Sunday, 21 April 2013

Leading Supreme Court judgment on cross examination of witness


 Under the Code of Criminal Procedure, whether it is a trial before a Court of Session or a trial or warrant cases by Magistrates there are specific provisions prescribing the mode of recording evidence with the right of cross- examination of any witness by the accused as contemplated under Sections 244 as well as Sections 273, 275 and 276 of the Code. Both under the sessions trial and trial of warrant cases, the accused is given a discretionary right of deferring the cross examination of any witness or recalling any witness for further cross-examination [vide Sections 231(2), proviso to Section 242 sub-section (3)].
278. Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are :
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
 The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party.

Supreme Court of India
Kartar Singh vs State Of Punjab on 11 March, 1994
Equivalent citations: 1994 SCC (3) 569, JT 1994 (2) 423

Hon'ble Judges/Coram:
R.M. Sahai, S.R. Pandian, M.M. Punchhi, K. Ramaswamy and S.C. Agrawal, JJ.





The Judgments of the Court were delivered by S. RATNAVEL PANDIAN, J. (on behalf of himself, Punchhi, J., K. Ramaswamy, J., Agrawal, J. and Sahai, J.). The above batch of matters consisting of a number of writ petitions, criminal appeals and SLPs are filed challenging the vires of the Terrorist Affected Areas (Special Courts) Act (No. 61 of 1984), the Terrorists and Disruptive Activities (Prevention) Act (No. 31 of 1985) and the Terrorists and Disruptive Activities (Prevention) Act, 1987 (No. 28 of 1987) commonly known as TADA Acts (hereinafter referred to as the Act of 1984, Act of 1985 and Act of 1987 respectively) and challenging the constitutional validity of Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976 (U.P. Act No. 16 of 1976) by which the Legislative Assembly of Uttar Pradesh has deleted Section 438 of the Code of Criminal Procedure as applicable to the State of Uttar Pradesh. Though originally, a number of other matters falling under various Acts such as the U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986 (U.P. Act 7 of 1986), the Prevention of Illicit Traffic
Ed.: For clarification see Editor's Introductory Note at the beginning of the head note.
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of Narcotics 'Drugs and Psychotropic Substances Act, 1988 and some provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), were listed for hearing, we have fully and conclusively heard only the matters pertaining to the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976.
2. Therefore, we are now rendering a common judgment pertaining to the vires of these three Acts and Section 9 of U.P. Act 16 of 1976. At the same time, we make it clear that the merits of the individual cases will have to be decided separately after the validity of these three Acts is decided.
3. Before going to the question of the validity of these three Acts, we feel that a factual and archival account and exposition of the three relevant Acts may be summarised. Prefatory Note of the Three Acts
(A) THE TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT, 1984 (ACT 61 OF 1984)
4. The above Act 61 of 1984, applicable to the whole of India except the State of Jammu and Kashmir received the assent of the President on August 31, 1984 replacing Ordinance No. 9 of 1984 promulgated on July 14, 1984, the object of which is to provide for the speedy trial of certain offenses in terrorist affected areas and for matters connected therewith. Section 2(1) of this Act defines the expression "terrorist affected area" as an area declared as a "terrorist affected area" under Section 3 which provision empowers the Central Government by notification to declare any area to be "terrorist affected area" and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit provided in its opinion the offenses of the nature specified in the Schedule appended to that Act are being committed in any area by terrorists on such a scale and in such a manner that it is expedient for the purpose of coping with such terrorists to have recourse to the provisions of the Act. The notification issued under Section 3(1) in respect of an area should specify the period during which the area shall for the purpose of this Act be a "terrorist affected area". As per Section 3(2) a notification under Section 3(1) in respect of an area specifying the period during which the area shall for the purpose of this Act, be a terrorist affected area, and where the Central Government is of the opinion that the terrorists had been committing in that area from the date earlier than the date of issue of the notification, offenses of the nature specified in the Schedule on such a scale and in such a manner that it is expedient to commence the period specified in the notification from such earlier date, the period specified in the notification may commence from that date subject to the proviso thereto.
5. This Act contains 21 sections relating to the establishment of special courts, their composition, jurisdiction and appointment of judges and provision for an appeal as a matter of right from any judgment, sentence or order (not being an interlocutory order) of a special court to the Supreme Court both on facts and law. 616
6. Though in the original Schedule to this Act qua the definition of the expression 'Scheduled Offence' [vide Section 2(1)(f)], various enactments including 58 sections under the Indian Penal Code of which 23 are bailable were specified, the Legislature by the Amendment Act 45 of 1985, published in the Gazette of India, dated August 26, 1985, retained only Sections 121, 121-A, 122 and 123 of the Indian Penal Code and Sections 4 and 5 of the Anti-Hijacking Act, 1982 and deleted the rest from the original schedule.
7. It has been brought to our notice by Mr K.T.S. Tulsi, the learned Additional Solicitor General that the Central Government established judicial zones in Jullundur, Patiala, Ferozepur and Chandigarh but abolished them by Notification Nos. S.O. 692, S.O. 693, S.O. 694 and S.O. 695 dated September 25, 1985 and transferred the cases pending before those courts to ordinary courts. Two additional courts were constituted by the Government of India for trial of hijacking cases and Golden Temple case at Ajmer and Jodhpur but these two courts were also abolished by the Government vide Notification Nos. S.O. 655(E) and S.O. 722(E) dated August 24, 1990 and September 28, 1993 respectively. However, this Act is not repealed, but is in operation. (B) THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985 (ACT 31 OF 1985)
8. This Act which received the assent of the President on May 23, 1985 and was published in the Gazette of India, Extra., Part II, Section 1, dated May 23, 1985, came into force on May 24, 1985 in whole of India for a period of two years. Though originally the proviso to sub-section (2) to Section 1 was added reading, "Provided so much of this Act as relates to terrorist acts shall not apply to the State of Jammu and Kashmir", this proviso was omitted by Act 46 of 1985. The provisions of this Act were made applicable to the State of Jammu and Kashmir w.e.f. June 5, 1985. The preamble of this Act read that the special provisions of this Act were made "for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto". The Statement of Objects and Reasons of this Act read as follows: "Prefatory Note Statement of Objects and Reasons.- Terrorists had been indulging in wanton killings, arson, looting of properties' and other heinous crimes mostly in Punjab and Chandigarh. Since the 10th May, 1985, the terrorists have expanded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The 617
alarming increase in disruptive activities is also a matter of serious concern."
9. The Bill as introduced sought to make provisions for combating the menace of terrorists and disruptionists, inter alia, to-
(a) provide for deterrent punishment for terrorist acts and disruptive activities; (b) confer on the Central Government adequate powers to make such rules as may be necessary or expedient for the prevention of, and for coping with, terrorist acts and disruptive activities; and
(c) provide for the constitution of Designated Courts for the speedy and expeditious trial of offenses under the proposed legislation.
10. In Section 2, clauses (c) and (f) the expressions 'disruptive activity' and 'terrorist act' are defined. This Act in all contains 24 sections which are segregated into four parts i.e. Part 1 (Sections 1 to 2), Part 11 (Sections 3 to 6), Part III (Sections 7 to 16) and Part IV (Sections 17 to 24), dealing with punishment for, and measures for coping with, terrorist and disruptive activities, constitution of Designated Courts constituted under Section 7 of the Act, its jurisdiction and powers, the procedure to be followed, production of witnesses, appointment of Public Prosecutors and the provision for appeal as a matter of right from any judgment, sentence or order, not being an interlocutory order, of the court direct to the Supreme Court both on facts and law (vide Sections 7 to 16) and other miscellaneous provisions regarding the modified application of certain provisions of the Code' of Criminal Procedure, 1973, competence of Central Government to exercise powers of State Government and delegation of powers, power of the Supreme Court of India to make rules etc.
(C) THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 (ACT 28 OF 1987)
11. Act 28 of 1987 was enacted as Act 31 of 1985 was due to expire on May 23, 1987 and as it was felt that in order to combat and cope with terrorist and disruptive activities effectively, it was not only necessary to continue the said law but also to strengthen it further. Since both the Houses of Parliament were not in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on May 23, 1987 which came into force w.e.f. May 24, 1987. However, this Act repealing the Ordinance, received the assent of the President of India on September 3, 1987 and was published in the Gazette of India, Extra., Part II, Section 1, dated September 3, 1987. The scheme of Act 31 of 1985 and Act 28 of 1987 as reflected from their preambles is the same. The scheme of the special provisions of these two Acts were/are "for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto".
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12. As per sub-section (1) of Section 1, Sections 5, 15, 21 and 22 came into force at once and the remaining provisions of this Act were deemed to have come into force on 24th day of May 1987. According to sub-section (4) of Section 1, this Act was to remain in force for a period of two years from May 24, 1987 but subsequently sub-section (4) was amended by virtue of the Amendment Act 16 of 1989 whereby for the words "two years", the words "four years" were substituted and the validity of this Act was extended for a further period of two years. Resultantly, the Act was to expire on May 23, 1991. Thereafter as it was felt that the Act should continue, the President promulgated an Ordinance whereby for the words "four years", "six years" were substituted in sub-section (4) of Section 1. Subsequently, this Ordinance was repealed by Act 35 of 1991 thus extending the life of the Act 28 of 1987 to six years. As the Act even by the extended period of six years was to expire on May 23, 1993, another Amendment Act 43 of 1993 which received the assent of President on May 22, 1993, was enacted extending the life of the Act for eight years instead of six years.
13. Incidentally, it may be stated that some insertions, substitutions and omissions to some of the sections of this Act have been made. This Act contains 30 sections grouped under four parts i.e. Part 1 (Sections 1 and 2), Part 11 (Sections 3 to 8), Part III (Sections 9 to 19) and Part IV (Sections 20 to 30). Part 11 of the Act deals with punishment for, and measures for coping with terrorists and disruptive activities. Part III deals with constitution of Designated Courts, their jurisdiction, powers, and the procedure to be adopted. It also provides provisions for appeal to the Supreme Court both on facts and law as in the case of other Acts. The provisions under Part IV under the heading "Miscellaneous" deal with the modified application of certain provisions of the Code, presumption as to offenses under Section 3, identification of accused, power of the Supreme Court to make rules etc.
14. We give the following table of some of the provisions which are similar in the Act of 1985 and the Act of 1987: The Terrorist and Disruptive The Terrorist and Disruptive Activities Prevention Activities (Prevention) Act, 1985 Act,1987
Section 7 = Section 9
Section 8 = Section 10
Section 9(2) = Section 11(2)
Section 13 = Section 16
Section 16 = Section 19
Section 17(2) = Section 20(4)
Section 17(4) = Section 20(7)
Section 17(5) = Section 20(8)
15. A galaxy of senior lawyers, namely, M/s V.M. Tarzan, Ram Jethmalani, M.S. Gujral, Rajinder Sachar, Hardev Singh, M.R. Sharma, A.K. Sen, Balwant Singh assisted by a team of lawyers, M/s R.S. Sodhi, S. Bisaria, D.B. Vohra, K. Rajendra Chowdhary, A.K. Srivastava, Shiv Pujan
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Singh, Ujjal Singh, Mohan Pandey all appearing for the petitioners/appellants made the most virulent fusillade against the constitutional validity of all the Acts in general and the various provisions of those Acts in particular mainly on the grounds that (1) that the Central Legislature has no legislative competence to enact the legislations, and (2) these impugned Acts or some of the provisions of these Acts are in contravention of or ostensibly in violation of any of the fundamental rights specified in Part III of the Constitution; they also triggered off a volley of attacks against the validity of the provisions of these Acts/on some other grounds also. According to them, these Acts and the provisions thereto, which are in utter disregard and breach of humanitarian law and universal human rights, not only lack impartiality but also fail the basic test of justice and fairness which are well established and recognised principles of law.
16. After critically analysing a number of penal and procedural provisions relating to issue of arrest, investigation, bail, mode and methodology of trial, right of the accused during the trial etc. etc., the learned counsel have strenuously articulated that these Acts with which we are confronted, are Draconian, ugly, vicious and highly reprehensible, the brutality of which cannot and should not be minimised or ignored though this Court is not called upon to condone the penalised conduct of the real terrorists and disruptionists. Then they made a scathing attack seriously contending that the police by abusing and misusing their arbitrary and uncanalised power under the impugned Acts are doing a 'witch-hunt' against the innocent people and suspects stigmatizing them as potential criminals and hunt them all the time and overreact and thereby unleash a reign of terror as an institutionalised terror perpetrated by Nazis on Jews.
17. The above challenges have been countervailed by the learned Additional Solicitor General, Mr K.T.S. Tulsi assisted by Mr R.S. Suri appearing for the State of Punjab, the learned Additional Solicitor General, Mr Altaf Ahmed assisted by Ms A. Subhashini appearing for the Union of India, Mr V.R. Reddy, the learned Additional Solicitor General assisted by Mr K.V. Venkataraman and Mr 1. Subramaniam for the State of Tamil Nadu, Mr S.K. Dholakia for the State of Gujarat and Mr N.M. Ghatate for the State of U.P. contending that all the veiled attacks challenging the validity of the Acts and the provisions thereto are mainly due to the unjustifiable hostility and sentiments and souring of respect for those Acts. According to them, the events of the past and the continuous long term threats of terrorism and disruption unleashed by a team of seasoned criminals by spreading their wings and sharpening their claws have forced the legislature to respond to this menace without sacrificing the national values and to combat the terrorism by extending and expanding the legal powers of the State and taking steps/measures in a legalised way and that the outcome of such response is the enactment of these Acts after a prolonged debate in both Houses of Parliament as the Legislature has felt that the ordinary criminal laws both penal and procedural are quite inadequate to meet the 620
challenges especially when the incidents of terrorists' and disruptionists' activities have increased astronomically. It has been submitted that it was only in the above background, the Parliament in its wisdom thought that the enactment of these Acts (TADA) is the only solution for all the ills, besetting the nation and accordingly enacted these Acts under challenge in order to put down the terrorism and the impending danger in a legalised manner and a comprehensive survey of the anatomy of the entire Acts and a dispassionate examination of them would unmistakably show that these Acts cannot be said to be, in any way, contravening any of the fundamental rights of our Constitution or suffering from lack of legislative competence.
18. Supplementing the above submission, it has been very seriously contended by Mr K.T.S. Tulsi that the terrorists are resorting to a mix of specific terrorist operations including armed attacks in a very cruel, unusual and inhumane manner for a variety of reasons, some of which being (1) to instill (a) a sense of fear and helplessness among civilians either to alienate them from the Government duly established or to make them lose faith in the Government's ability to protect them, (b) a sense of impotence among government officials or to intimidate them as a means of neutralizing their active opposition to the terrorists groups; (2) to undermine the national economy by discouraging foreign investment, dissuading foreign tourists from visiting the country and spurring capital flight by domestic investors; and (3) to provoke harsh governmental reprisals to gain sympathy of the population or to create an international incident to publicise their political cause and so on. He further states that all their violent activities are designed to get maximum media coverage of their demands including political demands and of publicity and that many times the targets or the victims of the most inhumane physical attacks are the innocent persons whether they are individuals or group of persons.
19. Notwithstanding the merits and demerits of the submissions and counter-submissions, irrefutably the talented lawyers and learned Additional Solicitors General using their formidable legal skill, extensive scholarly knowledge and vast and rich practical experience in criminal proceedings and trials analysed the various provisions of the Acts under separate heads in the light of the well- recognised principles of criminal jurisprudence with reference to human rights, but sometimes with occasional outbursts and caustic exchanges. In support of their respective contentions advanced during their expanded arguments, they cited a long line of decisions of not only this Court and the High Courts of this country but also foreign decisions and legislations.
20. Before we make an in-depth examination of the challenges canvassed which are manifestly and pristinely legal, with regard to the impugned Acts and some of their provisions with a comprehensive and exclusive survey, it has become inevitable for us to give a brief sketch of the historical background and the circumstances which forced the legislature to enact these
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laws, as gathered from the parliamentary debates, Statement of Objects and
Reasons and prefatory notes of the impugned Acts, etc., etc.
