This article is written by Sanjana Santhosh, a law student at Christ (Deemed to be University), Bengaluru. The article looks into the historical background of TADA and the influence of TADA on the executive and judiciary. The article analyses the provisions of TADA and its consistency with international humanitarian standards.   

This article has been published by Sneha Mahawar.​​                   

Introduction

The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, was enacted as a provisional solution to address a critical emergency. Over the course of a decade, 23 of the 25 states and 2 of the 7 union territories were notified under the Act. More than 95% of our population was covered by the law. The abuse of TADA is now widely recognised and many innocent people have been taken into custody. There has been a rise in anti-Act demonstrations. As a result, all major political factions have proposed varying degrees of amendments to the Act in an effort to reduce the frequency with which people are arrested in large numbers. On the other hand, the idea that TADA’s regulations are to blame for this kind of situation is not universally held. All dreams for a humane “TADA” would be dashed by a cursory examination of the statistics on implementation.

The inadequacy of pre-existing law has been a central point of discussion when debating the need for TADA, as conventional legal processes are insufficient when dealing with ‘terrorist’ offences. The justification for a separate judiciary and expanded police powers was that standard processes provide the guilty a chance to avoid punishment. Proponents of TADA said that it would make the judicial system more efficient and help curb “terrorist and disruptive acts.” The police seem to have the most faith in this line of reasoning, and they’ve been trying to spread it everywhere with the help of the executive and the legislature. The public’s outrage over rising crime rates has helped solidify support for extreme legislation like TADA.

In the current setting, it is necessary to reaffirm the obvious – the provisions of the law are intended for those who contravene the law; they are not intended for law-abiding people. It is not the intention of the regular processes, which include a ban on police confessions and an automatic presumption of innocence for the accused, to give the accused a way out of punishment. Having these will help guarantee a fair trial and help identify the guilty from the innocent. The purpose of bail processes under normal law is the same: to safeguard the innocent from prolonged detention while the investigation and trial process is deliberately dragged out. Ineffective as it is, TADA’s provisions make it impossible to tell the innocent from the guilty. As a result, innocent people are detained for a long time without being formally charged. This results in a greater opportunity for police corruption. There is an inherent risk of abuse, human suffering, and injustice because of the Act. People’s democratic rights are stripped away by TADA, and the institutions that protect them are weakened in the process. TADA has now been repealed.

Background of TADA

Strong public sentiment against the TADA between 1995 and today has compelled the Narasimha Rao government to let this punitive legislation lapse, ten years after its commencement. The government introduced the Criminal Law Amendment Bill in the Rajya Sabha on May 9, 1994, in an effort to give anti-terrorist laws a more permanent standing before TADA expired on May 23. The proposed Bill was debated in the Rajya Sabha for approximately eight and a half hours across two days, which is indicative of the growing popular opposition to this draconian rule. This level of debate exceeds anything that has taken place in Parliament during the introduction or extension of TADA. Ultimately, the administration decided not to force a vote on the bill, citing a “lack of consensus.” The BJP was the only major political group calling for strict anti-terror legislation at the time.

Concerns were raised by the People’s Union for Democratic Republic (PUDR) at the time regarding the proposed law, which sought to permanently reinstate the previous TADA Act under a new name. Thankfully, the Bill has been put on ice since then.

The administrations of other Indian states, including Tamil Nadu, Andhra Pradesh, and Maharashtra, have all attempted to enact similarly harsh legislation. Despite the passage of the Maharashtra Control of Organised Crime Act (MCOCA) in 1999, the state of Maharashtra was able to avoid its provisions.

Five years later, the Vajpayee government brought back the dormant Criminal Law Amendment (CLA) Bill in preparation for passing it during the upcoming budget session of Parliament. Every major parliamentary party has found the law to be an effective tool for silencing dissent and addressing political opponents throughout their time in office. The BJP’s track record in this regard is neither better nor worse than that of any other political party. Concerns about how this law would be implemented have been exacerbated by the manner in which it is being introduced today, the kinds of revisions requested by the Home Ministry, and the implied goal that this government seems to be pursuing.

The TADA had been significantly altered by the CLA Bill of 1995 in response to glaring evidence of abuse and numerous protests about the manner in which it was being utilised. Among the amendments made were:

1. Permitting police authorities to use confessions as evidence, 
2. Providing the right to appeal to the highest court, and 
3. Deleting the articles that restricted the right to bail. 

In making these adjustments, the TADA’s most divisive provisions were intended to be eliminated. By an official directive of the home ministry dated February 2, 1999, the current government has rolled back these reforms and reinstated the strict original provisions of TADA.

Terrorism is defined in the official amendment as “acts intended either to alienate any sector of the people or to adversely influence the cohesion amongst diverse sections of the people.” One of the major reasons the administration decided not to extend TADA further was the widespread belief that it was being used selectively to target minorities. This modification seems alarming in light of the current administration’s repeated warnings about religious fundamentalist militancy, which it identifies exclusively with Islamic fundamentalist militancy. Restoration of this phrase has been advocated by the Law Commission. Similar sophistry and misinformation are being used to pass this law.

