This article is written by Shweta Singh. This article contains a detailed analysis of the findings and decision of the Supreme Court in the case of Kartar Singh v. State of Punjab (1994). In addition to this, it also discusses the relevance and significance this case holds in today’s scenario.

Introduction 

The Indian Constitution, under Part III, outlines various fundamental rights that are intrinsic to individual growth and development. However, none of the rights provided under Part III are absolute. These rights are subject to certain limitations to ensure that the enforcement of individual rights does not curtail the rights of the public at large. There are instances when there is a direct contradiction between the fundamental rights of an individual and the rights of the public at large. This leads to a crucial question: how can such a conflict be efficiently resolved while safeguarding both individual rights and the broader interests of society? The case of Kartar Singh v. State of Punjab (1994) (hereinafter shall be referred to as “the case”) aptly deals with this question. This case highlights the importance of protecting the procedural safeguards provided to the accused under various statutory provisions and the Constitution, along with ensuring that the welfare of the public at large and the sovereignty and integrity of the nation are also protected.

Brief details of Kartar Singh vs. State of Punjab (1994)

Name of the case

Kartar Singh vs State Of Punjab (1994)

Date of the judgement

11th March, 1994

Parties to the case

Petitioner 

Kartar Singh

Respondent

State of Punjab

Represented by

Petitioner

Mr. Balwant Singh Malik, Mr. Ram Jethmalani, and Mr. Hardev Singh. Mr. Balwant Singh Malik.

Respondent 

Mr K.T.S. Tulsi, the learned Additional Solicitor General

Equivalent citations

1994 SCC (3) 569, JT 1994 (2) 423, 1994 SCALE  1.

Types of the case

Writ Petition No.1833 of 1984 and Writ Petition (Cri.) No. 194 of 1989.

Bench

Justice R.M Sahai, Justice S.R Pandian, Justice M.M Punchhi, Justice K. Ramaswamy, And Justice S.C Agrawal.

Author of the judgement

The main judgement was authored by Justice R.M. Sahai and the dissenting judgement was authored by Justice K. Ramaswamy.

Background of Kartar Singh vs. State of Punjab (1994)

It was in the 1980s when India was suffering from numerous terrorist attacks, turmoil, severe law and order problems. The most affected region due to such activities was the state of Punjab. The region witnessed widespread terrorist activities including rampant killings and arson attacks. In no time, these activities spread to other neighbouring states and weren’t just limited to the state of Punjab. The neighbouring states to which these activities spread were Delhi, Haryana, Uttar Pradesh, and Rajasthan, escalating the overall instability and fear across the country. During this time, many innocent people lost their lives and many public properties were damaged due to intense explosives. This created a sense of fear among the general public, thus, disrupting communal peace and harmony. To tackle this crisis, Central Government passed two laws, namely, the Terrorist Affected Areas (Special Courts) Act, 1984, the Terrorist and Disruptive Activities (Prevention) Act,1985, and after its expiry the Terrorist and Disruptive Activities (Prevention) Act, 1987. These laws were passed with the aim of tackling terrorism by introducing strict measures. Both these laws were designed to implement stringent actions against terrorist activities taking place throughout the territory. To completely eradicate the menace of terrorism and to punish those involved in these activities, the Acts introduces two offences namely “terrorist act” and “disruptive activities”. These Acts recognised the shift and evolution in terrorist activities that have taken dangerous form, thereby demanding urgent and effective intervention to safeguard public safety and national security. The preamble of the Acts underscored the seriousness and expediency of the alarming increase in disruptive activities.

Due to the provisions of these laws being stringent in nature, it was criticised by various human rights activists, and in this backdrop, the petitioner in the present case challenged the constitutional validity of these Acts on the grounds that it violates the fundamental rights of an individual enshrined under Part III of the Indian Constitution.

Facts of Kartar Singh vs. State of Punjab (1994) 

In an instant case, several legal proceedings were filed in the form of writ petition, criminal appeal, and Special Leave Petitions (SLPs). These cases shared a common ground. All the cases were filed to challenge the validity of the three legislative enactments namely, the Terrorist Affected Areas (Special Courts) Act (1984 Act), the Terrorists and Disruptive Activities (Prevention) Act (1985 Act), and the Terrorists and Disruptive Activities (Prevention) Act, 1987 (1987 Act) are collectively referred to as the “Impugned Acts,” with the 1985 and 1987 Acts being commonly known as the TADA Acts. Moreover, the challenge to the constitutional validity of Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976 (1976 Act) was also brought before the court through this case. Through the implementation of Section 9 of the 1976 Act, the Uttar Pradesh Government prohibited the application of Section 438 of the Code of Criminal Procedure (1973 Code) in the state of U.P. 

The Supreme Court while hearing the matters, collated these issues and delivered the common judgement on the validity of the 1984 Act, 1985 Act, and 1987 Act along with Section 9 of the 1976 Act. It was clarified by the Supreme Court that every case shall be decided individually depending on the outcome of the decision on the validity of these three acts.

Legal aspects of Kartar Singh vs. State of Punjab (1994)

Before going into the details of the case, it is important to understand the basics of various legal aspects that are involved and relied upon by the respective parties and the court, for a better understanding of the decision given by the court.

Distribution of legislative power between the Union and the State

The distribution of legislative powers between the central government and state governments defines the important characteristics of India’s federal system of governance. Legislative power is the authority that is vested in both the Union and the State to create, amend, and enforce the laws. The legislation is an efficient mechanism to address unusual issues or chaos within a region and for the purpose of maintaining order within the society for the protection of people. Therefore, to ensure that laws are created and enforced efficiently at both levels of government, the Constitution of India has divided the legislative powers between the Union and the State under Article 245–254.

The distribution of legislative powers between the Union and the States in India was originally established under the Government of India Act of 1935, which was afterward incorporated under the Indian Constitution. Under the Indian Constitution, the legislative power of the Union and the State is divided into two categories. The first is with regard to the territory provided under Article 245 and the second is related to the subject matter of legislation, which is divided into three lists provided under Article 246 of the Indian Constitution. 

Article 245 outlines the territorial limits of exercising the legislative power by the Union and the State. According to this Article, the Union has the power to make laws with regard to the entire nation or some parts of the territory of India. On the other hand, the individual state legislature can make laws with regard to the territories coming under their respective States only. Article 245 also elucidates the concept of extra-territorial operation of laws enacted by the Union. It emphasises the supremacy of Parliament in certain matters and its authority to legislate on subjects that may have ramifications beyond the national territory. It provides that the laws made by the Union shall not be challenged on the grounds that they possess extraterritorial applicability or are effective on the territories that lie beyond the territorial limit of India.

Article 246 of the Indian Constitution has distributed the legislative power between the Union and the State by creating three lists as provided under the Seventh Schedule, namely the Union List, State List, and Concurrent List. As per the provisions contained under this Article, only the Union Government has the authority to make laws with respect to the 97 entries contained under the Union List (List I). As far as the State List (List II) is concerned, clause (3) of Article 246 provided that only the State can make laws for the 66 items mentioned under the said list. With respect to the Concurrent List (List III), which has 47 entries under it, both the Union as well as the State can make the laws relating to the items contained therein. 