21. From the recent past, in many parts of the world, terrorism and disruption are spearheading for one reason or another and resultantly great leaders have been assassinated by suicide bombers and many dastardly murders have been committed. Deplorably, determined youths lured by hardcore criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity. In spite of the drastic actions taken and intense vigilance activated, the terrorists and militants do not desist from triggering lawlessness if it suits their purpose. In short, they are waging a domestic war against the sovereignty of their respective nations or against a race or community in order to create an embryonic imbalance and nervous disorder in the society either on being stimulated or instigated by the national, transnational or international hard-core criminals or secessionists etc. Resultantly, the security and integrity of the countries concerned are at peril and the law and order in many countries is disrupted. To say differently, the logic of the cult of the bullet is hovering the globe completely robbing off the reasons and rhymes. Therefore, every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected.
22. Thus, terrorism and disruptive activities are a worldwide phenomenon and India is not an exception. Unfortunately in the recent past this country has fallen in the firm grip of spiraling terrorists' violence and is caught between the deadly pangs of disruptive activities. As seen from the Objects and Reasons of the Act 31 of 1985, "Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh" and then slowly they expanded their activities to other parts of the country i.e. Delhi, Haryana, U.P. and Rajasthan. At present they have outstretched their activities by spreading their wings far and wide almost bringing the major part of the country under the extreme violence and terrorism by letting loose unprecedented and unprovoked repression and disruption unmindful of the security of the nation, personal liberty and right, inclusive of the right to live with human dignity of the innocent citizens of this country and destroying the image of many glitzy cities like Chandigarh, Srinagar, Delhi and Bombay by strangulating the normal life of the citizens. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation.
23. Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenseless people particularly poor, politicians, statesmen, government officials, police officials, army personnel inclusive of the jawans belonging to Border Security Force have been
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mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich like attitude completely ignoring the impending danger. Whatever may be the reasons, indeed there is none to deny that.
24. The speeches made by the then Home Minister, the then Minister of State for Home Affairs and many Members of Parliament during the debates at the time of the introduction of the Act of 1987 and at the subsequent stage of its extension and modification, would unfold the magnitude and seriousness of the terrorist and disruptive activities and their consequent dangerous impact on the security of the nation.
25. On April 8, 1988, the then Home Minister in his speech before the Lok Sabha stated thus:
"As I told in the beginning, the forces working to destabilize the country are bein g
encouraged from outside as well as inside of the country ... According to the information received, it appears that its master mind is somewhere else and it is also inside."
26. The then Minister of State for Home Affairs gave an extensive speech with regard to the commission of heinous crimes on a large scale not only threatening the security and territorial integrity of the nation but also extremely affecting the normal life of the people and stressed the importance of the enactment of law providing the special procedure and speedy trial of those offenses.
27. One of the Members of Parliament (Shri Kamal Chaudhary) expressing his view during the discussion on the Bill on the Terrorists and Disruptive Activities (Prevention) Act, 1987 stated:
... Punjab is burning. The legend goes that in the rivers of Punjab milk used to flow but they are now drenched with blood. There is hatred all over. What is a democratic solution for Punjab. ... How many women are beating their breasts every night? We feel the pinch only when our near and dear ones get killed."
Yet another Member of Parliament (Shri Anoopchand Shah) speaking on the Bill presented before the House said: "Today terrorism has not remained confined to Punjab only. It has rather spread to every corner of the country. The same terrorism which exists in Punjab is making its presence felt in Delhi and Maharashtra also......
Another Member of Parliament (Shri Jagan Nath Kaushal) taking part in the debate on the Act of 1987 spoke thus: . "... The Hon. Members know that we are not dealing with normal peaceful times. We are dealing with extraordinary times. Shri Satyendra Narayan Singh has said that not only for Punjab but do something for Bihar also because in the garb of political party etc. greater terrorism is prevailing there also."
28. We feel that it is not necessary to swell this judgment by reproducing the entire speeches made by the then Home Minister, the Minister of State
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for Home Affairs and some Members of Parliament on the atrocities committed by terrorists and disruptionists and on the necessity of bringing the Acts (TADA) to effectively prevent the consequent violence. But suffice to give the compelling reasons as shown in the Statements of Objects and Reasons for enacting the Acts of 1985 and Objects and Reasons for enacting the Acts of 1985 and 1987 which are to the effect that the terrorists and disruptionists by their expanded activities have created dreadful fear and panic in the minds of the citizens and disrupted communal peace and harmony; that their activities are on an escalation in many parts of the country; that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.
29. The totality of the speeches made by the Ministers, Members of the Parliament during the debates in the Parliament, the Statement of Objects and Reasons, the submissions made by the learned Additional Solicitors General converge to the following conclusions: (1) From mid-eighties, the prevailing conditions have been surcharged with the terrorism and disruption posing a serious threat to the sovereignty and integrity of India as well as creating panic and sense of insecurity in the minds of the people. Added to that the brutality of terrorism let loose, by the secessionists and anti-nationals in the highly vulnerable area of Indian territory, (prejudicial to the defence of India), is causing grave concern even about the chances of survival of the democratic polity and process;
(2) there were also continuous commission of heinous offenses such as gruesome mass killings of defenseless innocent people including women, children and bystanders, disturbing the peace, tranquility and security;
(3) the existing ordinary criminal laws are found to be inadequate to sternly deal with such activities perpetrated on humanity.
30. It was only in the above prevailing circumstances, the Legislature has been compelled to bring forth these Acts (TADA) to prevent and deal with the peril of the erupting terrorism and the consequent potential disorder among others disrupting the law and order and to sternly deal with many groups lurking beneath the murky surface, aiding, abetting, nourishing and fomenting terrorism besides giving financial support and supplying sophisticated automatic lethal arms and ammunitions both from inside and outside of India. It may not be out of place to mention that the facts of the cases appealed against and set out in the writ petitions and SLP, if accepted in their entirety, reveal the multiple acts of violence let loose; and the acts of savage revenge perpetrated against individuals, group of persons or any particular community or religious sects show that the violent threat which
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has manifested itself is not evidently going to vanish with such inexplicable suddenness as would seem to have been visually presumed.
31. In this context, a question may arise as to whether judges can take notice of matters of common knowledge and authenticated report. This question has been examined by a Full Bench of the High Court of Punjab and Haryana in Sukhdev Singh v. Union Territory, Chandigarh'. M.M. Punchhi, J. (as he then was) speaking for the majority observed:
"I know that in order to sustain the presumption of constitutionality of a legislative measure, the court can take into consideration matters of common knowledge, matters of common report, the history of the times and also assume every state of facts which can be conceived existing at the time of the legislation."
32. To redress all the multiple dimensions of crimes whether of national or transnational or international committed by individual or group of criminals, is of course a very difficult task because the crimes and criminals do not respect frontiers and the field of operation of the activities of the criminals know no territorial limits.
33. The Parliament, evidently, taking note of the gravity of terrorism committed by terrorists either with an intention to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people and the consequent widespread apparent danger to the nation, has felt the need of not only continuing but also further strengthening the provisions of TADA Act (Act 31 of 1985) in order to cope with the menace of terrorism, enacted Act 28 of 1987 bringing drastic changes with regard to the admissibility of confessions made to police officials prescribing special procedures and providing consign punishments etc., leave apart the question with regard to the validity of these provisions to be tested on the touchstone of the Constitution.
34. Keeping in view the above historical background, we shall unbiasedly and without any preconceived notion, examine the various legal problems presented inclusive of the constitutional validity of the three Acts (TADA) in general and of the various provisions in particular of those Acts on the touchstone of the Constitution of India.
35. While so testing the vires of these Acts, we shall also scrupulously analyse the various penal and the procedural provisions embodied in those Acts relating to the issues of definition of certain terms, arrest, investigation, bail, mode of trial, jurisdiction of the Designated Courts, the permissible legal rights of the accused guaranteed under the Constitution, etc., etc. in the light of the constitutional provisions as well as the legal provisions of the existing procedural law with the spectrum of experience so far we have gained in the field of implementation of these impugned Acts.
When Law ends, Tyranny begins;
1 AIR 1987 P & H 5: 1986 Cri LJ 1757: (1986) 90 Punj LR 109
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Legislation begins where Evil begins.
The function of the Judiciary begins when the function of the Legislature ends,
because the law is, what the judges say it is since the power to interpret the law vests in the judges.
36. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implicit obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crisis.
37. Where all traditional law enforcement institutions are under suspicious scrutiny, only rational application of the functions of law and a thorough understanding of its complexities and limitations can protect the integrity and survival of legal order.
38. But it is certainly true that the problem has received a new intensity and a new range as the law extends and variegates the range of its concerns and application and as the interests and modes of articulation of those ministering to the law become more and more specialised and technical.
39. Needless to stress that the life of man in a society would be a continuing disaster if not regulated. The principal means for such regulation is the law which serves as the measure of a society's balance of order and compassion and instrument of social welfare rooted in human rights, liberty and dignity.
40. Emphasising the importance and potentiality of the law, Lord Chancellor Sankey once remarked:
"Amidst the cross currents and shifting sands of public life the law is like a great ark upon which a man may set his foot and be safe."
41. C.G. Weeramantry in The Law in Crisis Bridges of Understanding emphasising the importance of 'Rule of Law' in achieving social interest has stated thus: "The protections the citizens enjoy under the Rule of Law are the quintessence of twenty centuries of human struggle. It is not commonly realised how easily these may be lost. There is no known method of retaining them but eternal vigilance. There is no known authority to which this duty can be delegated but the community itself. There is no known means of stimulating this vigilance but education of the community towards an enlightened interest in its legal system, its achievements and its problems."
42. Harking back to the Acts with which we are concerned, Act 31 of 1985 and Act 28 of 1987 have been enacted by Parliament as a piece of emergency legislation for a certain length of time which period has been
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extended periodically by the Parliament on revision and they have been extended to the whole of India and made applicable to citizens of India even outside India, to persons in the service of the Government, wherever they may be; and to persons on ships and aircraft registered in India, wherever they may be.
43. With the above brief introduction, we shall now proceed to deal with the submissions made by the learned counsel for the parties with reference to the main questions, firstly whether the Acts suffer from lack of legislative competence and secondly, whether the Acts or any of the provisions thereof contravene any fundamental right specified in Part III of the Constitution, as well as other cognate questions.
44. It has been seriously contended by Mr Balwant Singh Malik, Senior Counsel that Act 28 of 1987 (TADA) is ultra vires since the Central Legislature, namely, the Parliament, lacked legislative competence under Article 246 read with the topics of legislation enumerated in List I (Union List) and List III (Concurrent List) of the Seventh Schedule to the Constitution, to enact the TADA Act and that the subject-matter of the impugned Acts in fact fell within the legislative field assigned to the States under Entry of List II (State List), namely, 'Public Order' which is a most comprehensive term with widest import encompassing every activity which leads to violence or disturbs public tranquility.
45. According to him, the subject-matter of the Act (TADA) is not referable to any of the matters enumerated in List I of the Seventh Schedule and the presumptive attempt of the Union of India to rely upon Entry 1 of List III for the competency of the Parliament to enact the TADA Act cannot find favour. Entry I of List III reads:
"Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offenses against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power."
46. According to him, the above entry is left with only 'offenses against laws' with respect to matters specified in subsequent entries of the Concurrent List. As the TADA Act cannot be held to be referable to any other topic in the Concurrent List, its subject-matter could not, on that basis be held to fall under Entry of that list. It has been further submitted that the contents of the heading 'Criminal law' in Entry 1 of List III are derivative in' nature and carry no meaning of their own because the criminal law comprising 'offenses against laws' are with respect to the matters in the three lists. He continued to urge that the subject-matter of the TADA Act which deals with the 'security of the State' and 'public safety' involving violence even of the highest degree tending to cause grave public disorder is plainly covered under Entry of List II and that the individual States under Entry 64 of List II alone are competent to legislate with respect to offenses against public order.
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47. After drawing our attention to some of the laws enacted by various States with respect to maintenance of public order, such as-
(1) Assam Disturbed Areas Act (19 of 1955); (2) The Punjab Security of State Act, 1949; (3) The Bihar Maintenance of Public Order Act, 1949;
(4) The West Bengal (Prevention of Violent Activities) Act, 1970;
(5) The U.P. Gangsters and Anti-social Activities (Prevention) Act (7 of 1986);
(6) The J. & K. Enemy, Agents Ordinance No. VIII of San 2005;
(7) The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 198 1;
(8) The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Gamblers, Immoral Traffic and Slum Grabbers Act, 1985
it has been said that all those laws fall within the ambit of 'public order' appearing in Entry of List II. Mr Balwant Singh Malik, in support of his contention, cited the following decisions declaring competency of the Provinces/States of the Federation/Union to make laws under 'public order': (1)Lakhi Naravan Das v. Province of Bihar2, (2) Romesh Thappar v. State of MadraS3, (3) Rev. Stainislaus v. State of M.P.4 and (4) Ashok Kumar Dixit v. State of U. P. 5
48. Though, according to him, the individual States are legislatively competent to provide for the maintenance of public order by creating new offenses and by taking other measures within the States, if a situation with regard to the maintenance of public order concerns more than one State or the country as a whole, then it may be necessary for the Parliament to step in under Articles 249, 250 and 252 of the Constitution (which provisions have, however, not been relied upon when enacting the TADA Act) and enact the law. However, this will not justify giving any other meaning to Entry 1 of List III, namely, 'Criminal law' and Entry in List II, namely, 'Public order' read with Entry 64 and Entry 65 of that list.
49. Elaborating some of the entries of List II, it has been urged that the legislative power of the State to enact laws under 'Public order' is contained in Entry I of List II and the power of the State to create the police investigating agency is under Entry 2 of List II and the legislative power to vest jurisdiction and confer powers on courts to try such State offenses calls under Entry 65 of List II and that a combined reading of the excluding clause of Entry I of List III and Entry 93 of List I and Entry 64 of List II completely exempts offenses relating to 'Public order' from the heading, Criminal law' under Entry I of List III. 2 AIR 1950 FC 59: 51 Cri LI 921: 1949 FCR 693 3 1950 SCR 594: AIR 1950 SC 124: 51 Cri LJ 1514 4 (1977) 1 SCC 677: 1977 SCC (Cri) 147: (1977) 2 SCR 611 5 AIR 1987 All 235: 1987 All Cri R 236: 1987 All LJ 806 (FB)
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50. It has been further urged that the legislative power of the Parliament under Articles 245 and 246(1) and (2) read with List I and List III of the Seventh Schedule to the Constitution in regard to creating offenses, under Entry 93 of List I extends only to matters enumerated in that list and under Entry 1 of List III in regard to matters in subsequent entries of that list.
51. Supplementing the above arguments, Mr Ram Jethmalani, Senior Counsel advanced the other facet of the argument stating that this Act (28 of 1987) in 'pith and substance' relates to 'Public order' as reflected from its preamble itself declaring the Act to be an Act to make special provisions for the prevention of and for coping with terrorist and disruptive activities and for matters connected therewith or incidental thereto. The 'pith and substance' of the Act, according to him, is in Sections 3, 4, 5 and 6 to which the rest of the sections are merely incidental to or necessary for the implementation of the paramount purpose of the statute and that if the 'pith and substance' of the legislation is covered by a particular entry, any incidental encroachment on some other entry does not change the character of the Act. The amendments brought under Act 28 of 1987 creating special courts called Designated Courts, prescribing new procedure and inserting some provisions with regard to the admission of evidence in trials before the Designated Courts, would justify that these amendments fall within Entry 2 and Entry 12 of List III whilst the Act remains as one failing under Entry I of List II.