On January 7, 2019, Union Home Minister L K Advani denied unequivocally that the Central Government would revive TADA. To quote what he said: “Since criminal law is a shared responsibility between the central government and the states, each jurisdiction has the option of adopting its own law based on the model of the federal Trafficking Victims Protection Act (TADA). Success for Tamil Nadu! The same is true for others.” This occurred just as the government was gearing up to pass a new TADA as part of the next budget process.

The Law Commission was given the revised bill to review and make suggestions on, and the harmful aspects of TADA were left in place. The panel was tasked with providing “a holistic assessment on the need for a comprehensive anti-terrorism law in India after taking into consideration similar legislations passed by various other nations faced with the problem of international terrorism.” The record of TADA, including its effectiveness in combating ‘terrorism’ through securing the actual convictions of ‘terrorists,’ and the extent and magnitude of abuse and hardship that it has entailed, is not mentioned anywhere in the Commission’s report, and the Commission does not appear to be obligated to consider it in forming its opinion. The Law Commission’s “holistic view,” as demonstrated by its background note, does not contain an assessment of the experience of TADA’s first decade beyond a few citations of judgments, such as the Kartar Singh v. State of Punjab (1961) verdict. The proposed measure has been formally adopted by the Law Commission, which has also made several amendments and additions to the original draft. A bill of such monumental importance is being rushed through Congress in a way that leaves little room for public debate.

After arriving at a conclusion and adopting its suggestion, the Law Commission reportedly held two sessions to “debate” the law, although its role seems doubtful. Both occurred on January 29, 2000; the first on December 20, 1999. With the bill’s passage already recommended, the sessions functioned just to collect opinions for the record and lend a veneer of “wider sanction” to the already harsh legislation. The purpose of this approach is to conceal the fact that legislation is being passed without widespread public debate, despite the fact that it will undermine constitutional protections for democratic rights and undermine the foundations of natural justice. The endorsement of so-called “experts” will add credibility to the proposals of organisations like the Law Commission. Senior advocates, active and former bureaucrats, and law enforcement authorities all contributed their thoughts.

The reality is so obvious and widely accepted that there is not a shred of doubt in the current official discourse that the prior iteration of this law was grossly insufficient in its stated goal of countering terrorism. Only that there was “a tendency of some executives to misuse the laws of TADA” was admitted by the Union Home Minister. Furthermore, despite lamenting the fact that this law, the only “particular central law dealing with terrorism” was allowed to lapse since it became viewed as an anti-minority legislative measure.

The Law Commission’s proposed CLA had 27 individual provisions and was broken up into four main sections. Based on the Law Commission’s suggested amendments, the current CLA is essentially a carbon copy of the provisions of the earlier TADA, with some extra harsh provisions and some superficial protections added in. As opposed to TADA, which only took effect in a given territory or state once it was “notified” under the Act, the new law applies uniformly across the entirety of India. Additionally, the new law will be in effect for the next five years. This means that the slim opportunity for periodic legislative review and for guaranteeing some responsibility to the parliament fades as well.

Influence of TADA on the Executive

The separation of powers between the legislature, the executive, and the judiciary is crucial for any legal system to function as envisioned. The TADA significantly modifies this power equilibrium. The executive is responsible for providing notice of any affected area under the Act. As a subset of the executive branch, the police force has unrestricted authority to make arrests. An executive magistrate hears the case once the accused is brought to court. The judicial system can do or say very little about this. An innocent person can be locked up for at least six months without any recourse from the legal system.

At the request of the judiciary, committees made up of high-ranking bureaucrats and state officials were established to monitor the Act’s implementation. Since TADA was enacted, all checks and balances on the president’s authority had been removed, and the state’s other institutions voluntarily gave up their authority in favour of the executive, rendering them moot.

Considering the example of the police: upholding law and order, conducting investigations, and amassing evidence are all duties assigned to the police. The use of torture and extortion as part of routine police processes is an unfortunate fact of life. The registration of an FIR and even a thorough inquiry are heavily reliant on the availability of financial resources. The passage of TADA into this setting had simply made matters worse by granting police unrestrained authority to arrest, detain, and punish. As of June 30, 1994, police had filed 49,858 cases across the country. Five and a half percent, or 22,493 cases, were never filed in a designated court. All of the accused were sentenced to up to a year in prison. The authorities were expected to complete the investigation during this period and formally press charges against the suspects. The suspects were released without the police filing any charges against them after the suspects had served a year in prison. 2,859 cases i.e., 15% of the 19,347 cases that made it to a designated court, were dismissed by the judge because there was insufficient evidence or merit to the case. A staggering 94% of cases that were brought to trial resulted in acquittal.

As a result of a law that authorises the police to detain anyone they suspect of being a “terrorist,” for up to a year without trial, enables them to obtain confessions through coercion, and places the burden of proof on the prisoner, the police had lost interest in submitting charge sheets and collecting evidence. To sum up, the Act provided law enforcement officials such as the police with unlimited power to totally disregard or even defy the law. Inadequate inquiry and sloppy work were justified as a direct consequence of the same. As a direct consequence of this, shoddy work and little inquiry were praised and even considered acceptable. Since this perspective was prevalent, the TADA was frequently employed instead of the Indian Penal Code. The Act made it easier to report offences of lesser gravity. This explains the reason for so many reported incidences of abuse yet such a low rate of convictions for those cases.

