37 years ago, 5 Sikh hi­jack­ers ow­ing al­le­giance to Dal Khalsa sought jus­tice by hi­jack­ing a plane to Pak­istan. Upon com­ple­tion of their life term sen­tence, 2 of them re­turned to Pun­jab and In­dia foisted a “wag­ing war” case against them, 7 years af­ter their ar­rival.   On 27 Au­gust, Judge Ajay Pandey will ad­ju­di­cate on the law point of dou­ble jeop­ardy at Pa­tiala House, New Delhi, which will make or break the faith of Sikhs in In­dian ju­rispru­dence, al­ready un­der strain.

On Au­gust 27, 2018, it will be a lit­mus test for the In­dian ju­di­cial sys­tem when Ad­di­tional Ses­sions Judge Ajay Pandey will de­liver a judg­ment in a 37-year-old-case of five Sikh Dal Khalsa po­lit­i­cal ac­tivists who peace­fully, with­out threats or arms, hi­jacked a plane to La­hore, en­route from Delhi to Sri­na­gar, to press their de­mand for re­lease of Sikh sa­vant, Sant Jar­nail Singh Bhin­dran­wale. Af­ter hav­ing served a life term in Pak­istan, the key ju­ris­dic­tional point would be the uni­ver­sally ac­cepted con­cept of dou­ble jeop­ardy, recog­nised in Ar­ti­cle 20(2) of the In­dian con­sti­tu­tion and Sec­tion 300 of CrPC.

Speak­ing ex­clu­sively to the WSN, lawyer for the ac­cused, Harpreet Singh Hora said, “We ex­pect the judge to throw out the pros­e­cu­tion case and our clients will be free. The ev­i­dence does not stand the rigours of the IPC, CRPC, the In­dian con­sti­tu­tion and Supreme Court judg­ments.”

The trav­esty of jus­tice started be­gan by the pros­e­cu­tion on 30 Au­gust 2012 sep­a­rat­ing the of­fence of hi­jack­ing from wag­ing war and sedi­tion in an at­tempt to by­pass the doc­trine of dou­ble jeop­ardy. The pros­e­cu­tion al­leged that the hi­jack­ers raised “Khal­is­tan Zind­abad”, Sant Baba Jar­nail Singh Bhin­dran­wale Zind­abad”, ‘Raj Karega Khal­sa’ slo­gans dur­ing the  hi­jack­ing and that they be­longed to Dal Khalsa which stood for in­de­pen­dence of Pun­jab. The de­fense said that hi­jack­ing is a one-piece act and a fresh case by split­ting the of­fence is a vi­o­la­tion of prin­ci­ple of dou­ble jeop­ardy.

““We ex­pect the judge to throw out the pros­e­cu­tion case and our clients will be free. The ev­i­dence does not stand the rigours of the IPC,RPC, the In­dian con­sti­tu­tion and Supreme Court judg­ments.””

Harpreet Singh Hora
Lawyer for the ac­cused

Plead­ing on be­half of the aged ac­cused, the de­fense pointed out that “the pe­ti­tion­ers have al­ready spent 35 years of their life in lit­i­ga­tion and have al­ready served one life sen­tence in Pak­istan. The in­stant is a clas­sic ex­am­ple of dou­ble jeop­ardy. Their en­tire life will go fac­ing trial af­ter trial for one set of cir­cum­stance. There should be an end to their agony. They were first tried for hi­jack­ing in Pak­istan and sen­tenced.  They were dis­charged by an In­dian court. It would be dis­as­trous to change the de­nom­i­na­tion and try them again for the same in­ci­dent un­der a dif­fer­ent nomen­cla­ture. It is per se il­le­gal.”

Harpreet Singh Hora, Coun­sel for the ac­cusedCit­ing the Supreme Court judge­ment in the case of Bal­want Singh and an­other ver­sus the State of Pun­jab of 1 March 1995, the de­fense pointed out that merely shout­ing a few slo­gans a few times does not tan­ta­mount to sedi­tion.  They also pointed out that the pros­e­cu­tion filed the sup­ple­men­tary charge sheet af­ter more than two and a half decades of the in­ci­dent which oc­curred in 1981 and there is no cred­i­ble ex­pla­na­tion of this in­ac­tion by the pros­e­cu­tion.

““We hope that the court will not add an­other clause to the long list of Sikh griev­ances. Jus­tice must be seen to be done and any un­der­hand judge­ment would boomerang on the In­dian state’s re­la­tion­ship with the Sikhs.””