52. In support of his submission with regard to the doctrine of 'pith and substance', he referred to the decisions in (1) Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.6, (2) Ram Krishna Ramnath Agarwal v. Secretary, Municipal Committee7, and (3) Kerala State Electricity Board v. Indian Aluminum Co.8 The learned counsel also cited two other decisions with regard to the scope of Entry 2 (sic 1) of List II, those being, (1) Romesh Thappar3 wherein the Court after approving a passage from Stephen's Criminal Law of England has held that unlawful assemblies, riots, insurrections, rebellions etc. are all offenses against public order, the difference among them being only a difference of degree, and (2) Superintendent, Central Prison v. Dr Ram Manohar Lohia9.
53. Mr Hardev Singh in his written arguments in Writ Petition No 15432 of 1984 which have been filed by the petitioner, Mr Amrinder Singh as a public interest litigant challenging the constitutional validity of Act 61 of 1984 raised a similar contention that the Terrorist Affected Areas (Special Courts) Act, 1984 is unconstitutional for want of legislative competence.
54. Mr K.T.S. Tulsi, the learned Additional Solicitor General in hi: attempt to expose the fallacy of the above submissions stated that the highly
6 AIR 1947 PC 60: 74 IA 23: 51 CWN 599 7 1950 SCR 15: AIR 1950 SC 11
8 (1976) 1 SCC 466: (1976) 1 SCR 552
3 1950 SCR 594: AIR 1950 SC 124: 51 Cri LJ 1514 9 (1960) 2 SCR 821: AIR 1960 SC 633: 1960 Cri LJ 1002 629
classified and strictly confidential information collected by and received from the Intelligence Organisation, which information is not to be disclosed in public interest, unmistakably unfolds that the secessionists' forces working to destabilize the sovereignty of India and its integrity are being encouraged by the neighboring countries and that there are many training camps on the borders of India where training is imparted to militants and terrorists not only in the use of sophisticated and heavy weapons including rocket launchers, machine guns, mines, explosives and wireless, communications but also to indulge in illicit trafficking of narcotic drugs, and psychotropic substances which unassailable facts are a matter of common knowledge and which can be taken into consideration by way of judicial notice. Many countries across the borders, according to him, are supplying deadly arms and ammunitions and are providing sanctuary to the extremist elements as a base for their training and doctrination.
55. In view of the above outrageous and volcanic circumstances and situations, in pith and substance, the Act is not related to 'Public order' falling under Entry 1 of List II but relates to the 'Defence of India' falling under Entry 1, as well as Entries 2 and 2-A of List I read with Entries 1 and 2 of List III.
56. According to Mr Tulsi, the submissions of the other side that the subject of the impugned Act falls under Entry 1 of List II, namely, 'Public order' is incorrect and fallacious.
57. We shall now carefully examine the submissions made by the respective parties in the light of the import and intendment of the Acts under challenge and find out as to whether this Act (TADA) falls under Entry 1 of List II, namely, 'Public order' or under Entry 1 of List I, namely, 'Defence of India' as well as Entries 2 and 2-A of List I read with Entries I (Criminal law) and 2 (Criminal procedure) of List III. But before we do so, we would briefly take note of the constitutional scheme relating to distribution of legislative powers between the Union and the States.
58. Under clause (1) of Article 246, notwithstanding anything in clauses (2) and (3) of the said article, Parliament has exclusive power to make laws with respect to any of the 97 subjects enumerated in List I of the Seventh Schedule. Under clause (3) of the said article, the State Legislatures have exclusive powers to make laws with respect to 66 items enumerated in List II. The powers in respect of the 47 items enumerated in List III are concurrent i.e. both Parliament and the Legislature of any State, subject to clause (1) have power to make laws. With regard to a law made in respect of matters enumerated in the Concurrent List provision has been made in Article 254 which gives overriding effect to a law made by Parliament in the event of there being any repugnancy between the said law and the law made by the Legislature of a State and the State law would prevail over a law made by Parliament only if such State law was enacted after the law made by Parliament and has received the assent of the President. While examining the question of legislative competence of Parliament to make a law, the proper
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approach is to determine whether the subject-matter of the legislation falls in the State List which Parliament cannot enter.
59. If the law does not fall in the State List, Parliament would have the legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question whether it falls under any entry in the Union List or Concurrent List [See (i) Union of India v. H.S. Dhillon10 (SCC at pp. 799, 803; SCR at pp. 61 and 67- 68), (ii) S.P. Mittal v. Union of India' 1 (SCC at p. 82, paras 70 and 72; SCR at pp. 769-770), and (iii) Khandelwal Metal and Engg. Works v. Union of India12 SCC at p. 641, para 42]. It is, therefore, necessary to examine whether the Act falls within the ambit of Entry 1 read with Entry 64 of the State List as contended by the learned counsel for the petitioners. But before we do so we may briefly indicate the principles that are applied for construing the entries in the legislative lists. It has been laid. down that the entries must not be construed in a narrow and pedantic sense and that widest amplitude must be given to the language of these entries. Sometimes the entries in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of the court to find out its true intent and purpose and to examine the particular legislation in its 'pith and substance' to determine whether it fits in one or other of the lists. [See : Synthetics and Chemicals Ltd. v. State of U.p.13 (SCC at pp. 150-51, para 67; SCR at p. 673); India Cement Ltd. v. State of T.N. 14 (SCC at p. 22, para 18; SCR at p. 705)].
60. This doctrine of 'pith and substance' is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.
61. Lord Porter speaking for the Judicial Committee of the Privy Council in Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna6 quoted with approval the observations of Sir Maurice Gwyer, C.J. in
10 (1971) 2 SCC 779: (1972) 2 SCR 33
11 (1983) 1 SCC 51 : (1983) 1 SCR 729
12 (1985) 3 SCC 620: 1985 SCC (Tax) 466: 1985 Supp 1 SCR 750,775
13 (1990) 1 SCC 109: 1989 Supp 1 SCR 623 14 (1990) 1 SCC 12: 1989 Supp 1 SCR 692 6 AIR 1947 PC 60: 74 IA 23: 51 CWN 599
631
Subrahmanyan Chettiar v. Muttuswami Goundan15 to the effect: (IA at p. 43)
"It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this list or in that."
Thereafter, their Lordship of the Privy Council held: (IA at p. 43)
"Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with.
Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith an d
substance of the impugned Act. Its provisions may advance so far into federal territory as to show that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money-lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content."
See also (1) The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act No. XIV of 1938, In re16, (2) Governor-General in Council v. Province of Madrasl7, (3) Union of India v. H.S. Dhillon10, and (4) State of J&K v. M.S. Farooqi18 wherein the dictum laid down in Subrahmanyan Chettiar15 has been referred to.
62. Reference may now be made to the relevant entries, namely Entries 1 and 64 of State List which are as under: 15 1940 FCR 188: AIR 1941 FC 47
16 AIR 1939 FC 1 :(1939) 1 MLJ Supp 1
17 AIR 1945 PC 98: 72 IA 91: 1945 FCR 179 10 (1971) 2 SCC 779: (1972) 2 SCR 33
18 (1972) 1 SCC 872: (1972) 3 SCR 881
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" 1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).
64. Offenses against laws with respect to any of the matters in this List."
63. Under the Government of India Act, 1935, the Provincial Legislature had been conferred the power to enact laws in respect of matters enumerated in the Provincial List and Item I of the Provincial List covered the field of " public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power)".
64. In Lakhi Narayan Das v. Province of Bihar2 the expression "public order" has been described as a 'most comprehensive term' and it has been held that "maintenance of public order within a province is primarily the concern of that province". It has also been further observed that if the legislature has not exceeded its powers, it is not for the courts to criticise the wisdom or policy of the legislature. In Romesh Thappar v. State of Madras3 while holding that "public order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established, the Court has drawn a distinction between "public order" and security of a State. After referring to Entry 3 of the Concurrent List, the Court has observed:
"The Constitution thus requires a line to be drawn in the field of public order or tranquility marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind."
65. In Ram Manohar Lohia (Dr) v. State of Bihar' 9, Hidayatullah, J. (as the leaned Chief Justice then was) has brought out the distinction between "law and order", "public order" and "security of the State" in the following observation:
"It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
2 AIR 1950 FC 59: 51 Cri LJ 921: 1949 FCR 693 3 1950 SCR 594: AIR 1950 SC 124: 51 Cri LJ 1514 19 (1966) 1 SCR 709: AIR 1966 SC 740: 1966 Cri LJ 608 633
66. Having regard to the limitation placed by Article 245(1) on the legislative power of the Legislature of the State in the matter of enactment of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to "public order" under Entry 1 in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the State. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List. The petitioners can succeed in their challenge to the validity of the Act with regard to the legislative competence of Parliament, only if it can be said that the Act deals with activities relating to public order which are confined to the territories of a particular State.
67. In order to ascertain the pith and substance of the impugned enactments, the preamble, Statement of Objects and Reasons, the legal significance and the intendment of the provisions of these Acts, their scope and the nexus with the object that these Acts seek to subserve must be objectively examined in the background of the totality of the series of events due to the unleashing of terrorism, waves after waves, leading to the series of bomb blasts causing extensive damage to the properties, killing of hundreds of people, the blood-curdling incidents during which the blood of the sons of the soil had been spilled over the soil of their motherland itself, the ruthless massacre of the defenseless and innocent people especially of poor as if they were all 'marked for death' or for 'human sacrifice' and the sudden outbreak of violence, mass killing of army personnel, jawans of Border Security Force, government officials, politicians, statesmen, heads of religious sects by using bombs and sophisticated lethal weapons thereby injecting a sense of insecurity in the minds of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the alleged violent crimes is shown to have been perpetrated, the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecedented and unprovoked occurrences, lead to an inescapable illation and conclusion that the activities of the terrorists and disruptionists pose a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges come by way of external aggression or internal disturbance.
68. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public order' disturbing the "even tempo of the life of community of any specified locality" in the words of Hidayatullah, C.J. in Arun Ghosh v. State of W.B.20 but it is much more, rather a grave emergent situation created either by external forces particularly at the
20 (1970) 1 SCC 98: 1970 SCC (Cri) 67: (1970) 3 SCR 288 634
frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity.
69. The above view gets strengthened from the very definition of the expression 'terrorist act' as defined in Section 2(1)(h) of the Act 28 of 1987 stating that the said expression "has the meaning assigned to it in sub-section (1) of Section 3" according to which the intention to commit any offence or offenses specified therein should be for one or more clearly defined objectives as expressly mentioned in Section 3(1) reading:
"3. (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmon y
amongst different sections of the people does any act or thing......
70. Similarly, the expression 'disruptive activity' as defined under Section 2(1)(d) has the meaning assigned to it in Section 4. Section 4(1) prescribes only the quantum of punishment for disruptive activities. Section 4(2) gives the meaning of that expression thus:
"4. (2) For the purposes of sub-section (1), 'disruptive activity' means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever,-
(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or
(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.
Explanation.- For this purposes of this sub- section,-
(a) 'cession' includes the admission of any claim of any foreign country to any part of India, and
(b) 'secession' includes the assertion of any claim to determine whether a part of India will remain within the Union."
71. The above definitions, would themselves make it clear that the expression "Terrorist and Disruptive Activities" deployed in the preamble of the Act (28 of 1987 TADA) contemplates the commission of any specified offence or offenses with a specific intention one of which being "to overawe the Government as by law established" [vide Section 3(1)] and "any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union". [Vide Section 4(2).]
72. Therefore, the submission made by Mr Jethmalani that the preamble of the Act gives a clue that the terrorist and disruptive activities only mean a
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virulent form of the disruption of public order is inconceivable and unacceptable.
73. In our view, the impugned legislation does not fall under Entry 1 of List II, namely, 'Public order'. No other Entry of List II has been invoked. The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not necessary to consider whether it falls under any of the entries in List I or List III. We are, however, of the opinion that the impugned Act could fall within the ambit of Entry 1 of List I, namely, 'Defence of India'.
74. Mr Hardev Singh in his written arguments also challenged the vires of Act 61 of 1984 on many grounds (about which we shall deal separately while examining the various provisions of TADA Act, one of which being the legislative competence). The learned counsel has questioned the.legal competence of the impugned Act on the same line of arguments as advanced by Mr Balwant Singh Malik. In support of his contention, he cited Ram Manohar Lohia (Dr) v. State of Biharl9 wherein this Court while dealing with Rule 30(1)(b) of the Defence of India Rules, 1962 had explained the difference between 'public order', 'law and order' and 'security of India'.
75. In Act 61 of 1984, the expression 'terrorist affected area' is defined in Section 2(1)(i) as meaning an area declared as a terrorist affected area under Section 3. Section 3(1) reads thus:
"3. (1) If the Central Government is of the opinion that offenses of the nature specified in the Schedule are being committed in any area by terrorists on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act, it may, by notification,-
(a)declare such area to be a terrorist affected area; and (b)......
76. The word 'terrorist' is defined in Section 2(1)(h) as follows:
"2. (1)(h) 'terrorist' means a person who indulges in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to-
(i) putting the public or any section of the public in fear; or
(ii) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; or (iii) coercing or overawing the Government established by law; or
(iv) endangering the sovereignty and integrity of India."
77. The above definition also requires more or less the intention as required under Section 3(1) of TADA Act, namely, Act 28 of 1987, and also the motive for commission of the terrorist acts is akin to that of Section 4 of 19 (1966) 1 SCR 709: AIR 1966 SC 740: 1966 Cri LJ 608 636
the TADA Act of 1987, i.e., one of the motives being to endanger the sovereignty and integrity of India. In short, the definition of the expressions 'terrorist act' and 'disruptive activity' under Section 2(1)(h) and (d) of Act 28 of 1987 (TADA) respectively are conjointly brought under the definition of the word 'terrorist act' in Act 61 of 1984. Therefore, the Act of 1984 also cannot be said to have contemplated only 'Public order' but envisages a more grave situation threatening the sovereignty and integrity of India.
78. For all the reasons stated above, we hold that the contention that the Acts 61 of 1984, 31 of 1985 and 28 of 1987 are ultra vires on the ground of suffering from lack of legislative competence and as such the entire Acts are liable to be struck down, is to be rejected and accordingly that contention is rejected as devoid of any merit.
79. The next spinal issue arises for our deepest probe, and scrutiny is whether the impugned Acts in general or any of the provisions thereof in particular contravene any other fundamental right specified in Part III of the Constitution. All the learned counsel who have challenged the vires of these Acts and the provisions thereof have advanced their legal arguments both topic-wise as well as with reference to the individual provisions of the Acts.
80. To begin with their polemics, it was with reference to the proposition of speedy trial which is the main objective of these Acts under challenge. It was the submission of the learned counsel that though the professed object of Act 61 of 1984 (Special Courts Act) and of TADA Acts (Acts 31 of 1985 and 28 of 1987) is for speedy trial of the scheduled offenses committed within the Terrorist Affected Areas (Special Courts) Act, 1984 and of the offenses falling within the definition of "terrorist act" and "disruptive activity" under the TADA Acts, in reality these Acts make not only a drastic departure from the prevalent procedure in respect of the trial of similar offenses in regular courts, but also serious inroads in the substantive rights in many respects causing irreparable erosion of the independence of judiciary and totally undermining both the constitutional precepts and lex scripta (statute law). According to them the procedural provisions of those Acts under the guise of speedy trial violate the venerated basic principles of fair trial, held dear all along, namely, that every person will be presumed innocent till his guilt is proved beyond reasonable doubt, "according to the procedure established by law".
81. The procedure prescribed under these Acts does not meet the requirements implicit in Article 21 of the Constitution because the said procedure is the antithesis of a just, fair and reasonable procedure. Under the guise of providing speedy trial not only the procedural safeguards have been completely denied to the accused who are subjected to trial by Special Courts under 1984 Act or by the Designated Courts under the TADA Acts, but also the Acts have been substantially altered to the prejudice of the accused. Therefore, the procedure prescribed by the Acts which falls foul of Article 21 should be held to be arbitrary, unfair, oppressive or unreasonable. In support of the above argument, they drew our attention to Maneka Gandhi 637
v.Union of India21 wherein it has been held that any law which deprives a person of his life and liberty must be just and reasonable. To borrow the words of Krishna Iyer, J. in that case (SCC p. 338, para 85) " 'procedure' in Article 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece."
