In this piece, an Indian Hindu jurist BM. ‘Sinha argues that Sikh militants, Jinda and Sukha, were denied due process of law by India’s supreme court, Sinka discovers that the two Sikh youths had been exonerated by the designated court of the main charge of terrorism but had been sentenced to death for killing General Vaidya under section 302 CrPC. Could a court set up under the terrorist law try and punish them for murder? Are the accused connected with the operation “Blue Star” issue a class apart in India’s jurisprudence? These and many other thought provoking questions have been raised by the jurist. – Editor
A careful examination of the way the Supreme Court handled the case of Sukha and Jinda leaves the feeling that the duo seem to have been taken to the gallows without the state following a correct judicial procedure,
It is going to be difficult for their Prosecutors to convince the public that the Supreme Count was justified in twice turning down the pleas made by third parties to examine the legality of the capital punishment awarded to the duo for killing General AS Vaidya. They will also find it difficult to prove how they could be hanged even after they were acquitted of the main charge that they were terrorists and had indulged in acts of terrorism.
Even those who disapproved of the criminal act of Sukha and Jinda strongly feel that the highest court of the land should have been thoroughly scrupulous in ensuring that not only they should have been tried under appropriate laws but a correct judicial procedure should also have been followed. It is feared that in view of serious doubts arising out of the procedure followed, the hanging of the two would only make it more difficult to solve the Punjab problem,
It is well known that Sukha and Jinda were arrested under the Terrorists and Disruptive Activities (Prevention) Act(TADA), and then prosecuted for terrorist acts resulting in the killing of Gen Vaidya in Pune a “designated court” with the status of a sessions Court was Sect up to try them.
The trial was held in camera and after recording evidence and hearing arguments from both the prosecution and defence counsel for several months, the court exonerated Sukha and Jinda from all charges brought against them under TADA. But it awarded them death sentence on the murder charge which was ancillary to the main charges under TADA under Section 302 of the Indian Penal Code.
That a court should first exonerate an accused from the main offence he is charged with and then sentence him on an ancillary offence is unusual. When the designated count did so in the case of Jinda and Sukha, it raised many an eyebrow in legal circles, Even the government of Maharashtra, which had sought the prosecution of the tow, was surprised,
The Maharashtra government’s legal advisers told them that if the capital punishment awarded to Sukha and Jinda, after exonerating them from the main charges under TADA, was carried out it could raise doubts in the minds of the people about its legality. That explains why Maharashta decided to file an appeal in the Supreme Court against the Judgement of the designated count. It was a strange spectacle-the prosecutor, going to the Supreme Court in appeal. The appeal challenged the verdict of the designated court as it exonerated the duo from TADA charges and sought its quashing by the apex court. Even if the Maharashtra government was seeking their hanging for killing Gen Vaidya-an act they confessed they had committed-it deserves commendation for trying to prevent an order, which too many was wrong from being carried out. But what followed at the Supreme Court has made some jurists ask if there wasn’t a miscarriage of justice. A division bench of the apex court dismissed the appeal of the Maharashtra government and upheld the verdict of the designated court on July 15,1992. It thereby confirmed the death sentence to the duo.
Since they wouldn’t appeal against the capital punishment awarded to them on a charge which was ancillary to the main charge, the legality of the sentence could not be examined either at the Maharashtra High Court or the Supreme Court. And the Supreme Court put its food down against any third party trying to question the legality.
It is worth nothing here what the apex court said while dismissing the Maharashtra government’s appeal. According to it, while tying an accused for an offence committed under TADA a designated court can also try him for any other offence “provided the offence under TADA is connected with such other offence.” The question that was repeatedly asked when refuses to go away, is How can a designated or trial court try and sentence an accused for “the other offence” (killing) if the offence (that is under TADA), with which it should be connected, itself disappears with the exoneration same court? It demands an answer from the apex court which is believed to be the upholder of the rule of law.
This question was sure to come up before the court if it had heard the petitions it rejected on the ground that they were filed by third parties. Another question that would have also come up was whether the hanging should not have been stayed by the court till it had disposed of about 400 petitions pending before it challenging the constitutionality of the TADA, under which Sukha and Jinda were arrested and a designated court set up.
What several jurists fail to understand is why the division bench should have entered upon a reference in this case, when the accused were admittedly not guilty of any offence under TADA, and thereby confirmed their death sentence, Did it not go beyond its jurisdiction? Since the trial court, which had the status of a sessions court, had sentenced Sukha and Jinda to death under 302 IPC, the Supreme, Court should have directed the reference to be heard by the Bombay High Court.
The accused or their relations thus would have had an opportunity to challenge their death sentence and seek its commutation to life sentence, if acquittal was not possible. If the High Court had rejected their appeal, they would have got another opportunity to seek relief by going to the Supreme Court under Article 32 of the Constitution. By not allowing this to happen, the division bench has created a lacuna whereby someone can question whether the court had not denied the rights of the accused and then relations under Article 14, 21 and 22 of the Constitution,
It is learnt that some close relatives of Sukha and Jinda wanted to appeal to the Bombay High Court against their death sentence on the ground that it was illegal because the trial court could not convict them on murder charge when it had acquitted them of all TADA charges. But they were advised against doing so as the High Court was not expected to even admit the appeal because the Supreme Court had already upheld the death sentence while dismissing the appeal of the Maharashtra government The decision of the apex court thus debarred the accused of their friends and relatives from going to the High Court in appeal which they would have surely done and were legally entitled to do. This fact rankles in the minds of the relatives of Sukha and Jinda.
While awarding the death sentence to Sukha and Jinda the tal court had described their case as “the rarest of rare.” It had done.so by strongly relying on the decision of the Supreme Court in the Indira Gandhi murder case. The division bench upheld this approach of the court, It said; “The learned trial judge took the view that since the murder. of Gen Vaidya was also on the account of his involvement in the Blue Star Operation, his case stood more or less on the same footing and hence falls within the rarest of rare category. We think that this line of reasoning adopted by the learned trial judge is unassailable.” Questions being justifiably asked now are Can a trial court take such a line of reasoning? Can there be a category of Blue Star Operation cases in which anyone charged with murder is sure to get death sentence? It is being pointed out that by upholding this reasoning, the division bench has banished all possibility of any other trial court examining any case connected with the Blue Star Operation on its own ment and acquitting a person charged with murder if there is no satisfactory evidence. There is no doubt that any attempt to compartmentalize the cases connected with the unfortunate military operation at the Golden Temple in 1984 would be violative of the Rule of Law,
Article extracted from this publication >> October 30, 1992
