.....

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KART AR SINGH

STATE OF PUNJAB

AND

K.IRP A SHANKAR RAJ

STATE OF U.P.

MARCH 11, 1994

[S. RATNAVEL PANDIAN, M.M. PUNCHHI, K. RAMASWAMY,

S.C. AGRAWAL AND R.M. SAHA!, JJ.]

17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Act 28 of 1987-Constitutional validity of

17ie Terrorist Affected Areas (Special Courts) Act, 1984 : Act 61 of D 1984-Constitutional validity of

17ie Terrorist and Dismptive Activities (Prevention) Act, 1985 (Act 31 of 1985)-Constitutional validity of

Central Legislature-Legislative competence of-Held Acts fall within the competence of Parliament-Acts held covered by Entry 1 of List I oj Seventh Schedule to Constitution.

Terrorism is not mere 'Public Order'-It contemplates grave emergent situation affecting sovereignty and integrity of country.

Substantive Offences under the Acts require intention on the part of persons committing terrorist acts-Principle of speedy trial is contemplated and manifested under TADA Acts.

'Public Order'--Scope of-!t is confined to disorders of lesser gravity G having impact within boundaries of State-Activities of serious nature threatening security and integrity of the country are related to defence of India.

17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Section 2( J)(a)(i}-'Abetment'-What iS-Clause held impermissibly vague-lntention is necessary to prove abetment 375 H

A Section 2(l)(f)-'Notified area'-Declaration as to- Government should make penodic review.

Section 3 (as amended by TADA (Prevention) Amendment Act, 1993) and Section 4-Te"orist Acts-Dismptive Activities-Offences also covered by ordinary laws-Provision for harsh punishment under TADA Act-In view B of the object and purpose of Act Sections held not violative for absence of guiding principle whether to proceed under ordinary law or TADA.

Section 5-Mere possession of arms and ammunition-Whether sufficient to prove offence.

Section 8-Provision for foifeiture of property-Held not violative of Articles 14 and 21.

Section 9-Designated Courts-Validity of-Held not violative of Entry 65-List II and Articles 233, 234 and 235 of Constitution.

Section 9(7}-Designated Court-Judge-Superannuation-Provision for continuance after superannuation-Held not violative of Article 21-Provision does not affect independence of judiciary-However at the time of appointment it should be ensured that Judge has sufficient tenure.

Section 11(2)(3)-Held not violative of Article 14-Designated Courts-Order of transfer of cases-Concurrence of Chief Justice of India is sine qua non-According of concurrence by GI is a statutory function and not a Judicial function-According of concu"ence though imperative but passing of transfer order by Government is not imperative-Concurrence by

GI is not open to Judicial Review but final order of transfer passed by Government is subject to Judicial Review.

Section 15(As amended by TADA (Amedment) Act, 1993)-Confession-What is-Confession to Police Officer not below in rank of Superintendent of Police-Admissibility of-Fairness in recording the confession- Section 15 held not violative of Articles 14 and 21--Duty of Court deciding admissibility of confession-What is-Oppressive and bmtal behaviour in obtaining confession deprecated-Guidelines for ensuring fairness in obtaining confession laid down-Amendments in Act & Rules suggested l' ~

H Section 16(1) (As it stood prior to its amendemnt in 1993).

KARTAR v. STATE OF PUNJAB 377

Designated Court-Conduct of proceeding m Camera-Legality A of-Right to open trial is not absolute.

Section 16(2) (3}-Designated Court-Withholding the identity rf witnesses by-Legality of-Held there is no constitutional or statutory constraint against keeping the identity of witnesses secret in extraordinary circumstances.

Section 19-f'rovision for direct appeal to Supreme Courf-Held valid-In view of the abnonnal procedure-Necessary amendment of Section ._ suggested.

Section 20(3}-Executive Magistrate-Power to record confession-Section :1e/d not violative of Articles 14 and 21 empowering Executive Magistrate C to record confession is not contrary to criminal jurispmdence.

Section 20(4) (As amended by Act 43 of I993}-Provision for transmission of accused to Executive Magistrate and extendi11g the pe1iod of detention-Held not ultra vires.

Section 20(7}-0ffences punisltable under TADA-Exclusion of an- .. ticipatory bail in respect of-Held not violative of personal liberty.

Section 20(8}-Bail in respect of TADA offences-imposition of conditions for grant of bail in addition to existing conditions under the Code of

Criminal Procedur,,_Held not unreasonable.

Section 22-Provision that identification of proclaimed offenders on the basis of photograph shall have same evidentiary value as evidence of test identification parade held invalid.

The Terrorist Affected Area< (Special Courts) Act, 1984 :

Section 2( 1)(i}-'Terrorist affected areas'-Declaration of-State Govenunent should niake periodic review as to.

Section 3-Central Government-Power to declare 'terrorist affected' area-constitution of Judicial Zone-Section held not vague and without G guidelines-Declaration of terrorist affected areas-Essential prequisites for--What are.

Constitution of India, 1950 :

Articles 245, 246 and 248-Sevemh Schedul,,_List I--Ent1ies I, 2, 2A H

A and 97-List II--Ent1ies I, 2 and 97-List III-Entries I and 2-Scope of

Seventh Schedule-Legislative Entires-Principles of construction- Entries should not be constmed in a ntllToW and pedantic mannel'-Widest amplitude should be given to entries-Duty of court-Examination with refererice to doctrine of 'Pith and substance'.

Doctrine of 'Pith and substance'-What is.

Article 14-Classification-Test of-What is-£.xistence of two procedures-One procedure harsh and oppressive against othel'-Reasonableness and validity of

Legislantre-Power to make classification of 'offences and offenders'-· Classification of offences and offenders under TADA held not discriminatory.

Article 20(3/-Testimonial compulsio1t-Protection against-Scope of

D Article 21-l'ersonal libertr-Scope and object of-Exclusion of

provision of anticipatory bail in respect of TADA offences-Held not violative of Article 21.

Imposition of conditions for grant of bail in respect of TADA offences-Held not violative of Article 21.

Procedure established by law-Procedure as well as substantive law-Need for just and fairness in.

Human Rights-Police-Extorting of confession-Use of third degree methods fo,....../Jeprecation of

Speedy trial-Need fo1'-Speedy trial is contemplated by TADA Acts.

Article 5!>-Separation of Powers-Judiciary-Executive conferment of judicial functions on Executive Magistrates-Held not contrary to Article 50.

G Article 226-Power to entertain bail applications in respect of TADA offences-Held High Court has jurisdiction to entertain such an application--But such power should be exercised most sparingly in rare cases-Judicial discipline and comity requires that High Courts should refrain from

:.J' exercising jurisdiction in bail applications under special Acts.

H Doctrine of ComifrApplicability of

KART AR v. STATE OF PUNJA!l 379

Article 254-Central Law Amendment to-State legislature has power A to amend Central Law.

Indian Evidence Act, 1872: Sections 24 to 3()-Scope of

Code of Criminal Procedure, 1973: Section 164-Confession-Recording of-Nature and object of the Provision-Explained.

Section 438-Anticipatory bail-Exclusion in respect of TADA Offen- -ll ces-Held valid.

Code of Criminal Procedure (UP Amendment Act 16 of 1976} : c Section 9-Deletion of provision of anticipatory bail-Held Section is not ultra vires for lack of competence of State legislature-Act is not violative of Articles 14, 19 and 21.

Interpretation of Statutes :

Statute-Legislative intentiolt-Mode of ascertainment-What is.

Statut,,.....Presumption of Constitutionality-Judges can take notice of matters of common knowledge and authenticated report.

Criminal Law-Offence-Mens Rea-Must be read into status unless expressly or impliedly excluded.

Maxim-'Actus Non Facit Ream Nisi Mens sitrea'-Meaning of and exceptions to.

Words and Phrases-'Abet', 'Offence' and 'Compelled'-Meaning of

'Legislative power' and 'Judicial power'-Meaning of

These writ petitions, Criminal appeals and Special Leave Petitions have been filed challenging the vires of the Terrorist Affected Areas (Special Courts) Act, 1984, the Terrorists and Disruptive Activities G (Prevention) Act, 1985 and the Terrorist and Disruptive Activities (Prevention) Act, 1987-commonly known as TADA Act. Further, Constitutional validity of various provisions of the Terrorist and Disruptive Activties (Prevention) Act, 1987 and the Terrorist Affected Areas (Special Courts) Act, 1984 as well as Section 9 of the Code of Criminal Procedure (U.I'.

Amendment) Act, 1976 was also challenged.

A Disposing the matters, this Court

HELD : By the court

1. The Terrorist Affected Areas (Special Courts) Act, 1984, the Terrorist and Disruptive Activities (Prevention) Act, 1985, and The Ter B rorist and Disruptive Activities (Prevention) Act, 1987 fall within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and could fall within the ambit of Entry I of List I, namely, 'Defence of India'. (559 H, 560 AJ

2. As the meaning of the word "abet" as defined under Section 2(1)(i)(a) of1987 Act is vague and imprecise, 'actual knowledge or reason to believe' on the part of a 11erson to be brought within the definition, should be read into that provision instead of reading that jlrovision down.

(560 BJ

3. The power vested on the Central Government to declare any area as 'terrorist affected area' within the terms of Section 3(1) of the 1984 Act does not suffer from any invalidity. (560 CJ

4. Sections 3 and 4 of the 1987 Act are liable to be struck down on the grounds that both the Sections cover the acts which constitute offences E nuder ordinary laws and that there is no guiding principle as to when a person is to be prosecuted under these Sections. [560 DJ

5. Section 8 of the 198'1 Act is not violative of Articles 14 and 21 of tbe Constitution. (560 DJ

6. The challenge to the validity of Section 9 of 1987 Act on the ground of lack of legislative competence has no merit. It is not violative of Entiy 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution; (560 EJ

7. Sub-secHon (7) of Section 9 of the 1987 Act does not offend any constitutional provision. However, the Central Govenmcnt and the State Governments at the time of appointing a Judge or an Additional Judge to the Designated Court should keep in mind that the Judge designate has sufiicient tenure of service even at the initial stage of appointment so that no one may entertain any grieVance for continuance of service of a Judge H of the Designated Court after attainment of superannuation. [560 F]

J . :

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KARTAR v.STATEOFPUNJAB 381

8. The order granting 'concurrence' by the Chief Justice of India on A a motion moved in that behalf by the Attorney General to transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in other State, is only a statutory order and not a judicial order since there is no adjudication of any 'tis' and determina tion of any issue. Therefore, sub-sections (2) and (3) of Section 11 of 1987 Act are not violative of Article 14 of the Constitution. (560 G-H, 561 A]

9. Section 15 of the 1987 Act is neither violative of Article 14 nor of

21. But the Central Government may take note of guidelines laid down for ensuring that the confession obtained in the pre-indictment interrogation

is not tainted with any vice and is in strict conformity with well recognised C principles and fundamental fairness and incorporate them by appropriate amendments in the Act and the Rules made therunder. (561 B]

10. The challenge made to Section 16(1) of 1987 Act does not require any consideration in view of the substitution of the newly introduced sub-section by Amendment Act 43 of 1994 giving discretion to the Desig D nated Court either to hold or not to hold the proceedings in camera;

(561 C)

11. Sub-sections (2) and (3) of Section 16 of the 1987 Act are not liable to be struck down. However, in order to ensure the purpose and E object of cross-examination, the identity, names and addresses of the witnesses may be disclosed before the trial commences but subject to an exception that the Court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of potential witnesses, whose life may be in danger. (561 D, E]

12. The appeal provisions provided under Section 19 are not con stitutionally invalid. But having regard to the practical difficulties to be faced by the aggrieved person under the appeal provisions, the Parliament may devise a suitable mode of redress by making the necessary amend ments in the appeal provisions. (561 F)

13. Sub-sections (3) and (4)(a) of Section 20 of1987 Act do not suffer from any infirmity on account of the inclusion of the Executive Magistrate and Special Executive Magistrate within the purview of Sections 164 and

167 of the Code of Criminal Procedure in respect of their application in ' relation to a case involving an offence punishable under the TADA Act or H

A any rule made thereunder. Likewise, clause (a) of Section 15 of the Special

Courts Act, 1984 does not suffer from any infirmity. [561 G-H)

14. Sections 20(7) of the 1987 Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the Rules made thereunder, cannot be said to have deprived the personal liberty of a person as enshrined in Article 21 of the Constitution. [562 A)

15. The deletion of the application of section 438 in the State of Uttar

J/..