The cumulative reading of Article 248 and Entry 97 of List I places residuary power on the Union Government. It implies that the Union Government has the power to enact laws on any matter not enumerated in List II and List III of the Seventh Schedule. Another Article that allows for the predominance of the legislature made by the Union is Article 254 of the Constitution of India. This Article gives an overriding effect to the laws made by the Union in the case of any conflict that may arise between the laws made by the Union and that of the State irrespective of whether the law was made before or after the state legislation. The laws made by the State shall avail only in one condition, that is, it is made after the Union government has made the law and such a law has received a President’s assent. 

The above-mentioned Articles imply that the distribution of legislative power between the Union and the State is not perfect and there are instances of overlapping within the enumerated subjects across the three lists under the Indian Constitution. Therefore, to resolve such a conflict the Supreme Court has established certain principles that can be used in interpreting the entries in the legislative list. In the case of Synthetics and Chemicals Ltd. v. State of U.P (1989), the approach while interpreting the entries of the three Lists provided under the Indian Constitution was discussed. The case highlights how to adopt a broad and flexible approach rather than a narrow and rigid one. The court, by acknowledging that a conflict may arise between the entries across various lists or within the same list, underscored the responsibility of the court to discern the true intent and purpose behind these entries, to remove such a conflict. This responsibility includes analysing the legislation in question and finding out the main essence known as the pith and substance of the legislation. This principle implies ascertaining whether it aligns more closely with the subjects allocated to the Union or State governments.

Doctrine of Pith and Substance

The doctrine of pith and substance comes to play its role when there is doubt regarding whether a particular legislature (Union or State) has the authority to enact the law. Such doubt is when the law dealing with the subject matter in one list also touches upon the subject matter present in another list. In such a situation it becomes important to find out the main purpose or objective of the law, its “true object” i.e., the pith and substance of the law. This involves understanding what the law is really about and what it aims to achieve.

In the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. (1947), Lord Porter speaking in the favour of the Judicial Committee of the Privy Council observed that it is a frequent occurrence in legislative practice that legislation made primarily on the subject matter present in one list, may also touch upon the subject matter present in another list. Therefore, the strict literal interpretation of the provisions within the enactment would be impractical as it would lead to the invalidation of numerous statutes on grounds of legislative incompetence. To avoid this problem, the Indian judiciary by adopting the principle evolved by the Judicial Committee, undertakes to examine the pith and substance of the enactment to come to the conclusion whether the legislation pertains to subjects within the purview of one legislative list or another.

Speedy trial under Article 21 of the Constitution

The right to a speedy trial acts as a pivotal safeguard, being a unique phenomenon to prevent unlawful imprisonment as a form of oppression. Besides guaranteeing personal freedom from an extended period of confinement, it also serves to reduce the sense of anxiety and distress that is commonly associated with a criminal case. The other important factor is that justice should be efficient and without undue delay. A speedy trial saves the right to establish a good defence for the falsely accused person. But besides the urgency of protecting the rights of the individual, there is the societal need for speeding up trials. The speedy adjudication process not only guarantees that justice is exercised but also impacts the public’s confidence in the judicial system in a positive way. Therefore, it is one of the key elements of the judicial process which helps to maintain its integrity and at the same time reinforces the basic principle that justice delayed is, in fact, justice denied.

The idea of the speedy trial is not just the rule of law but a vital component of the spirit of the right to life and personal liberty as expressed in Article 21 of our constitution. In this regard, the fundamental nature of this right goes beyond just demanding physical freedom to also include the promptness of justice at every stage of legal proceedings. From initial arrest and custody, the right to a speedy trial gets the highest priority, maintaining it at all stages of the legal process such as investigation, inquiry, trial, and appeal.

This exhaustive application of the principle of speedy trial aims at preventing any bias that can result from an unfair and unnecessary delay between the commission of the offence and the conclusion of proceedings.

In the case of Hussainara Khatoon (1) v. Home Secretary, State of Bihar (1980), the Supreme Court while dealing with Article 21 observed that the procedure that does not guarantee a trial within a reasonable time cannot be equated with “reasonable, fair, or just” and if so, will be in violation of Article 21 of the Constitution of India. In the judgement, the court reiterated that speedy and time-bound trial as a standard of trial constitutes an essential ingredient of the right to life and liberty under Article 21.

The Supreme Court has time and again in cases such as Sunil Batra v. Delhi Administration emphasised (1987) and Abdul Rehman Antulay v. R. S. Nayak (1991) emphasised speedy trial as an inherent component of the fundamental right to life and liberty under Article 21, which is entrenched in the Constitution. Therefore, the legal framework must establish a procedure that is not only rational but also just and fair, the purpose of which is to make sure that a person is served on time with justice without undue delay.

Confession 

The Indian Constitution as well as the procedural law and law relating to evidence have an inbuilt mechanism for safeguarding the rights and liberties of the individual accused in a criminal case. The basis for such a mechanism is contained under Article 20(3) of the Indian Constitution which entails that any individual accused of an offence and being tied in a criminal proceeding shall be forced to make any statement that may be prejudicial to his situation or which may lead to his conviction. 

Article 20(3) was drafted in line with the principles enshrined in the British System of Criminal Jurisprudence. Such principles can also be found to be adopted by the American System and enshrined in Federal Acts. A similar sentiment is articulated in the Fifth Amendment of the United States Constitution envisaging that an individual being implicated in the case shall be forced to incriminate themselves in any criminal proceedings.

In India, this principle finds significant recognition within the criminal justice system through various statutory provisions. At its core, Article 20(3) guarantees that an individual is protected from being compelled to be a witness against himself, thereby ensuring fairness and integrity in our criminal justice processes.

There are various statutory provisions contained in the 1973 Code and the Indian Evidence Act, 1872 (Evidence Act), that are drafted to align with the principle outlined under the Indian Constitution under Articles 20 and 22.  

The 1973 Code through its provisions contained in Section 164 outlines the procedure for recording confessions and statements made by the person to the Judicial Magistrate authorised for such purpose under the law. These safeguards ensure that while recording the confessions and statements both legal formalities and statutory conditions are duly followed including the attachment of a Certificate by the recording Magistrate, as per the provisions provided in Sub-sections (2) to (6) of Section 164.

Under the previous Code, Sub-section (1) to Section 164 explicitly barred police officers from recording any statements or confessions during investigations. The 1973 Code establishes an additional proviso to Subsection (1) to regulate the investigation process. Under this proviso, a confession given by an individual ought not to be recorded by an inspector who is vested with Magistrate powers. Although the addition of proviso in the 1973 code is an addition to the main aim of Section 164(1) of the older Code, it retains the core message.

Under the Evidence Act, specific provisions are included to ensure that the rights of an accused are not infringed upon during the investigation and criminal proceedings. Sections 24 and 26 of the Evidence Act place an embargo on the use of confessions recorded by the police officer to be presented as evidence against the person making them. However, Section 27 allows an exception to this rule. As per this Section information obtained from the accused in custody can be used if it leads to the discovery of facts relevant to the case.

Another important section under the Evidence Act that also deals with the confessions given by an accused are Sections 24 and 30 of the Evidence Act. Section 24 declares confessions that are obtained from an accused by way of inducement, threat, or promise in criminal proceedings as irrelevant. On the other hand, Section 30 provides that if a confession, given by a single person or more implicating himself and others tried jointly in the same case is proved, the court may consider such confession against both the other individuals and the confessor.

Thus, the provisions contained under the 1973 Code and the Evidence Act along with the basic constitutional principle, outline the protective mechanism against the abuse of power by the state towards the accused. As a result, a confession made by an accused to a police officer while in custody cannot be used against the individual implicated in the case.