82. The preamble of Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) reads that it is "An Act to provide for the speedy trial of certain offenses in terrorist affected areas and for matters connected therewith". The object of the preamble is manifested in Sections 3(1) and 4(1) of that Act reading "For the purpose of providing for speedy trial of scheduled offenses committed in a judicial zone, the Central Government may establish, by notification, a Special Court...... Though there is no explicit manifestation of such expression, 'speedy trial' found either in the preamble or in any of the provisions of the TADA Acts as in the Terrorist Affected Areas (Special Courts) Act, 1984, the scope and intendment of the various provisions of these TADA Acts perceivably convey that the TADA Acts also contemplate speedy trial of cases. In fact, the 'Statement of Objects and Reasons' of Act 31 of 1985 reading, "This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously" makes it clear that the constitution of Designated Courts was for the speedy and expeditious trial of offenses under the impugned legislation.
83. Now let us examine the principle of speedy trial underlying in Act 28 of 1987 (TADA). The constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette for notified area/areas to try specified cases or class or group of cases (vide Section 9 of Act 28 of 1987); the procedure prescribed for disposal of cases by making every offence punishable under the Act or any rule made thereunder to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code of Criminal Procedure (vide Section 20); the dispensation of the committal proceedings [vide Section 14(1)1; the vesting of jurisdiction on the Designated Courts to try all offenses under the Act by giving precedence over the trial of any other case against the accused in any other court (not being a Designated Court) notwithstanding anything contained in the Code or any other law (vide Section 17); the conferment of power on Designated Courts to try the offenses triable by them punishable with imprisonment for a term not exceeding 3 years or with fine or with both in a summary way in accordance with the procedure prescribed in the Code notwithstanding anything contained in sub-section (1) of Section 260 or 262 of the Code and also as far as may be by applying the provisions of Sections 263 to 265 [vide Section 14(2)] and the vesting powers of a Court of Session on the Designated Courts for the purpose of trial of any offence [vide Section 14(3)] and the empowerment of authority on the Designated Courts to proceed with the trial even in the absence of accused or pleader for the 21 (1978) 1 SCC 248: (1978) 2 SCR 621
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reasons to be recorded by it, but subject to the right of accused to recall witnesses for cross-examination [vide Section 14(5)]; the right of appeal straight to the Supreme Court as a matter of right against any judgment, sentence or order not being an interlocutory order [vide Section 19(1)] etc. all postulate the concept of speedy trial in spirit under TADA Acts.
Speedy Trial
84. The right to a speedy trial is a derivation from a provision of Magna Carta. This principle has also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of United States of America which reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...... It may be pointed out, in this connection, that there is a Federal Act of 1974 called 'Speedy Trial Act' establishing a set of time-limits for carrying out the major events, e.g., information, indictment, arraignment, in the prosecution of criminal cases. See Black's Law Dictionary, 6th Edn. p. 1400.
85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.
86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.
87. This Court in Hussainara Khatoon (1) v. Home Secretary, State of Bihar22 while dealing with Article 21 of the Constitution of India has observed thus: (SCC p. 89, para 5) "No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 2 1. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of th e
fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the
22 (1980) 1 SCC 81: 1980 SCC (Cri) 23: (1979) 3 SCR 169(1)
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consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge leveled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."
See also (1) Sunil Batra v. Delhi Administration (1)23, (2) Hussainara Khatoon (1) v. Home Secretary, State of Bihar22, (3) Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna24, (4) Hussainara Khatoon (VI) v. Home Secretary, State of Bihar, Govt. of Bihar, Patna25,(5) Kadra Pahadia v. State of Bihar (II)26, (6) T. V. Vatheeswaran v. State of T.N.27, and (7) Abdul Rehman Antulay v. R. S. Nayak28.
88. Thus this Court by a line of judicial pronouncements has emphasised and re-emphasised that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure reasonable, just and fair' procedure which has a creative connotation after the decision of this Court in Maneka Gandhi21.
89. It is appropriate to refer to two of the decisions of the Supreme Court of United States of America dealing with the scope of speedy trial which is a guaranteed fundamental right incorporated by the Sixth Amendment of the Constitution of United States.
90. In Beavers v. Haubert29 the Supreme Court of USA has observed thus: (US p. 87: L Ed p. 954)
"The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."
91. Recognising the right of an accused to approach the court for dismissal of a criminal proceeding on the ground of speedy trial, the US Supreme Court held in Strunk v. United States3O that the denial of an accused's right to speedy trial results in a decision to dismiss the indictment or in reversion of a conviction. See also United States v. MacDonald".
92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon the show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a 23 (1978) 4 SCC 494: 1979 SCC (Cri) 155: (1979) 1 SCR 392 22 (1980) 1 SCC 81: 1980 SCC (Cri) 23: (1979) 3 SCR 169(1) 24 (1980) 1 SCC 98: 1980 SCC (Cri) 40: (1979) 3 SCR 532 (IV)
25 (1980) 1 SCC 115: 1980 SCC (Cri) 57: (1979) 3 SCR 1276 (VI)
26 (1983) 2 SCC 104: 1983 SCC (Cri) 361 27 (1983) 2 SCC 68: 1983 SCC (Cri) 342: (1983) 2 SCR 348 28 (1992) 1 SCC 225: 1992 SCC (Cri) 93
21 (1978) 1 SCC 248: (1978) 2 SCR 621
29 198 US 77, 87: 49 L Ed 950, 954 (1905) 30 412 US 434: 37 L Ed 2d 57 (1973)
31 435 US 850: 56 L Ed 2d 18 (1977)
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balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons for delay will vary, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the court etc.
93. When the issue under debate is examined in the light of the above briefly enunciated principle of speedy trial, the said principle, expressly contemplated in the Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) and manifested in the two TADA Acts under various provisions as pointed out supra, is evidently incorporated as the essential feature of those Acts. There can be no controversy or difference of opinion in invoking the speedy trial of cases under the impugned Acts but the question is whether the procedure prescribed violates any of the fundamental rights of the Constitution.
94. Yet another argument qua the just and fair trial read into Article 21 has been submitted firstly contending when there is no proclamation of emergency in operation and when all the fundamental rights conferred by Part III of the Constitution are available for enforcement, the right to have a fair trial cannot be whittled down or militated against; and secondly even when a proclamation of emergency is in operation, the President under Article 359(1) of the Constitution of India can by order declare that the right to move any court for the enforcement of the fundamental rights conferred by Part III and all the proceedings in any court for the enforcement of such rights, shall remain suspended during the period of emergency but, not the rights conferred by Articles 20 and 21. To put in nutshell, the enforcement of the fundamental rights conferred under Articles 20 and 21 of the Constitution can be exercised and enforced even during emergency. To better understand, the legislative history with regard to the exemption of Articles 20 and 21 from operation even during emergency may be briefly recapitulated.
95. Prior to the enactment of the Constitution (Forty- fourth Amendment) Act, 1978 which came into force, w.e.f. June 20,, 1979, all the rights conferred by Part III including the rights under Articles 20 and 21 could be suspended during emergency. But the exemption was given by the above Amendment Act for the reasons spelt out in the 'Statement of Object and Reasons' of the Forty-fourth Amendment, which read thus:
"Statement of Objects and Reasons.- Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate
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safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.
As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty."
To achieve the above objects, the Parliament by Forty-fourth Amendment Act, 1978 substituted the words "the rights conferred by Part III (except Articles 20 and 21)" in clause (1) and (1-A) of Article 359 for the words "the rights conferred by Part III".
96. Undeniably, when the three Acts under challenge were enacted, there was no emergency. Therefore, all the fundamental rights under Part III since the enactment of the Act of 1984 continued to be enforceable rights. But it is not the contention of the parties that the Acts impugned or any Act similar to them should not be enacted in the absence of proclamation of emergency. Needless to emphasise that it is for Parliament to enact any law without infringing any of the provisions of the Constitution and within its legislative competence depending upon the need for such enactment.
97. Now we shall examine the key questions (1) whether the procedure prescribed under the Acts of 1984 and 1987 is the antithesis of the just, fair and reasonable procedure; (2) whether the procedural safeguards to which the accused is entitled to, have been completely denied to the prejudice and disadvantage of the accused; (3) whether the Acts are tyrannical and despotical in character and discriminatory in application; and (4) whether the provisions of these Acts are violative of the fundamental rights embodied under Articles 14, 19 and 2 1.
98. We shall now give a close scrutiny to all those above complicated questions of unrivaled complexity debated before us which caused considerable anxiety to the Court for reaching a satisfactory conclusion, under different topics with reference to the various provisions of the Acts by carefully scanning through the legal submissions eloquently articulated by both sides, and decide as to whether the provisions under challenge have to read them down or to read anything into them.
Definition of the word "Abet"
99. It has been seriously contended that the definition of the word 'abet' in Section 2(1)(a) of 1987 Act is without any clarity and is an instance of the first kind of unfairness and also blissfully vague creating a state of tyranny and this imprecise definition helps even innocent persons who are totally free from any moral blameworthiness, to be arrested, detained and prosecuted. It is further stated that the word 'abet' is adequately defined in Section 107 of the Indian Penal Code to meet every legitimate need and purpose of criminal
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law, and that the definition of the word as given in the Act which smacks of arbitrariness is an instance of the first kind of unfairness within the dictum laid down in Maneka Gandhi21 and deserves to be struck down as being violative of Articles 14 and 21 of the Constitution.
100. The learned Additional Solicitor General countering the above arguments stated that the expanded definition of 'abet' is to fulfill the objects of the Act during the period when the terrorists activities on escalated scale continue unabated in any notified area and in such disturbed times it is difficult for the prosecution to prove 'mens rea' or 'intention' while proving the physical facts. In continuation he stated that the submission that the definition is vague, is unfounded as the said definition is merely inclusive and illustrative and the very nature of things could not have been exhaustive. He listed a number of various provisions of a number of enactments wherein the proof of the element of mens rea is excluded, namely, (1) Sections 7 and 16 of the Prevention of Food Adulteration Act of 1954; (2) Sections 8(1) and 23(1)(a) of the Foreign Exchange Regulation Act; (3) Section 178-A of the Sea Customs Act, 1878; (4) Section 123(7) of the Representation of the People Act. He also placed reliance on a number of decisions in support of the above submission, namely, (1) Sarjoo Prasad v. State of U.P.32 (SCR at p. 327), (2) Pukhraj v. D.R. Kohli33 (SCR at p. 872), (3) Nathulal v. State of M.P.34, (4) Y.S. Parmar (Dr) v. Hira Singh Paul35, (5) State of Maharashtra v. Mayer Hans George36, (6) Jagdish Prasad v. State of W.B.37, and (7) Collector of Customs v. Chetty Nathela Sampathu38.
101. The definition of the word 'abet' as defined under Section 2(1)(a) of 1987 Act is as follows: "2. (1) In this Act, unless the context otherwise requires,-
(a) 'abet' with its grammatical variations and cognate expressions, includes-
(i) the communication or association with any person or class of persons who is engaged in assisting in any manner terrorists or disruptionists;
(ii) the passing on, or publication of, without any lawful authority, any information likely to assist the terrorists or disruptionists and the passing on, or publication of, or distribution of, any document or matter obtained from terrorists or disruptionists;
21 (1978) 1 SCC 248: (1978) 2 SCR 621
32 (1961) 3 SCR 324: AIR 1961 SC 631: (196 1) 1 Cri LJ 747 33 1962 Supp 3 SCR 866: AIR 1962 SC 1559 34 AIR 1966 SC 43: 1966 Cri LJ 71
35 1959 Supp 1 SCR 213: AIR 1959 SC 244: 16 ELR 483 36 (1965) 1 SCR 123: AIR 1965 SC 722: (1965) 1 Cri LJ 641 37 (1972) 1 SCC 326: 1972 SCC (Cri) 63: (1972) 2 SCR 845 38 (1962) 3 SCR 786: AIR 1962 SC 316: (1962) 1 Cri LJ 364 643
(iii)the rendering of any assistance, whether financial or
otherwise,to terrorists or disruptionists." The above definitions an inclusive definition. The meaning of the word 'abet' which is a verb is that whoever is in communication or association with any person or class of persons engaged in assisting in any manner terrorists or disruptionists or passes on, or publishes without any lawful authority, any information likely to assist the terrorists or disruptionists or passes on or publishes or distributes any document or matter obtained from the terrorists or disruptionists and/or renders any assistance whether financial or otherwise to the terrorists and disruptionists.
102. In common parlance, the word 'abet' means assistance, cooperation and encouragement and includes wrongful purpose.
103. In Corpus Juris Secundum, Vol. I at page 306, the meaning of the word 'abet' is given as follows: "To abet has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce, or assist; to encourage or to set another on to commit. Used with 'aid'. The word 'abet' is generally used with the word 'aid' and similar words."
104. Section 107 of Indian Penal Code defines the word, 'abetment' (which is a noun) as follows: "107. Abetment of a thing.- A person abets the doing of a thing, who-
First.- Instigates any person to do that thing; or
Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
105. Section 108 of the Indian Penal Code defines the word, 'abettor' thus:
" 108. Abettor.- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor." The offence of 'abetment' is committed by a person either
(1) by instigating a person to commit an offence; or
(2) by engaging in a conspiracy to commit it; or
(3) by intentionally aiding a person to commit it.
106. In order to bring a person abetting the doing of a thing, under any one of the clauses enumerated under Section 107, it is not only necessary to prove that the person who has abetted has taken part in the steps of the 644
transactions but also in some way or other he has been connected with those steps of the transactions which are criminal. The offence of abetment depends upon the intention of the person who abets, and not upon the act which is actually done by the person whom he abets.
107. Section 3(1) of the General Clauses Act, 1897 gives the meaning of the word 'abet' thus:
"3. (1) 'abet' with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code (45 of 1860);"
108. The lexicon meaning of the word 'abet' is given in Collins English Dictionary as "to assist or encourage, esp. in crime or wrong doing".
109. The learned counsel who critically attacked the definition of the word 'abet' stated that under the definition 2(1)(a) even a person who is entirely innocent of any terrorist or disruptive activities may be punished and subjected to the prescribed minimum sentence of five years, and, therefore, in order to remedy the patent deficiency or defect in this definition, the principle of 'mens rea' should be injected and read into it.
110. The learned counsel in support of the above argument drew our attention to a decision of this Court in Inder Sain v. State of Punjab39 wherein this Court while disposing a criminal appeal in which the accused stood convicted under Section 9(a) of the Opium Act, 1878 on the allegations that the appellant was found in possession of a parcel which was on opening found to contain opium, held: (SCC p. 378, para 20)
"Knowledge is an essential ingredient of the offence as the word possess' connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession."
111. On the strength of the dictum, laid down in the above decision, they submitted that 'mens rea' is an essential element in every offence and in the absence of proof 'mens rea' none can be mulcted with any criminality especially in cases where deterrent sentence is called for.
112. In support of their submission that the definition is very vague, our attention was drawn to a passage from the judgment of Chandrachud, C.J. in A.K. Roy v. Union of India4O which reads as follows : (SCR at p. 293: SCC p. 294, para 19)
"The word 'established' is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation."
(emphasis supplied)
39 (1973) 2 SCC 372: 1973 SCC (Cri) 813 40 (1992) 1 SCC 271: 1982 SCC (Cri) 152: (1982) 2 SCR 272 645
113. Though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning. See (1) Salmond : Jurisprudence, 11th Edn. p. 152, (2) South Asia Industries (P) Ltd. v. S. Sarup Singh 41 (AIR at p. 348), and (3) S. Narayanaswami v. G. Panneerselvam42 (SCC at p. 720: AIR at p. 2285).
114. In a recent decision in Directorate of Enforcement v. Deepak Mahajan43 a Bench of this Court to which one of us (S. Ratnavel Pandian, J.) was a party has held that : (SCC p. 455, para 31 : JT p. 302)
"It is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result......