Pradesh by Section 9 of the Code of Criminal Procedure (U.P.) Amend- C ment, 1976 does not offend either Article 14 or 19 or 21 of the Constitution

and the State Legislature is competent to delete that Section, which is one of the matters enumerated in the Concurrent List (List III) of the Seventh Schedule and such deletion is valid under Article 254(2) of the Constitution. [ 562 B-C)

16. Sub-Section (8) of Section 20 of 1987 Act imposing the ban on release of bail of a person acmsed of any offence punishable under the Act or any rule made thereunder, but diluting the ban only on the fulfilment of the two conditions mentioned in clauses (a) and (b) of that sub-section cannot be said to be infringing the principle adumbrated in Article 21 of E the Constitution. (562 DJ

17. Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the Act of 1987, that power should be exercised sparingly, that too only in rare and ap- F propriate cases in extreme circumstances. But the judicial discipline and comity of Courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters. (562 E-F)

18. Section 22 of the 1987 Act is struck down as being opposed to G the fair and reasonable procedure enshrined in Article 21 of the Constitution. [562 F)

19. In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a Screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, H Law Secretary and other concerned Secretaries of the various Depart-

KARTAR v.STATEOFPUNJAB 383

ments to review all the TADA cases instituted by the Central Government A as well as to have a quarterly administrative review, reviewing the States' action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director-General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action

.\.. of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on. [522 D-E)

Quaere (i) :- Whether the three TADA Acts are unconstitutional for lack of Legislative Competence ?

Per S. Ratnaval Pandian, J. (For himself), M.M. Punchhi and S.C. Agrawal, fl.

D ...

Ramaswamy, J. (Concurring)

1. The Terrorist Affected Areas (Special Courts) Act, 1984, the Terrorist and Disruptive Activities (Prevention) Act, 1985 and The Terrorist and Disruptive Activities (Prevention) Act, 1987 are not ultra vires E on the ground of lack of legislative competence and as such these Acts are not liable to be struck down. [ 462 D-E)

2. Having regard to the limitation placed by Article 245(1) on the legislative power of the legislature of the State in the matter of enactment

'> of laws having application within the territorial limits of the State only; F the ambit of the field of legislation with respect to "public order" under Entry I in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the State. Activities or a 1nore serious nature which theaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under G Entry I of the State List but would fall within the ambit of Entry I of the Union List relating to defence of India and in any event under the

\ "·

residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List. [ 458 C-E)

3. The terrorism, the TADA Act contemplates, cannot be classified H

A as mere disturbance of 'Public Order' disturbing the "even tempo of the life community of any specified locality" but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic policy. This

view gets strengthened from the very definition of the expression 'terrorist act' as defined in Section 2(1)(h) and the expression 'disruptive activity' as defined under Section 2(1)(d), of the 1987 Act. Thus the submission that the preamble of the Act gives a clue that the terrorist and disruptive activities only mean a virulenl form of the disruption of public order is inconceivable and unacceptable. (459 D, E, H, 460 G]

Lakhi Narayan Dass v. Province of Bihar, A.l.R. (1950) F.C. 59; Romes/; Tl1appar v. State oj Madras, (1950] S.C.R. 594; Rev. Stainslaus v.

State of Madhya Pradesh, (1977] 2 S.C.R. 611; As/wk Kumar Di.xit v. State of U.P., A.LR. (1987) All. 235 (F.B.); Prafulla Kumar Mukherjee and Ors. v.

Bank of Commerce, A.J.R. (1947) P.C. 60; Ram [(Jishana Ramnath Aganval D v. Secretwy Municipal Committee, (1950] S.C.R. 15; Kera/a Stale Electricity Board v. lndian Aluminium Co., (1976] 1 S.C.R. 552 and The Superilllendent, Celltral Prison v. Dr. Lohia, (1960] 2 S.C.R. 821, referred to.

Observations of Hidayalullah, CJ in Arnn Ghosh v. State of West E Bengal, (1970] 3 S.C.R. 288, relied on.

4. The impugned legislation does not fall under Entry 1 of List II, namely, 'public order'. The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not necessary to consider whether it falls under any of the

).,

F Entries in List 1 of List III. However, the impugned Act could fall within the • ambit of Entry 1 of List I, nami, fy 'Defence of India'. [ 460 H, 461 A]

5. The definition of the expressions 'terrorist act' and 'disruptive activity' under Section 2(1)(h) and (d) of 1987 Act respectively are con- G jointly brought under the definition of the word 'terrorist act' in Act 61 of

1984. Therefore, the Act of 1984 also cannot be said to have contemplated only 'Public Order' but envisages a more grave situation threatening the sovereignity and Integrity of India. (462 C-D]

6. \~11ile examining the question of legislative competence of Parlia- H ment to make a law, the proper approach is to determine whether the

KARTAR v. STATE OF PUNJAB 385

subject matter of the legislation falls in the State List which Parliament A cannot enter. Ir the law does not fall in the State List, the Parliament would have the legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question whether it falls under any entry in the Union List or Concurrent List. [ 454 Fl

Union of India v. H.S. Dillon, [1972) 2 S.C.R. 33; S.P. Mittal v. Union o,' India, [1983) 1 S.C.R. 729 andKhandelwal Metal Works v. Union of India,

[1985] Supp. 1 S.C.R. 750, referred to.

7. The entries in the legislative lists mnst not be construed in a narrow C and pedantic sense and that widest amplitude must be given to the language of these entries. Sometimes the entires in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of !he Court to find out its true intent and purpose and to examine the particular legislation in its 'pith and substance' to determine whether it fits in one or other of the lists. [ 455 B-C] D

Synthetics & Chemicals Ltd. v. State of U.P., [1989] Supp. 1 S.C.R. 623 and India Cemellt Ltd. v. State of Tamil Nadu, [1989] Supp. 1 S.C.R. 692, referred to.

8. The doctrine of 'pith and substance' is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment.

On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the List belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden. [ 455 D-E]

Prafu/la Kumar Mukherjee and Ors. v. Bank of Commerce, Khulna, A.I.R. 34 (1947) P.C. 60; Sztbramanyan Chettiar v. Muttuswamy Goundan,

(1940) F.C.R. 188; re. 17ie Central Provinces and Berar Act No. XIV of 1938, A.LR. (1939) FC 1; Governor-General in Council v. Province of Madras, A.I.R. (1945) P.C. 98; Union of India v. H.S. Dhillon, [1972] 2 SCR 33 and H

A J&K State v. M.S. Farooqui, (1972) 3 SCR 881, referred to.

Speedy Trial is contemplated by TADA Acts.

9. Though there is no explicit manifestation of the expression, 'speedy trial' either in the preamble or in any of the provisions of the TADA Acts as in 1984 (Special Courts) Act, the scope and intendment of the various provisions of these TADA Acts perceivably conveys that the TADA Acts also contemplate speedy trial of cases. In fact, the 'Statement of

Objects and Reasons' of 1985 Act reading, "This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously" makes it clear that the Constitution of Designated Courts was for the speedy and expeditious trial of offences under the impugned legislation. (463 G-H, 464 A)

10. The concept of speedy trial is read into Article 21 as essential part of the fundamental right to life and liberty guaranteed and preserved D under our Constitution. The right to speeedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it E consummates into a finality, can be averted. [ 465 E-F)

11. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a F societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opeing up new vistas of fundam., ntal rights. [ 464 H, 465 A)

12. of course, no length of time is per se too long to pass scrutiny under the principle of Speedy Trial nor the accused is called upon to show G the actual prejudice by delay of disposal of cases. On the other hand, the

Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay H which would be identified by the factors; (1) Length of delay, (2) the

KARTAR v. STATE OF PUNJAB 387

justification for the delay, (3) the accused's assertion of his right to speedy A trial and (4) prejudice casued to the accused by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons for delay will vary, such as delay in investigation on account of the wide-spread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the Court etc. [ 467 B-D) B

13. When the issue under debate is examined in the light of the above enunciated principle of speedy trial, the said principle, expressly contemplated in the 1984 Act and manifested in the other two TADA Acts under vaious provisions is evidently incorporated as the essential feature C of those Acts. There can be no controversy or difference of opinion in invoking the speedy trial of cases under the impugned Acts. [ 467 El

14. Keeping in view the doctrine of 'speedy trial' which is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution and which concept is D

'• manifested in the Special Courts Act, 1984 and TADA Act, 1987, the Designated Courts should dispose of the cases pending before them without giving room for any complaint of unreasonable delay. The Government concerned should ensure that no vacancy of Presiding Officer of the Designated Court remains vacant and should take necesary steps to E fill up the vacancy as soon as any vacancy arises and also if necessitated, should constitute more Designated Courts so that the undertrials charged with the provisions of TADA do not languish in jail indefinitely and the cases are disposed of expeditiously. (562 G-H, 563 A)

• Maneka Gandhi v. Union of India, (1978) 2 S.C.R 621; Hussainara F Khatoon and Ors. (I) v. Home Secretary, State of Bihar, (1980) 1 S.C.C. 81; Sunil Batra v. Delhi Administration, [1979] 1 SCR 392; Hussainara Khatton and Ors. v. Home Secretary, State of Bihar, (1979) 3 S.C.R 169; Hussainara Khatoon v. Home Secretary, State of Bihar, Patna,

(1979) 3 SCR 532; Hussainara Khatoon & Ors. v. Home Secretary State of Bihar, Govt. of Bih01; G Patna, (1979) 3 SCR 1276; Karda Pahadia v. State of Bihar, (1983) 2 SCC

104; T. V. Vathesswaran v. State of Tamil Nadu, (1983) 2 SCR 348 andAbdul \.

Rehman Antulay v. R.S. Nayak, (1992] 1 SCC 225, referred to.

Beavers v. Haubert, 198 US 77, 87 [1905); Strunk v. United States, 412 US 434 (1973) and United States v. Mac Donald, 485 U.S. 850 [1977], H

A referred to.

Black's Law Dictionary (Sixth Edition) p.1400, referred to.

Role of Police in implementation of TADA Acts.

15. It is heart-rending to note that day and day out Courts come across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have been committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency. Courts C are undoubtedly committed to uphold human rights even as a part of longstanding heritage and as enshrined in out constitutional law. This perspective needs to be kept in view by every law enforcing authority because the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. If the human rights are outraged, then the Court D should set its face against such violation of human rights by exercising its majestic judicial authority. (558 G-H, 559 A]

16. The protection that the citizens enjoy under the Rule of Law are the quintessence of two thousand years of human struggling from Adams.

It is not commonly realised how easily this may be lost. There is no known method of retaining them but by eternal vigilance. There is no institution to which the duty can be delegated except to the judiciary. If the law enforcing authority becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself and ultimately it invites anarchy. (559 B-C]

Per Sahai, J. (Concuning) :

1. The furee TADA Acts-Act 61 of1984, Act 31 of 1985, and Act 28 of 1987 liave been validly enacted by the Parliament in exercise of its power G under Entry 1 of List III of the Constitution. (627 A]

2. Power to frame or enact law for the governance of the country by the supreme body exercising the sovereign power is known as legislative power. In a democrary which has opted for federal structure of governance with a written constitution the legislative powers either of the Central or H the State Legislature are derived from the Constitution itself. In our

KARTAR v. STATE OF PUNJAB 389

Constitution the Legislatures under Articles 246 have plenary powers. A Both are snpreme in their sphere. But the field of legislative activity of the two soveign legislatures is regulated and is exercised in consonance with Entry in List I and II of the VII Schedule. Apart from exclusive field of activity provision is made empowering both the legislatures to exercise legislative power in respect of any of the matters enumerated in List III in B the Seventh Schedule known as concurrent list. [ 610 F H; 611 A]

3. From the language used in Entry I of List III it is apparent that the Entry is couched in very wide terms. The words following the expression 'criminal law' enlarge the scope to any matter which can validly be con sidered to be criminal in nature. The exercise of power under this entry, C therefore, has to be construed liberally so as to give full play to the legisla tive activity. The width of the entry, however, is controlled by the latter expression which takes away the power of either legislature to legislate in respect of offences against laws with respect to any of the matters specified in List I or List II. Since this part restricts and narrows the ambit of the D entry it has to be construed strictly. Since under the Federal structure the law made by the Parliament has supermacy any enactment made in exercise of power under Entry in concurrent list shall have over-riding effect subject to restrictions that may be spelt out from the entry itself. A legislation by .

Union Parliament to be valid under this entry must satisfy two requirments; one, that it must relate to criminal law and the offence should not be such E as has been or could be provided against laws with respect to any of the matters specified in List II. [611G-H,612 A-Bl

Union of India v. H.S. Dhi//011, A.I.R. (1972) S.C. 1061, referred to.