Anticipatory bail under Section 438 of the 1973 Code

Section 438 of the 1973 Code provides for anticipatory bail, under which an individual can obtain bail prior to being brought before a court. Through this legal setup, a citizen is able to take up the matter proactively by seeking bail even before being declared or accused of committing a crime. Anticipatory bail appears as a precautionary measure for individuals who are afraid of being wrongfully accused of crimes or charges that are caused by professional or personal grudges. It preserves their innocence until proven otherwise, thereby protecting their freedom and reputation.

To avail anticipatory bail, the petitioner is required to file an application either before the Session Court or the High Court of the respective state. After the application has been filled out the court scrutinises the application and assesses various factors including the nature of the case and the conditions to come up with an informed decision. If granted, anticipatory bail immediately results in release upon arrest. Before granting the bail the court considers several conditions provided under Section 438 which include:

1. The petitioner’s ability to cooperate with the police interrogation as and when needed;
2. Prohibition of directly or indirectly affecting the people who are connected to the case, such as threats, bribes, or promises to influence their testimony or withhold some information from the law enforcement, and 
3. Assurance from the petitioner he should not leave India and first seek the Court’s permission before trying to leave.

These conditions are designed to maintain a fine balance between the protection of the accused and the interests of justice thereby ensuring fair proceedings and curbing any misuse of the section.

Issues raised in Kartar Singh vs. State of Punjab (1994)

The following issues were raised in this case:

1. Whether the TADA Acts fall under Entry 1 of List II relating to ‘Public Order’.
2. Whether the 1984 Act is ultra vires due to lack of legislative competence on the part of the Central Government.
3. Whether the Impugned Acts, as a whole or in part violate any fundamental rights guaranteed by Part III of the Indian Constitution.
4. Whether the confession made to the police is admissible in evidence against the accused.
5. Whether the provision making the applicability of Section 438 of the 1973 Code inoperative is against Article 21 of the Constitution and whether the legislature has the competence to remove its applicability.
6. Whether the imposition of severe limitations on the grant of bail in addition to the limitations contained in Section 437(3) of the 1973 Code is fair and justified.
7. Whether the right of the person to approach the High Court to grant bail under Article 226 can be curtailed where the offence falls under the 1987 Acts.

Arguments of the parties in Kartar Singh vs. State of Punjab (1994)

Several arguments were raised by the parties for and against the issues raised in this case. From the petitioners’ side, the arguments were presented by Mr. Balwant Singh Malik, Mr. Ram Jethmalani and Mr. Hardev Singh. On the other hand, Mr K.T.S. Tulsi, the then learned Additional Solicitor General presented an argument in favour of the respondents.

Arguments raised by the petitioners

The petitioners, with all their vigour, argued concerning the constitutionality of the impugned Acts by submitting a number of arguments against its validity. First and foremost, they argued that through the passing of these impugned Acts, the Central Legislature had gone beyond its powers and questioned the legitimacy of its legislative abilities. Moreover, they argued that certain provisions like Section 3, 4, 8, 9, 15, 20 (3), 22 of the 1987 Act are against the basic rights enshrined in Part III of the Constitution and, thus, are questionable in terms of their legality. Furthermore, the petitioners condemned the Acts for its bias towards the universal human rights principles and humanitarian law, asserting their partiality and failure to uphold basic standards of justice and fairness. The petitioners also condemned these Acts as draconian and reprehensible, thus alluding to their barbarity, as well as the potential for dilution and abuse as their inherent nature. They also challenged the impugned Acts on the ground that police forces endowed with enormous power including the admissibility of confessions recorded by police in court would misuse this authority by carrying out ‘witch-hunts’ against innocent citizens creating an atmosphere of fear denoting the historical eras marked by institutionalised terror.. Through a detailed presentation of their arguments, the petitioners claimed that the impugned Acts in question were not only violative of constitutional principles but also a deviation from basic principles of natural justice and human rights.

Arguments raised by the respondents

The respondents countered the arguments of the petitioner by challenging the validity of the impugned Acts on the grounds of it being arbitrary and against the rule of law. They contended that the brutal and disruptive activities of the terrorists can only be dealt with effectively by way of implementing stringent laws without violating the country’s core values. Consequently, they suggested that these actions required the enlargement and strengthening of the legal powers of the State to fight terrorism within the boundaries of a lawful framework. These impugned Acts followed a detailed parliamentary process, applying the legislature’s opinion that these were very necessary to fill in the gaps of the existing criminal laws because of the large increase in terrorist and disorderly activities. Moreover, the respondents insisted that the scrutiny of the Acts demonstrated no violation of fundamental rights nor the absence of legislative competency. They contended that the Acts were created with the primary objective of protecting national security by due processes and procedures.

Furthermore, the respondents asserted that terrorists used diverse tactics ranging from cruel and barbaric to inhuman ones in order to accomplish their objectives. These strategies included terrorising citizens and forcing them to feel disappointed and helpless, weakening the national economy of the target country, and taking advantage of the excessive response of the government to gain sympathy or publicity. The respondents highlighted that the prime victims of these terrorist activities are innocent groups of individuals, who are chosen by the terrorist groups to maximise media coverage and advance the terrorists’ political agenda. Therefore, enacting these impugned Acts was necessary to prevent these devastating terrorist activities, undertaken with due consideration for national values and legal principles. They asserted that these Impugned Acts did not violate any constitutional principles enshrined under Part III of the Indian Constitution and are in compliance with the legal process and procedures.

Judgement in Kartar Singh vs. State of Punjab (1994)

The majority of the judges upheld the constitutional validity of the impugned Acts namely the 1984 Act, the 1985 Act, and the 1987 Act. The court held that between the State and Union Government, the Union Government is competent to enact the impugned Act, as these Acts deal with graver public disorder that falls under the legislative competence of the Union under Entry 1 of List I. The court further held that the legislature has complete authority to legislate special laws to deal with the specific situation to prevent it from occurring. Terrorism being a growing cause of concern that has the tendency of disrupting the sovereignty and the integrity of the nation, obliges the legislature to enact a specific law to prevent its effect on the society. Therefore, the Impugned Acts being the special legislature, the special provisions covering the procedural aspect of the criminal proceedings like recording confessions, establishing specialised courts, and granting bail among others can not be challenged on the grounds of it being against the principle laid down under Article 14, 20 and 21 of the Indian Constitution.

To conclude its decision on the validity of the impugned Acts, the court framed various issues and gave its decision on every such issue to completely dispose of the contentions raised by the parties. Therefore, it is essential to look into the issue-wise judgement of the court for its better understanding.  

Issue-wise judgement in Kartar Singh vs. State of Punjab (1994)

Whether the TADA Acts fall under Entry 1 of List II relating to ‘Public Order’

The court arrived at its decision on this issue by employing two distinct approaches. Initially, it undertook a thorough analysis of the meaning and concept of public order. Subsequently, the court applied the doctrine of pith and substance to ascertain the essence of the challenged legislation.

On the arguments presented by the petitioners that the TADA Acts, especially the 1987 Act deal with the subject matter of public order that is the domain of the State Legislature under Entry 1 List II, the Supreme Court went ahead to explain the concept surrounding ‘public order’. The court observed that there are different levels of disorder that are recognized under Indian laws. By quoting the observation made in the case of Ram Manohar Lohia v. State of Bihar (1965), the court recognised that these levels are categorised into three main groups: “law and order,” “public order,” and “security of the State.” “Law and order” includes all disturbances of lesser gravity, while “public order” includes disturbances of greater seriousness, and “security of the State” includes the most severe disruptions. 