115. In a criminal action, the general conditions of penal liabilities are indicated in old maxim "actus non facit reum, nisi mens sit rea" i.e. the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out 'mens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for infer-ring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of 'abet'.
116. There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of 'mens rea' or actual knowledge should be imported into the definition. See (1) Brand v. Wood44 (2) Sherras v. De Rutzen 45, (3) Nicholls v. Hall46 , and (4) Inder Sain v. State of Punjab 39.
41 AIR 1966 SC 346, 348: (1966) 3 SCR 829: (1968) Pun LR 108(D)
42 (1972) 3 SCC 717: AIR 1972 SC 2284
43 (1994) 3 SCC 440: JT (1994) 1 SC 290 44 62 TLR 462, 463
45 (1895) 1 QB 918: 11 TLR 369
46 LR (1873) 8 CP 322: 28 LT 473
39 (1973) 2 SCC 372: 1973 SCC (Cri) 813 646
117. This Court in State of Maharashtra v. M.H. George36 while examining a question as to whether mens rea or actual knowledge is an essential ingredient of the offence under Section 8(1) read with Section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, when it was shown that the respondent (accused) in that case voluntarily brought gold in India without the permission of Reserve Bank, held by majority that the Foreign Exchange Regulation Act is designed to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country and the provisions have therefore to be stringent aiming at eliminating smuggling. Hence, in the background of the object and purpose of the legislation, if the element of mens rea is not by necessary implication invoked, its effectiveness as an instrument for preventing smuggling would be entirely frustrated.
118. But Subba Rao, J. dissented and held thus : (SCR p. 139)
"... the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law? Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof."
119. Thereafter, a similar question arose in Nathulal v. State of M.p.34 as regards the exclusion of the element of mens rea in the absence of any specific provision of exclusion. Subba Rao, J. reiterated his earlier stand taken M.H. George36 and observed thus : (AIR p. 45) "Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence i n
conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated."
36 (1965) 1 SCR 123: AIR 1965 SC 722: (1965) 1 Cri LJ 641 34 AIR 1966 SC 43: 1966 Cri LJ 71
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See also (1) Srinivas Mall Bairoliya v. King-Emperor47, (2) Ravula Hariprasada Rao v. State 48, and (3) Sarjoo Prasad v. State of U.P.32
120. In this connection, we would also like to make reference to a judgment of Bombay High Court in State v. Abdul Aziz49 wherein a Division Bench while dealing with Section 5 of the Imports and Exports (Control) Act, 1947 under which the respondent (accused) was prosecuted has held thus :
"Section 5 of the Act of 1947 by itself makes no reference to mens rea. Abetment of the contravention of the order is coupled together with contravention itself in the same provision. It must, therefore, be treated as standing on the same footing. In our view, therefore, the offence of abetment also would not require any kind of mens rea."
The above observation would be tantamount to saying that "when no mens rea is essential in the substantive offence, the same is also not necessary in the abetment thereof'.
121. We shall now go into the question as to whether the legislature has imported the essential ingredient of criminal offence, i.e., 'mens rea' in the substantive offenses of the Act of 1987.
122. True, the provisions of the TADA Acts are framed with very stringent provisions, of course, 'for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto". The question may be whether effectiveness of this instrument would be entirely frustrated if the element of mens rea or the element of actual knowledge on the part of the offender is to be injected or read into the definition.
123. Generally, it is one of essential principles of criminal jurisprudence that a crime is not committed if the mind of a person doing the act in question, is innocent. Therefore, to constitute a crime, the intent and act must both concur.
124. In the backdrop of the above legal position, we shall deal with the submissions made by the learned counsel with reference to the substantive offence or offences specified under the main Act itself.
125. In the Act of 1984, the word 'abet' is not defined. But the definition of the word 'terrorist' in that Act requires the person indulging in the act of terrorism to be shown to have committed the terrorist act with a view of committing any of the offences enumerated under clauses (i) to (iv) of the definition of the word 'terrorist' given under Section 2(1)(h). The scheduled offences i.e. Sections 122 and 123 of the Indian Penal Code expressly require intention on the part of the person committing those offences, though intention is not required under Sections 121 and 121-A of the IPC and Sections 4 and 5 of the Anti- Hijacking Act, 1982 which are also scheduled offences in that Act. Under the note given to the Schedule, it is stated that
47 AIR 1947 PC 135: 49 Bom LR 688: (1947) 2 MLJ 328 48 1951 SCR 322: AIR 1951 SC 204: 52 Cri LJ 768 32 (1961) 3 SCR 324: AIR 1961 SC 631: (1961) 1 Cri LJ 747 49 AIR 1962 Bom 243: 64 Bom LJ 16: (1962) 2 Cri LJ 472 648
the offence of criminal conspiracy or attempt to commit, or abetment of, an offence specified in this Schedule shall be deemed to be a schedule offence.
126. Under the Act of 1985 also, the word 'abet' is not defined. Nonetheless Sections 3 and 4 of this Act which deal with punishments for the substantive offences of terrorism and disruption respectively make the abetment of both the substantive offences also as penal offences. The definition of the word 'abet' is given for the first time in the Act of 1987 (TADA).
127. Section 3(1) which gives the meaning of the expression 'terrorist' specifically requires the intention on the part of the offender committing a terrorist act. Similarly, Section 4(2)(i) and (ii) also requires that the person committing the disruptive act should be shown to have intended to do that act. The provisions of Sections 3 and 4 of the 1985 and 1987 Acts are identical. Thus, it is very clear that the substantive offences require intention on the part of the person committing the terrorist act or the disruptive act. The abetment of the commission of these two offences comes under Sections 3(3) and 4(1) of the Act of 1987. The word 'abets' does also appear under Section 6(2) which deals with 'enhanced penalties'.
128. Therefore, when the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offence, can it be said that the ingredient of intention should be excluded on the part of the abettor who abets those substantive offences. In other words, can it be said that the abettor has abetted the substantive offence without any guilty mind (mens rea) or without actual knowledge as to what would be the consequence of his designed act.
129. Now turning to the definition in question, clauses (ii) and (iii) need not require any exposition since both the clauses themselves are selfexplanatory. As rightly pointed out, the definition of the word, 'abet' as given in Section 2(1)(i) is with wide flexibility rather than with meticulous specificity. Therefore, we have to explore its allowable meaning so that there may not be any uncertainty inevitably leading any person to much difficulty in understanding acts prohibited by law so that he may act accordingly.
130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked".
131. Let us examine clause (i) of Section 2(1)(a). This section is shown to be blissfully and impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an innocent person who ingenuously and 649
undefiledly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any manner terrorists or disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted.
132. The counter submission made by learned Additional Solicitor General justifying the exclusion of 'mens rea' or intention or knowledge on the part of the person who communicates or associates with any person who is engaged in assisting in any manner terrorists or disruptionists cannot be countenanced in view of the fact that the substantive offences require by express provisions the intention on the part of the abettor. The decisions relied upon by him cannot be of any assistance to support his plea for exclusion of intention in view of the various factors inclusive of the requirement of the intention for the substantive offences.
133. Therefore, in order to remove the anomaly in the vague and imprecise definition of the word, 'abet', we for the above mentioned reasons, are of the view that the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.
134. To encapsulate, for the discussion above, the expressions 'communication' and 'association' deployed in the definition should be qualified so as to save the definition, in the sense that "actual knowledge or reason to believe" on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning "the communication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists" so that the object and purpose of that clause may not otherwise be defeated and frustrated. Section 3 of Special Courts Act, 1984
135. Challenging the validity of Section 3 of Act of 1984, it has been contended that the power vested under Section 3(1) on the Central Government to declare by notification any area as "terrorist affected area", and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit, is not only vague but also without any guidance.
136. The prerequisite conditions which are sine qua non for declaring any area as "terrorists affected area" by the Central Government by virtue of the authority conferred on it under Section 3(1) of the Act of 1984 are: (1) The offenses of the nature committed in any area to be declared as "terrorists affected area" should be one or more specified in the Schedule;
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(2) The offenses being committed by terrorists should satisfy the definition of the nature of the offence mentioned in Section 2(1)(h), namely, indulging in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to commit any of the offenses enumerated under any of the clauses (i) to (iv) indicated under the definition of the word 'terrorist';
(3) The scheduled offenses committed by terrorists should be on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act."
137. Unless all the above three conditions are fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as "terrorist affected area". In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited.
138. In this regard, we would like to add that the learned Additional Solicitor General in his attempt to sustain the validity of Section 3 of the 1984 Act, submitted that the legislature considered it proper to prescribe a uniform procedure for serious offenses having a direct relationship with peace and tranquility of the area in the notified area after the notified date and that serious offenses which are likely to create terror and panic in the minds of the people were/are sought to be dealt with under the Act by prescribing a speedier trial so that disturbed situations could be brought under control without loss of time to prevent the situation from getting deteriorated and spreading to other areas.
139. We see some force in the above submission while negativing the contention of the counsel challenging the validity of Section 3 of the Act of 1984. Sections 3 and 4 of 1987 Act (TADA)
140. The legality and the efficaciousness of Sections 3 and 4 of 1987 Act have been assailed on the following grounds, namely,-
(1) These two sections cover the acts which constitute offenses under ordinary laws like the Indian Penal Code, Arms Act and Explosive Substances Act;
(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under this impugned Act of 1987; and
(3) This Act and the Sections 3 and 4 thereof should be struck down on the principle laid down in State of W.B. v. Anwar Ali Sarkar5O and followed in many other cases including A.R. Antulay v. Union of India51. Section 3 of the Act is as follows:
50 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 5 10 51 (1988) 2 SCC 764
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"3. Punishment for terrorist acts.- (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. (2) Whoever commits a terrorist act, shall,- (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine."
141. Since the Parliament has introduced two more sub- sections (5) and (6) to Section 3 of the Act of 1987 by the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (Act 43 of 1993) w.e.f. 22-5-1993, in order to have the full text of the section as amended, we reproduce those subsections hereunder:
"(5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not
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be less than five years but which may extend to imprisonment for life and shall also be liable to fine."
Section 4 of the Act reads as follows:
"4. Punishment for disruptive activities.- (1) Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, an y
disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(2) For the purposes of sub-section (1), 'disruptive activity' means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever,-
(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or
(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.
Explanation.- For the purposes of this sub- section,-
(a) 'cession' includes the admission of any claim of any foreign country to any part of India, and
(b) 'secession' includes the assertion of any claim to determine whether a part of India will remain within the Union.
(3) Without prejudice to the generality of the provisions of subsection (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which-
(a) advocates, advises, suggests or incites; or
(b) predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt,
the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a disruptive activity within the meaning of this section.
(4) Whoever harbours or conceals, or attempts to harbour or conceal, any disruptionist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine."
142. True, the offenses arising out of the acts enumerated in Sections 3 and 4 may be similar to the offenses falling under the ordinary penal laws. In other words, various offenses arising out of the terrorist or disruptive activities may overlap some of the offenses covered by the other ordinary penal laws. It is not in dispute that the above provisions which define the
653
expressions 'terrorist act' and 'disruptive activities' provide severe punishment and also prescribe minimum sentence for some acts constituting offenses falling within the two provisions. Section 6 of the Act of 1987 provides 'Enhanced penalties' for a person who with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable Substances Act, 1952 (20 of 1952) of not less than five years but which may extend to imprisonment for life and with fine, notwithstanding anything contained in the Acts or the rules made under the respective Acts.
143. Section 6(2) reads:
"For the purposes of this section, any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provision of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of subsection (1) shall, in relation to such person, have effect subject to the
modification that the reference to 'imprisonment for life' shall be construed as a reference to 'imprisonment for ten years'."
144. Part III of the Act creates a special machinery for trying the terrorists and disruptionists charged with the commission of any offence under the Act, namely, constitution of Designated Courts, its jurisdiction, power, of trial with respect to other offenses and to transfer cases to regular courts, procedure to be followed etc.
145. As we have indicated above, the Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offenses enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of cases, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities, secondly that the incensed offenses are arising out of the activities of the terrorists and disruptionists which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the cession of any part of India or the secession of any part of India from the Union, and which create terror and a sense of insecurity in the minds of the people. Further the Legislature being aware of the aggravated nature of the offenses have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified.
146. As pointed out by Ahmadi, J. in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya52 the statutes which impose a term of imprisonment for a criminal action under that law must be strictly construed. 52 (1990) 4 SCC 76: 1991 SCC (Cri) 47
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In fact, this Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat53 has observed as under: (SCC p. 284, para 15) "The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country."
147. Agreeing with the above view in Usmanbhai case53, Ahmadi, J. in Niranjan case52 stated thus: (SCC p. 86, para 8)
"While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offenses under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judges to make sure there exists prima facie evidence for supporting the charge leveled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him."
148. Therefore, having regard to the object and purpose of the Act of 1987 as reflected from the preamble and the Statement of Objects and Reasons of the Act, the submission made questioning the legality and efficaciousness of Sections 3 and 4 on the grounds (1) and (2) mentioned above cannot be countenanced. So far as the ground (3) is concerned since we intend to deal with the principle laid down in Anwar Ali50 with reference to Article 14 of the Constitution while dealing with issues of the class or classes of offences and 'test of equality' before law, in the later part of this judgment in detail, for the present we may say that the validity of these two provisions cannot be challenged under the third ground also as we do not find any discrimination in view of the separate machinery provided for the trial of the cases under this Act to achieve the object of it.
Section 8 of 1987 Act
149. Mr V.M. Tarkunde attacks this provision which provides for forfeiture of property of certain persons convicted by the Designated Court of any offence punishable under this Act or any rule made thereunder, contending that this section is violative of Articles 21 and 14 on the grounds 53 (1988) 2 SCC 271 : 1988 SCC (Cri) 318 52 (1990) 4 SCC 76: 1991 SCC (Cri) 47
50 1952 SCR 284: AIR 1952 SC 75 : 1952 Cri LJ 5 10 655
that (1) no guidelines have been provided for when the property of a convicted person should or should not be forfeited; and (2) forfeiture to Government 'free from all encumbrances' may amount in many cases to unmerited punishment of third parties who have no concern whatsoever with the offence with which the person under this provision has been convicted and who have got interest by advancing money on the security of the forfeited property.
150. This argument is resisted by the learned Additional Solicitor General contending that Section 8 only vests the property or interest of the 'terrorist' in the State and does not forfeit the third party's interest and that the third party can always enforce its rights against the 'terrorists' in respect of its interest in the forfeited property according to law notwithstanding the forfeiture.
151. Section 8(1) of the Act gives discretionary power to the Designated Court while awarding any punishment on conviction of an offence under the Act or any rule made thereunder, to pass an order in writing, declaring that any property whether movable or immovable or both, specified in the order belonging to the convicted person, shall stand forfeited to the Government free from all encumbrances.
152. Sub-section (2) of Section 8 states that it is open to the Designated Court trying an accused for any offence under the Act or any rule made thereunder to pass an order attaching all or any of the properties belonging to the accused during the period of his trial and in case the trial ends in conviction, the property will stand forfeited to the Government free from all encumbrances.
153. Sub-section (3)(a), (b) and (c) of Section 8 gives discretionary authority to the Designated Court to attach the property of an absconding accused and also the power to the Designated Court to apply Sections 83 to 85 of the Code of Criminal Procedure to such attachment as if the attachment was made under the Code of Criminal Procedure.
154. Section 82 of the Code deals with proclamation of persons absconding. Section 83 deals with attachment of property of persons absconding. Section 84 deals with the claims and objections to attachment. Sub-section (1) of Section 84 envisages that if any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person on the ground that the claimant or objector has an interest in such property and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into, and may be allowed in whole or in part.
155. We are not very much concerned about sub-sections (3) and (4) of Section 8 of the TADA Act but only with regard to sub-sections (1) and (2) of Section 8.
156. The discretionary power given to the Designated Court under Section 8(1) and (2) is to be exercised under strict contingencies, namely that (1) there must be an order of forfeiture and that order must be in writing; (2) 656
the property either movable or immovable or both must belong to the accused convicted of any offence of TADA Act or rule thereunder; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise.