4. What is a crime in a given society at a particular time has a wide connotation as the concept of crime keeps on changing with change in political, economic and. social set-op of the conntry. Various legislations dealing with economic offences or offences dealing with violation of industrial activity or breach of taxing provision are ample proof of it. The Constitution makers foresaw the eventuality; therefore, they conferred G such powers both on Central and State Legislatures to make laws in this regard. Such right includes power to define a crime and provide for its punishment. Use of the expression 'including all matters included in the Indian Penal Code at the commencement of the Constitution' in Entry I of List III is unequivocal indication of comprehensive nature of this entry. H

A It further empowers the legislature to make laws not only in respect of matters covered by the IPC but any other matter which could reasonably and justifiably be considered to be criminal in nature. Terrorist or disruptive activity is criminai in content, reach and effect. The Central and State Legislature both, therefore, are empowered to legislate in respect of such B an activity in exercise of the power conferred under Entry 1 of the concurrent list. But this wide power is otherwise controlled and restricted by the latter part of the entry. It carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List I or II. The c controversy, narrows dmm to if the offences under the TADA are such in respect of which the State Legislature could make a law. In other words if the legislation relating to TADA c.an fall in Entry 1 of List II then the State legislature would have competence to make a law under this entry and create offences for violation of such law under item 64 of List II and the Central Legislature would be precluded from making any law. But that D would happen if it is held that law relating to TADA is either in fact or in pith and substance a law relating to 'public order'. (612 D-H, 613 A-BJ

5. 'Terrorism constitute a direct repudiation of liberal and human values and principles, and that terrorist ideology is ... and constantly E deployed in a struggle to defame and discredit democracy'. The terrorism with which our country is faced is sponsored terrorism. Terrorism whether it is sponsored or revolutionary or even political by it.• nature cannot be considered to be public order as explained by this Court. Conceptually public order and terrorism are ifferent not only in ideology and

F philosophy but also in cause or the mens rea, the manner of its commission and the effect or result of such activity. Public order is well understood and fully comprehended as a problem associated with low and order.

Terrorism is a new crime far serious in nature, more graver in impact, and highly dangerous in conseqence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use G of force threatening security and integrity of the State. The submission thus advanced on legislative com1ietence, more as a matter of form than with any feeling of conviction and belief in its merit, does not appear to be sound. [613 F-H, 614 A-Bl

H Ramesh Thapar v. State of Madras, A.I.R. (1950) S.C. 124; Ram

I .

KARTAR v. STATE OF PUNJAB 391

Manohar Lohia v. State of Bihar&Anr., [1966J 1 S.C.R. 709=A.I.R. (1966) A SC 740 and Harakchand Ratanchand Banthia v. Union of India, A.LR.

(1970) SC 1453, referred to.

6. TADA having been enacted under Entry 1 of List III of the Seventh Schedule, it did not suffer from lack of legislative competence. [614 CJ

7. Any law of punitive or preventive detention has to be tested on the touchstone of the constitutional assurance to every person that he shall not be deprived of his liberty except in accordance with procedure established by law. It is declaration of deep faith and belief in human rights. In

the pattern of guarantee woven in Chapter III of the Constitution, personal C liberty of a man is at the root of Article 21. [614 DJ

8. Article 21 is a constitutional command to State to preserve the basic human rights of every person. Existence of right and its preservation has, thus to be construed liberally and expansively. As a corollary to it the exercise of power by the State has to be construed narrowly and restric- D lively. It should be so understood and interpreted as not to nullify the basic purpose of the gua!""ntee. No legislative or executive action can be permitted to get through unless it passes through the judicial scanning of it being not violative of the cherished right preserved constitutionally. If the Article is construed as empowering the State to make a law and deprive a E person as the Constitution permits it then the entire concept of personal liberty shall stand frustrated. A political party voted to power may adopt repressive measures against its political foes by enacting a law and it may well be said that deprivation being in accordance witl) procedure established by law it is within constitutional frame up. The procedure adopted by State either legislatively or executively must therefore satisfy the basic F and fundamental requirement of being fair and just. Procedure established by law extends both, to the substantive and procedural law. Futher mere law is not sufficent. It must be fair and just law. (615 G-H, 616 A-CJ

9. Each expression used in Article 21 enhances human dignity and value. It lays foundation for a society where rule of law bas primacy and G not arbitrary or capricious exercise of power. 'Life' dictionarily means 'state of functional activity and continual change peculiar to organised matter, aud especially to the portion of it constituting an animal or plant before death, animate existence, being alive'. But used in the Constitution it may not be mere existence. 'Truncate liberty in Article 21 and several H

A other freedom fade out automatically'. (614 G-H, 615 AD)

Munn v. Illinois, [1877) 94 US 113; Khadak Singh v. State of UP., [1964] 1 S.C.R. 332; Sunil Batra v. Delhi Administration, [1979] 1 S.C.R. 392; Maneka Gandhi v. Union of India, [1978) 2 S.C.R. 621; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981] 2 SCR 516 and B Additional District Magistrate, Jabalpur v. Shivakant Shukla, A.l.R. (1976)

S.C. 1207, referred to.

Quaere (ii) :- lt'hether Section 2(J)(a)(i)of 1987 Act is vague and imprecise ? Whether Mens Rea is necessary element of abetment ?

Per S. Ratnavel Pandian, J. (For himself M.M. Punchhi and S.C. Agrawal, !.)-

Ramaswamy, J, (Concurring):

1. Section 2(1) (a) (i) of 1987 Act is blissfully and impermissibly vague D and imprecise. Even an innocent person who ingeniously and undefiledly communicates or associate without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any manner ter rorists or disruptionists, can be arrested and prosecuted by abusing or E misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted. (478 F-G]

2. The exclusion of 'mens rea' or intention or knowledge on the part of the person who communicates or associates with any person who is F engaged in assisting in any manner terrorists or disruptionists cannot be countenanced in view of the fact that the substantive offences require, by express provisions the intention on the part of the abettor. The substantive offences require intention on the part of the person committing the terrorist act or the disruptive act . [478 H, 479 A, 477 G]

3. Therefore in order to romove the anomaly in the vague and imprecise definition of the word 'abet' the person who is indicated of communicating or associating with any person or class of persons who is engaged in assisting in any mannt:r terrorists or disrupi.ionists should be shown to have actual knowdege or to have reason to believe that the person H or class of persons with whom he is charged to have communicated or

KARTAR v. STATE OF PUNJAB 393

associated is engaged in assisting in any manner the terrorists and dis A ruptionists. [ 479 CJ

4. The expressions 'communication' and 'association' deployed in the definition should be qualified so as to save the definition, in the sense that 'actual knowledge or reason to believe' on the part of a person to be roped in with the aid of that definition should be read into it instead of reading B it down and clause (i) of the definition in Section 2(1) (a) should be read as meaning the communication or association with any person or class of persons with the actual knowledge or having reason to belive that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists" so that the object and purpose of that clause may not C otherwise be defeated and frustrated. [ 479 DF]

Brand v. Wood, 62 TLR 462-463; Sherras v. De Rutzcn, 1 B 918; Nichols v. Hall, L.R. [1873] 8 CP 322; State of Maharashtra v. M.H. George, A.LR. (1965) SC 722; Nathu Lal v. State of Madhya Pradesh, A.LR. (1966)

SC 43; Srinivas Mall v. King Emperor, A.I.R. (1947) PC 135; Hariprasada D Rao v. State, [1951] S.C.R. 322; Sarjoo Prasad v. State of Uttar Pradesh, [1963] 3 SCR 324; State v.Abdul Aziz, A.l.R. (1962) Vol. 49 Born. 243; Inder Sen v. State of Punjab, (1973] 2 SCC 372 and A.K Roy v. Union of India, [1982] 2 SCR 272, referred to.


v. Chetty [1962] 3 SCR 786, distinguished.

Corpus Juris Secundum, Vol. I p.306; referred to.

5. In a criminal action, the general conditions of penal liabilities are indicated in old maxim "actus non facit rea111/nisi mens sitrea" i.e. the act alone does not amount to guilt, it must be accmr; ianied by a guilty mind. G But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may '" think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constitutent part of a crime or of adequate proof of intention or actual knowledge. H

A However, unless a statute either expressly or by necessary implication rules out 'niens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions. of the Statute. The question is not what the word means but whether there are sufficient grounds for inferring that the Partilament intended to exclude the general rule that mens rea is an

B essential element for bringing any person under the definition of 'abet'.

[474 D-E]

6. Generally, it is one of the essential principles of Criminal jurisprudence that a crime is not committed if the mind of a person doing the act in question, is innocent. Therefore, to constitnte a crime, the intent C and act must both concur. [476 H, 477 A]

7. Though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning. [ 473 G-H]

South Asia Industries (Pvt.j Ltd. v. S. Sarup Singh, AIR (1966) SC 346; S. Narayanaswami v. G. Panneerselvam, A.LR. (1972) SC 2284 and Direc- E torate of Enforcement v. Deepak .Mahajan & Anr., (1994) 1 JT 290, referred to.

Salmond : ''Jurisprudence'~ 11th Edition, p. 152; referred to.

8. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague Jaws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also Judges for resolution on an adhoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to 'steer far wider of the unlawful zone ... that if the boundaries of the forbidden areas were clearly H marked'. [478 D-E]

.•-'

' ' )

' '

KARTAR v. STATE OF PUNJAB 39.5

Per Sahai, J. ( Concuning)

The definition of word 'abet' in sub-clause (i) of Section 2(i)(a) should be amended in order to avoid the ambiguity and make it immune from arbitrariness. [616 G]

Quaere (iii) : Whether Sections 3 and 4 of 1987 Act providing hm'Sh B punishment for Terrorist Acts and Dismptive Activities are invalid for want of guidelines ?

Per Ratnavel Pandian, J. (For himself) M.M. Punchhi and S.C. Agrawal, ff.

Ramaswamy, J. (Concuning) c

1. True, the offences arising out of the acts, enumerated in Sections 3 and 4 of 1987 Act may be similar to the offences falling under the ordinary penal laws. They provide severe punishment and also prescribe minimum sentence for some acts constituting offences faUing within the D two provisions. The Act tends to be vary harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offences enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of cases, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorists and disruptive activities; secondly that the incensed offences are arising out of the activities of the terrorists and disruptionists which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim F for the cession of any part of India or the cessation of any part of India from the lJnion, and which create terror and a sense of insecurity in the minds of the people. •"urther the Legislature being aware of aggravated nature ol' the offences have brought this drastic change in the procedure under this law so that the object of the legislatien may not be defeated and G nullified. [ 484 B, C, H, 485 A-Cl

2. Having regard to the object and purpose of the Act of 1987 as \ reflected from the 1ireamble and the Statement of Objects and Reasons of the Act, the submission n1ade questioning the legality and efficaciousness of Sections 3 and 4 cannot be countenanced. There is no discrimination in H

A view of the separate machinery provided for the trial of the cases under this Act to achieve the object of it. [ 486 C, E]

Naranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya, (1990] 4 SCC 76; Usmanbhai Dawoodbhai Menon v. State of Gujarat, (1988] 2 SCC 271; State of West Bengal v.Anwar Ali Sarkar, [1952] SCR 284 andA.R. Antulay

v. Union of India, [1988] 2 SCC 764, refrred to.

Per Sahai, J. (Concurring)

Sections 3 and 4 of the 1987 Act not liable to be struck down for vaguencess. [616 G]

Qua ere (iv) : T¥hether n1ere possession of anns and amn1unitio11 is sufficient to prove the offence under Section 5 of the 1987 Act ?

l'er Sahai, J.