The court after taking into notice both the restriction placed by Article 245(1), which allows the State Legislature to make laws for their respective territory and the scope of public order as a subject matter of legislation, observed that the term public order under Entry 1 of List II connotes the disorder of lesser gravity affecting the peace within the territorial boundaries of the State. Consequently, a disorder of a graver nature affecting the overall security and integrity of the nation falls outside the purview of state legislatures under “public order.” The Supreme Court stated that disturbances of a serious nature are instead the responsibility of the Union government. The Union government has exclusive power to legislate on matters related to national defence under Entry 1 of List I relating to the defence of India. Even if a danger to national security doesn’t perfectly fall within the ambit of Entry 1, the Union can still legislate by utilising its residuary power under Article 248. Under Entry 97 of List I, the Union has an absolute right to make laws on subjects not listed in any of the three lists. The court held that the petitioners challenging the Act can only succeed if they demonstrate that the challenged enactment solely deals with maintaining public order within a single state, which falls under the state’s legislative power.

To further assist itself in reaching a decision on this issue, the court applied the doctrine of pith and substance to interpret the true nature of the legislation in question. The court observed that in the present case while delving into accessing the pith and substance of a 1987 Acts, the examination of its preamble, statement of objectives and reasoning, its significance and intent of the legislation as well as the scope and relation with the object that the TADA Acts seek to attain should be done in the background of various terrorist activities that have taken place. The court by stating the series of serious and ruthless activities and the manner in which they have been executed concluded that violence and disruption of this kind caused by terrorists pose a major threat to India’s sovereignty and security, regardless of whether it comes from attacks by foreign countries or from violence within India.

After ascertaining the application of the doctrine of pith and substance to the present case, the court held that the Impugned Acts mainly the TADA Acts have been enacted by the Union to fight terrorism and the word terrorism can not be categorised as an activity of disrupting public order in a local area. The activities perpetrated by terrorism are a much more serious situation either from external forces or from anti-national elements posing a threat to the sovereignty and security of the nation. The use of the words “terrorist and disruptive activities” in the preamble itself clarifies that the TADA Acts have been enacted with the purpose of preventing activities that directly or indirectly endanger the very security, sovereignty, and territorial integrity of the country along with such activities that promote the cession of any part of India or the secession of any part of India from the Union. The Supreme Court therefore rejected the submission made by Mr Jethmalani that the preamble of the 1987 Act contemplates terrorist activities that are merely a severe form of disturbing public order as inconceivable and unacceptable. 

Hence, for the reasons stated above the court held that the challenged Acts fall within the legislative competence of the Union as per Entry 1 of List I, namely, ‘Defence of India’. The Union derives such authority to legislate the TADA Acts under Article 248 read with Entry 97 of List I. 

Whether the 1984 Act is ultra vires due to a lack of legislative competence on the part of the Central Government.

The Supreme Court observed that the challenge to the validity of the 1984 Act was made on the same ground as that of the TADA Acts. Mr. Hardev Singh had contended that the Act of 1984 was out of the legislative competence of the Union government as the Act dealt with the issue regarding public order being the subject matter to be dealt with by the State Legislature. The court in order to ascertain the weight of the above-mentioned argument examined the definition of “terrorist act” in the 1984 Act. The court concluded that the term had similar intentions and motives as the Act of 1987.  Both Acts focussed on the acts that threaten India’s sovereignty and integrity and not just ordinary public order issues.  In simpler words, the 1984 Act was also not limited to just public order problems but aimed to address more serious threats to India’s security. Therefore, the court held that the 1984 Act had been validly enacted by the Union government and was not liable to be struck down in its entirety.

Whether the procedure established under the Impugned Acts is just, fair, and reasonable.

This issue was framed by the Supreme Court to decide upon the validity of several provisions of the Impugned Acts that were challenged in this case. The Supreme Court dealt with every provision that was challenged on the grounds of containing procedures that are unjust, unfair, and unconstitutional and gave its decision. They are as follows: 

Section 2(1)(a) of the 1987 Act

Section 2(1)(a) of the 1987 Act was challenged with regard to the definition of ‘abet’ provided under this section. The petitioner challenged this definition on the background that it is vague and lacks clarity. They argued that definition is vague and unclear for the want of requiring the presence of a guilty mind to constitute an offence under the 1987 Act. Therefore, to remove such error in the definition, the petitioner proposed to incorporate or interpret the inclusion of mens rea in this definition by the court.

The Supreme Court acknowledged the principle that is followed in criminal jurisprudence that the crime is not said to have been committed if it is done by an individual with an innocent mind. For the crime to be committed the presence of both intent and action is necessary. Both of them are an essential ingredient of a crime. An act alone does not constitute a crime if it is not accompanied by a guilty mind (mens rea). This general principle of criminal law is aptly encapsulated in the Latin maxim “actus non facit reum, nisi mens sit rea” (the act does not make one guilty unless there is a guilty mind). However, the court while ascertaining the arguments presented in favour and against this issue also recognised certain exceptions that are there to this general rule. The exception allows the legislature in certain circumstances to exclude the requirement of mens rea to prevent specific acts from occurring. The Court emphasised that such an exception shall come into function when it is explicitly or implicitly excluded by the statute and if it is not so excluded, mens rea must be considered an essential element in interpreting the law. The court after analysing the principle regarding mens rea, came to the present issue in consideration and stated that the main question that arises when a statute is being challenged is not the literal meaning of the term “mens rea,” but rather whether there are sufficient grounds to infer that Parliament intended to deviate from the general rule requiring a guilty mind, especially in cases involving the definition of ‘abetment.’

The Supreme Court in order to assist itself in coming to the conclusion referred to the judgement given in the case of Bombay High Court in State v. Abdul Aziz (1961). In this case, the court had discussed the absence of mens rea in Section 5 of the Imports and Exports (Control) Act, 1947, and held that abetment of the contravention provided under the section is on equal footing as that of the contravention itself. Thereby implying that if the requirement of mens rea is excluded from the main or substantive offence it is treated to be excluded from the abetment of that offence as well.

The court then moved forward to assess whether the legislature intends to exclude the presence of mens rea in the substantive offences of the 1987 Act. The court also questioned that despite the stringent provisions of the 1987 Act whether injecting mens rea into the definition of these offences would render the law ineffective.

The Supreme Court analysed several of the provisions of the 1987 Act to answer the above questions posed by the court for itself to determine. The Court observed that as per the provisions of Section 3(1) of the 1987 Act, the definition of ‘terrorist’ explicitly necessitates intention on the part of the individual carrying out a terrorist act. Similarly, Section 4(2)(i) and (ii) provide that an individual engaged in committing disruptive activities must have the intention to commit such acts. The court noticed that provisions of Section 3 and 4 in both the 1985 and 1987 Acts are identical in this regard. After the analysis of these sections, the court concluded that the substantive offences under the TADA Acts expressly require the presence of mens rea on the part of the perpetrator, whether it involves terrorism or disruptive activities. Consequently, the court held that since the substantive offence of the 1987 Act necessitates the presence of an intention to constitute an offence, the abetment of such an offence would also require the same intention to constitute an offence of abetment.

