To Punjab

The hanging of Kehar Singh for an offence which he may not have committed has another aspect worthy of consideration. After the areas were remitted to the President by the 5 Judges Bench of the Supreme Court, it was widely expected that the President (which in effect means the Prime Minister) would commute the sentence to imprisonment for life. The prime minister would undoubtedly have won the gratitude of the Sikh community if the death sentence appraised on Kehar Singh were commuted to one of imprisonment for life. Whey he did not take such an obviously beneficial decision remains a puzzle. It lends credibility to the view which has often been expressed that the Prime Minister and his advisors do not really want to solve the Punjab issue and that they would like the continuation of the terrorism in Punjab so that the ruling party may be able to play the Hindu card in the coming general election.

Moral Standards Sunk Low

 It is difficult to believe that the moral standards in Indian politics have sunk so low that the ruling party would allow the continuation of the killings of innocent persons by terrorist bands in order that the party should be able to take electoral advantage of the continuing ‘communal tension, But the refusal of the Prime Minister sentence, in spite of the obvious fact that it would have given him immense popularity in the Sikh community lends a color of probability to this cynical view.

Mr. Tarkunde, eminent jurist and civil rights activist, ts a former judge of the Bombay High Court.

Article extracted from this publication >>  March 3, 1989