1. The provisions of Section 5 can be invoked only when the proseculion is able to establish that there was some material on record to show that the arms and ammunition mentioned in the Section were likely to be used for any terrorist or disruptive activity or that they had been used as such. [627 B]

2. Mere possession of arms and ammunition specified in Section 5 has been made substantive offence. It is much serious in nature and graver in impact as it results in prosecution of a man irrespective of bis association or connection with terrorist or terrorist activity. A comparison of this Section with Seetions 3 and 4 demonstrates the arbitrariness inherent in it. Section 3 operates when a person not only intends to overawe the Government or create terror in people etc. but he uses the arms and ammunitons which results in death or is likely to cause death and damage to property etc. Similarly Section 4 applies to those activities which are directed towards disrupting sovereignty and territorial integrity of the country. Thus a terrorist or a disruptionist and a person possessing any of the arms and ammunition mentioned in the Section have been placed at par. In Sections 3 and 4 the offence arises on the act having been done whereas in Section 5 it is founded only on possession. Even under sub-seclion (3) of Section 3 a person is liable to be prosecuted for abetting the offence if he assists or communicates with a terrorist. Sub-sections (5) and

(6) inserted by Act 43 of 1993 to Section 3 also require that a person can

c-1

, x

KARTAR v. STATE OF PUNJAB 397

\.., be prosecuted only if he is found to be a member of a terrorist gang or A terrorist organisation etc. The Act, therefore, visualises prosecution of the terrorist or disruptionist for offences under Sections 3 and 4 and in others only if they are associated or related with it. That is in keeping with the objective of the Act. [617 D-G]

3. It. is ture that while defining the crime it is optn to the legislature to make provision which may serve the objective of the legislation and from a wider point of view one may say that possession of such arms, the use of which may lead to terrorist activity, should be taken as one of the offences

as a preventive deterrent provision. Yet there must be some inter-relation between the two, howsoever, remote it may be. The harshness of the C provisions is apparent as all those provisions of the Act for prosecuting a person including forfeiture of property, denial of bail etc. Are applicable to a person accused of possessing any arms and ammunition as one who is charged for an offence under Sections 3 and 4 of the Act. It is no doubt true that no one has justification to have such arms and ammunitions as are mentioned in Section S, but unjustifiable possession does not make a D person a terrorist or disruptionist. Since both the substantive and procedural law apply to a terrorist and disruptionist or a terrorist act or a disruptive act, it is necessary that this Section if it has to be immnne from attack of arbitrariness may be invoked only if there is some material to show that the person who was possessed of the arms intended it to be used E for terrorist or disruptionist activity or it was an arm and ammunition which in fact was used. [618 A-El

Quaere (v) : Whether Sectio11 8 of 1987 Act which provides for foifeiture of property of persons co11victed under TADA is violative of Articles 14 and 21?

Per S. Ratnavel Pandian, J. (For himself M.M. Punchhi and S.C. Agrawal, !!.)-

Ramaswamy and Sahai, JJ. (Concurring):

The discretionary power given to the Designated Court nnder Section 8(1) and (2) of 1987 Act is to be exercised under strict contingencies, namely, that (i) there must be an order of forfeiture and that order must

be in writing; (2) the property either movable or immovable or both must belong to the accused convicted of any offence of TADA or Rule there- H

A uuder; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise.

The very fact that the order should be in writing implies that the Designated Court must give reasons for such an order even though the Section

B does not specifically require the Designated Court to record its reasons for so doing, because the word 'order' even according to the lexcon meaning is that it is a decision or direction either interlocutory or preliminary or final by the Court trying the offence. Secondly under Section 19 of the Act, an appeal lies straight to the Supreme Court as a matter of right from any order not being interlocutory order both on facts and law. Therefore C the contention that section 8 is violative of Articles 14 and 21 fails.

[488 A-DI

Quaere (vi) : Whether the provisions contained in Section 9 of 1987 Act providing for Constitution of Designated Courts are constitutionally valid ?

D Per S. Ratnavel Pandian, J. (For himself M.M. Punch/ti and S.C. Agrawal,

JJ.)-

Ramaswamy and Sahai, JJ. (Concuning)

1. Section 9 of the 1987 Act is not violative of Entry 65, List II of the E Seventh Schedule and Articles 233, 234 and 235 of the Constitution.

[489 E)

2. As the impugned Act is enacted under Entry 1 of List I, the constitution of the Designated Courts by the Central Government cannot be said in violation of Entry 65 of List II which empowers the State F Legislature to constitute the Courts. Under Section 9 both the Central Government and the State Governments are authorised to constitute Designated Courts by notification under sub-section (2) of Section 9. It is made clear that the Courts constituted by the Central Government either before or after the issue of the notification constituting the Designated G Courts by the State Government shall have jurisdiction to try any offence committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try any offence committed in that area or areas. [489 B-C]

Quacre (vii) : Whether Section 9(7) of 1987 Act which makes provision H for continuance of a Judge of Designated Court after superannuation is

KARTAR v. STATEOFPUNJAB 399

opposed to principle of fair tiial and independence of judicia1y ?

Per S. Ratnavel Pandian, J. (For himself M.M. Punchhi and S.C. Agrawal,

JJ.)

Section 9(7) of the 1987 Act does not offend any Constitutional provision. However, the Central Government and the State Government at B the time of appointing a Judge or an Additional Judge to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continnance of service of Judge of the Desig- C nated Court after attainment of superannuation. [491 C-D]

Observatio11s of Chandrachud, CJ. pertai11ing to clause (7) of the Special Courts Bi//. In Re : Special courts Bill [1979] 2 SCR 476, held inapplicable.

Per Sahai, J. (Co11curri11g)

Although the provisions relating to appointment of a person as designated court are clear yet it was pointed out that some of them were appointed even after retirement. Such appointments would be in teeth of

the express provisions in the Statute. Therefore, no one should be ap- E pointed as designated court who has retired from service. [627 C-D]

Per Ramaswamy, J. (Dissenti11g)

1. Sub-section (7) of Section 9 of the 1987 Act postulates its fulcrum without mincing any word that despite the judge or additional judge of a F designated court attained the age of superannuation under rules applicable to him in the State Judicial Service, he shall be entitled to continue as such judge or additional judge by employing unequivocal language 'shall not affect his continuance as such judge or additional judge". In other words, the legislative intention is clear that though designated .iudge G attained superannuation under the relevant rules applicable to him in his normal judicial service as a sessions or additional sessions judge, he shall remain in service during the pleasure of the central or the appropriate state government. What would be its message ? Is it consistent with the independence of the judiciary? Would it create confidence in the accused that the designated judge would be of stern stuff unbending before power H

A or lure of personal advantage ? The constitutional validity of Section 9(7) of the Act should be addressed from the above setting and perspectives.

The concern here is not so much with the initial appointment as designated Judge but with the control and supervision over his discharge of judicial functions and as its part is he insulated from executive influence overtly

B or covertly. [593 C-E]

2. The Constitution of a designated court per se may be valid but as a court pamllel to courts of Sessions and appointment of Sessions Judge or Additional Sessions Judge as a Judge of the designated courts without administrative and judicial control of the High Court concerned and C continuance in office after attaining superannuation are clearly in negation of and subversive to the independence of the judiciary, carefully conserved and given to the people of India. It would foster the "pleasure doctrine" laying the seeds to bear fruits of poisoned tree to destroy independence and impertiality of justice which the Constitution of India consciously avoided. It is, therefore, unconstitutional. [597 H, 598 A] D

3. It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislatures to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution. The courts are intermediary between the people and the other organs of the state in order to keep the latter within the parameters delienated by the Constitution. There can be no liberty if the power of judging be not separate from the legislative and executive powers. Article 50 of the Constitution, therefore, enjoins the State and in fact separated the Judiciary from the executive in the public service of the state. [589 G]

4.Independent judiciary is the most essential attribute of rule of law and is indispensible to sustain democracy. Independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the Judges but to the people at large G who seek judicial redress against perceived legal injury or executive exces~

ses. Dispensation of justice by an impartial presiding Judge, without fear or favour, affection or m.,.m, is the cardinal creed and zealously protected by the Constitution. [589 II, 590 A]

5. Judicial review is the basic structure and independent judiciary is

I-I the cardinal feature and an assurance of faith enshrined in the constitu-

' r

KART AR v. STATE OF PUNJAB 401

-~ ti on. Confidence of the people in impartial dispensation of justice is the A ~

binding force for acceptance of justice delivery system. Independence is not limited to insulating the judges from executive pressures alone. Its sphere extends to many other impeccable zones of pressures or prejudices.

Judges should be made of stern stuff unbending before the power, economic or political which alone would ensure fair and effective ad- B ministration of justice. The officer exercising judicial power vested in him must be, of necessity, free to act upon his own conscience and without apprehension of personal consequences to himself or lure of retiral rehabilitation. 111e judge should be made independent of most of their restraints, checks and punishments which are usually called into play against other public officers and he should be devoted to the conscientious c performance of his duties. Therefore, he must be free from external as well as internal pressures. [590 8-D]

6. The need for independent and impartial judiciary manned by persons of sterling character, impeccable integrity undaunting courage D ,. and determination, impartiality and independence is the command of the constitution and call of the people. He would administer justice witout fear or favour, affection or ill-will. His sanction a11d succour are nurtured and nourished from the constitution itself. The ability and integrity of the judge to make a decision free from external interference or influence or external cravings is an essential component and an inbuilt assurance to shape the E orderly life of the community. Independent and impartial judiciary thus sustain the faith of the people in the efficacy, effectivity and impartial judicial process. Independence of the judiciary has been secured by providing security of tenure and other conditions of service. Judicial inde- • pendence means to_!; ll liberty of the presiding judge to try, hear and decide F ' the cases that have come before him according to the set procedure and decide the cases and give binding decision on merits without tear or favour, affection or ill-will. (590 E-G]

D.J.F.D. Lyanage and Ors. v. The Queen, (1967] 1 AC 259; Northern G Pipeline Col!struction Co. v. Marathon Pipe Line Co. and United States, (73) L.Ed. 2nd 598; 458 US 50 (1982) and In re. Special Courts Bill AIR (1979)

SC 478, referred to. ...

7. A conjoint reading sections 9, 11 and 12 of the 1987 Act does not indicate to preserve the control or supervision of the High Court over the H

A Designated Court or Judges holding the posts, though they were appointed initially with the concurrence of the Chief Justice of the High Court.

Appointment of sessions or additional sessions judges as judge of the designated court under section 9(1) are outside the scheme of the Constitution and the Code but a cr<ature of the Act. Though the appointment

B of the District or Additional Sessions Judge to the designated court by the

Central Government or the State Government, as the case may be, is with the concurrence of the Chief Justice of the High Court, thereafter the High

Court ceases to have any administrative or judicial supervision or control .J over them. On appointment as a Judge of the designated court, the Sessions or Additional Sessions Judge is transposed to the administrative C control of the executive, be it the Central or State Government. This conclusion does not mean that the offences under the Act cannot be tried by the regular courts especially assigned by the High Court to the Sessions . or Additional or Joint Sessions Judges to exerice those functions or the power under the Act. Moreover, section 19 confers appellate power on this D Court. [592 F-H, 598 B-C]

Quaere (viii) : Whether under Section 11(2) of 1987 Act an accused should be given opportunity of hearing before his case is.transfe"ed from one Designated Cowt to another ?

E Per S. Ratnavel Pandian, J. (For himself M.M. Punchhi and S.C. Agrawal,

JJ.)-

Ramaswamy and Sahai, JJ. (Concurring) :

1. Sub-sections (2) and (3) of Section 11 of 1987 Act are not violative F of Article 14 of the Constitution. [560 HJ <

2. The concurrence by the Chief Justice of India under Sections 11 (2) and (3) of the 1987 Act is given or denied in the discharge of his statutory function on drawing the requisite subjective satisfaction on the reasons given io the motion or any material placed before him explaining the G exigencies of the situation prevailing in the State which has necessitated the Central Government to obtain the concurrence and then transfer the case. Therefore, notwithstanding the power of the Parliament to exclude the application of rule of 'audi a/term partem' in exceptional circumstances, it may be open to the Chief Justice of India in an appropriate case to have H the view of the accused. [ 498 H, 499 A]

KAR TAR v. STATE OF PUNJAB 403


Gautam v. Union of India, [1993) 1 SCC 78 and Bimal Kaur v. Union of India, AIR (1988) P&H 95, referred to.

3. The authority to give concurrence for transfer of a case is vested upon an independent judicial authority who is none other than the head

of judiciary in India, namely, the Chief Justice of India as a persona designata. The vesting of this power in the Chief Justice oflndia is evidently with the purpose of making it known that the Central Government is not C seeking to obtain the concurrence either with a motivation of bias or malafide or on being influenced by any extraneous consideration, but on a reasonable and justifiable ground taking into consideration the pre-requisite essential conditions. [495 F-G)

4. Under Sections 11(2) and 11(3) of TADA Act, the concurrence of the Chief Justice of India is sought for when the exigencies of the situation prevailing in the State is not conducive to a fair, impartial or speedy trial.