The Supreme Court while giving its decision on this matter criticised the definition for being vague and unclear, having the tendency of potentially exposing the innocent individual to being prosecuted. It was highlighted by the court that provisions of the law should be precise and clear to prevent any arbitrary application of such provisions. The court thus held that the definition of ‘Abet’ shall be interpreted to include the requirement of mens rea thereby synchronising it with the substantive offences and preventing unintended consequences. Such clarification shall ensure that the individuals who are innocent are not inadvertently implicated in the legal matters.

Sections 3 and 4 of the 1987 Act

The provisions of Section 3 and 4 of the 1987 Act were challenged by the petitioner on three grounds i.e., 

1. The offences mentioned in these sections are already dealt with under existing laws like the Indian Penal Code, 1860, Arms Act, 1959, and Explosive Substances Act, 1908.
2. There are no proper guidelines as to when the executive should proceed under ordinary laws and the 1987 Act.
3. These sections violate Article 14 of the constitution and the principle established in the case of the State of W.B. v. Anwar Ali Sarkar (1952) (Anwar Ali Case).

The court after analysing the grounds on which the challenge was made upheld the validity of both the Sections of the 1987 Act. The court rejected the challenge made on the basis of (1) and (2) grounds and observed that the incorporation of strict provisions and special procedures is essential to overcome the inadequacy of the existing laws to address the present aggravated scenario related to terrorism and disruption posing severe threats to Indian sovereignty and integrity. The court emphasised the observation made in Usmanbhai Dawoodbhai Memon v. State of Gujarat (1988) (Usmanbhai Case) that there is a need for strict construction of statutes imposing criminal sanctions. The court further underscored the responsibility of the judges to make sure that prima facie evidence supports charges brought under the 1987 Act and that individuals not intended to be covered by the law are not unjustly implicated.

For the challenge made on the basis of ground (3), which dealt with the principle laid down in the Anwar Ali case concerning Article 14 of the Constitution, the court deferred it to be discussed to the later part of the judgement that relates to the issue of class or classes of offences and ‘test of equality’ before the law. However, for the purpose of concluding the matter in this issue, the court held that the provision regarding separate judicial mechanisms for trials under the 1987 Act does not amount to discrimination and thus the provisions contained in Sections (3) and (4) of the 1987 Act were upheld.

Section 8 of the 1947 Act

By assessing the arguments presented by the respective parties, the Supreme Court observed that the discretionary power given to the designated court under Section 8 (1) and (2) of the 1987 Act has to be exercised under strict conditions. The conditions may consist of mandating reducing the order of forfeiture in writing, ensuring that the property forfeited belongs to an individual convicted under the 1987 Act, and the order must specify the property to be forfeited. These conditions ensure that the order concerning forfeiture is given by citing proper reasoning though the section does not explicitly require the recording of reasons. The court further held that the provision containing the requirement of giving the order for forfeiture entails a decision or direction by the court, necessitating justification for its decision. The court also referred to Section 19 of the 1987 Act wherein an individual aggrieved by an order passed under the 1987 Act may appeal to the Supreme Court on both factual and legal grounds, thereby ensuring that a third party affected by the order of forfeiture can challenge it before the highest court. Thus, based on the observation made by the court above, it was held that the contentions challenging the validity of Section 8 were baseless.

Section 9 of the 1987 Act

The constitutionality of Section 9 of the 1987 Act was challenged on two grounds by the petitioner. The first ground of challenge was that this section is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234, and 235 of the Constitution. These Articles deal with the jurisdiction and appointment of district judges by the state. The second ground was that Sub-section 9(7) of Section 9 violates the principle of fair trial enshrined under Article 21 of the Indian Constitution. The court examined the grounds on which the provision of Section 9 was challenged and gave the decision on the validity of each grounds.

While deciding upon the first ground, the Supreme Court stated that it was already decided by this court that the 1987 Act was enacted under Entry 1 of List I, granting Parliament legislative competence to enact such laws, therefore, the constitution of Designated Courts by both the Central and State Governments, as authorised by Section 9 of the Act, does not violate Entry 65 of List II. Entry 65 empowers State Legislatures to constitute courts.

It is further noted by the Supreme Court that the jurisdiction of the Designated Court established by the Union lies over the offences committed in specified areas. Such jurisdiction is unfettered by the fact that a previous notification has been issued by the State government for the purpose of establishing the Designated Court. Moreover, the court held that the provisions of Section 9 pertaining to granting final decision-making authority with regard to questions of jurisdiction do not in any way take away the constitutionality of this section. Consequently, the court rejected the contention presented by the petitioner that Section 9 was violative of Entry 65 of List II and Articles 233, 234, and 235 of the Constitution.

As far as the second ground was concerned, in which the validity of Section 9(7) was challenged, the court held that it does not violate Article 21 of the Constitution. It held that the provisions of Clause (7) that allow for the continuance of a Judge’s service in a Designated Court even after attaining the age of superannuation do not undermine judicial independence and fairness in trials. The court also dismissed the reliance placed by the petitioners in support of their argument to the case of In re: Special Courts Bill, 1978 v. Unknown (1978). In this case, the President by exercising his authority under Article 143(1) of the Constitution referred the question of the constitutionality of the bill or any of its provisions to the Supreme Court. The provision of Section 9(7) of the Special Courts Bill, 1978 was considered by the Supreme Court. Under this section, a special court may be presided over by a sitting Judge of a High Court or a person who had previously held the office of a Judge in a High Court, nominated by the Central Government in consultation with the Chief Justice of India. After considering this provision the Court held that this section violated Article 21 of the Constitution for the reason that it allowed for the appointment of a retired Judge to preside over a Special Court, merely in consultation with the Chief Justice of India. The Supreme Court in the present case acknowledged the observation made in the case of In re: Special Courts Bill, 1978, however, the court distinguished it from the present situation. It noted that the holding of the office of a judge after superannuation is different from the appointment of a retired Judge to preside over a Special Court. The court directed that it is the responsibility of the authorities while appointing the judge to the Designated Courts, to ensure that there is sufficient tenure of service from the outset, thereby there is minimum chance of continuing the service after superannuation. Hence, the court held that Section 9(7) was not unconstitutional on grounds mentioned by the petitioners.

Section 20 (3) of the 1987 Act

Under these Sections, a challenge was made to the authority of the Executive Magistrate and Special Executive Magistrate to record confession and statement. The petitioners questioned the inclusion of the Executive Magistrate and Special Executive Magistrate in addition to the Metropolitan Magistrate or Judicial Magistrate who were authorised to record confessions and statements under Section 167(1) of the 1973 Code. It was argued by the petitioners that authorising Executive Magistrates or Special Executive Magistrates to record confessions or statements would result in involuntary confessions being admitted as evidence and thus unconstitutional under Articles 14 and 21. In addition to this, this inclusion also violated the principle of separation of powers outlined in Article 50 of the Constitution. They contended that Executive Magistrates or Special Executive Magistrates non-judicial authorities lack judicial integrity and independence and thus, assigning judicial functions to them undermined the governance principle of Article 50.