157. The very fact that the order should be in writing implies that the Designated Court must give reasons for such an order even though the section does not specifically require the Designated Court to record its reasons for so doing, because the word 'order' even according to the lexicon meaning is that it is a decision or direction either interlocutory or preliminary or final by the court trying the offence. Secondly, under Section 19 of the Act, an appeal lies straight to the Supreme Court as a matter of right from any order not being interlocutory order both on facts and law.
For the above reasons, this contention fails. Section 9 of Act of 1987
158. The validity of this section, which deals with the constitution of one or more Designated Courts for such area or areas, or for such case or class or group of cases specified in the notification issued by the Central Government or a State Government, is assailed firstly on the ground that it is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution, and secondly that sub-section (7) of Section 9 is opposed to the principle of fair trial enshrined in Article 21 of the Constitution.
159. We shall now deal with the first contention. We have elaborately discussed about the legislative competence of the Parliament in legislating this law and rendered our finding that the Parliament is competent to enact the law (TADA) under residuary power under Article 248 of the Constitution read with Entry 97 of List I as well as Entry 1 of List I, namely, 'Defence of India' but not under Entry 1 of List II, namely, 'Public order'. Entry 95 of List I reads "Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List;......
160. As we have now found this impugned Act is enacted under Entry 1 of List I, the constitution of the Designated Courts by the Central Government cannot be said to be in violation of Entry 65 of List II which empower the State Legislature to constitute the courts. Under Section 9 of the Act, both the Central Government and the State Governments are authorised to constitute Designated Courts by notification under sub-section (2) of Section 9. It is made clear that the courts constituted by the Central Government either before or after the issue of the notification constituting the Designated Courts by the State Government shall have jurisdiction to try any offence committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try any offence committed in that area or areas.
161. In addition, sub-section (3) of the impugned section states that where any question arises as to the jurisdiction of any Designated Court, the decision taken by the Central Government in that regard will be final.
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162. For the foregoing discussion, we see no substance in the contention that Section 9 is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution.
163. Now let us proceed to consider the second attack on the validity of sub-section (7) of Section 9.
164. Under Section 9(1), the Central Government or a State Government may constitute one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification. Sub-section (2) of the section deals with the jurisdiction of the Designated Court constituted by the Central Government and the preferential jurisdiction of the Designated Court constituted by the Central Government qua the Designated Court constituted by a State Government. Sub-section (3) deals with the decision to be taken by the Central Government in case of any question of dispute whatsoever with regard to the jurisdiction of any Designated Court as earlier pointed out. Sub-sections (4) and (5) speak of the appointment of Judges to the Designated Court while sub- section (6) speaks of the qualification of the Judge to be appointed.
165. Sub-section (7) of Section 9 which speaks of the continuance of the service of the Judge is challenged on the ground that the continuance of a Judge of a Designated Court even after attainment of the age of superannuation is a regressive provision because a Judge who is permitted to hold the office, hitherto held, after superannuation will not be having his judicial independence; but on the other hand his, holding the office on the pleasure of the executive, will be subversive since there is nothing to prevent the executive from terminating his appointment as and when it likes. This legal sanction of continuance in the service, according to the learned counsel, will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Article 21. For sustaining the above submission, reliance was placed on Special Courts Bill, 1978, In re54.
166. In that case, reference was made by the President under Article 143(1) of the Constitution for consideration of the question whether the Special Courts Bill, 1978 or any of its provisions if enacted would be constitutionally invalid. Clause (7) of the Bill provided that a Special Court shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge in a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India. (As we are concerned only with the question of the continuance of a Judge holding the office even on attaining the age of superannuation, we are not concerned about the other provisions or clauses of the Special Courts Bill.)
167. Chandrachud, C.J. speaking for the majority answered this question holding thus: (SCC p. 435, para 96) "We are, therefore, of the opinion that clause (7) of the Bill violates Article 21 of the Constitution to the extent that a person who has held
54 (1979) 1 SCC 380: (1979) 2 SCR 476
658
office as a Judge of the High Court can be appointed to preside over a Special Court, merely in consultation with the Chief Justice of India."
On carefully going through the decision, we are of the view that the observation of this Court with reference to clause (7) of the Special Courts Bill cannot be strictly applied to the situation of the continuance of a Judge of a Designated Court under Section 9(7) for the reason that the person who was to be nominated by the Central Government in consultation with the Chief Justice of India under clause (7) of the Special Courts Bill was a person who had held the office as a Judge of the High Court, that is to say the appointment was after the retirement. But in the present Act, the Judge is permitted to continue the same judicial service as a Judge or Additional Judge, as the case may be, on the attainment of superannuation. In other words. the Judge on the attainment of the age of superannuation does not retire.
168. Therefore, we see no force in the above argument challenging the constitutional validity of Section 9(7) by availing the observation in Special Courts Bill, In re54. However, we would like to suggest that the Central Government and the State Government at the time of appointing a Judge or an Additional Judge to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence Section 9(7) does not offend any constitutional provision. Section 11(2) of 1987Act
169. A serious argument has been advanced in respect of Section 11(2) of the 1987 Act (TADA) which provides for the transfer of any case pending before one Designated Court in a State to any other Designated Court within that State or to any other Designated Court in any other State.
170. According to Mr V.M. Tarkunde, unless it is read into Section 11(2) that a transfer will be made only after hearing the accused, the provision would be contrary to the rule of natural justice and Section 11(2) would be violative of Article 14 of the Constitution. He further contends that an order, giving concurrence under Section 11(2) should be held to be judicial in character. In support of his argument, he relied upon the decision in A.K. Kraipak v. Union of India55 and stated that the principle of natural justice, the purpose of which is to prevent miscarriage of justice, applies not only to judicial and quasi-judicial order but also to administrative order. Reference was also made to (1) K. (H.) (An Infant), In re56 (LR at p. 630), and (2) State of Orissa v. Dr (Miss) Binapani Dei57. 54 (1979) 1 SCC 380: (1979) 2 SCR 476
55 (1969) 2 SCC 262: (1970) 1 SCR 457
56 (1967) 2 QB 617 : (1967) 1 All ER 226 57 (1967) 2 SCR 625 : AIR 1967 SC 1269 659
171. During the course of the argument, Mr Tarkunde stated that even if, on consent of the accused, the concurrence is given, it would be a quasijudicial order and that the authority to transfer a case by way of a motion under Section 406 of the Code of Criminal Procedure vested on the Supreme Court is not taken away by the provision of this Act. He asserted that the accused should be given an opportunity for making his objection, if any, before any order is passed. He further stated that when cases are transferred en masse from one Designated Court to another Designated Court, he will not have any objection, but if the concurrence is sought to be obtained in an individual or a particular case, then the person, to be affected by such transfer must be afforded an opportunity of being heard; that if the Government seeks the concurrence to transfer on the request of the accused, then there may not be any necessity of issuing notice to the accused and that it depends upon the exigencies of every particular case. Lastly Mr Tarkunde in support of his plea drew our attention to paragraph 34 of the judgment rendered by a Full Bench of the Punjab & Haryana High Court in Bimal Kaur Khalsa v. Union of India58 (AIR at p. 102) wherein it is stated that the "learned counsel for the Union of India, conceded that the accused would be entitled to have his say before the Chief Justice of India before the latter gives his consent to the transfer of the case".
172. Mr Hardev Singh also made his submission in the same line Challenging the constitutional validity of Section 11(2).
173. In opposition the learned Additional Solicitor General argued that since the provision presupposes the existence of a notification with regard to any area having been declared as 'terrorist affected area' or 'disturbed area' it is imperative that fair trial within that area would not normally be feasible and that, therefore, the Legislature having regard to such prevailing explosive situation has provided for a liberal procedure for transfer of cases so that a fair and just trial is held in an uncharged atmosphere. However, he Legislature has incorporated the safeguard of obtaining the concurrence of the Chief Justice of India as a condition precedent to such transfers and hat when such a safeguard is incorporated, it cannot be said that a transfer without hearing the accused is bad in law. He has urged that the Parliament is fully empowered to exclude the invocation of the rule of natural justice under certain extraordinary circumstances, having regard to the fact that the entertainment of any objection would only frustrate the proceeding and paralyse the meaningful purpose of the provision. Reliance was placed by he learned ASG on Tulsiram Patel59 in which D.P. Madon, J. speaking for he majority of the Constitution Bench has observed thus: (SCC p. 479, para 101)
"[I]t is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also
58 AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169
59 Union of India v. Tulsiram Patel, (1985) 3 SCC 398: 1985 SCC (L&S) 672
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be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands."
In addition, he drew our attention to the decisions in (1) Satya Vir Singh v. Union of India6O, and (2) C.B. Gautam v. Union of India61.
174. Coming to the other aspect of the argument of Mr Tarkunde with reference to Section 406 of the Code the learned Additional Solicitor General relied upon Section 25 of TADA Act which deals with the overriding effect of the provisions of the Act notwithstanding anything inconsistent therewith contained in any other enactment other than the TADA Act. He further stated that the dictum laid down in A.K. Kraipak55 is not at all applicable to the present case because that was the case where the hearing of the accused was excluded by the Act either expressly or by necessary implication.
175. The above controversial debate involves important questions namely (1) what is the nature of the order, the Chief Justice of India passes on the motion moved in that behalf; and (2) whether the accused is entitled to have an opportunity of being heard before the concurrence is given by the Chief Justice of India.
176. Sub-sections (2) and (3) of Section 11 of the Act read thus:
11. (1)....
(2) If, having regard to the exigencies of the situation prevailing in a State, the Central Government is of the opinion that- (a) the situation prevailing in such State is not conducive to a fair, impartial or speedy trial, or
(b) it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Designated Court or any of them, or
(c) it is not otherwise in the interests of justice, it may, with the concurrence of the Chief Justice of India (such concurrence to be obtained on a motion moved in that behalf by the Attorney-General), transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in any other State.
(3) Where the whole or any part of the area within the local limits of the jurisdiction of a Designated Court has been declared to be, or forms part of, any area which has been declared to be a disturbed area under any enactment for the time being in force making provision for the
60 (1985) 4 SCC 252: 1986 SCC (L&S) 1
61 (1993) 1 SCC 78
55 (1969) 2 SCC 262: (1970) 1 SCR 457
661
suppression of disorder and restoration and maintenance of public order, and the Central Government is of opinion that the situation prevailing in the State is not conducive to fair, impartial or speedy trial within the State, of offenses under this Act or the rules made thereunder which such Designated Court is competent to try, the Central Government may, with the concurrence of the Chief Justice of India, specify, by notification in the Official Gazette, in relation to such court (hereafter in this subsection referred to as the local court) a Designated Court outside the State (hereafter in this section referred to as specified court), and thereupon-
(a) it shall not be competent, at any time during the period of operation of such notification, for such local court to exercise any jurisdiction in respect of, or try, any offence under this Act or the rules made thereunder;
(b) the jurisdiction which would have been, but for the issue of such notification, exercisable by such local court in respect of such offenses committed during the period of operation of such notification shall be exercisable by the specified court;
(c) all cases relating to such offenses pending immediately before the date of issue of such notification before such local court shall stand transferred on that date to the specified court;
(d) all cases taken cognizance of by, or transferred to, the specified court under clause (b) or clause (c) shall be dealt with and tried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offenses had been committed within the local limits of the jurisdiction of the specified court or, as the case may be, transferred for trial to it under sub-section (2).
Explanation 1.
Explanation 2.
177. The concurrence of the Chief Justice of India has to be obtained on a motion moved in that behalf by the Attorney General of India, or in his absence the Solicitor General of India, or in the absence of both, one of the Additional Solicitors General of India vide sub-section (2) of Section 11 read with Explanation 2.
178. Sub-section (3) of Section 11 requires the Central Government to specify a Designated Court outside the State by issuing a notification in the Official Gazette with the concurrence of the. Chief Justice of India..
179. The authority to give concurrence is vested upon an independent judicial authority who is none other than the head of judiciary in India, namely, the Chief Justice of India as a persona designate. The vesting of this power in the Chief Justice of India is evidently with the purpose of making it known that the Central Government is not seeking to obtain the concurrence either with a motivation of bias or mala fide or on being influenced by any extraneous consideration, but on a reasonable and justifiable ground taking
662
into consideration the prerequisite essential conditions, those being (1) that the situation prevailing in the State from which a case under Section 11(2) is sought to be transferred to some other Designated Court is not conducive to a fair, impartial or speedy trial; (2) that it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Designated Court or any of them; and (3) it is not otherwise in the interests of justice. Under sub-section (3) of Section 11 the Central Government is empowered to seek the concurrence of Chief Justice of India to specify a Designated Court outside the State when it is of opinion that the situation prevailing in the State is not conducive to fair, impartial and speedy trial within the State.
180. No doubt, it is true that there are specific provisions already in vogue under the Constitution and some statutes for transfer of cases and appeals from one court subordinate to the transferring court to another court.
181. Under Article 139-A of the Constitution of India either the Attorney General of India or a party to any case can move the Supreme Court on an application for transfer of certain cases as contemplated in that article. Of course, the Supreme Court also on its own motion may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself.
182. For transfer of criminal cases under Section 406 of the Code of Criminal Procedure, the Attorney General of India or a party interested may move an application by way of a motion (unlike Section 407 of the Code) accompanied by a supporting affidavit or affirmation before the Supreme Court to transfer cases and appeals from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.
183. Under Section 24 of the Code of Civil Procedure, the High Court and the District Court are given general power of transfer and withdrawal of cases either on an application of any of the parties after issuing notice and hearing them or on their own motion. Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any suit, appeal and other proceedings from a High Court or civil court in one State to a High Court or other civil court in any other State on the application of a party and after issuing notice and hearing them.
184. The new Section 25 of the Civil Procedure Code substituted by an Amendment Act, 104 of 1976 provides for the transfer to the Supreme Court the existing power hitherto vested-with the State Government and to confer on the Supreme Court such wide powers of transfer as it has in criminal cases under Section 406 of the Code. Section 25, in fact, is wider in scope than Section 406 of the Code of Criminal Procedure, 1973. Though, there is no express provision in Article 139-A of the Constitution and in Section 406 of the Code of Criminal Procedure to the effect that the Supreme Court before passing any order on the application made or moved for transfer of 663
cases should issue notice and hear the parties as required under Sections 24 and 25 of the Code of Civil Procedure, on the principle of 'audi alteram partem', notice is given to the party/parties who are likely to be affected by any final order. But the question of issuing a notice and hearing the parties may not arise if the order is passed by the Supreme Court suo motu.
185. Harking back to Section 11(2) and (3) of TADA Act, the concurrence of the Chief Justice is sought for when the exigencies of the situation prevailing in the State is not conducive to a fair, impartial or speedy trial. The reasons for seeking such concurrence, of course, will be manifested in the motion moved by the law officers. The Chief Justice of India, while discharging his statutory function passes a statutory order and gives or refuses the concurrence on drawing his requisite subjective satisfaction on the materials placed before him in the motion.
186. It may be added, in this context that the Central Government cannot transfer any case under Section 11(2) or issue a notification under Section 11(3) in case the Chief Justice refuses to give the concurrence. To say differently, to pass an order either under Section 11(2) or 11(3) the concurrence of the Chief Justice is a sine qua non. But at the same time one should be alive to the legal position that the mere according of concurrence by itself is not an order of transfer but it only facilitates the Central Government to pass an order under either of the above provisions. In other words, the obtaining of concurrence of the Chief Justice of India is one of the specified conditions to be fulfilled or complied with before any order either under sub-section (2) or sub-section (3) of Section 11 is passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. Therefore, the according of concurrence which is a condition precedent for passing the transfer order by the Government is only a statutory order and not a judicial order because there is no adjudication of any 'lis' and determination of any issue. Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government.