The reasons for seeking such concurrence, of course, will be manifested in

the motion moved by the law officers. The Chief Justice of India, while discharging his statutory function passes a statutory order and gives or E refuses the concurrence on drawing his requisite subjective satisfaction on the materials placed before him in the motion. [ 497 C-DJ

5. It may be added, in this context that the Central Government cannot transfer any case under Section 11(2) or issue a Notification under F Section 11(3) in case the Chief Justice refuses to give the concurrence. To say differently, to pass an order either under Section 11(2) or 11(3) the concurrence of the Chief Justice is sine quo non. But at the same time one should be alive to the legal position that the mere according of concurrence by itself is not an order of transfer but it only facilitates the Central G Government to pass an order under either of the above provisions. The according of the concurrence though imperative does not compel the Government to pass any order, if for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concur rence will have no effect. Therefore, the according of concurrence which is a H

A condition precedent for passing the transfer order by the Government is r only a statutory .order and not a judicial order because there is no adjudicati on of any 'lis' and determination of any issue. Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing

B the transfer order by the Central Government. [497 E, G, H, 498 A)

R. V. Cain R v. Schollick, [1975) 2 All ER 900 and Gouriet v. Union of Post Office Workers & Ors., [1977) 3 All ER 70, referred to. ,,

6. Though, there is no express provision in Article 139-A of the c Constitution and in Section 406 of the Code of Criminal Procedure to the effect that the Supreme Court before passing any order on the application made or moved for tranfer of cases should issue notice and hear the parties as required under Sections 24 and 25 of the Code of Civil Procedure, yet on the principle of 'audi alteram partem ', notice is given to the party/parties who are likely to be affected by any final order. But the D question of issuing a notice and hearing the parties may not arise if the order is passed by the Supreme Court suo moto. [497 A-Bl ... •

Quaere (ix) : Whether Section 15 of the 1987 Act, which makes the confession made to a Police Officer not lower in rank than a Superintendent

E of Police admissible, is valid ?

Per S. Ratnavel Pandian, J. (For himse1f M.M. Punchhi and S.C. Agrawal, !!.) ~

1. Section 15 of the 1987 Act is not liable to be strnck down since that Section does not offend either Article 14 or 21 of the Constitution. • F

[520 BJ

2. Having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the ter-

G rorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence Section 15 cannot be said to be / suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situation warrant such a legislation then it is constitutionally H permissible provided none of the fundamental rights under Chapter III of

KARTAR v. STATE OF PUNJAB 405

the Constitution is infringed. [518 D-F] A

Bhuboni Sahu v. King, AIR (1949) PC 257; In re. Peryaswami Moopan,

(1913) ILR 54 Mad. 75; Haricharal! Kunni & Jogi.a Hajam v. State of Bihar, [1964] 6 SCR 623; State of UP. v. Durga Prasad, AIR (1974) SC 2136; Balkishal! v. State of Maharashtra, AIR (1981) SC 379; Ramesh Chandra mehta v. State of West Bengal [1969] 2 SCR 461; Poolpandi and Ors. v. B Superintendent, Central Excise and ors., [1992] 3 SCC 251; Directorate of Enforcemel!t v. Deepak Malzajal! al!d 01'., JT (1994) 1 SC 290 and Ekambaram v. State of Tamil Nadu, (1972) Mad. Law Weekly Cr. 261, referred to.

3. Since the recording of evidence on mechanical device can be tampered, tailored, tinkered, edited and erased etc., it si strongly felt that there must be some severe safeguards which should be scrupulously observed while recording a confession under section 15(1) so that the possibility of extorting any false confession can be prevented to some

appreciable extent. [519 E] D

4. The following guidelines are laid down so as to ensure that the confession obtained in the pre-indictment interrogation is not tainted with any vice but is in strict conformity of the well recognised and accepted aesthetic principles and fundamental fairness :- [520 G] E

There should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hypercriticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and F creditability; [518 G]

The confession should be recorded in a free atmosphere in the same language in which the person is examined and as nar rated by him; [520 H] G

The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15 (5) along \lith the origianl staten1cnt of confession, "!it.ten or H

recorded on mechanical device without unreasonable delay;

[521 BJ

The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scmpulously record the statement, if any, made by the accused so produced and get his signature aud in case of any complaint of torture the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than that of an Assistant Civil Surgeon; [521 CJ

Notwithstanding anything contained in the Code of Criminal procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a Police Officer of equivalent rank, should investigate any offence punishable under the Act of 1987; [521 DJ

The Police Officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody; [521 FJ

7 In case, the person taken for interrogation, on receipt of the statutory warding that he is not bonnd to make a confession and that if he does so, the said statement may be used against hinras evidence, asserts his right to silence, the police officer must respect his right of assertion 1'ithout making any compulsion to give a statement of disclosure; [521 G-HJ

The Central Government may take note of these guidelines and incorporate them by appropriate amendments in the Act and the Rules. [522 AJ

5. An accused or a person accused of any offence is protected by the constitutional provisions as well as the statutory provisions to the extent that no self-incriminating statement made by an accused to the police officer while he is in custody, could be used against such maker. The constitutional and statutory procedural guarantees and safeguards are in H consonance "1th the expression "according to procedure established by

KARTAR v. STATE OF PUNJAB 407

law" enshrined in Article 21 of the Constitution within which fold the A prlnciple of just and fair trial is read into. The procedure contemplated by Article 21 is that the procedure must be 'right', 'just and fair' and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of natural justice, that is, 'fair

- play in action'. [507 D, H, 508 A]

M.P. Shamia and Ors. v. Satish Chandra, District Magistrate, Delhi and o,.,., [1954] SCR 1077; Raja Narayan/a/ Bansi/al v. Maneck, (1961] 1 SCR

417; State of Bombay v. Kathi Kaly Oghad, (1962] 3 SCR 10; Nandinin Satpathy v. P.L. Dani and Anr., [1978] 2 S.C.C. 424; Olga Tellis v. Bombay Municipal Corporation, (1985] 2 Supp. SCR 51; E.P. Royappa v. State of C Tamil Nadu, [1974] 2 SCR 348; Maneka Gandhi v. Union of India, (1978] 2 SCR 621; M.H. Hoskol v. State of Maharashtra, (1979] 1 SCR 192; Sunil Batre v. Delhi Administration, (1979] 1 SCR 392; Sita Ram v. State of U.P.,

(1979] 2 SCR 1085; Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, [1979] 3 SCR 532; Hussainara Khatoon II v. Home Secretary, Stale D of Bihw; Patna, (1980] 1 SCR 81; Sunil Batra II v. Delhi Administration,

(1980] 2 SCR 557; Jolly George Verihese v. Bank of Cochin, (1980] 2 SCR 913; Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir, (1980] 3 SCR 1338 and Francis Coralie Mullin v. Administrator, Union Territory of Delhi, [1981] 2 SCR 516, referred to.

6. The Constitution as well as the statutory procedural law and Law of Evidence condemn the conduct of any official in extorting a confession or information under compulsion by using any third degree method. If it is shown to the Court that a conl"ession has been extorted by illegal means such as inducement, threat or promise as contemplated under Section 24 F of the Evidence Act the confession thus obtained from an accused person would become irrelevant and cannot be used in a c.;..iminal proceeding as against the maker. Though it is entirely for the Court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was no trap, no track and no G importune seeking of evidence during the custodial interrogation and all the conditions required are fulfilled. In fact Courts have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or crook H

A and wrenching a decision in their favour. 011 few occasions even custodial deaths caused during interrogation are brought to court's notice. Court is very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers even though no general aud sweeping condemnation

B can be made. [516 D, B, 522 B, 517 Fl

7. The Legislature is free to make classification of 'offences' and 'offenders' in the application or a stature. The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a C reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and D different set of circmnstances. [508 D, 51l CJ

Asbury Hospital v. Cases Country, [1945] 90 Law Ed. 6; Gassert v.

Clear [1948] 93 Law Ed, 163 (E) and Railway Exprress Agency v. New York, [1948] 93 Law Ed. 533(F), referred to.

8. In order to consider the question as to the reasonableness of the distinction and classification, it is necessry to take into account the objective for such distinction and classification which of course need not be made with mathematical precision. Suffice, if there is little or no difference between the persons and the things which have been grouped together and F those left out of the groups, the classification cannot be said to be a reasonable one. In making the classification, varions factors have to be taken into consideration and examined as to whether such a distiction or classification justifies the different treatment and whether they subserve the object sought to be achieved. [508 G, H, 509 A] G

Chiranjit Lal v. Union of india, [1950] SCR 869; Ramkrishna Dalmia

v. Justice Tendolkar, [1959] SCR 279; In re. Special Courts Bill, [1979] 2 SCR 476 and State of Bombay v. F.N. Balsara, A.I.R. (1951) SC 318, referred to.

State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284, distin-

KARTAR v. STATE OF PUNJAB 409

guished.

Constitutional Law by Prof. Willis, Edn. 1 p. 578, referred to.

9. The persons who are to be tried for offences specified under the provisions of TADA are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of B offences are under different classification distinguishable from the ordinary criminals and procedure. This distinction and classification of grouping of the accused and the offences to be tried under TADA are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well M the 'Statement of Object and Reasons'. [509 C-D]

10. The classification of 'offenders' and 'offences' to be tried by the Designated Court under the TADA or by the Special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification

of the offenders as terrorists and disruptionists in TADA Act and the D terrorists under the Special Courts Act, 1984 as well as the classification of offences under both the Acts. The classifications has rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14 of the Constitution.

[515 A-B, D]

Dr. N.B. Khare v. State of Delhi, [1950] SCR 519; Kathi Raming Rawat

v. State of Saurashtra, [1952] SCR 435; Kedar Nath Bajoria v. State of West Bengal, [1954] SCR 30; State of Bombay v. RMD Chamaroaugwalal, (1957] SCR 874; Pannalal Bingraj v. Union of India, [1957] SCR 233; Talib Haji Hussain v. Madhukar P. Mondkar, [1958] SCR 1226; Kangsari Haldhar v.

State of West Bengal, [1960] 2 SCR 646 and A.K Roy v. Union of India, [1982) 1 sec 271, referred to.

Per Ramaswamy, J. (Dissenting)

1. It is obnoxious to confer power on a police officer to record confession under s. 15(1). If he is entrusted with the solemn power to G record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial pO\l'ers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review H

A and a clear negation of Article 50 of the Constitution and the Constitu- ; ·

tional creases. It is, therefore, unfair, unjust and unconscienahle, oft'ending Articles 14 and 21 of the Constitution. (586 F-G]

2. A superior police officH in-charge of maintaining law and order, while recording confession of a person in police custody though, ostensibly

compling with section 15(2) of the Act, whether would raise above the stream and transcends above the weather of the day and exhibit the even equanimity and objectivity of a trained Judicial Magistrate ? While the Code and the Evidence Act seek to avoid inherent suspicion of a police otlicer obtaining confession from the accused, does the same dust not cloud C the vision of superior police otlicer ? Does such a procedure not shock the conscience of a conscientious roan and sn1ells of unfairness '!Would it be just and fair to entrust the same duty by emplong non-obstante clause in section 15(1) ? Whether mere incantation by emplongnon-obstanti clause cures the vice of fore enumeration and becomes valid under Articles 14 and

D 21 ? The answer is "No", "absolute no no". (582 G-H, 583 A)

3. The constitutional human rights perspectives, the history in working of the relevant provisions in the Evidence Act and the wisdom behind section 164 of the Code ignites inherent invalidity of sub-section(l) of Section 15 and the court would little afford to turn the Nelson's blind eyes E to the above scenario and blissfully bank on section 114(e) of the Evidence Act that otlicial acts are done according to law and put the seal that sub-section(l) of section 15 of the Act pass off the test of fair procedure and is constitutionally valid. [583 BJ

Re. The Special Courts Bill, (1978) A.I.R. 179 S.C. 478; V.M. Ranga F Rao v. State of A.P. (1985) 2 A.P.LJ. 361; Andrew R. Mallory v. U.SA., 354

US 449=1 L.ed. 2nd 1479; Winston Massiah v. United States, 377 US 201=12 L.ed. 246; William Malloy v. Patrick J. Hagan, 378 US 1=12 L.ed. 2d 653; William Murphy v. Wateifront Commission of New York Harbor, 378 US 52=12 L.ed. 2d 678; Ernesto A. Miranda v. State of Arizona, 16 L.Ed.

G 2nd US 436, 694; Edward v. Arizona, 451 U.S. 477 (1981) and Arizona v.

Roberson, 486 US 675 (1988), referred to.