The Supreme Court determined in the case of Kartar Singh v. State of Punjab (1961) that increasing the scope of power that senior police officials have is one approach to reduce instances of police misconduct. As a direct consequence of this, the approval of the police commissioner was necessary for any TADA-related arrests in Delhi. On the other hand, the former Commissioner of the Delhi Police, M. B. Kaushal, was unable to recall the number of cases to which he had given his permission. The judge at Delhi’s Karkardooma designated court responded positively when asked if minor offenders could be charged under TADA, adding that the accused must have been convicted of a crime in the past. He looked up the word “terrorist” in the Oxford English Dictionary and decided that anyone whose actions had the potential to make other people feel threatened should be arrested under TADA. The Supreme Court has delegated the responsibility of assessing TADA cases to make sure they aren’t being misused to police officers like these and a group of officials. The minister of state for internal security promised an assessment of TADA’s operation to the Rajya Sabha on June 16, 1994, three months after the Supreme Court’s recommendation. A month later, the heads of state were prompted to “consider examining some TADA cases, selected individually at random.”

The state governments operated in an arbitrary manner. On July 16, 1994, the government of Uttar Pradesh announced that, after reviewing TADA cases, the zonal inspectors general of police had agreed to drop charges against 180 defendants. A retired high court judge in the Indian state of Maharashtra looked over 282 cases and identified 93 instances of incorrect application. Chimanbhai Patel, the former chief minister of Gujarat, first denied that the law had been abused in any way. Later, the state Congress party head, a former member of parliament, and other lawmakers organised a review committee in response to the mounting criticism. After taking office, Chhabildas Mehta claimed that the government was under no obligation to follow the committee’s recommendations. In January 1995, Punjab Police Chief K P S Gill announced that his department had reviewed TADA cases involving 300 militants in an effort to determine which of them should be awarded amnesty. Moreover, he emphasised that the passage of TADA was intended as a deterrent rather than as a punishment for offenders. The TADA restrictions were to be loosened in 379 cases that were recognized by a review committee in Delhi.

Out of these, 134 cases where this evidence was presented, the judge at the designated court denied the prosecution’s plea to dismiss the charges. As a result, the reviewing process was put to a halt. In certain pending trials, the defendants requested the Supreme Court to execute the government’s order of dismissing the cases. Review panels, unfortunately, have made matters more complicated for detainees under TADA. The arbitrary formation of committees by the government, the absence of any norms, and the omission to declare any criteria on which the cases were to be assessed have all contributed to an unjust procedural system. Unlike in the past, where the police were solely involved in prosecuting, investigating, and producing evidence, they are now frequently also the ones carrying out justice.

TADA does not have a clear classification to define the circumstances in which it should be applied. It has been given a ranking for which there is no reasoning. This ranking has been granted since TADA is considered to be “very significant.” As a consequence of this, TADA has created a culture of disrespect regarding any and all aspects of due process inside the executive branch of the government. It is the responsibility of the judicial system to ensure that an accused person does not experience a miscarriage of justice when they are handed over to the jurisdiction of courts while a suspect is being investigated. However, until six months of imprisonment of an individual under TADA, the courts have very little say in the matter, because the charge sheet isn’t turned in until the case is brought before a certain court. The only choices for the executive magistrate are either police detention or judicial custody. Once a charge sheet has been filed, the court commences its charge drafting process. Given the fact that the investigating officer from the police department is rarely accessible for more than a few weeks at a time, it will take at least two years to complete the process. Considering that the Act stipulates delay as an unacceptable justification for granting bail, the court has been unable to follow the same for the entirety of this process. TADA makes it illegal for any court, including the highest courts, to consider appeals of any sort. So, the function of the judicial system, which is to ensure that justice is served, is, to a considerable extent, rendered redundant.

Abdication by Judiciary

The Constitution grants the judiciary the authority to invalidate laws that directly or indirectly violate the document’s spirit or letter. The judicial system failed to shoulder its duty in this case. When the number of arrestees reached over 67,000 in early 1994, the Supreme Court began hearing a slew of over 400 writ petitions, special leave petitions, and appeals challenging the Act’s constitutionality and the legislature’s authority to pass it. It wasn’t until March 11, 1994, that the court issued its ruling in favour of the Act and dismissed the petitions with no monetary penalties as in Kartar Singh v. State of Punjab. The judgment’s recurring theme is that of the legislature’s intent. The court’s position was straightforward: parliament had the authority to pass this Act, and it properly classified the Act’s goals as “defence of India,” a national issue, rather than “law and order,” a state matter.

Once the issue of competence was resolved, practically every element of TADA was justified, and any attempt to strike down any provision of the Act, to introduce any revisions, or even to provide a more liberal interpretation was vehemently resisted since it would defeat the objective of parliament. When the legitimacy of a law is at stake, this is an unusual argument to make. When deciding how to apply a statute, a court should keep in mind the original intent of the lawmakers. When determining whether or not anything is constitutional, however, it is appropriate to focus on the original intent of the Constitution’s makers. The government’s argument that TADA was necessary to ensure a prompt trial was readily accepted by the court. The court had enough opportunity to weigh this claim against the evidence but declined to do so. On September 30, 1994, there were 2,582 people awaiting trial who had been incarcerated for more than a year. Of those, 285 had been incarcerated for a total of five to nine years, 1,087 for three to five years, and the remaining 183 for one to three years. There are currently 3,458 people waiting in custody while the prosecution and the courts investigate and bring them to trial.