The Supreme Court offered a detailed analysis to refute these contentions. It began by highlighting Sections 6 and 20 of the 1973 Code, under which Executive Magistrates were considered one of the classes of criminal courts in every state. This framework together with the assigning of magisterial functions between judicial magistrates (under the High Court) and executive magistrates (under the State government), aimed to achieve a simple scheme of separation of the judiciary from the executive on an all-India basis. The court observed that the Executive Magistrates are mainly authorised to handle administrative and police-related work, with some judicial or quasi-judicial functions. Just like the orders passed by other criminal courts, the orders of the Executive Magistrate are revisable as they are passed in judicial proceedings. The court recognised the judicial and non-judicial functions of the Executive Magistrates and Special Executive Magistrates that were assigned them under the 1973 Code and thus, observed that these magistrates can not be considered outside the machinery for adjudication of criminal cases.

The court pointed out various provisions in the 1973 Code like Section 107, 108, Sub-section 2-A of Section 167, etc., wherein the Executive Magistrates are authorised to perform judicial functions, which involves detaining and releasing an accused on bail when the Judicial Magistrate is not present. In addition to this, Chapter VIII (Security For Keeping The Peace And For Good Behaviour) of the 1973 Code, also provides that they are also involved in proceedings related to security for keeping the peace and good behaviour. Based on the analysis provided above, the Supreme Court concluded that the Executive Magistrates and Special Executive Magistrates were legally authorised to record confessions and statements and therefore, consistent with the accepted principles of criminal jurisprudence. 

The Supreme Court then dwelled into considering the question of whether the Executive Magistrates are judicial officers or not. The court analysed the term ‘judicial officer’ to ascertain which individuals can be considered judicial officers. The court mentioned the case of Shri Kumar Padma Prasad v. Union of India (1992), wherein the term ‘judicial officer’ was defined. The court in this case highlighted that the term includes a wide range of positions associated with the administration of justice. The court further observed that considering various provisions of the 1973 Code, individuals holding or having held governmental positions can perform judicial functions to address specific circumstances. 

The Supreme Court then observed the findings made in the case of Ram Jawaya Kapur v. State of Punjab (1955) and acknowledged that the Indian Constitution under Article 50 provides for the differentiation of powers between various branches of government to prevent one from assuming the functions of another. However, the executive can legislate on the matters if delegated to him by the legislature and also in certain circumstances can perform judicial functions, provided such power is exercised in accordance with the constitutional and legal provisions.

After considering the principles held by various courts as discussed above, the Supreme Court observed that Executive Magistrates, when authorised to perform judicial or quasi-judicial functions, are considered a judicial officer. Thereby, holding that Subsection (3) of Section 20 of the 1987 Act does not violate  Articles 14 or 21 of the Constitution. However, the Court acknowledged the concerns raised by the learned counsel regarding the potential lack of judicial integrity and independence of Executive Magistrates and Special Executive Magistrates. Thus, to address this concern, the court directed that efforts should be made that the confession or statement must be recorded in the presence of the Judicial Magistrate, if present. Executive or Special Executive Magistrates can record the confessions or statements only in case of urgency and when there are valid reasons making their involvement necessary.

Section 22 of the 1987 Act

The argument presented by Mr. Jethmalani, as outlined in his written submissions, is that Section 22 of the 1987 Act was unintelligible and impractical. He contended that it is impossible to accurately identify individuals based solely on their photographs, particularly in an age where trick photography was prevalent.

The court, upon considering this argument, agreed that relying solely on photographic evidence for identification may lead to gross injustice, especially when compared to the evidence obtained through a test identification parade. Consequently, the court decided to strike down Section 22 of the 1987 Act.

Whether the confession made to the police is admissible in evidence against the accused and is constitutional.

Section 15 of the 1987 Act allows confessions made to a police officer of no lower rank than a rank of Superintendent, admissible in evidence in the criminal proceedings. The Court considered this provision not to be in breach of Article 20(3) and Article 21 of the Constitution. The court observed that the recording of confessions by a senior officer would not only serve to protect an accused from ill-treatment and human rights abuses but also mitigate the risk of self-incrimination. The judges emphasised that such confessions must follow the requirements contained under Section 164 of the 1973 Code and the Evidence Act. Section 15 of the 1987 Act must be read along with Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987, under which the police recording the confession has to follow and comply with certain legal formalities and conditions. Thus, on such reasoning, Section 15 can not be said to be unconstitutional and infringing upon Article 21 of the Constitution. The court by citing the observations made in the case of Pannalal Binjraj v. Union of India (1957) emphasised that the mere possibility of misuse of a legal provision isn’t sufficient grounds for deeming it unconstitutional. 

Section 15 of the 1987 Act was also challenged on the ground that it is violative of Article 14 of the Constitution. Therefore, the court in the present case considered it necessary to examine the classification of ‘offenders’ and ‘offences’ in order to decide upon the validity of Section 15 with regard to Article 14 of the constitution. The court stated that the principle of legislative classification allows for differentiation in the treatment of individuals grouped together under different categories. This principle recognises that law can differentiate between various individuals or objects based on different circumstances. It runs on the theory that what governs one group that is differently circumstanced may not necessarily apply to another. This principle ensures that there is no unequal treatment as each group is regulated by different laws made specifically for their specific conditions and circumstances. However, such classification shall be considered valid only when there is a reasonable justification for such differential treatment. The classification must not be arbitrary but rather scientific and rational. Such a difference in treatment must justify the relation with an objective for which the classification is made. 

The Supreme Court then examined the classification made under the 1987 Act, to ascertain whether the classification and distinction is valid and reasonable in the context of Article 14 of the Constitution. The 1987 Act classified terrorists and disruptors separately from ordinary criminals under regular laws and defined offences as aggravated crimes distinct from ordinary ones. To determine reasonableness, the objective behind the classification must be considered from the preamble as well as the ‘Statement of Objects and Reasons’ of the 1987 Act. This court while deciding upon the issue regarding the competency of the Union government in enacting this law has already held that the the reasons and the objectives for which the 1987 Act was enacted is valid and hence, the classification made under it is also valid.

The court while disposing of the contentions raised regarding this issue, held that the decision made in the Anwar Ali case, on the findings of which the petitioners heavily relied, does not apply to the present case. The court opined that the decision of the court in the Anwar Ali case regarding Section 5 of the Special Courts Act, 1979 was that the law does not have any basis for the classification of offence to be tried in Special Courts established under this Act and in addition to this it was completely left on the discretion of the State Government to transfer any cases to be tried by the Special Court. Upon the examination of the findings of this case, the Supreme Court held that this decision could not be used to invalidate Section 15 of the 1987 Act because the classification of offences and offenders to be tried by the Designated Court under the 1987 Act was not left to the discretion of the Central Government and there was a clear and valid classification of offenders as terrorists and disruptionists under both the 1987 Act and the 1984 Act.

Whether the provision making the applicability of Section 438 of the 1973 Code inoperative is against Article 21 of the Constitution and whether the legislature has the competence to remove its applicability.

In order to conclude its decision on this particular issue regarding Section 20(7) of the 1987 Act, the Supreme Court observed the findings made in the case of Bimal Kaur Khalsa vs Union Of India And Ors. (1987) (Bimal Kaur case), wherein the High Court of Punjab and Haryana upheld the validity of Section 20(7) of the 1987 Act. It reasoned that persons who are accused of terrorist acts constitute a different class and this implies that denial of anticipatory bail guarantees law enforcement agencies with effective interrogation of arrested terrorists for them to divulge crucial information that is essential to curb terrorist movements in society.