187. In this connection, we may refer to the decision in R. V. Cain62. In that case, the appellant was charged for an offence under the Explosive Substances Act, 1883. Section 7(1) of that Act required to obtain the consent of the Attorney General before proceeding further in that matter. The consent of the Attorney General as per that provision, was accorded in that case which was challenged on the ground that the document of consent from the Attorney General did not constitute sufficient consent for the purpose of Section
7. That challenge was rejected by the Court of Appeal holding that the duty of the Attorney General was to consider the general circumstances
62 (1975) 2 All ER 950: (1975) 3 WLR 131 664
of the case and to decide whether any, and, if he thought fit, which of the provisions of the Act could properly be pursued against the defendant who had been charged before the Magistrate with one such offence. See also Gouriet v. Union of Post Office Workers63.
188. The contention of Mr Tarkunde is that the accused concerned who is likely to be affected by such transfer, should be given an opportunity of making his representation in compliance with the principle of natural justice by the Chief Justice of India before be gives his concurrence.
189. The learned Additional Solicitor General contended that the Parliament is fully empowered to exclude the application of the rule of 'audi alteram partem' when the nature of the action to be taken, the object and purpose as well as the scheme of the relevant statutory provisions are likely to be paralysed or frustrated. According to him, the concurrence of the Chief Justice of India is sought to be obtained only having regard to the exigencies of the situation prevailing in a State which are not conducive to a fair, impartial or speedy trial.
190. As we have repeatedly pointed out, the concurrence by the Chief Justice of India under Section 11(2) and (3) is given or denied in the discharge of his statutory function on drawing the requisite subjective satisfaction on the reasons given in the motion or any material placed before him explaining the exigencies of the situation prevailing in the State which has necessitated the Central Government to obtain the concurrence and then transfer the case. Therefore, we feel that notwithstanding the power of the Parliament to exclude the application of rule of 'audi alteram partem' in exceptional circumstances, it may be open to the Chief Justice of India in an appropriate case to have the view of the accused.
191. The questions involved for consideration on the submission made by the learned counsel are answered accordingly.
Section 15 of 1987 Act
192. A blistering attack was made on the validity of the hotly debated Section 15 as per which the confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder. [It may be mentioned that the words "or co-accused, abettor or conspirator" are inserted after the words "trial of such person" by the TADA (Amendment) Act, 1993 (No. 43 of 1993) w.e.f. 22-5-1993, with a proviso, reading "Provided that co- accused, abettor or conspirator is charged and tried in the same case together with the accused."] But before recording the confession under sub-section (1), the person making the confession should be given a statutory warning as contemplated under subsection (2) of Section 15. 63 (1977) 3 All ER 70: (1977) 3 WLR 300 665
193. Mr Ram Jethmalani made a scathing attack on this provision contending that this provision is atrocious and totally subversive of any civilized trial system and overrides Sections 25 and 26 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure. According to him when the existing Codes of Law which have a life history of more than a century proceed on the footing that police confessions are untrustworthy, a fortiori, the confessions recorded on mechanical devices are certainly inferior to confessions recorded by Magistrates in open courts with all the precautions prescribed by the statute, High Court rules and judicial decisions. There will be many infirmities in such recording of confessions such as selective recordings, tampering, tailoring and editing and the confessions so recorded on mechanical devices are not as reliable as written confessions and signed by the makers of those confessions. Therefore, he contends that this provision should be held to be unjust and unreasonable and bad in law under both Articles 14 and 21 of the Constitution. In this connection, he made reference to Section 21(1)(c) as per which a confession made by a co- accused that the accused has committed the offence, if proved, a presumption shall be drawn by the Designated Court that the accused has committed such offence unless the contrary is proved. This provision, according to him, totally subverts Section 30 of the Evidence Act and that the confession by the co-accused is not evidence as defined in the Evidence Act. Two decisions were cited by him to strengthen his submission, firstly, Bhuboni Sahu v. King64 wherein the Privy Council after having approved the observation of Reilly, J. in Periyaswami Mooppan, Re65 (ILR at p. 77) that Al where there is evidence against the co- accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence" has held that "... a confession of a co- accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination"; and secondly Hari Charan Kurmi and Jogia Hajam v. State of Bihar66 in which Gajendragadkar, C.J. speaking for the Constitution Bench stated that: (SCR headnote) "Though a confession mentioned in Section 30 of the Indian Evidence Act is not evidence as defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non- technical way. But in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then
64 AIR 1949 PC 257: 76 IA 147: 50 Cri LJ 872 65 Periyaswami Mooppan v. Emperor, ILR (1931) 54 Mad 75: AIR 1931 Mad 177: 32 Cri LJ 448
66 (1964) 6 SCR 623 : AIR 1964 SC 1184: (1964) 2 Cri LJ 344 666
it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."
194.In continuation of his argument, the learned senior counsel has stressed that a police officer can easily find his own favourite informer, record his confession implicating whomsoever he wants and all those persons, forfeit their life and liberty unless they prove the contrary, namely, their innocence, which is an impossible burden to discharge and in that sense Section 21(1)(c) is subversive of all civilized notions of justice and renders a criminal trial a total farce.
195.Mr Harjinder Singh, the learned counsel supplementing the arguments of the other counsel cited the decision, namely, Olga Tellis v. Bombay Municipal Corpn.67 wherein it has been observed that "[i]f a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down" and also made reference to (1) E.P. Royappa v. State of T.N.68, (2) Maneka Gandhi2l, (3) M.H. Hoskot v. State of Maharashtra69, (4) Sunil Batra v. Delhi Administration (I)23, (5) Sita Ram v. State of U.P.70, (6) Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna24, (7) Hussainara Khatoon (I) v. Home Secretary, State of Bihar, Patna22, (8) Sunil Batra (II) v. Delhi Administration7l, (9) Jolly George Varghese v. Bank of Cochin72, (10)Kasturi Lal Lakshmi Reddy v. State of J&K73, and (11) Francis Coralie Mullin v. Administrator, Union Territory of Delhi74. A 196. On the dictum laid down in the above decisions, he concluded by saying that unreasonableness vitiates not only law but also the procedure alike and, therefore, it is essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fair play.
197. All the counsel who challenged the validity of the provisions of this Act made similar submissions as that of Mr Jethmalani and stated in chorus that Section 15 of the Act gives a death-knell to the very basic principle hitherto recognised and followed that a confession made before a police
67 (1985) 3 SCC 545: 1985 Supp 2 SCR 51 68 (1974) 4 SCC 3: 1974 SCC (L&S) 165: (1974) 2 SCR 348 21 (1978) 1 SCC 248: (1978) 2 SCR 621
69 (1978) 3 SCC 544: 1978 SCC (Cri) 468: (1979) 1 SCR 192 23 (1978) 4 SCC 494: 1979 SCC (Cri) 155: (1979) 1 SCR 392 70 (1979) 2 SCC 656: 1979 SCC (Cri) 576: (1979) 2 SCR 1085 24 (1980) 1 SCC 98: 1980 SCC (Cri) 40: (1979) 3 SCR 532 (IV)
22 (1980) 1 SCC 81: 1980 SCC (Cri) 23: (1979) 3 SCR 169(1) 71 (1980) 3 SCC 488 :1980 SCC (Cri) 777 :(1980) 2 SCR 557 72 (1980) 2 SCC 360: (1980) 2 SCR 913
73 (1980) 4 SCC 1 :(1980) 3 SCR 1338
74 (198 1) 1 SCC 608 : 1981 SCC (Cri) 212: (1981) 2 SCR 516 667
officer under any circumstance as well as a confession to a Magistrate or a third party while in police custody is totally inadmissible and that such a confession cannot be proved as against a person accused of any offence.
198. The learned Additional Solicitor General strains his every nerve to overthrow the above argument articulating that the constitutional validity of Section 15 is to be determined on the basis of the competence of the Parliament to vary the procedure which is just and fair in the facts and circumstances of the situation with which the statute tends to grapple and not on the touchstone of the Evidence Act. This section, according to him, contains a significant safeguard by vesting the power of recording confession in superior police officer in order to prevent any misuse or abuse which safeguard has been approved by this Court in Gurbachan Singh v. State of Bombay75 (SCR at p. 743) wherein it has been held that a law which contains an extraordinary procedure can be made to meet the exceptional circumstances otherwise the purpose and object of the Act would be defeated.
199. Coming to the intrinsic value to be attached to the evidence, it has been said by Additional Solicitor General that this section does not lay down the probative value of the confession nor does it indicate that conviction can be based on confession alone made before a police officer. He continues to state that the probative value of the confessions is left to the court to be determined in each case on its own facts and circumstances. Then he drew our attention to certain provisions in various statutes empowering the officers specified therein to secure or arrest the offenders and to record statements from them which statements are held to be admissible in evidence in criminal proceeding as against them by judicial pronouncements of the various High Courts and this Court. Those being (1) Section 12 of the Railway Protection Force Act, 1957; (2) Sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966; (3) Section 108 of Customs Act, 1962; and (4) Section 40 of Foreign Exchange Regulation Act, 1973.
200. Now let us analyse Section 15 as amended by Act 43 of 1993 and examine the merit of the contentions of the respective parties with reference to certain relevant provisions of the Constitution, general procedural law and Evidence Act.
201. Section 15 of the Act, as amended reads as follows: "15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything contained in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:
75 1952 SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147
668
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily."
202. In recording a confession by a police officer, the said police officer under Rule 15 of the Rules made under the Act has to observe some legal formalities and comply with certain conditions. If the confession is reduced into writing, then under sub-rule (3) of Rule 15, the said confession should be signed by the person making the confession and the police officer who records the confession should append a certificate as required by the rule. As Rule 15 has to be read with Section 15 of the TADA Act, we feel that it would be necessary to reproduce the rule so that the legal formality to be observed may be properly understood.
203. Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 is as follows:
"15. Recording of confession made to police officers.- A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.
(2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession.
(3) The confession shall, if it is in writing, be-
(a) signed by the person who makes the confession; and
(b) by the police officer who shall also certify under his own hand that such
confession was taken in his presence an d
recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect:-
'I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
Sd/-Police Officer'
669
(4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) insofar as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession.
(5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence."
204. Before proceeding further, we may point out that Section 21(1)(c) in respect of which some argument has been advanced is omitted along with Section 21(1)(d) by the Amendment Act 43 of 1993.
205. In our Constitution as well as procedural law and law of Evidence, there are certain guarantees protecting the right and liberty of a person in a criminal proceeding and safeguards in making use of any statement made by him. Article 20(3) of the Constitution declares that "No person accused of any offence shall be compelled to be a witness against himself'.
206. Article 20(3) of our Constitution embodies the principle of protection against compulsion of self- incrimination which is one of the fundamental canons of the British System of Criminal Jurisprudence and which has been adopted by the American System and incorporated in the Federal Acts. The Fifth Amendment of the Constitution of the United States of America provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising... nor shall be compelled in any criminal case to be a witness against himself......
207. The above principle is recognised to a substantial extent in the criminal administration of justice in our country by incorporating various statutory provisions. One of the components of the guarantee contained in Article 20(3) of the Constitution is that it is a protection against compulsion resulting in the accused of any offence giving evidence against himself. There are a number of outstanding decisions of this Court in explaining the intendment of Article 20(3). We feel that it would suffice if mere reference is made to some of the judgments, those being: (1) M.P. Sharma v. Satish Chandra, District Magistrate, Delhi76, (2) Raja Narayanlal Bansilal v. Maneck Phiroz Mistry77, (3) State of Bombay v. Kathi Kalu Oghad78, and (4) Nandini Satpathy v. P.L. Dani79.
76 1954 SCR 1077 : AIR 1954 SC 300: 1954 Cri LJ 865 77 (1961) 1 SCR 417 : AIR 1961 SC 29: (1960) 30 Comp Cas 644
78 (1962) 3 SCR 10: AIR 1961 SC 180: (1961) 2 Cri LJ 856 79 (1978) 2 SCC 424: 1978 SCC (Cri) 236 670
208. Article 22(1) and (2) confer certain rights upon a person who has been arrested. Coming to the provisions of Code of Criminal Procedure, Section 161 empowers a police officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to reduce into writing any statement made to him in the course of such examination. Section 162 which speaks of the use of the statement so recorded, states that no statement recorded by a police officer, if reduced into writing, be signed by the person making it and that the statement shall not be used for any purpose save as provided in the Code and the provisions of the Evidence Act. The ban imposed by Section 162 applies to all the statements whether confessional or otherwise, made to a police officer by any person whether accused or not during the course of the investigation under Chapter XII of the Code. But the statement given by an accused can be used in the manner provided by Section 145 of the Evidence Act in case the accused examines himself as a witness for the defence by availing Section 315(1) of the Code corresponding to Section 342-A of the old Code and to give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.
209. There is a clear embargo in making use of this statement of an accused given to a police officer under Section 25 of the Evidence Act, according to which, no confession made to a police officer shall be proved as against a person accused of any offence and under Section 26 according to which no confession made by any person whilst he is in custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The only exception is given under Section 27 which serves as a proviso to Section 26. Section 27 contemplates that only so much of information whether amounts to confession or not, as relates distinctly to the fact thereby discovered, in consequence of that information received from a person accused of any offence while in custody of the police can be proved as against the accused.
210. In the context of the matter under discussion, two more provisions also may be referred to namely Sections 24 and 30 of the Evidence Act and Section 164 of the Code.
211. Section 24 of the Evidence Act makes a confession, caused to be made before any authority by an accused by any inducement, threat or promise, irrelevant in a criminal proceeding. Section 30 of the Evidence Act is to the effect that if a confession made by one or more persons, affecting himself and some others jointly tried for the same offence is proved, the court may take into consideration such confession as against such other persons as well as the maker of the confession. The explanation to the section reads that "offence" as used in this section includes the abetment of, or attempt to commit, the offence.
212. Section 164 of the Code speaks of recording of confessions and statements by Magistrates specified in that section by complying with the legal formalities and observing the statutory conditions including the 671
appendage of a Certificate by the Magistrate recording the confession as contemplated under sub-sections (2) to (6) thereof.
213. Though in the old Code, there was a specific embargo on a police officer recording any statement or confession made to him in the course of an investigation embodied in the main sub-section (1) of Section 164 itself, in the present Code the legal bar is now brought by a separate proviso to subsection (1) of Section 164 which reads: "Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force."
This is a new provision but conveys the same meaning as embodied in the main sub-section (1) of Section 164 of the old Code.
214. Thus, an accused or a person accused of any offence is protected by the constitutional provisions as well as the statutory provisions to the extent that no self- incriminating statement made by an accused to the police officer while he is in custody, could be used against such maker. The submission of the Additional Solicitor General that while a confession by an accused before a specified officer either under the Railway Protection Force Act or Railway Property (Unlawful Possession) Act or Customs Act or Foreign Exchange Regulation Act is made admissible, the special procedure prescribed under this Act making a confession of a person indicted under the TADA Act given to a police officer admissible cannot be questioned, is misnomer because all the officials empowered to record statements under those special Acts are not police officers as per the judicial pronouncements of this Court as well the High Courts which principle holds the field till date. See (1) State of U.P. v. Durga Prasad8O, (2) Balkishan A. Devidayal v. State of Maharashtra81, (3) Ramesh Chandra Mehta v. State of W. B. 82, (4) Poolpandi v. Superintendent, Central Excise83, (5) Directorate of Enforcement v. Deepak Mahajan43, and (6) Ekambaram v. State of T.N.84 We feel that it is not necessary to cite any more decisions and swell this judgment.
215. The above constitutional and statutory procedural guarantees and safeguards are in consonance with the expression, "according to procedure established by law" enshrined in Article 21 of the Constitution within which fold the principle of just and fair trial is read into.