When it comes to provisions of TADA, the Supreme Court has often taken the position of resisting any substantial change, whether through striking down the laws or through interpretation. Some former Supreme Court decisions that attempted to limit the application of certain provisions, such as Section 5 or the granting of bail, have been partially rejected by subsequent rulings. Of the 316 people in judicial detention at the end of 1994 in Delhi, for example, 140 were only prosecuted under Section 5. This provision came into focus due to the constitutional bench verdict on TADA. Since only a minority verdict remarked on it, ruling that association of the armaments with terrorist activity needed to be established in order to attract the provisions of TADA, it gave optimism that the purview of Section 5 may be narrowed.

In the matter of Paras Ram v. State (1960), decided by the Supreme Court on May 17, 1994, it was established that live ammunition must be retrieved with the firearm in order to be punished under Section 5. These two decisions, including Sunjay Dutt v. State (1994), however, were reversed by a different five-judge panel. The court determined that proof of “possession of arms” in a “notified area” needed to establish “conscious” and “unauthorised” conduct. Once again, the burden of proof is on the accused to show that their possession of weaponry is unrelated to any sort of terrorist or disruptive action. When it came to the subject of ammunition, the court ruled that ‘weapons and ammunition’ should be understood as “arms or ammunition”.

In the Bench’s opinion, if the authority to notify an area under the Act has no relation to preventing terrorism and disruptive activities, then Section 5 could be abused and the state government’s power would go unchecked. However, the court refrained from making any changes and merely recorded: “the existence of the factual basis for declaring a specified area as the notified area has to be presumed for the purposes of Section 5” despite knowing that TADA currently covers over 95% of our citizens and many of the areas to which it extends cannot be even remotely connected with terrorism as explained in the statement of objects and reasons. The legal presumption is great, except when dealing with a legislature that only devoted 16 hours over the course of nine years to evaluate the impact of this law. The court’s ruling completely overturned common sense by assuming terrorist attacks take place in all areas subject to TADA’s notification requirements. After being alerted, law enforcement quickly located and arrested terrorist suspects in every single state and territory.

The Supreme Court has repeatedly lamented the flagrant misuse of the Act, despite the fact that it has not made any substantial changes to the Act itself. For example, the first official recognition that TADA was being overused was in the case of Kartar Singh v. State. It showed that every part of the state was alerted at once and that no areas had been removed from the notification list. Of late, we have come across some cases where the designated courts have charge-sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA. This is a clear statement of the court’s position in the Hitendra Thakur case. The ease with which the judiciary has abandoned its role and surrendered to “the pressures from the police and the government is alarming, despite the fact that TADA renders the courts somewhat obsolete in monitoring misuse. It’s also dishonourable to put the executive back in charge of investigating cases of misuse.” This is in stark contrast to Sri Lanka, where the government faces an even more dire situation and the Supreme Court has already set down parts of a similar law regarding the validity of confessions to police.

Provisions of TADA

Acts that endanger the unity, integrity, security, or sovereignty of India are considered terroristic under the Act’s definition, as are those that are meant to intimidate the government or instill fear among the population (Section 3(1)). Additionally, disruptive acts are described as those that “directly or indirectly impair the sovereignty and territorial integrity of India or support demands for the secession or cession of any portion of India” (Section 4). Therefore, under these criteria, a wide variety of actions, either public or private, violent or nonviolent, “whether by act or by speech, or through any other means,” could fall under its broad sweep.

It’s against the law to provide a safe haven for terrorists or disruptors, aid or abet those planning such activities, interrupt services or supplies, or destroy property. Being a part of any kind of “terrorist gang or organisation” is illegal. Terrorist financing and the acquisition of property considered to be connected to terrorism are also illegal. With the superintendent of police’s permission, the investigating officer can confiscate or attach such property even in the absence of a court order. Under this law, it is no longer a crime to be in possession of a firearm in a “notified location,” as was the case under the previous TADA law.

There are several new crimes that exist now:

• Acts that endanger witnesses or cause harm to interstate or foreign business fall under this category (Section 3(7)). 
• Section 3(8) of the new law criminalises withholding information from law enforcement that is “known or believed to be of value in preventing a terrorist attack or ensuring the arrest of a person.” 

This means that inaction can also result in legal consequences. These too-inclusive definitions are what provide legal authorities the leeway to arbitrarily apply harsh penalties. The result is not “random examples of abuse” because the act’s design incorporates abusive practices from the outset when it seeks to define which violations fall under its purview.

The Act permits harsher punishments alongside its broad definitions. For non-homicide offences, the minimum term is five years in jail, while the maximum sentence is life in prison. This means that giving a speech, speaking at a rally, or taking part in a protest action may result in a five-year prison sentence. When someone’s life has been taken, the choice between life in jail or execution is the only option for punishment. The severity of the crime justifies a new set of criminal rules. Because this offender is not your typical criminal and requires intensive investigation, it is justified to disregard the protections afforded by the criminal procedure code.