The Supreme Court emphasised that the legislative power to make laws related to the 1973 Code is vested in both the Parliament and the State Legislatures. It highlighted the fact that anticipatory bail provisions were not part of the old Code, which were later included in the 1973 Code in line with the Law Commission and Joint Committee report’s recommendations. The Court deliberated on different state-wise amendments associated with anticipatory bail including those in Uttar Pradesh, West Bengal, and Orissa suggesting legislative flexibility in this regard. The Court noted the Law Commission’s rationale for introducing anticipatory bail emphasising that this bail is not justifiable in cases where it is believed that the accused person can abscond or misuse his liberty. The Court asserted that Section 438 is a new provision creating a new right, therefore its removal does not violate Section 21, as observed in the Gurbaksh Singh Sibbia Etc vs State Of Punjab (1980). Thus, the challenge of the validity of Subsection (7) of Section 20 cannot be accepted.

The court also provided its decision regarding the challenge made to the constitutional validity of Section 9 of the U.P. Act of 1976 by joining it under this issue. The court held that since the validity of this section was challenged on the same ground as that of Section 20(7) of the 1987 Act, the same observations shall apply and hence on the basis of such observations, the contention that it is violative of Articles 14, 19 and 21 of the Constitution was rejected.

Whether the imposition of severe limitations on the grant of bail in addition to the limitations contained in Section 437(3) of the Code is fair and justified.

The court considered Section 20 (8) of the 1987 Act which states that accused persons shall not be released on bail unless the necessary conditions are met. It mentioned that this ban is relaxed under two conditions: first of all, the Public Prosecutor was to be given an opportunity to object a bail application and secondly, the court had to be satisfied that there are probable grounds to admit that the accused was not guilty of the offence and that the accused was not likely to perform any offence while on bail. In addition, paragraph (9) made it clear that these restrictions on granting bail were in addition to the ones set down in the Code of Criminal Procedure or any other law.

Subsequently, the court described the relevant provisions of Sections 436, 437, 438, and 439 of the Code of Criminal Procedure, which deal specifically with bail. It highlighted that Section 437 imposes certain conditions on the grant of bail, subject to discretion granted to the court under Section 437(3) to impose conditions deemed necessary in the interest of justice. The court concurred in the “Usmanbhai case” which stated that even though the bail is subject to any limitations provided in section 20(8) of the 1987 Act, it is not necessarily tied to section 439, which deals with special powers given to the High Court and Court of Session regarding granting bail. Instead, the source of power for the Designated Court is Section 437 along with other restrictions set forth in 20(8) of the 1987 Act.

The court continued with the scrutiny of the criteria set out under Section 20(8)(b) and concluded that they are in accordance with those conditions prescribed in Section 437(1) and (3) of the Code and similar provisions in other enactments. Thereby, denying the contention that these conditions were a violation of Article 21 of the Constitution. Thereafter, the court quashed the ruling of the Punjab and Haryana High Court in  Bimal Kaur case in which the portion of Section 20(8)(b) was held as ultra vires by reiterating the crucial mechanism of protecting the individual liberties of people and also considering the interests of victims and their families, as well as those of the community and the naWhether the right of the person to approach the High Court to grant bail under Article 226 can be curtailed where the offence falls under the TADA Acts.

The court observed that although High Courts have vast powers under Article 226, the magnitude of these powers requires their rational and cautious use in accordance with the established judicial principles. The intent and purpose of the legislature as expressed in the 1987 Act demonstrated the need for particular measures on bail and appeals. The court stressed that the special provisions of the 1987 Act, such as Section 25 and the non-obstante clause in Section 20(7), are proof that all issues relating to bail should be decided solely in accordance with these provisions. In such a case, if a party is not happy with the bail order the appropriate recourse is to appeal to the Supreme Court under the Act.

The court was of the opinion that the invocation of power conferred upon the High Court under Article 226 would lead to the failure of the scheme and objectives of the 1987 Act and frustrate the intent of Parliament. Nevertheless, the Supreme Court acknowledged that the High Courts are vested with the jurisdiction, yet the said power should be exercised carefully and only in exceptional circumstances. The court restated the observation made in State Of Maharashtra vs Abdul Hamid Haji Mohammad (1994) that the judges should exercise the writ petition jurisdiction under Article 226 with much caution and only in exceptional cases. In addition, the court pointed out that judicial discipline and the court hierarchy had to be respected. It advised High Courts not to entertain applications for bail from an individual accused under a special act like the 1987 Act, as the Supreme Court has the judicial power to review and correct High Court decisions under Article 136 of the Constitution.

Dissenting judgement

The dissenting opinion was given by two judges in this case. While Justice K. Ramaswamy and Justice Sahai concurred with the majority on most of the issues delivered, they dissented with regard to two of the decisions delivered by the majority of the Judges. Those were the constitutional validity of Section 9(7) and Section 15 of the 1987 Act. In addition to this Justice Ramaswami dissented to one more decision that is related to the power of the High Court to grant bail under Article 226 on the cases falling under the TADA Acts. 

Section 9(7) of the 1987 Act

Justice Ramaswami stated that Sub-section (7) of Section 9, which provided that the judges presiding over the designated court shall remain in service even after the judge has reached the age of superannuation (retirement age), indicates the legislative intent to place the service of the judge at the discretion of the Central or State Government, regardless of their retirement age. He raises the concern regarding the implication of these provisions on the independence of the judiciary and the confidence it instils in the accused. He suggested that the constitutional validity of this Section has to be ascertained in line with the above-mentioned implications. 

Justice Ramaswamy acknowledged the validity of the constitution of the designated court as held by the majority of the judges, however, raised the concerns regarding two specific aspects that were considered contrary to the independence of the judiciary. 

1. He opined that the appointment of the Sessions Judges or Additional Sessions Judges to the  designated courts without the proper supervision and control of the High Court of the concerned State offended the principle of judicial interdependence provided under the Indian Constitution. Such a lack of control allowed for potential interference with the judicial process, making the judicial position open to the executive influence. 
2. He criticised the provision that allowed for the continuation of the service of the judge of the Designated Court after reaching retirement age. This practice leads to a situation where a judge may feel obliged to continue his service as a judge, resulting in a gross negation of the impartiality and the integrity of the judiciary.

On the basis of the observations made by him, Justice Ramaswamy dissenting from the majority decision, held that appointment of the judges by way of “pleasure doctrine” which refers to judges serving at the pleasure of the government rather than being appointed based on merit and independence, undermines the very foundation of justice and the fairness with which the judiciary is expected to function. Therefore, the provision of Section 9(7) is unconstitutional on the grounds that they pose a grave threat to the core principle of an independent judiciary.

Section 15 of the 1987 Act

Justice Ramaswami, by highlighting the importance of Article 21 of the Constitution, which provided for the protection of life and liberty, suggested that the procedure outlined under Article 21 includes the manner of discovering the truth in criminal proceedings. Implying that following due process is important in the process of investigation. Justice Ramaswamy while delivering his dissenting judgement referred to Section 36 of the 1973 Code. This Section grants power to the superior police officers or officers in charge of police stations throughout the local area. He further referred to Section 2(h) of the 1973 Code that defines the investigation process and includes all proceedings for evidence collection conducted by police officers, except those by authorised magistrates. After referring to these provisions he questioned whether the superior police officer entrusted with maintaining law and order, encompassing the same integrity and neutrality of a judicial magistrate when recording confessions from individuals in police custody. 

He further questioned whether the inclusion of the non-obstante clause (a legal provision that allows an act to prevail despite contradictory provisions) under Section 15 of the 1987 Act guarantees or validates procedures that abridge legal principles contained in Articles 14 and 21 of the Constitution. 

