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Case facts and commentary
Mr Bhullar was arrested, detained and tried under the Terrorist
and Disruptive Activities (Prevention) Act (TADA), which is no longer
in force. The United Nations condemned these laws as “disturbing
and completely unacceptable.” The case against him is based on information
that is highly dubious. No corroborative evidence has been offered by
the prosecution. None of the 133 witnesses produced by the prosecution
identified him.
Mr Bhullar has been in prison for the last 6 years since being arrested upon arrival after being deported to India following an unsuccessful asylum application in Germany in January 1995. Mr Bhuller whose best friends were killed and father was disappeared by the Punjab police in 1991, and whose family was repeatedly harassed, went to Germany in December 1994 to seek political asylum. The immigration authorities returned him to India but in his absence a Higher German court overruled the decision.
On being handed over to the Indian police in Delhi by airline staff, Mr Bhuller was taken into detention. The police allege that he volunteered a confession. They said that a secretary typed the confession on a computer while Mr Bhuller spoke but forgot to save the file! TADA requires the confession to be handwritten or an audio/video record of it to be kept. The authenticity of typed confessions is doubted in the courts. He was then taken before an ‘executive’ magistrate (appointee of the government). TADA requires the confession document be sent to the magistrate before appearance of the person so that the magistrate is in a position to examine it. The confession document was not sent to the magistrate neverthless the magistrate went on to ask him if he had confessed! According to Bhuller, he was forewarned by the police that he would be eliminated by the Punjab police if he said anything other than yes. The Delhi police transferred him to the notorious Punjab police for 2 months. The Punjab police is notorious for extra-judicial executions and torture. The Supreme Court itself has granted people the protection of the Central Reserve Police Force, against the Punjab police.
Detained and charged under the now lapsed TADA law, Mr Bhuller wrote to the court at the first opportunity of release from Punjab police custody to judicial custody, claiming that the ‘confession’ was involuntary and obtained under torture and fear of death.
Mr Bhuller was examined by a police assigned medical doctor. Although an educated man, Mr Bhuller's medical examination document is co-signed by him by a thumb print! Upon his alleged confession Mr Daya Singh Lahoria was also charged but was acquitted because Mr Bhullar's confession statement could not be relied upon! There has been no recovery of any incriminating evidence against Mr Bhullar and there has been no identification by any individual of the accused in connection with this case.
TADA was a controversial law that was not only contrary to international law, but considered to be unconstitutional by some authorities. Although allowed to lapse under international pressure, cases predating its lapse are still tried. TADA was strongly condemned by the United Nations and virtually every international institute that examined it. In it the burden of proof is transferred to the accused. Designated courts under TADA are the only courts in which a confession made to a police officer is admissible evidence, this deviates from the Indian Evidence Act sections 25 and 26, under which confessions made to police officers are not admissible. The procedures laid out in TADA resulted in 76,000 detentions, less than 1.8% of which actually reached conviction, despite this highly extraordinary rate of failure, the Supreme Court of India has relaxed these procedures further.
Despite being a signatory to the Convention Against Torture, which is yet to be ratified by India, it is well known that torture remains a pervasive and daily practice in every one of India's 25 states, as acknowledged by Amnesty International, Human Rights Watch and the State Department (US). This was made even more apparent by the statement of Nigel Rodley (UN Special Rapportuer on Torture) that "torture is endemic in India." The Chahal case brought this very fact to the attention of the European Courts where the Judges unanimously considered that human rights violations in India were gross enough to stop him being sent back there by British authorities saying that while they respected the assurances of the Indian authorities to treat him according to law, they could not rely on them!
Mr Bhullar argues that he was made to sign on blank pieces of paper, which were later filled by a statement written and typed in by the police, under threat that if he did not sign he would be terminated by the Punjab Police in a false encounter, which is a very real threat. His own father had been disappeared by the Punjab police. Amnesty International has stated "Since 1983…scores of those arrested have been tortured to death or have otherwise been deliberately and unlawfully killed in Custody…while others have simply "disappeared", the security forces refusing to acknowledge that they had been arrested." A Writ is currently being put together, for Davinderpal Singh.