Under this statute, a suspect can be held in police detention for up to 30 days and in judicial custody for up to six months before being formally prosecuted. Strict limitations on bail are set forth in Sections 18(5) and (6). For bail to be granted, the court must have some basis for believing the accused is innocent.

Anticipatory bail requests are prohibited. These safeguards are put in place to ensure that investigations may proceed smoothly and that the accused cannot obstruct them. Confessions made to law enforcement are more damaging because they can be used as evidence (Section 15(A)). This is a call for harsh treatment in prison and coerced confessions. The proposed safeguard in the measure, that statements would only be admissible if made to a higher level of police official, is insufficient. Something that has been established by rulings and pronouncements of the law

In addition, the CLA approves of a system of presumptions regarding the guilt of individuals charged under it, shifting the burden of proof from the party making the claim to the party accused of wrongdoing. The court is instructed to presume guilt unless innocence is proven in cases where weapons or explosives suspected of having been used in the commission of crimes under this law are found in the possession of an individual, where that individual’s fingerprints have been found at the scene of such a crime, or where that individual is suspected of having knowingly assisted financially or otherwise in the commission of such a crime (Section 21).

A new proposal (Section 11A) would direct the court to presume a person’s guilt if they refused to provide a blood sample, handwriting sample, or fingerprint. The prosecution does not have to use any particular norms in order to establish guilt. Therefore, the police are not required to apply the most stringent level of “evidence beyond reasonable doubt” when prosecuting crimes that carry the death penalty.

Even during cross-examination, Sections 14(2) and (3) allow witnesses to remain anonymous to prevent intimidation and threats. Similarly, trials before the special courts may, at their discretion, take place behind closed doors under Section 14(1). These harsh laws violate the rights of the accused and undermine the rules of natural justice. These changes are intended to make it easier for the justice system to deal with what is a particularly horrific crime. However, the police and prosecution will take the ‘exceptional’ crime less seriously as a result of every single one of these provisions. Until six months have passed, the police are under no legal obligation to submit charge sheets. Since confessions can be used as evidence, it is unnecessary to collect as much evidence as possible. Since the trial is closed, the investigation can be superficial.

The ‘protection of identity’ provision allows the police to use already-stock witnesses and make up cases, eliminating the need to actively seek out witnesses. There have been numerous cases recently where courts have criticised police for how they handled an investigation. And the proliferation of laws like TADA and CLA simply accelerates the decay of the judicial system.

Chiefs of state police, CID, the CBI, and forensic scientists reportedly convened in Delhi for a conference where it was urged that the Indian Evidence Act and the CrPC be amended to allow comments made to police officers to be admitted as evidence. This is another evidence that corruption introduced through ‘special’ legislation can spread to other areas of the law. The law not only aims to abolish the Criminal Procedure Code, but it also establishes a parallel judicial structure in which the Supreme Court is stripped of its constitutional authority. The justification for this action is quicker case resolution. Back at square one, this would explain why the administration is given broad authority while the judiciary is limited in scope. The executive branch has the authority to make laws, impose penalties, outline guidelines, and even take and confiscate private property. As far as authority goes, it can even try civil cases (Section 26). In short, the executive branch can severely limit fundamental rights by orders and rules even in areas where the law makes specific protections.

To further remove any possibility of responsibility in the making of these rules and orders, unlike TADA, they need not even be presented to the legislature. Due process and the checks and balances essential to a democratic society are compromised when the judiciary and executive branches are not strictly separated as required by the Constitution.

A special court, similar to the notoriously designated courts, can now be established by the federal or state government to hear cases that fall under their purview (Section 9). Sessions judges, even those that have retired, may preside over these. The central government has wide discretion on the placement, scope, and area of jurisdiction of these courts. If the special courts established to hear TADA cases are any indication, they will be overwhelmed by the volume of cases brought before them, resulting in a lengthy and tedious process of justice administration. Summary trials are allowed under Section 13(2) and punishments of up to two years are possible, allowing for quicker trials. The Criminal Procedure Code stipulates that in summary trials, the maximum punishment that can be imposed is three months. Section 13(5) even allows for proceedings to proceed “in the absence of the accused or his/her pleader.” After indefinite incarceration and coerced confessions, the next step is a trial with no right to an attorney or representation. That the CLA’s trial system goes against every principle of natural justice and a fair trial is without dispute.

The accused has no recourse to appeal to the higher courts after a sentence has been handed down by the special courts. There is just one possible level of appeal to the Supreme Court (Section 17). A further dilution of the right of appeal is the requirement that it be exercised within 30 days. This holds true even in cases where an irrevocable punishment, such as the death penalty, has been imposed. The Supreme Court will approve the sentence without any further appeals or reviews. Due to the extremely restricted opportunities for appeal and revision, it appears that access to a legal remedy has also been denied while permitting for more stringent penalties (Section 5). There is no longer any guarantee under the law for equal and fair protection for all. These restrictions were not meant to ensure that everyone is treated equally and fairly but were in fact designed to facilitate and promote effective and speedy investigations and trials. However, the absurdity and lack of rationale inherent in stringent measures undermine the objective of these restrictions.