To support his decision, Justice Ramaswamy mentioned the case of In re: Special Courts Bill, 1978, wherein the procedure prescribed was deemed unfair and unjust for the accused and hence, violative of Articles 14 and 21 of the Constitution. By citing this case the judge emphasised the necessity of attaining public trust and confidence in the administration of justice observing that entrusting police officers with judicial functions undermines public trust and the effectiveness of the rule of law. Therefore, a police officer of a rank equal to or higher than that of the Superintendent of Police who is responsible for the proper administration of law and order is anticipated to diligently make efforts for the suppression of crime and in fulfilling such a responsibility may employ all the necessary means in order to prevent criminal activity and instil fear in the hearts of wrongdoers. 

It was concluded that while it is important for law enforcement officers to be proactive in fighting against crimes, it is also important to follow the procedural safeguards to dismiss any doubt from the minds of the suspects for the complete delivery of justice. For this reason, the recording of confessions by police officers undermines the rule of law and contradicts constitutional principles outlined under Article 50 of the Constitution. Section 15 was thus held to be unjust, unfair, and violative of Articles 14 and 21 of the Constitution.

Authority of the High Court under Article 226 for the matters falling under the TADA Acts

Justice Ramaswami recognised the untrampled authority of the High Court under Article 226 of the Constitution to issue writs and directions to uplift the fundamental rights of an individual and thus held that the legislature has no authority to curtail this jurisdiction of the High Court in any manner. He acknowledged that the 1987 Act deals with special and aggravated kinds of offences and hence special provisions were made for the trial of these offences in the Designated Court. However, he concluded that Section 19 which allowed for the appeal to be made directly to the Supreme Court divested the High Court with its authority to deal with matters of enforcing fundamental rights under Article 226 of the Constitution. There was a complete exclusion of the jurisdiction of the High Court, which led to uncertainty and disbelief in the efficacy of the law.

Significance of Kartar Singh vs. State of Punjab (1994) today

The decision held by the majority of Judges was heavily criticised by various human rights activists and journalists. The Supreme Court decision on Section 15 of the 1987 Act was the centre of debate amongst the public in India. The upholding of this section by the majority of 3:2 judges was heavily looked down upon on the grounds that it was an outright violation of Articles 14 and 21 of the Constitution. However, the dissenting Judgements given by Justice Ramaswamy and Justice Sahai were appreciated and are regarded as the basis for the discussion regarding the fair trial, the doctrine of separation of power, and the application of check and balance on the executive power for the greater protection of liberty. 

The observation made by the dissenting judges has now become the foundation for deciding the matter including conflict between the individual rights and the protection of the sovereignty of the nation. The Supreme Court in the case of NCT v Navjot Sandhu (2005), commonly known as the Parliament attack case, ruled that the confession obtained from an accused that was recorded by the deputy commissioner of police is invalid. It held that the confessions recorded by the police officer regardless of rank lack reliability and admissibility as evidence. Such a decision by the Supreme Court highlights the concern regarding the abuse of power by the police and the requirement for protection against coerced or unreliable statements within the criminal justice system.

In summary, the dissent articulated by Ramaswamy urges us to prioritise the preservation of fair trial procedures as a critical means of safeguarding individual liberties against executive overreach. Article 21 of the Constitution underscores the right to liberty as fundamental, with any deprivation thereof considered exceptional. The inclusion of due process that is required to be followed by the government as provided in Article 359, post the forty-fourth amendment in 1978, underscores its paramount importance, even during Emergency Provisions, serving as a vital check against arbitrary infringements. Within the framework of the criminal justice system, ensuring a fair trial entails a shared responsibility involving judges, the accused, and the broader public, all tasked with exercising vigilant oversight to uphold justice and protect fundamental rights.

Changes after the case of Kartar Singh vs. State of Punjab (1994)

Following the decision made in the case, nationwide protests and the demand for the withdrawal of the 1987 Act erupted, and hence, the Act was ultimately revoked in 1995. Nevertheless, a crucial provision was included in the repeal, stipulating that ongoing cases registered under TADA could persist. Consequently, numerous TADA cases remain pending, subject to ongoing scrutiny and legal proceedings.

In March 2002 Prevention of Terrorists Act of 2002 (POTA Act), with similar provisions as that of the 1987 Act came into force. The provisions of the POTA Act were challenged in the case of PUCL vs. Union of India (2004), wherein the Supreme Court upheld its validity. In the year 2004 when the UPA government came to power it repealed the POTA Act. 

Even though these Acts have been repealed, it is merely symbolic, as several stringent provisions were seamlessly integrated into the Unlawful Activities (Prevention) Act of 1967 (UAPA Act) through amendments in 2004 and 2008. Recent amendments in 2019 further expanded the powers of the central government, enabling it to designate individuals as terrorists. These legislative moves have created a complicated situation where the same crimes might now be handled differently, with separate rules for investigation and trial.

Conclusion

This case presents an important aspect of creating a balance between national security concerns and individual liberties. Though the majority upheld the constitutional validity of the Impugned Acts, the dissenting judgements given by Justice Ramaswamy and Justice Sahai striking down certain provisions of the 1987 Act, establish a principle that though terrorism poses and graver threat to the security and safety of the nation and requires the implementation of stricter laws to counter it, it must be ensured at all the times that anti-terror laws are not abused and the rights of the accused are protected. 

Frequently Asked Questions (FAQs)

What does the doctrine of pith and substance mean?

The doctrine of pith and substance comes to play its role when there is doubt regarding whether a particular legislature (Union or State) has the authority to enact the law. Such doubt is when the law dealing with the subject matter in one list also touches upon the subject matter present in another list. In such a situation it becomes important to find out the main purpose or objective of the law, its “true object” i.e., the pith and substance of the law.

What was the most contentious section of the 1987 Act?

The most contentious section of the 1987 Act was Section 15. According to this section, the police officer of the rank not below Superintendent of Police was authorised to record confessions and statements by the accused, and such confessions and statements were deemed admissible as evidence against the accused making them.

Who gave the dissenting judgement in this case?

The dissenting judgement was given by Justice Ramaswamy and Justice Sahai regarding two issues of the 1987 Act, i.e., Section 9(7) and Section 15 of the 1987 Act. In addition to these, Justice Ramaswamy also gave a dissenting judgement on the issue of exclusion of the jurisdiction of the High Court from granting bail under Article 226 of the Constitution concerning cases falling under the 1987 Act.

References

• http://www.penacclaims.com/wp-content/uploads/2023/06/Rajat-Rana.pdf 
• https://main.sci.gov.in/judgment/judis/11569.pdf
• https://deliverypdf.ssrn.com/delivery.php?ID=085025117117092006101107021005080025052087072045017035073087026100021119067110096099054034100045112022004075105026084090066121112013012044019064112098100126095079088075035104005071086118098074095080117087070108096114103124110122004001104077106031064&EXT=pdf&INDEX=TRUE
• https://deliverypdf.ssrn.com/delivery.php?ID=085025117117092006101107021005080025052087072045017035073087026100021119067110096099054034100045112022004075105026084090066121112013012044019064112098100126095079088075035104005071086118098074095080117087070108096114103124110122004001104077106031064&EXT=pdf&INDEX=TRUE
• https://www.casemine.com/judgement/in/5767b0fee691cb22da6d0200#399

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