4. A police otlicer is clearly a person in authority and insistence on the accused/suspect to answer his interrogation is a form of pressure, especially in the atmosphere of police station unless certain safeguards H erasing duress are adhered to. Policy or rational or object of the Act have

KAR TAR v. STATE OF PUNJAB 411

little relevance in determining the constitutional validity of the offending A provision. [581 H, 582 A]

5. An officer not below the rank of the Superintendent of Police being the head _f the Dist. Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of B the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that built in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. [586 El C

6. Tbe Legislature when has power to make the Evidence Act has ec11rnlly power to amend and alter the pre-existing procedure in the light of the changing needs of the society and that there is no vested right to procedure. The legislature can equally take away the procedure by omitting it by amendment. Court is not concerned so much with the power of the D Parliament to make the law and it does possess such power under Article 248 and Entry 97 of List I. Equally it is settled law that conferment of power in a high ranking officer is presumed to be exercised according to law or rules. Such conferment of power may be prima facie presumed to be valid. However, the contention that the Parliament being competent to E enact section 15(1) of the Act and the effect of Sections 24 to 30 of Evidence Act can equally be taken away by employing non obstante clause, the Legislaturte adopted the above device in its legislative claim to contain the escalated large scale crimes by organised terrorists and gangsters and apprehended misuse is eliminated as it was vested in high-ranking officer cannot be given acceptance. [578 G-H, 579 A, 586 H, 587 A)

7. Confession means in admission of certain facts wllich constitute an offence or substantially all the facts that constitute the offence, made by a person charged with the offence which is the subject matter of the

statement. [573 CJ G

Palvinder Kaur v. Stale of Punjab, [1953] S.C.R. 94 and Pakala '-, Narayana Swamy v. The King Emperor, 66 Indian Appeals 66, referred to.

8. A voluntary contession is a valuable piece of evidence in proof of the guilt of the accused. If the confession is found to have been made H

A voluntarily in penetentia, it wonld from basis for conviction. [579 B-C]

State of Maharashtra v. Sukhdev Singh @ Sukha & Ors., J.T. (1972) S.C. (1992) S.C. 73, referred to.

9. A confession made by an accused person is irrelevant if it appears B to the court to have been caused by inducement, promise or threat having a reference to the charge proceeding from a person in authority. [573 El

10. The confession, therefore, is not received with an assurance, if its source be not Omni suspicious mojes., above and free from the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect equanamity and must not have been operated upon by fear or hope or inducement. Hence threat or promise or inducement held out to an accused makes the confession irrelevant and excludes it from consideration. A confession made to a Police Officer while the asccused is in the custody or made it before he became an accused, is not D provable against him in any proceeding in which he is charged to the commission of the said offence. Equally a confession made by him, while in the custody of the police officer, to any person is also not provable in a proceeding in which he is charged with the commissiOn of the offence unless it is made in the immediate presence of the Magistrate. Police

E Officer is inherently suspect of employing coercion to obntain confession.

Therefore, the confession made to a police officer under section 25 should totally be excluded from evidence. The reasons seem to be that the custody . \ of police officer provides easy opportunities of coercion for extorting confession. Section 25 rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate F itself from the suspicion that it might have been procured by the exercise of coercion or by enticement. The legislative policy and practical reality emphasise that a statement obtained, while the accused is in police custody, truely be not the product of his free choice. So a confessional statement obtained by the law enforcement officer is inadmissible in G evidence. [574 A-El

Ram Chandra v. State of U.P., A.I.R. (1957) S.C. 381; Nazir Ahmade

v. King Emperor, A.l.R. (1939) P.C. 253; Pakala Narayana Swami v. 17te King / Emperor, 66 Indian Appeals 66; Tehsildar Singh v. State of U.P., A.I.R.

(1959) S.C. 1012 and Sarwan Singh v. State of Punjab, A.l.R. (1957) S.C.

H 637, referred to.

KARTAR v. STATE OF PUNJAB 413

Edwin D. Driver "Confession and the Social Psychology of Coercion'~ A 82 Harv. Law Review p.42 (1968-69); Rosemary Patenden, "Should confession be co1mborated" 107 Law Qrtly. Review 318-319 (1991); Arthur E.

Butnerland "Crime and Confession" 19, Harv. Law Review, p. 21-25, 32, 36-37, 39-41, 93-97 (1965-66); Kumar Amarasekara, "Confession : Recent Devleopments in England and Australia" 29, Intemational and Comparative Law Qua1terly, p. 327-339 (1980), referred to.

Working Paper on "Custodial Crimes" by Law Commission of India; Suckerman, P1inciples of Oiminal Evidence, p. 302-306; Saul M.Kassin and Lwerance S. Wrightsman "The psychology of Evidence and Trial Procedure" Ed. 1 pp. 78-80, referred to.

11. Custodial interrogation exposes the suspect to the risk of abuse

of his person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof under- D mines the people's faith in the efficacy of criminal justice system. Interrogation in police lock up are often done under conditions of pressure and tension and the suspect could be exposed to great strain even if he is innocent, while the culprit in the custody to hide or suppress may be doubly susceptible to confusion and manipulation. A delicate balance has, therefore, to be maintained to protect the innocent from conviction and E the need of the society to see the offender punished. Equally every one has right against selfincrimination and a right to be silent under Article 20(3) which implies his freedom from police or anybody else. But when the police interrogates a suspect, they abuse their authority having unbriddled opportunity to exploit his moral position and authority inducing the captive F to confess against his better judgment. The person in authority puts the questions and exerts pressure on the captive to comply. Silence on the part of the frightened captive seems to his ears to call for vengeance and induces a belief that confession holds out a chance to avoid torture or to get bail of a promise 'Jf lesser punishment. The resourceful investigator adopts all successful tactics to elicit confession. [567 A-DJ G

12. Procedure which smacks of the denial of fundamental fairness

""\.. and shocks the conscience or universal sense of justice is an anathema to just, fair or reasonable procedure. Articles 14 and 21 frown against ar

bitrary and oppressive procedure. (582 E] H

13. Fair criminal trial is the fundamental right under Article 21.

Though the state is free to regulate the procedure for investigation of a crime, to collect evidence and place the offender for trial in accordance with its own perceptions of policy, yet in its so doing ifit offends some fundamental principles of fair justice rooted in the traditions and conscience of our people, it would be classified or characterised or ranked as unjust and unfair procedure. Appearance of injustice is denial of justice. Jluilt in procedural safeguards assure a feeling fairness. When the procedure prescribed by the statute offends the principle of fair justice or established judicial ethos or traditions or shocks the conscience, it could be said that it is fundamentally unfair and violative of the undamental fairness which are C essential to the very concept of justice and civilised procedure. Whether such fundamental fairness has been denied is to be determined by an appraisal of the totally of facts gathered from the seetting, the contents and the procedure which feed the end result. [582 B-D]

14. One of the gifts of democracy to mankind is the right to personal

liberty. Life and personal freedom are the prized jewels under Artide 19 conjointly assured by Articles 20(3), 21 and 22 of the Constitution and Article 19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at his best. The essmce of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse Articles in the Chapter of frundamental rights part III in harmony with social good envisaged in the directive principles in part IV of the Constitu- F tion. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution.

(564 B-C, 565 DJ

15. Article 21 is not intended to be a limitation upon the powers of the legislature which it otherwise has under the Constitution. Yet the substantive as well as the procedural law made, modified or amended must be just, fair and reasonable. The purity of the procedure to discover truth

shall always remain liar, sensitive to the needs of the society and fairly and / justly protect the accused. The procedural safeguards are indispensable H essence of liberty. The history of personal liberty is largely the history of

KARTAR v. STATE OF PUNJAB 415

procedural safeguards. The procedure contemplated by Article 21 of the A Constitution means just and fair procedure and reasonable la\V but not formal or fanciful. l'he standard of fairness in recording confession under Section 15(1) of the Act must be within constitutionally sustainable parameters. No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law mandated by Article 21, would mean that a person shall not be subjected to coercion which does not admit of legal justification. Though the Constitution does

not guarantee any particular procedure and the legislature is left free to '- lay down the procedure, Articles 14 and 21 prescribe inbuilt limitation in prescribing the procedure i.e. three must be fundamental fairness in the procedure prescribed by law and should not be unconscianable or oppres- C sive. (579 G-H, 580 A-Cl

16. The constitutional courts are sentinals on the qui vive and guardians of human rights and common man looks upon them as their protectors. Where two procedures coexist and classify one procedure to D one set of accused and another one for some other accused, both must safisfy the test of Articles 14 and 21. It is true and courts also would take judicial notice that terrorists or organised criminals have co1nmitted and have been committing murders of innocent people in countless number, thereby rudely shaking the foundations of stable social order. Equally the lawless elements who flout the law with impunity need to be dealt with E separately. But suppression of crime by harsh procedure does not meet the test of Articles 14 and 21. (580 D-F]

17. The expression "life or personal liberty" in Article 21 of the Constitution includes right to live with human dignity which would include F guarantee against torture and assault by the State. [581 D]

Sunil Batra v. Delhi Administration, A.LR. (1978) S.C. 1675; Sunil Batra v. Delhi Administration, A.l.R. (1980) S.C. 1579; Sheila Barse v. State of Maharashtra A.l.R. (1983) S.C. 378; Nandini Satpathy v. Dani (PL) and Ors., (1978] 3 SCR 608 and State of Bombay v. Kathi Kali Oghad, A.I.R. G

(1961) SC 1808, referred to.

~.,.

18. Liberty of every citizen is an invaluable and precious right.

Burden is on the State to establish that its deprivation is constitutionally valid. (579 E] H

A State of West Bengal v.Anwar Ali Sarkar, (1952) S.C.R. 284, referred

to.

19. The confessions recorded by any police officer below the rank of Superintendent of Police under section 15(1) and the appointment of Sessions and Addi. Sessions Judges to the designated Court under section 9(7) are unconstitutional. Yet the confession so recorded by exercising the power under section 15(1) shall remain valid and would be considered at the trial, or in appeal in accordance with law. Any judgment or order made

and com'iction rendered exercising powers under the Act and sentence -' imposed relying thereon does not become invalid or void. It is open to the C Parliament to amend sections 9(7) and 15(1) of the Act suitably. The operation of this judgment is postponed for a year from today to carry out the amendments and necessary steps be taken to have sections 15(1) and 9(7) suitably amended. If no amendments are effected within the period or extended period on and from the date of expiry of the period aforementioned, or any extended time by order of this court, sections 15(1) and 9(7) D would thereafter become void. (600 B-D)

Managing Director ECIL, Hyderabad v. B. Karunakar J.T. (1993) 6 SC l; Victor Linkletter v. Victor G. Walker, 414 L.Ed. 2nd 601, 381 US 618 (965); Ernesto A. Miranda v. State of A1izona, 16 L.Ed. 2nd 694, 384 US 436; Danny E Escobeoo v. Illinois, 12 L.Ed. 2nd 977, 378 US 478; Sylvester Johnson v. State

of new Jersey, 16 L.Ed. 2nd 862, 384 US 719; G. Ramaraju v. Andhra Pradesh, [1981) 3 SCR 474 and Gokaraju Rangaraju etc. v. State of A.P.,

(1981) 3 SCR 474, referred to.

Per Sahai, J. (Dissenting)

1. Section 15 of the 1987 Act which provides for recording of confession by Superintendent of Police is violative of Articles 20 and 21 of the Constitution and therefore, is liable to be struck down. [622 El

2. Section 15 of the TADA throws all established norms. Our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantee. [623 BJ

3. This Section cannot be held to be valid merely becuase it is as a H result of law made by a body which has been found entitled to make the

KARTAR v. STATE OF PUNJAB 417

law. The law must still be fair and just as held by this Court. A law which A entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20(3) and 21 of the Constitution. [624 BJ

4. The mere fact that the Legislature was competent to make the law, as the offence under TADA is one which did not fall in the State Entry, did not mean that the Legislature was empowered to curtail or erode a person of his fundamental rights. Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. The class of offence'dealt by TADA may be different than ot!ier offence but the offender under TADA is as much entitled to protection of Articles 20 and

21 as any other offender. The difference in nature of offence or the C legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. [623 F-HJ

A.K Gopalan v. State of Madras, A.I.R. (1950) SC 27, referred to.