The Central Government removed the one and only safeguard that was present in the 1995 version of this Act.

The widespread abuse of TADA led to a massive public outcry, which became directly responsible for the implementation of these safeguards. Given that these measures no longer exist, we are confined to the following: 

1. A new committee comprising of government representatives from both the state and central levels will convene to review cases at regular intervals of three months, as per the provisions of the new statute (Section 27).
2. Within 30 days of the arrest of individuals under this statute, the newly formed committees have to review and approve all information documented with respect to such arrested persons (Section 7A). In spite of this, the final say regarding investigation and review lies with the Executive branch of the government. 
3. The maximum punishment under this law for indulging in any criminal activity or immoral conduct or activity is imprisonment for a period of 1 year (Section 24). This resulted in the weakening of the common law rule.

According to Section 211 of the Indian Penal Code (IPC), if any criminal proceeding is instituted on false charges that is punishable with death, imprisonment for life, or imprisonment for a term of 7 years or more, then such conduct shall be punishable with imprisonment for a term up to 7 years and shall also be liable for fine. It seems to be difficult to point out an instance where this provision was used to hold a police officer liable for his wrongful act.

Other safeguards include Section 19(1), which states that any information obtained regarding offences in violation of this statute should be recorded only with the approval of the Director General of Police (DGP), and Section 19(2), which states that courts can only look into cases with the sanction of the state or central government.

In order to take cognizance of cases under the provisions of TADA, the Inspector General of Police must give his approval after the initial approval granted by the Deputy Superintendent of Police (DSP). Also, it is assumed, although not yet tested, that allowing only high-level police officers to investigate certain crimes provides some protection against misuse (Section 20). The accused is entitled to various rights and privileges, including the right to be represented by a lawyer, the right to have members of their immediate family informed of their arrest, and the obligation of the authorities to prepare a custody document (Section 19A). While it is undeniable that these safeguards are of immense help, it is important to note that they only cover the barest essentials enumerated by the Supreme Court of India, which have been determined to be the fundamental rights of every accused person. Yet, there is neither a system nor a consequence that can be relied upon to effectively deal with violations.

There is a lot of violence in Indian society and politics right now. More and more, social tensions are happening outside of the bounds of the Constitution. As this rising violence seeps into our daily lives, there is a tremendous sense of urgency. The prospect of ‘destabilising troops’ coming from an ‘enemy country’ has made the image of a nation under siege more alluring as of late. These extraordinary circumstances call for a similarly exceptional statute. Or atleast, we are led to believe this. Even more so now, after ‘the soft state’ has been severely attacked due to events like the hijacking of IC814.

To give in to the demands of hijackers does not automatically label a state “weak.” A “soft state” is one that does not enforce its own laws and does not respect its own constitution. A weak state is one in which the government and the law are unable to effectively protect its citizens. To ‘legislate’ such leniency is the goal of the CLA.

For this purpose, it legalises the overthrow of the rule of law and the Constitution. Because of this, the deterioration of the judicial system accelerates. This is achieved by legislative acts that wreak irreparable harm to the democratic fabric that binds society together. As its innumerable victims can attest, a soft state can be extremely repressive. And the ‘issue’ itself might be anything from separatist movements to dashed regional hopes, from armed opposition to societal injustice to sporadic outbursts of community violence. Ideology, politics, strategy, and even level of violence are all very different. Acts like TADA and CLA are supposed to deal with these after they have been dislodged from their individual historical and regional moorings and lumped together under the umbrella term of “terrorist.”

The law’s definition of the crime is so all-encompassing that it includes every type of illegal behaviour addressed by standard criminal procedure. This is achieved by grounding the criminal offence in the actor’s “motives” or “intent.” When discussing the Criminal Law Amendment Bill in 1995’s Rajya Sabha, BJP lawmaker Sushma Swaraj put it succinctly: “I am not here to debate the bill … no room for compassion for those who seek to question the unity and integrity of the country, for it is not the act itself that is punishable, but the intention underlying the act. People like them should not be given any kind of a pass”.

This is the true philosophical rationale for this unique law. For reason that the current legal system can handle any actual acts, including murder, arson, bombings, sedition, and hijackings. Ordinary law does not punish ‘intentions,’ though. When establishing guilt or calculating punishment, “motives” play a significant role in ordinary law. While conventional law crimes can be punished by arrest, custody, trial, and appeal, what sets TADA and this new plan apart is that the mere attribution of motivation is sufficient to bring into action a different judicial apparatus and a separate criminal procedure. One need not even provide evidence to support the existence of such motivations. This is why it’s imperative that the planned anti-terror measures be scrapped entirely and without any conditions.

Analysis of TADA provisions with international human standards

Right to freedom of expression

“Terrorist acts” and “disruptive activities” are explicitly barred by Sections 3 and 4 of TADA.

There is a very broad definition of “disruptive activities,” which reads as follows: “any action taken, whether by act or speech or through any other media or in any manner whatsoever,- 

1. Which questions, disrupts or is intended to disrupt, directly or indirectly, the sovereignty and territorial integrity of India; or 
2. Which intends to bring about or supports any claim, directly or indirectly, for the cession of any part of India or the secession of any part of India.”

