THE Supreme Court did not accept the plea of the Additional Solicitor General to reverse to death penalty against the main accused Dara Singh as it is not one of ‘the rarest of rare case’ since in such cases where there is no direct evidence the sentence of life imprisonment is adequate to meet the ends of justice.
The Court relied on its earlier judgements in Bachan Singh Vs State of Punjab (AIR 1980 SC 898), Machhi Singh Vs State of Punjab (1983) 3 SCC 470, Kehar Singh Vs State (Delhi Administration) (1988) 3 SCC 309, and held in its judgement dated January 21 2011, “It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of rare cases. Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity.”
As there was a clear background of resentment due to large-scale conversion of poor tribes in the area of operation by Graham Staines and the prosecution had rounded up those who were opposed to such conversion spree, the honourable Court, quoting Mahatma Gandhi and the former President of India Shri KR Narayanan emphasised on the need for religious tolerance by mutual respect for each other’s faith held that “it is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.”
Immediately after the pronouncement of the judgement on January 21, this year at about 10.45 a.m. almost all the press as well as the electronic media gave wide coverage to the historic judgement in the country and abroad, as it was most awaited decision after the Court had concluded hearing on of December 16, 2010 followed by winter vacation for the Court. The verdict was bound to have mixed reaction all over the country as the subject matter is controversial and concerning the freedom of faith and conscience which is very dear to each individual. Many Hindus thought that the materials on which 11 persons were acquitted; its benefit could have been extended also to the other two accused whose conviction has been upheld by the Court. Similarly, many Christians reacted and expressed their degree of religious intolerance by criticising the Court’s verdict through various comments ventilated through the internet. Most conspicuous was The Hindu the English daily from Chennai dated January 23, 2011, where the views, claimed to be that of the civil society commented on the conversion background in the verdict and observations of the Court emphasising on the need for greater degree of religious tolerance that is necessary for the national unity. This was the most positive observation of the Court in favour of unity in diversity, the hallmark of India.
N Ram, the Chief Editor of The Hindu, being a recent convert to Christianity poses to be more Christian than Pope himself. Should he be aggrieved by the verdict in a case to which he was not a party, he could have resorted to legal remedies available in the statute book by filing a petition for expunging those observations. But the question is, should the Supreme Court react to such comments in absence of any petition before it praying for expunction or ‘review’. Instead of taking note of such reactions the highest Court is expected to protect the norms of procedural justice. That apart any such act amounts to contempt of the Court and the Court should perhaps draw up contempt proceedings for having voiced criticism in public without resorting to the judicial process available to the aggrieved. Because once the judgment is delivered in an open Court, it becomes functus officio and ceases to change its views except to correct clerical or arithmetical mistakes.
There is a clear injunction under Rule 3 of Order XIII of the Supreme Court Rules, 1966 that once a judgement is pronounced in the open Court, it shall not be altered or added to. The relevant provision says, “Subject to the provision contained in Order XL of these Rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in an open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.” The Order XL referred to above is the power of ‘Review’ of its own decision only on the basis of a petition by the aggrieved party to the case. The Court has held in an earlier decision that “Power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect”, {(1971) 3 SCC 844}.
In another landmark decision the Supreme Court held that “Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests :- (i) that the passage complained of is wholly irrelevant and unjustifiable; (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or the order.” {(2001) 3 SCC 54}. But for effecting expunction, there must first be a petition before the Court.
But surprisingly, the Supreme Court in the Graham Staines murder case, after pronouncing the final judgment on the January 21, 2011, listed the matter again for direction in the supplementary cause list circulated the previous evening, without any notice to the lawyers of the accused or the counsels for the prosecution. There was neither any petition by the CBI nor by the defense lawyer to that effect. Obviously, everyone was surprised and was keenly watching as to what would happen on January 25, when the matter was listed for direction. The Court expunged one complete sentence in Para 43, that suggested the intention behind the crime and added at its place, “However, more than 12 years has lapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs.”
In Para 47, the sentence regarding interference in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other, has been replaced by ‘any means’. Expunction of the portion in the judgment pertaining to normal procedures adopted by the religious groups for conversion has virtually diluted the observation of the honourable Court.