5. An offence under TADA is considered to be more serious as D compared to the one under Indian Penal Code or any other Act, Normally graver the offence more strict the procedural interpretation. But her. it is just the otherwise. What is inadmissible for a murder under Section 302

is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. How the methods applied by police in extracting E confession bas been deprecated by this Court in series of decisions need not reproduced. Bnt all that changes overnight when TADA was enacted Giving power to police officer to rrcord confession may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities, as F observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability the cultural climate was not Conducive for such a drastic change. Even when there was no Articles 21, 20(3) and 14 of the Constitution any confession to police officer was inadmissible. It has been estab- G lisbed procedure for more than a century and an essential part of criminal jurispurdence. It was, therefore, necessary to bring about change in out-

":>. look before making a provision the merits of which are attempted to be justified on law existing in other countries. [621 H, 622 A-DJ

5th National Police Commission Report, referred to.

6. A confession is an admission of guilt. The person making it states

something against himself, therefore it should be made in surroundings which are free from suspicion. Otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an ofience shall be compelled to be a witness against himself. The word 'offence' used in the Article should be given its ordinary meaning. It applies as much to an offence committed under TADA as under any other Act. The word 'compelled' ordinarily means 'by force'. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired.

C In either case it is compulsion. A confession made by an accused or obtained from him under coercion suffers from infirmity unless it is made freely, and voluntarily. No civilised democratic country has accepted confession made by an accused before a police officer as voluntary and above suspicion, and therefore, admissible in evidence. One of the established

rules or norms accepted everywhere is that custodial confession is presumed to be trained. [623 C-E]

7. There is a basic difference between the approach ofa Police Officer and a Judicial Officer. A Judicial Officer is trained and tuned to reach the final goal by a fair procedure. The basis of a civilized jurisprudence is that the procedure by which a person is sent behind the bars should be fair, honest and just. A conviction obtained unfairly has never been countenanced by a system which is wedded to rule of law. A Police Officer is trained to achieve the result irrespective of the means and method which is employed to achieve it. So long as the goal is achieved the means are F irrelevant and this philosophy does not change by hierarchy of the officers.

[620 D-E)

8. A Sub-Inspector of Police may be uncouth in his approach and harsh in his behaviour as compared to a Superintendent of Police or Additional Superintentdent of Police or any higher officer. But the basic G philosophy of the two remains the same. The Inspector of Police is as much interested in achieving the result by securing confession of an accused person as the Superintendent of Police. By their training approach they are different. Procedural fairness does not have much meaning for them.

It may appear unfortunate that even after Independence a force which was H created to implement harsh and draconian laws of imperial regime, ruth-

KARTAR v. STATE OF PUNJAB 419

~ Iessly and mercilessly, has not changed much even in people's regime. A ' Dignity of the individual, and liberty of person the basic philosophy of Constitution has still not percolated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British Police it is highly centralised administrative instrumentality meant to weild its stick and spread awe by harsh voice more for the executive than B for the law and society. (620 E-G]

Quaere (x): Whether provisions contained in Section 16( !) of 1987 Act ·- providing for conduct of in Camera proceeedings in Designated Court are valid?

Per S. Ratnavel Pandian, J. (for himself, M.M. Punchlzi and S.C. Agrawal, c

!!.)-

Ramaswamy and Sahai, JJ. (Concurring) :

1. Though open trial is an indispensable attribute of the criminal D justice yet in exceptional circumstances there cannot be any legal ban in having the trial in camera. A new sub-section is substituted to the original Section 16(1) of the principal Act by the Amendment Act 43 of the 1993 giving discretion to the Designated Court either to hold or not to hold the proceedings in camera. Therefore, no detailed discussion against the chal- E lenge of Section 16(1) is required. (523 E-F]

A.K Roy v. Union of India, [1982) 1 S.C.C. 271 and Bimal Kaur v.

Union of India, A.I.R. (1988) P&H 95, referred to.

Quaere !xi) : Whether sub-sections(2) and (3) of Section 16 of the 1987 F • Act empowering the Designated Court to keep the identity and addresses of witnesses secret is valid ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,

JJ.)-

Ramaswamy am\ Sahai, JJ. (Concurring) : G

~).

1. Notwithstanding the provisions of the Evidence Act and the procedure prescribed under the Code, there is no imposition of constitutional or ,. statutory constraint against keeping the identity and address of any witness secret if some extraordinary cirumstances or imperative situations warrant H

A such non-disclosure of identity and address of the witnesses. [527 A]

2. Under the provisions of 1987 Act, the right of cross-examination is not taken away but the identity and addresses of the witnesses are permitted to be withheld. Under Section 16(2) the Designated Court is given only a discretionary authority to keep the identity and address of any witness secret on the specified contingencies. Sub-section (3) classifies only the measure to be taken by the Designated Court while exercising its discretion under sub-section (2). The measures are to be taken by the Designated Court under any one of the specified contingencies so that a witness or witnesses may not be subject to any harassment for having C spoken against the accused. [526 F, 529 B, D, E]

3. Generally speaking when the accnsed persons are of bad character, the witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. The persons who are put D for trial under this Act are terrorists and disruptionists. Therefore, the witnesses will all the more be reluctant and unwilling to depose at the risk of their life. The Parliament having regard to such extraordinary cir cumstances has thought it lit that the identity and addresses of the wit nesses be not disclosed in any one of the above contingencies. [529 F]

4. However, whatever may be the reasons for non-disclosure of the witnesses, the fact remains that the accused persons to be put up for trial under the Act which provides severe punishments, will be put to disad vantage to effective cross-examining and exposing the previous conduct and character of the witnesses. Therefore, in order to ensure the purpose and F object of the cross-examination, the identity, names and addresses of the witnesses may be disclosed before the trial commences; but it should be subject to an exception that the Court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of the potential witnesses whose life may be in danger. (530 C, DJ

G Gurbachan Singh v. The State of Bombay and Anr. [1952] S.C.R. 737; Hira Nath Mishra and Ors. v, T7ie Principal, Rajendra Medical College, Ranchi and Anr., [1973] 1 SCC 805; Russel v. Duke of Norfolak, [1949] 1 All E.R. 109; Byren v. Kinematograph Re•zters Society Ltd., [1958] 2 All E.R. 579; A.K Roy v. Union of India, [1982) 2 SCC 271 and Bimal Kaur v. Union H of India, A.I.R. (1988) P&H 95, referred to.

KARTAR v. STATE OF PUNJAB 421 .

Quaere (xii): Whether the appeal provisions prescribed in Section 19 of A 1987 Act are prejudicial or less advantageous to the accused person ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal, !!.)

1. The existing appeal provisions are not constitutionally invalid. B

However, the practical difficulties faced by the aggrieved persons under the ,_ appeal provisions and how the same can be removed are adverted to so that Parliament may take note of them and devise a suitable mode of redress by making the necessary amendments in the appeal provisions. [532 E-F] c

2. There is no logic or convincing reasoning in providing no choice but forcing a person aggrieved by the judgment, sentence or order of the Designated Court passed only under the ordinary criminal law to prefer an appeal to the Supreme Court directly in which case the aggrieved person has to deny himself firstly, the right of appeal to the High Court D and secondly, the benefit of approaching the Supreme Court under Article 136 of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA has to approach the Supreme Court from far-flung areas, many of the persons suffering front financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on E that count. The statutory compulsion, in such a situation would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure. [531 G-H, 532 A-Bl • F

3. This predicament and practical difficulty, an aggrieved person has to suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA but convicted only under other penal provisions, is given the right of G preferring an appeal before the next appellate court as provided under the Code of Criminal Procedure and if the State prefers and appeal against "

the acquittal of the offence under the provisions of TADA than it may ~

approach the Supreme Court for withdrawal of the appeal or revision, as the case may be, preferred by such person to the Supreme Court so that both the cases may be heard together. [532 C-D] H

) . -

A Syed Quasim Rizvi v. State of Hyderabad, [1953] SCR 589 and State "' r (Delhi Admn.) v. V.C. Shukla A.LR. (1980) SC 1382, referred to.

Per Ramaswamy, J. (Concuning)-

It is true that expeditious trial and disposal of the cases and appeals B is one of the aims of the Act. But many an accused being indigent cannot effectively pursue the remedy of appeal in the Supreme Court due to op pressive distance and heavy litigation costs, conferment of appellate power on ,. the High Court would be just and fair remedy. Yet it being a legislative policy, it would be left to the wisdom of the Parliament to decide and c suitably amend the Act, keeping in view Article 39-A which itself is a fundamental right to the indigent. TI•e remedy of appeal to the High Court would be easily accessible at the State level, lest the poor may be constrained to forego the remedy of appeal. The right to approach this Court under Article 136 has constitutionally been preserved to everyone. [598 C-E]

D Per Sahai, J. (Concuning)

1. Section 19 provides for an appeal as a matter of right from any judgment, sentence or order not being an interlocutory order of a designated court to the Supreme Court both on facts and law. Such provision

E existed in 1984 and 1985 AC! as well. Wheri 1984 Act was passed by the Legislature, it was primarily made due to grave situation prevailing in the State of Punjab. Today the 1987 Act has been extended eveu to far off States.

The effect of such extension is that for every sentence, may be under Section 3 or 4 or any other section, one has to approach this Court. In many cases, the remedy of appeal may be illusory. For instance, one may be prosecuted F under Sections 3, 4 and 5 or under any other section and provision. He may • be acquitted for the offence under sections 3 and 4 and yet may be convicted under other sections or provision for minor ofl'ences which were tried by the designated court by virtue of Section 12 of the Act. He may not be able to approach this Court because of enormous expenditure and exorbitant legal

G expenses involved in approaching this Court. [624 C-E]

2. It should not be forgotten that ours is a vast country with majority on the poorer side. The knowledge of economic inability of sizable section ,, of the society to approach this Court by way of appeal may result in arbitrary exercise of power and excesses of the police. A provision for H appeal to this Court in minor cases may result in defeating the remedy

KAR TAR v. STATE OF PUNJAB 423

.. itself. Inability to file appeal due to financial reasons in petty matters may A " amount to breach of guarantee under Articles 14 and 21 of the Constitutioin. It may in many cases be denial of justice. It is, therefore, suggested that it may be examined if a proviso to sub-section (1) of Section 19 can be added that a person convicted of any offence other than Sections 3 and 4 of the Act shall be entitled to file an appeal in the High Court B under whose jurisdiction the designated court is situated. Further in case the State files an appeal against acquittal of the accused under Sections 3 -·~ and. 4 in this Court then the appeal of the accused filed in the High Court shall stand automatically transferred to this Court and shall be connected and heard along with appeal filed by the State. The State on such transfer, should allow the accused to have a counsel of his choice, the expenses for c which should be borne by the State. [624 E-H, 625 A]

Quaere (xiii): Whether Sectioin 20(3) of 1987 Act, which empowe1' the Executive Magistrates to record confession, is violative of Articles 14, 21 and 50 of Constitution?

D Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal, !!.)

Ramaswamy and Sahai, JJ. (Concurring):

1. Sub-section (3) of Section 20 of the 1987 Act does not offened either E

Article 14 or 21 and hence this sub-section does not suffer from any constitutional invalidity. Merely because the Executive Magistrates and Special Executive Magistrates are included along with the_ other Judicial Magistrates in Section 164 (1) of the Code of Criminal Procedure, 1973 and

~ empowered with the authority of recording confessioo.s in relation to the F case under the TADA, it cannot be sad that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machinery for adjudication of criminal cases. [539 D, 536 H, 537 A] ' -<

2. Though Section 20(3) is consitutionally valid yet in order to remove G

the apprehension that the Executive Magistrates and the Special Executive

~ Magistrates who are under the control of the State may not be having judicial integrity and independence as possessed by Judicial Magistrates and the recording of confessions and statements by those Executive Magistrates may not be free from any possible oblique motive, it would be H

always desirable and appreciable Iha! a confession or statement of a person is recorded by the Judicial Magistrate whenever the Magistrate is available in preference to the Executive Magistrates unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates. [539 E-F)

3. The Indian Constitution provides for an independent judiciary in the State and in order to place the independence of the subordinate judiciary beyond question, provide> in Article 50 of the Directive Principles, for the separation of the judiciary from the executive. The Executive Magistrates while exercising their judicial or quasi-judicial functions though in a limited way within the frame of the Code of Criminal Procedure, which judicial functions arc normally performed by Judicial Magistrates can be held to be holding the Judicial Office. Therefore, the contention that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. [537 C, 539 CJ

Stateman (Pvt.) Ltd. v. H.R. Deb & Ors., [1968) 3 SCR 614; Slzree Hanwnan Foundaries v. H.R. Deb & Ors., Matter No. 120/61 decided by S.C. on July 28, 1965; Sltri Kumar Padma Prasad v. Union of India and Ors., [1992] 2 SCC 428; Chandra Mohan v. State of Uttar Pradesh, [1967) 1 SCR 77; Ram Jawaya Kapur v. State of Punjab, A.I.R. (1955) S.C. 549; Directorate of Enforcemellt v. Deepak Mahajan, JT (1994) 1 S.C. 290 and Subramaniam

v. Commissioner of Police, A.J.R. (1964) Mad. 185, referred to.