This means that anyone can be arrested for engaging in the lawful political expression on topics that are commonly discussed in democracies, and if proven guilty, they face a mandatory minimum penalty of five years in jail. The allegation that they promoted violence can stand on its own. Anyone advocating for a plebiscite to be held to determine the future status of Kashmir, as the Indian government once promised, or advocating for a permanent solution to the Kashmir dispute between the governments of India and Pakistan based on the de facto partition of the state into two parts held by the two countries as it is today will be subject to prosecution under TADA.

Free speech is guaranteed under the International Covenant on Civil and Political Rights (ICCPR) in Article 19.  Paragraph 3 allows states to limit this freedom “for the protection of national security or of public order…” so long as the restrictions “are essential” in maintaining national security and public order. India’s obligations to protect the right to freedom of expression guaranteed in Article 19 ICCPR, a right also provided for in Article 19(1)(a) of the Constitution of India, render it impossible for the government to justify as “necessary” the broad provisions of Section 4 of TADA, under which acts like a peaceful expression of political views can be prohibited.

Right to liberty and security of person

Article 9 of the ICCPR states that “no one shall be arbitrarily arrested or detained” (paragraph 1), that all arrested persons shall be promptly informed of the charges against them (paragraph 2), and that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer legally authorised to exercise judicial power and shall be entitled either to trial within a reasonable time or retrial (paragraph 3). However, TADA-mandated procedures don’t adhere to any of these legal precautions.

Prohibition of arbitrary arrest and detention

The arrest and detention powers granted by Section 4 of the Act are arbitrary since they allow people to be arrested for expressing their political or other conscientiously held beliefs in a peaceful manner. In its most recent findings, the United Nations Working Group on Arbitrary Detention has voiced concern over violations that are only loosely defined. This is what the Working Group says: “Accuracy is essential in criminal law in order to ensure that those who are held accountable have a firm grasp on the nature of the wrongdoing for which they are being held responsible. Flawed terminology… fuels abuse and promotes arbitrariness.”

Such offences, according to the Working Group, “seriously impair something that is vital to the right to justice” since they breach Article 15 of the ICCPR (which forbids retroactive punishment for an act that did not constitute a criminal offence at the time it was committed).

Right to be promptly informed of charges

Detainees are not required to be charged until 180 days, or one year, after arrest, and TADA contains no provision requiring them to be quickly notified of the reasons for their arrest or the charges against them.

Right to be brought before the judge promptly

TADA allows Executive Magistrates, who, as shown above, are under the control of the Executive, to authorise detention, rather than Judicial Magistrates, who are independent judicial officers, and this is in violation of Article 9(3) ICCPR, which states that “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” Executive Magistrates are not obliged to have legal knowledge in order to serve in their capacities. Although the Indian government has argued that the exercise of such powers by Executive Magistrates falls within the terms permitted by Article 9(3) ICCPR as described above, the authorization of detention under TADA by such Executive officials fails to meet the safeguards for impartiality and independence embodied in the concept that judicial power should supervise detention if it is not to be found arbitrary detention as prohibited by Article 9(1) of the ICCPR.

Right to be released if not tried in a reasonable time

Those who have been arrested have the right to “trial within a reasonable time or release,” as stated in Article 9(3) of the ICCPR. But the process of obtaining bail under TADA is much more cumbersome. The standard procedure under TADA is to deny bail if the public prosecutor objects to it; therefore, an accused individual basically needs to prove his innocence in order to get released on bond. It is extremely rare for prisoners detained under the Act to go to trial (the Home Ministry recorded a 0.81 percent conviction rate under the Act in November 1993, as reported in the Indian press).

Right to fair trial

Protective measures for a fair trial are outlined in detail within Article 14 of the ICCPR. Among these are the rights to be presumed innocent until proven guilty (paragraph 2), the right to be informed of charges against oneself and the right to a speedy trial (paragraphs 3(a) and (c)), and the right to confront and cross-examine witnesses in one’s own defence under the same conditions as witnesses against oneself (the principle of equality of arms) (paragraph 3(e)). The right to a public and impartial hearing (paragraph 1) and the right to appeal to a higher tribunal (paragraph 2) are also integral parts of the safeguards under paragraph 5, which imposes a duty on the State to substantially review the accuracy of the conviction and sentence so that the procedure allows for fair consideration of the case. In addition, evidence gained by torture or other cruel, inhuman, or degrading treatment or punishment is not admissible in court under Article 12 of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. These fundamental judicial protections for a fair trial are violated by TADA regulations.

Presumption of innocence

However, TADA does not always assume innocence but rather assumes guilt in a number of situations. Section 21 of TADA mandates that Designated Courts hearing TADA offences presume the commission of a “terrorist act” in the following situations: 

• If arms or explosives are recovered from the accused, and there is reason to believe that they were used in the commission of an offence; 
• If an expert discovers fingerprints of the accused on the site of the offence or on anything used in connection with the offence. 
• A person is guilty of providing material support for a terrorist act if it can be shown that he or she gave money to someone who was either already under suspicion of committing a terrorist act or who was the target of the initial investigation.