216. The procedure contemplated by Article 21 is that the procedure must be "right, just and fair" and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of natural justice, that is, "fair play in action". 80 (1975) 3 SCC 210: 1974 SCC (Cri) 828: AIR 1974 SC 2136 81 (1980) 4 SCC 600: 1981 SCC (Cri) 62: AIR 1981 SC 379 82 Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 46 : AIR 1970 SC 940: 1970 Cri LJ 863
83 (1992) 3 SCC 259: 1992 SCC (Cri) 620 43 (1994) 3 SCC 440: JT (1994) 1 SC 290 84 1972 MLW (Cri) 261
672
217. If the procedural law is oppressive and violates the principle of just and fair trial offending Article 21 of the Constitution and is discriminatory violating the equal protection of laws offending Article 14 of the Constitution, then Section 15 of TADA Act is to be struck down. Therefore, it has become inevitably essential to examine the classification of 'offenders' and 'offenses' so as to enable us in deciding whether Section 15 is violative of Articles 14 and 21 of the Constitution.
218. The principle of legislative classification is an accepted principle where under persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which government one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.
219. The limit of valid classification must not be arbitrary but scientific and rational. It must always rest upon some real and substantial distinction bearing reasonable and just relation to the needs in respect of which the classification is made.
220. Coming to the distinction made in TADA Act grouping the terrorists and disruptionists as a separate class of offenders from ordinary criminals under the normal laws and the classification of the offences under TADA Act as aggravated form of crimes distinguishable from the ordinary crimes have to be tested and determined as to whether this distinction and classification are reasonable and valid within the term of Article 14 of the Constitution. In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction and classification which of course need not be made with mathematical precision. Suffice, if there is little or no difference between the persons and the things which have been grouped together and those left out of the groups, the classification cannot be said to be a reasonable one. In making the classification, various factors have to be taken into consideration and examined as to whether such a distinction or classification justifies the different treatment and whether they subserve the object sought to be achieved.
221. There is a catena of outstanding judgments on the above principle of law and it is not necessary to refer to all those decisions except to make mention of a few, namely, (1) Chiranjit Lal Chowdhari v. Union of India85, (2) Ram Krishna Dalmia v. Justice S.R. Tendolkar6, and (3) Special Courts Bill, In re, 197854.
85 1950 SCR 869: AIR 1951 SC 41
86 1959 SCR 279: AIR 1958 SC 538
54 (1979) 1 SCC 380: (1979) 2 SCR 476
673
222. As pointed out supra, the persons who are to be tried for offences specified under the provisions of TADA Act are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from the ordinary criminals and procedure. This distinction and classification of grouping of the accused and the offences to be tried under TADA are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well as the 'Statement of Objects and Reasons' about which we have elaborately dealt with in the preceding part of this judgment.
223. We have already disposed of the question with regard to the competence of the Parliament and have held in the earlier part of this judgment that the Parliament has got the legislative competence to enact this law namely the TADA Act and the Special Courts Act of 1984. When the validity of this section is scrutinised in the above background, we can safely hold that the procedure prescribed under this Act cannot be said to be unjust, unfair and oppressive, offending Articles 14 and 21 of the Constitution.
224. The learned Additional Solicitor General by giving a comparative chart of the provisions of TADA and of the Northern Ireland Emergency Provision Act of 1978 wherein there are various provisions akin to some of the provisions of TADA including the mode of trial of scheduled offences specified thereunder in a more stringent manner and the onus of proof in relation to offences corresponding to the provisions of TADA Acts and relating to presumption as to offences under Section 3 and so on, contended that the procedure prescribed under this Act for trying the commission of heinous crimes cannot be said to be discriminatory. He also made reference to the Prevention of Terrorism (Temporary Provision) Act, 1984 (UK) and some other Acts enacted in India which are now repealed prescribing special procedure and providing severe punishments.
225. The learned Additional Solicitor General in continuation of his arguments stated that the procedure under the normal penal laws had become grossly inadequate and ineffective to try the distinct group of offenders, i.e., terrorists and disruptionists for the classified aggravated nature of offenses and that his submission is fortified by the statistics with regard to the terrorist crimes in the State of Punjab from 1984 to 1992, annexed in the compilation of his written submission before the court and the debates and discussion made in the Parliament at the time of introduction of the Bill (TADA). He placed reliance on (1) N.B. Khare (Dr) v. State of Delhi87; (2) Kathi Raning Rawat v. State of Saurashtra88 (SCR at pp. 447-450); (3) Kedar Nath Bajoria v. State of W.B.89 (SCR at pp. 38-43); (4) State of Bombay v. R.M.D. Chamarbaugwala9O (SCR at pp. 927) which decisions
87 1950 SCR 519 AIR 1950 SC 211 1951 Cri LJ 550 88 1952 SCR 435 AIR 1952 SC 123 1952 Cri LJ 805 89 1954 SCR 30: AIR 1953 SC 404: 1953 Cri LJ 1621 90 1957 SCR 874: AIR 1957 SC 699
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have held that stringency and harshness of provisions are not for courts to determine; (5) Pannalal Binjraj v. Union of India91 wherein it has been said that mere possibility of abuse is not a valid ground to challenge the validity of a statute; (6) Talib Haji Hussain v. Madhukar P. Mondkar92 (SCR at P. 1232) wherein it has been ruled that fair trial has two objects in view, namely, it must be fair to the accused and also to the prosecution; (7) Kangsari Haldar v. State of W.B.93 (SCR at pp. 651, 654, 656); and (8) A.K. Roy v. Union of India4O wherein it has been held that liberty of individual has to be subordinated to the good of the people.
226. He on the basis of the above dictum laid down in those cited decisions, concluded that the reasonable and scientific classification of the offenses and offenders under TADA Acts cannot be said to be offending either Article 14 or Article 21 and as such the contention of the learned counsel attacking this provision should be thrown overboard.
227. Mr Tulsi, the other learned Additional Solicitor General and the other counsel supporting the validity of this provision made a common submission that the contention of the counsel attacking the legality of this provision tantamounts to an attempt to forcibly drag the substantive law through the coiled barbed wires of procedural law thereby making the substantial law bleeding and becoming dysfunctional and as such that contention should be discarded.
228. In the light of the 'ratio decidendi' regarding the legislative competence to enact a law prescribing a special procedure departing from the procedure for trying offenders in the normal circumstances for achieving the object of the Act and the classification of 'offences' and 'offenders' to be tried under separate procedure for the offences specified in the present case under the TADA Act we shall exam ine the rival contentions of the parties and determine whether the procedure prescribed under this Act violates Articles 14 and 21 of the Constitution.
229. There is a line of decisions in support of the proposition that the Legislature is free to make classification of 'offences' and 'offenders' in the application of a statute. We would like to refer a few of them.
230. In Asbury Hospital v. Cass County94 it has been stated: (L Ed p. 13)
"The Legislature is free to make classifications in the application of a statute which are relevant to the legislative purpose. The ultimate test of validity is not whether the classes differ but whether the differences between them are pertinent to the subject with respect to which the
classification is made."
91 1957 SCR 233 : AIR 1957 SC 397 :(1957) 31 ITR 565 92 1958 SCR 1226: AIR 1958 SC 376: 1958 Cri LJ 701 93 (1960) 2 SCR 646: AIR 1960 SC 457 :1960 Cri LJ 654 40 (1982) 1 SCC 271: 1982 SCC (Cri), 152: (1982) 2 SCR 272 94 90 L Ed 6: 326 US 207 (1945)
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231. In Goesaert v. Cleary95 a Michigan statute forbidding women being licensed as bartenders and at the same time making an exception in favour of the wives and daughters of the owners of liquor establishments was held by a majority of the court not to violate the equal protection clause of the Fourteenth Amendment.
232. Likewise, a city regulation which prohibited advertising vehicles in city streets, but permitted the putting of business notices upon business delivery vehicles, so long as they were used merely or mainly for advertising was held not to violate the Fourteenth Amendment in Railway Express Agency v. New York96. The exception was upheld because the classification had relation to the purpose for which it was made and Douglas, J. remarked that it was by practical considerations based on experience rather than by theoretical exigencies that the question of equal protection should be answered.
233. Of course, the Supreme Court of the United States had struck down certain exemption provisions on the ground that the classification was arbitrary and illusory and did not rest on any ground having a fair and substantial relation to the object of the legislation.
234. Looking back on the meaning and scope of Article 14 of the Constitution of India, this Court has rendered several judgments about the principle and policy of equality enshrined therein.
235. Fazl Ali, J. in State of Bombay v. F.N. Balsara97 (AIR at p. 326) approving the scope of Article 14 discussed in the case of Chiranjit Lal v. Union of India85 has laid down seven propositions as follows:
"1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate, treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
95 93 L Ed 163 335 US 464 (1948)
96 93 L Ed 533 336 US 106 (1948)
97 AIR 1951 SC 318: 1951 SCR 682 : 52 Cri LJ 1361
85 1950 SCR 869: AIR 1951 SC 41
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6. If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be base d
upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."
See also Constitutional Law by Prof Willis, 1st Edn., p. 578
236. Keeping the above proposition, we have to decide whether the provisions of Section 15 of the 1987 Act (TADA) contravene Article 14. True, if the classification is shown to be arbitrary and unreasonable and without any substantial basis, the law would be contrary to the equal protection of laws by Article 14.
237. Reliance was strongly placed on the decision of this Court in State of W.B. v. Anwar Ali Sarkar5O by all the counsel attacking this provision. In that decision, the validity of the West Bengal Special Courts Act was impugned. The object of that Act as declared in the preamble was "to provide for the speedier trial of certain offences". Section 3 of the Act empowered the State Government by notification in the Official Gazette to constitute special courts, and Section 5 provided that:
"A special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct."
238. A procedure different in several respects from that laid down by the Code of Criminal Procedure for trial was laid down by the Act. It was contended that Section 5 was unconstitutional inasmuch as it contravened Article 14 of the Constitution. It was held by a majority of the Court, the learned Chief Justice dissenting, that Section 5 was void as it contravened Article 14.
239. Fazl Ali, J. in his separate judgment while disposing the contention that Section 5 was suffering from unconstitutionality observed:
"There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle.
In my opinion, it will be dangerous to introduce a subjective test when the article itself lays down a clear and objective test. that part of it with which alone we are concerned in this appeal, does offend against Article 14 of the Constitution and is therefore unconstitutional and void."
240. Mahajan, J. agreeing with the judgment of Mukherjea, J. expressed his view thus:
50 1952 SCR 284: AIR 1952 SC 75: 1952 Cri LJ 5 10 677
"The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial Government.... Even if it be said that the statute on the face of it is not discretionary, it is so in its effect and operation inasmuch as it vests in the executive Government unregulated official discretion and therefore has to be adjudged unconstitutional."
241. Mukherjea, J. in his separate judgment has said: "But when the statute itself makes a discrimination without any proper or
reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory."
242. The 'ratio decidendi' of this decision was that Section 5 did not classify or lay down any basis for classification of the cases which may be directed to be tried by the Special Court, but left it to the uncontrolled discretion of the State Government to direct any cases which it liked to be tried by the Special Court.
243. The above decision, in our view, cannot be availed of for striking down Section 15 of TADA Act because the classification of 'offenders' and ,offences' to be tried by the Designated Court under the TADA Act or by the Special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification of the offenders as terrorists and disruptionists in the TADA Act and the terrorists under the Special Courts Act, 1984 as well as the classification of offences under both the Acts.
244. Therefore, the complaint of incorporation of invidious discrimination in the Act has to be turned down. All that the court has to see is whether the power is used for any extraneous purpose i.e. to say not for achieving the object for which the power is granted and whether the Act (TADA) has been made on grounds which are not germane or relevant to the policy and purpose of this Act and whether it is discriminatory so as to offend Article 14. In our considered opinion, the classifications have rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14 of the Constitution.
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245. The next question is whether the procedure in recording the confession is just and fair.
246. The counsel were severely critical of the mode and method of obtaining a confession from an accused person. According to them, the oppressive behavior and excessive naked abuse and misuse of power by the police in extorting confession by compelling the accused to speak under the untold pain by using third degree methods with diabolical barbarity in utter violation of human rights, cannot be lost sight of or consigned to oblivion and the courts would not be justified by showing a volte-face and turning a blind eye to the above reality and drawing a legal presumption that the confession might have been obtained by a police officer not lower in rank than a Superintendent of Police in terms of Section 15(1) only in accordance with the legally permissible procedure. They castigated the conduct of the police officers in whisking away the accused either on arrest or on obtaining custody from the court to an unknown destination or unannounced premises for custodial interrogation in order to get compulsory self-incriminating statement as a source of proof to be produced before a court of law.
247. This Court on several occasions has awarded exemplary compensation to the victims at the hands of the police officials which can be testified by a series of pronouncements of this Court.
248. As we have repeatedly pointed out supra, if it is shown to the court that a confession has been extorted by illegal means such as inducement, threat or promise as contemplated under Section 24 of the Evidence Act the confession thus obtained from an accused person would become irrelevant and cannot be used in a criminal proceeding as against the maker. It may be recalled that Sections 330 and 331 of the Indian Penal Code provide punishment to one who voluntarily causes hurt or grievous hurt as the case may be to extort the confession or any information which may lead to the detection of an offence or misconduct.
249. Thus the Constitution as well as the statutory procedural law and law of Evidence condemn the conduct of any official in extorting a confession or information under compulsion by using any third degree methods.
250. In this connection, we would like to reproduce the view of the National Police Commission (Fourth Report June 1980) with regard to the admissibility of confession made to a police officer as evidence, which is to the following effect:
"27. 33 ... This total ban on the entry of a confessional statement recorded by a police officer into the area of judicial proceedings has placed the police at a great disadvantage as compared to several other enforcement agencies who also handle investigational work leading to prosecution in court. Thi s
provision in' the Evidence Act which was enacted in 1872 bears relevance to the then situation in which the police were practically the only enforcement agency available to the Government and they had acquired notoriety for the adoption of several gross malpractice involving torture and other pressure tactics of an
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extreme nature to obtain confessions from accused persons. More than 100 years have rolled by since then. We are aware that the police are still not totally free from adopting questionable practices while interrogating accused persons, but one cannot possibly deny that the greater vigilance now exercised by the public and the press, growing awareness of citizens about their individual rights under the law and increasing earnestness and commitment of the senior levels of command in the police structure to put down such malpractice have all tended to reduce the prevalence of such practices in the police to a lesser degree than before.... After a careful consideration of all aspects of this much debated question we feel that the stage has arrived now for us to take a small positive step towards removing this stigma on the police and make it possible for a confession made before a police officer to enter the area of judicial proceedings, if not as substantive evidence, at least as a document that could be taken into
consideration by the court to aid it in inquiry or trial in the same manner as now provided in regard to case diaries under Section 172(2) CrPC and the confession of a co-accused under Section 30 of the Evidence Act. We are also of the view that this approach to the evidentiary admissibility and value of a confession made before a police officer should apply not only to the police but to all persons in authority before whom a confession may be made. If the Evidence Act reflects this approach to confessions as a class, it would largely remove the present feeling of the police that they have been unjustly discriminated against in law."
251. Whatever may be said for and against the submission with regard to the admissibility of a confession made before a police officer, we cannot avoid but saying that we with the years of experience both at the Bar and on the Bench have frequently dealt with cases of atrocity and brutality practiced by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behavior and the most degrading and despicable practice adopted by some of the police officers even though no general and sweeping condemnation can be made.
252. In this connection, we feel it would be appropriate to extract the views expressed by National Judicial Commission (Fourth Report) discountenancing the conduct of police in practicing the third degree methods: "Nothing is so dehumanising as the conduct of police in practicing torture of any kind on a person in their custody. Police image in the estimate of the public has badly suffered by the prevalence of this practice in varying degrees over several years. We note with concern the inclination of even some of the supervisory ranks to countenance the practice in a bid to achieve quick results by short-cut methods. Even well meaning officers are sometimes drawn towards third degree methods 680
because of the expectation of some complainants in individual cases that the suspects named by them should be questioned by the police with some kind of pressure......
253. Though we at the first impression thought of sharing the view of the learned counsel that it would be dangerous to make a statement given to a police officer admissible (notwithstanding the legal position making the confession of an accused before the police admissible in some advanced countries like United Kingdom, United States of America, Australia
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