It may be noted that the Court while resorting to such major alterations and additions has preferred not to disclose the compulsions which dictated them to such an abrupt measure which has no sanction of law. Such unexplained conduct of the apex court raises eyebrows and unfortunately places the highest court in the dock for answer to the citizens of this country. The guarded silence on part of the Court on the January 25, while bringing about the additions and alterations in the pronounced judgment, ostensibly in reaction to the remark’s by N Ram published in The Hindu was too conspicuos that portends unhealthy signals for the future. The institution of judiciary seems to have buckled under pressure from extraneous and extra-constitutional entities. It presages serious threat to Indian democracy, where, in the name of ‘open society’ our Courts are showing extra liberalism to foreign powers undermining national self-esteem. Let us not be oblivious of the fact that the powers of the Judiciary do not only emanate from the Constitutional provisions but also from the trust it enjoys among the citizenry of the country.
The nation still looks at the highest Court, for justice and direction when the entire nation is grappled with calculated misinformation, misgovernance, misrule, injustice and rampant corruption at every walk of public life. The institution of the Judiciary is the last hope of the people to protect democracy and the rule of law in the country. Betrayal on this count would pave the way for anarchy. It reminds the reader of one of the salutary statements of Harold J Laski, “Eternal vigilance is the price for liberty”. The nation has to remain vigilant to protect the freedom of its citizens. Even the judiciary is accountable to the law and ultimately to the people, who are sovereign in our system of limited government.
The case history
What is really stunning is the revision of a judgment finally ‘perfected’ and pronounced, by the Supreme Court on the January 21, 2011, at the dictate of the media. (See Sunday Hindu dated 23/01/2011).
One Rabindra Kumar Pal, a village teacher from Uttar Pradesh teaching Hindi to tribes in the area was demonised by the media and within days his huge photographs were displayed at all important places that compelled the wanted man to hide in jungles lest he is caught by people for the award of ten lakh declared over his head. He was never convicted of having committed any crime before.
After the incident of the death of three persons while sleeping in a station wagon in a non-descript village in remote Keonjhar district of Odisha was reported, a sitting judge of the Supreme Court was constituted into one man Enquiry Commission (Justice Wadhwa Enquiry Commission) to enquire into the incident to find out if any organisation was involved in the incident, because the victims in the incidents were foreign missionaries and the area was agog with anti-conversion reaction prior to that occurrence.
The available evidences at the place of occurrence and the forensic science analysis of the materials available at the spot indicate also that the fire could have emanated from within and later spread to outside as a result of which only the rear portion of the station wagon was more damaged than the front portion. The Church in front of which the vehicles were parked was not damaged. Had the people who were displeased with the deceased missionary tried to harm could also set fire to the Church which symbolizes Christianity. The missing vessels/jerry canes carrying extra diesel kept in the other vehicle must have got burnt and the fuel tanks in both the vehicles became empty due to the intense fire. The forensic science report specifically mentions in the prosecution story that the agent of fire was either kerosene or diesel that enhanced the intensity of the fire to about 7000 degree centigrade that melted even the aluminum roofs and glass windows. At about 3.00 A.M. at the fag end of the night people saw the vehicles have completely gutted and the inmates charred to death. One Rolia Soren, who is a resident of Manoharpur and an ex-Pastor of the Church, gave an oral report (reduced into an F.I.R. later) mentioning many names of the locality but none of the named accused persons were charge sheeted by the prosecution. In that F.I.R. Soren suspected Dara Singh but failed to identify during deposition in the trial court. Initially, 50/60 persons were rounded up as suspects who were Hindu activists and known for protesting against Christian Missionaries’ operation of ‘Harvesting of Souls’ and converting poor and illiterate tribes. The investigation was taken over by the State CID which got all the arrested released. Later the matter was handed over to the federal investigation agency called the CBI.
Between 03/5/1999 and 14/6/1999 the CBI changed its investigating officers for the fourth time within little more than one month of its investigation. The prosecution witnesses who were not coming forward to speak about the incident to any of the top officials who were camping in the area ever since the incident since 22/01/1999 till May end of the same year, but started pouring in to speak once the PW 55 took over investigation on 10/5/1999 and the case was accordingly charge sheeted on 22/6/1999. The trial court examined 55 witnesses supporting the prosecution case and 25 witnesses deposed in support of the defense of 18 accused persons. On 22/9/2003 the trial court sentenced with death penalty against the main accused and life imprisonment against 12 others and the rest were acquitted for want of proof. On appeal before the High Court, the sentence of death penalty was reduced to life imprisonment against main accused Rabindra Kumar Pal @ Dara Singh and confirmed the life imprisonment on Mahendra Hembram and acquitted 11 other accused persons by the High Court by its order dated 19/5/2005. The CBI appealed before the Supreme Court challenging the High Court order and prayed to restore the trial court sentences on all the accused persons, where as the main accused Rabindra Kumar Pal @ Dara Singh and his accomplice Mahendra Hembram appealed against the High Court judgment and pleaded for acquittal as innocent.
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