Some of these exclusions to the usual rules of evidence are so broadly defined that innocent people can easily be convicted under these provisions, which violates the presumption of innocence in Article 14(2) ICCPR. A guy who, under threat of violence, gives money to a gang of persons the police suspect of performing “terrorist crimes” might face at least five years in jail if he is found guilty of abetting a “terrorist act.”

Presumption of a terrorist motive

If an individual is discovered to be in unlawful possession of a firearm within a “notified area” as defined by TADA, then that individual’s possession of the firearm is presumed to be linked to “terrorist” or “disruptive” activities. This presumption is created by Section 5 of TADA and is not subject to rebuttal. As a result, a crime that would typically be tried under the Arms Act is now being tried under TADA’s special provisions, where defendants have fewer legal protections and harsher penalties at their disposal: The mandatory minimum sentence for violating Section 5 is five years in jail. The police frequently rely on Section 5, so it’s crucial that it’s clear and easy to understand. Despite the Act’s widespread application, as mentioned above, only a small percentage of those arrested under the Act have been found guilty of an offence since its inception (less than 1%, according to Home Ministry statistics released in October 1993), with the majority of convictions reportedly being for violations of Section 5.

Right to have evidence extracted by force or compulsion excluded from the trial

Confessions made to a police officer of the rank of Superintendent of Police and above are admissible in court proceedings under Section 15(1) of the TADA, which has come under particularly harsh criticism within India. All confessions made to Indian police personnel are typically not admissible as evidence under Indian law (Sections 25 and 26 of the Evidence Act). These latter provisions were enacted at the turn of the last century, when it was widely believed that police used torture or duress to extract confessions, knowing that it was risky to rely on such “confessions” due to the suspicion that they might have been obtained by police resorting to such illegal practises. To this day, those worries are well-founded, especially with regard to TADA suspects.

Due to the gravity of terrorism unleashed by the terrorists and disruptionists, and because the Legislature was competent to make a law prescribing different rules of proof, the Supreme Court upheld the constitutionality of Section 15, “although we initially agreed to the view of the learned counsel that it would be dangerous to make a statement given to a police officer as admissible in court…”

Right to fair and public hearing

In the past, trials had to take place behind closed doors under TADA, which directly contradicted Article 14(1) of the ICCPR, which guarantees the right to a public and open trial. It’s no longer the case. Trials in private can now be ordered by the court at the discretion of the judge hearing the case, according to Amendment Act No. 43 of 1993. The provisions of the Criminal Law (Amendment) Act are vastly superior to those of TADA in every respect. 

Conclusion

India appeared to experience religious and cross-border terror strikes more frequently than other types of terrorism. The lives of ordinary Indians, the safety of the country’s capital, and the popularity of India as a tourist destination will forever be altered because of these acts. The TADA Act was created in response to the crisis of religious terrorism. To its credit, it made an effort to define terrorism and establish suitable penalties. The TADA Act was a weak attempt to counteract the evil of terrorism, and it failed, subsequently getting repealed.

Frequently Asked Questions (FAQs)

How long can an accused be detained under the TADA Act?

Bail is not granted until the judge is convinced the accused is not guilty of the alleged crime, and TADA increased the amount of time an inmate can be detained without charges to one year. The accused has the legal right to bail unless formal charges are brought against them within three months. Furthermore, incarcerating individuals before trial is the exception, not the rule, and is only ever justified to assure that the accused will not abscond, tamper with evidence, or otherwise interfere with a fair trial. However, even if none of these were proven, TADA still made it extremely difficult to get bail years before a person’s guilt was confirmed.

Can the accused file appeals under the TADA Act?

A person who has been convicted and sentenced by a trial court has the right to appeal only to the Supreme Court under Section 19 of TADA. When someone is tried, convicted, and sentenced in a lower court, the High Court will typically uphold the lower court’s decision. It is the responsibility of the High Court, as mandated by Section 366 of the Code of Criminal Procedure (CrPC), to re-examine the evidence and reach its own judgment as to the accused’s guilt based on the facts of the case. The defendant has the right to appeal to the Supreme Court if his or her conviction and sentence are upheld on appeal.

Why was TADA repealed?

It was argued that the very requirements of the Act necessitated its misuse. Its extensive abuse led to the law’s rising unpopularity, and in 1995, it was finally repealed. Almost 75,000 persons were arrested across India under TADA, and nearly 73,000 persons had their cases dropped due to insufficient evidence.

References

• https://www.claws.in/evolution-of-indias-anti-terrorism-law/
• http://www.unipune.ac.in/snc/cssh/humanrights/01%20STATE%20DEMOCRACY%20AND%20LAW/23.%20PUDR%20Black%20Laws%20and%20White%20Lies%20(A%20report%20on%20TADA%20-%201985-1995)%20Delhi,%20May%201995.pdf
• https://www.indiatoday.in/magazine/cover-story/story/20091228-1985-tada-is-passed-in-parliament-strong-arm-of-the-law-741617-2009-12-23
• https://getlegalindia.com/tada-act/#In_which_year_TADA_was_repealed
• https://www.jstor.org/stable/4409076

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