Kan­warpal Singh
Dal Khalsa spokesper­son

Even a cur­sory look at the case will show that the gov­ern­ment had given sanc­tion to pros­e­cute with­out ap­pli­ca­tion of mind, the grant of sanc­tion was bad and the pros­e­cu­tion case must fail as held by the Cal­cutta High Court in Md. Yaqub And Aloke Biswas @ Bapi vs State Of West Ben­gal, 2004.

In the year 2001, a judge or­dered re-in­ves­ti­ga­tion, even af­ter know­ing that Sat­nam Singh, who af­ter reach­ing In­dia had sur­ren­dered in court on Au­gust 9, 1999, and af­ter ar­gu­ments by ace lawyer Pran Nath Lekhi, had been dis­charged in the case by the Ad­di­tional Chief Met­ro­pol­i­tan Mag­is­trate Ms Sangeeta Dhin­gra Se­h­gal, on the very doc­trine of dou­ble jeop­ardy on 11 Feb­ru­ary 2000.  

““We did what we did to up­hold the need for jus­tice for the com­mu­nity. We are po­lit­i­cal ac­tivists. We spent the prime of our life in prison. We hope true jus­tice will pre­vail. Rest is up to Akalpu­rakh.””

Sat­nam Singh Paonta Sahib

Still, the In­dian in­ves­ti­ga­tion agen­cies, sen­sa­tion­alised the whole is­sue and brought fresh charges of “wag­ing war” against the pe­ti­tioner Tejin­der Pal Singh, who had sought clear­ance in the same man­ner as Sat­nam Singh had been given by the court.  Af­ter sev­eral ad­journ­ments, over a pe­riod of five years, on 8 Jan­u­ary 2007 the trial court started pro­ceed­ings and Mag­is­trate Sameer Ba­j­pai took cog­ni­sance of the of­fences un­der sec­tions 121/​121-A/​124-A and 120-B of the IPC and is­sued non-bail­able war­rants against all five hi­jack­ers on 30 Au­gust 2012.  The High Court, in­stead of quash­ing the pro­ceed­ings asked the ac­cused to ap­pear be­fore the trial court of Ms. Jy­oti Kler.

Presently, af­ter pro­ceed­ings for nearly a year, a judge­ment is ex­pected in this his­toric long-drawn his­toric bat­tle which would have deep reper­cus­sions legally as well as po­lit­i­cally in the Pun­jab and the Sikh Di­as­pora which is al­ready in the grip of a move­ment de­nounc­ing jus­tice to Sikhs in In­dia. Dal Khalsa spokesper­son Kan­warpal Singh, com­ment­ing upon his ex­pec­ta­tions, said, “We hope that the court will not add an­other clause to the long list of Sikh griev­ances. Jus­tice must be seen to be done and any un­der­hand judge­ment would boomerang on the In­dian state’s re­la­tion­ship with the Sikhs.”

For the record, 37 years ago on Sep­tem­ber 29, 1981, five Sikh ac­tivists of the Dal Khalsa -Gajin­der Singh, Sat­nam Singh, Jas­bir Singh, Karan Singh, and Tejin­der­pal Singh hi­jacked an In­dian Air­lines flight from New Delhi to Sri­na­gar and forced landed in La­hore de­mand­ing the re­lease of Sant Jar­nail Singh Bhin­dran­wale. Af­ter serv­ing life im­pris­on­ment, Sat­nam Singh Paonta Sahib re­turned to In­dia in No­vem­ber 1999 and Tejin­der Pal Singh in De­cem­ber 1997.

The Sikh com­mu­nity is con­scious of the ver­dict against Ke­har Singh in the In­dira Gandhi trial. Time and again, Sikhs have ques­tioned the po­lit­i­cal es­tab­lish­men­t’s dou­ble stan­dards as the Pandey hi­jack­ers were ho­n­oured with leg­isla­tive rep­re­sen­ta­tion in Ut­tar Pradesh by the Con­gress gov­ern­ment and their cases with­drawn whereas Sikh hi­jack­ers Sat­nam Singh and Tejin­der Pal Singh face re­trial even af­ter un­der­go­ing a prison terms.  Two dif­fer­ent at­ti­tudes for the same of­fence smacks of a bias against Sikhs. 

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Speak­ing for Tejin­der­pal Singh and him­self, Sat­nam Singh has the last word. He told WSN, “We did what we did to up­hold the need for jus­tice for the com­mu­nity. We are po­lit­i­cal ac­tivists. We spent the prime of our life in prison. We hope true jus­tice will pre­vail. Rest is up to Akalpu­rakh.”