Quaere (xiv) : Whether Section 20(4) of 1987 Act providing for transmission of TADA accused before Executive Magistrate is unconstitutional?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,

JJ.)

G Ramaswamy and Sahai, JJ. (Concuning) :

Sub-section 4(a) of Section 20 ol the 1987 Act does not suffer from any infirmity on account of the inclusion of the Executive Magistrate and Special Executive Magistrate "ithin the purview of Section 167 of the Code of Criminal Procedure, 1973. The modification in sub-section 4(a) is in the H same line of sub-section (3); in that the Executive Magistrate and the

>-"

KARTAR v. STAIB OF PUNJAB 425

Special Executive Magistrate are included along with Judicial Magistrate. A Therefore, whenever a person is arrested for an offence under the provisions of TADA Act, the arrestee can be transmitted to the Judicial Magistrate or the Executive Magistrate or the Special Executive Magistrate, though the transmission of the accused under Section 167(1) of the Code of Criminal Procedure for other offences is still only to the Judicial Magistrate. For the reasons mentioned while disposing the submission made with reference to sub-section (3) of Section 20, the criticism that the inclusion of Executive Magistrate and Special Executiv• Magistrate in sub-section (1) of Section 167 is with an ulterior motive, cannot be countenanced and this provision cannot be said to be unconstitutional. [561 G, 540 Fl

Bimal Kaur v. Union of India A.l.R. (1988) P&H 95 Disapproved.

Quaere(xv ): Whether Section 20(7) of 1987 Act, which provides for exclusion of provision of anticipatory bail in respect of TADA offences, is

violative of Article 21?

' Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,

JI).

Ramaswamy and Sahai, JJ. (Concurring).

1. Section 438 of the Code of Criminal Procedure is a new provision incorporated in the Code crating a new right. If that new right is taken away, it cannot be said that the removal of Section 438 is violative of Articles 21. Therefore, the attack made on the validity of sub-section (7) of Section 20 has to fail. [544 B-CJ

Gurbaksh Singh Sibbia etc. v. State of Punjab, [1980) 3 S.C.R 383, distinguished.

Bimal Kaur v. Union of india, A.I.R. (1988) P&H 95, referred to.

2. Both the Parliament as well as the State Legislatures have got G legislative competence to enact any law relating to the Code of Criminal Procedure. No provision relating to anticipatory bail was in the old Code and it was introduced for the first time in the present Code of 1973 on the suggestion made in the Fortyfirst Report of the Law Commission and the .Joint Committee Report. It can be deduced from the reasoning of the Report of the Law Commission that where a person accused of a non-bail- H

A able offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail.

Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail ? Evidently,

B the Parliament has thought it fit not to extend the benefit of Section 438 to such offenders. [543 C, H, 544 A)

Quaere (xvi) : Whether Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976, by which the U.P. Legislatyure has deleted the operations of Section 438 of Criminal Procedure Code, is valid ?

C Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,

JJ.)

Ramaswamy and Sahai, JJ. (Concurring):

The U.P. Legislature has passed Act No. 16 of 1976 in exercise of

D powers under List III (Concurrent List) of the Seventh Schedule and deleted Section 438 of the Conistitution. The amendment Act received the assent of the President of India by virtue of Article 245(2) of the Constitution and prevails in U.P. State, notwithstanding any prior law made by the Parliament. As the Act is applied throughout the State, there is no question I E of discrimination in the application of this provision in the State of Uttar

Pradesh. Hence, in view of the discussion made in relation to Section 20(7) of the TADA and of the legislative competence of the State, the contention that the Act is violative of Articles 14, 19 and 21 of the Constitution has no merit and as such has to be rejected. [545 A-Cl

F U.P. State Electric Supply Co. v. R.K Shukla, (1969) 2 S.C.C. 400, •

referred to.

Quaere (xvii) : Whether Section 20(8) of 1987 Act, which imposes certain conditions for grant of bail to TADA accused, is violative of Articles 14 and 21?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C.

Agrawal, JJ)-

Ramaswamy and Sahai, JJ. (Concurring) :

1. Sub-section (8) of Section 20 of 1987 Act which imposes a complete

KAR TAR v. STATE OF PUNJAB 427

ban on release on bail against the accused of an offence punishable under A this Act minimises or dilutes that ban under two conditions, those being

(1) the Public Prosecutor must be given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the Court must be satisfied that the two conditions namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offences and (b) be is not likely to commit any offence while on bail. If either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail, but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions

of TADA. [548 C, 550 C] C

2. The conditions imposed under Section 20(8) (b) of the 1987 Act are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that Section. Similar to the conditions in clause (b) of sub-section (8) there are provisions in various other enactments - such as Section 35(1) of ~'oreign D Exchange Regulation Act and Section 104(1) of the Customs Act to the tffect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian Customs water bas been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the conditfon that "there are E grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the prin

ciple of Article 21 of the Constitution. [552 G-H, 553 A-BJ

Usmanbhai Dawoodbhai Menon v. State of Gujarat, [1988) 2 S.C.C. 271, relied on.

Balchand Jain v. State of M.P., [1977) 2 S.C.C. 52 and lshwar Chand

v. State of H.P. l.L.R. (1975) H.P. 569, distinguished.

Gudikanti v. Public Prosecutor, [1978) 2 S.C.R. 371, referred to.

3. The conclusion of the Punjab and Haryana High Court in Bimal Kaur's case holding, "therefore, the last portion of clause (b) sub-section

(8) of Section 20 of the Act, which reads: 'and that he is not likely to commit H

A any offence while on bail' alone is ultravires", is set aside. [553 CJ

Bimal Kaur v. Union of India, A.I.R. (1988) P&H 95, disapproved:

4. No doubt, liberty of a citizen must be zealously safeguarded by the Courts; nonetheless the Courts while dispensing justice in cases like the B one under the TADA, should keep in mind not only the liberty of the accused but also the interest of the victims and their near and dear and above all the collective inters! of the community and the safety of the nation

j I

so that the public may not lose faith in the system of judicial administra- -' lion and indulge in private retribution. [553 D-E]

5. It is true that on many occasions, Courts have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA with an oblique motive of depriving the accused persons from getting bail and in some occasions \Wien the Courts are inclined to grant bail in cases registered under oridinary Criminal law, the investigating officers in order D to circumvent the authority of the Courts invoke the provisions of the TADA. This kind of invcation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police. Unless, the public prosecutors rise to the occasion and discharge their onerous responsibilities keeping in mind that they are prosecutors on behalf of the public but not the police and unless the E Presiding Officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Consititution to which they have been assigned the role of sentinel on the qui vive, it cannot be said that the provisions of TADA Act are enforced effectively in consonance F with the legislative intendment. [553 F-G, 554 A]


Quaere (xviii): Whether High Courts have jurisdiction under Article 226 G to entertain bail applications of TADA accused ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal, !!.):

1. Though the High Courts have very wide powers under Article 226, H the very vastness of the powers impose on it the responsibility to use them

I '

KARTAR v. STATEOFPUNJAB 429

~ with circumspection and in accordance with the judicial consideration and A well established principles. Special provisions are-enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order, not being an interlocutory order, of a Designated Court etc. The over-riding effect of the provisions of the Act (i.e. Section 25 of TADA) and the Rules made thereunder and the non-obstante clause in B Section 20(7) reading, "Nornithstanding anything contained in the Code ... ." clearly postulate that in granting of bail, the special provisions alone

~ should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass order, then the very C scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustated. [556 G, H, 557 A-BJ

2. But at the same time it cannot be said that the High Courts have no jurisdiction. If the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only D in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be pot in straight jacket. However, the jndicial discipline and comity of Courts require that the High Courts should refrain from exsercising their jurisdiction in E entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution. [557 C-E]


A Per Ramaswamy, J. (Dissenting) :

1. Through the High Court has jurisdiction and power under Article 226 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accusecl of an offence, triable under the Act or offence jointly triable with the offences under the Act, the High Court being amenable to appellante jurisdiction and judicial review under Article 136 to this Court and this court having been statutorily invested with the power and jurisdiction under Section 19 of the Act, Judicial Pragmatism, con- ~; commitance between this court and the High Court, the latter must observe comity and self-imosed limitation, on the exercise of the power under C Article 226 and refuse to pass in order or to give direction which would inevitably result in exercising the jurisdiction and power conferred on this court under section 19 of the Act or sitting over the appellate orders passed by this Court. Exercise of the power - even in exceptional cases or circumstances is, therefore, incompatible with or inconsistent with comity.

D Therefore, the only check up on a court's exercise of power is one's own sense of self-restraint and due respect to comity. Judicial pragmatism, therefore, poignantly points, per force to observe constitutional propriety and comity imposing self-discipline to decline to entertain proceedings under Article 226 over the matters covered under Section 19 in respect of which remedy under Section 19 is available or taken cognizance, issue of E process or prima facie case in the complaint or charge-sheet etc.; in other words all matters covered under the Act. Thus the High Court's jurisdiction got eclipsed and denuded. ot the powers over the matters covered under the Act. (606 E-H, 607 A-BJ

F In re. Connolly Brothers Ltd., Wood v. Connolly Brothers Ltd., (1911) 1 Chancery Divn. 731; Imperial Tobacco Ltd. v.Attomey General, (1979) 2 All E.R. 592; Santoshi Tel Utpadak Kendra v. Dy. Commissioner of Sales Tax, (1981] 3 S.C.C. 466; Trilokchand Modichand v. H.B. Munshi, Commissioner of Sales Tax, Bombay, A.l.R. (1970) SC 898; Lakshmi Charan Sen v.

A.KM. Hassan Uzzaman, (1985] Supp. 1 S.C.R. 493; State of Maharashtra G v. Abdul Hazi Mohammad, Crl. Appeal No. 62 of 1994 decided by S.C. on 21.2.1994; Peter Da" v. C.P. Buiford, (339) US 200, 94 L.Ed. 791 (1949); Evel/e J. Younger v. John Harris, (401) US 37, 27, L.Ed. 2nd 669 (1971) Lawrence S. Huffman etc. v. Pursue Ltd., (420) US 592 : 43 L.Ed. 2nd 482

(1975) and United States v. Eager H. Gillock, (445 US 360, 63 L.Ed. 2nd 454 H (1980), referred to.

KARTAR v. STATE OF PUNJAB 431

2. The jurisdiction and power of the High Court under Article 226 of A the Constitution is nndoubtedly constitutent power and the High Court has untramelled powers andjnrisdiction to issue any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the court of the constituent power engrafted under B Article 226. The decision or order or a writ issued by the High Court nnder Article 226 is subject to judicial review by an appeal to this Court under Article 136 whose sweep is wide and untramelled. The jurisdiction of the High Court though was not expressly excluded under the Act, yet by necessary implication it gets eclipsed not so much that it lacked constituent power but by doctriae of concomitance. [601 D, 602 C, DJ C

3. The legislature treated terrorism as a special criminal problem under the TADA Act and the ordinary criminal courts created under the Code were divested of the power and jurisdiction to try the offences governed under the Act and invested the same in the designated Court and appellate powers to this Court. From the scheme of the TADA Act there- D fore, it is clear that the offences created thereunder are exclusively triable by the designated court and conviction made or orders passed, whether final or interlocutory orders pending trial are regulated under the provisions of the Act. Right of appeal thereon has been provided by Section 19 to this Court. The High Court has jurisdiction and control over the Court of Sessions of the Magistrate, but under the scheme of the Act there is a wall of separation and complete exclusion of the jurisdiction of the High Court is total. The designated court is neither subordinate to the High Court, nor the High Court has any control or supervisory jurisdiction under Article 227. [600 F, H, 601 A-Bl

4. Nothing is more conspicuous than the failure of law to evolve a consistent jurisdictional doctrine or even elementary principles, if it is subject to conflicting or inconceivable or inconsistent result, which lead to uncertainty, incongruity and disbelief in the efficacy of law. [601 CJ

Per Sahai, J. (Concuning) :

1. As regards jurisdiction of the High Court to entertain an application for bail under Article 226 of the Constitution, the High Courts being constitutionally obliged to ensure that any authority which exercise judicial and quasi-judicial powers in its jurisdiction functions within the H

A framework of law is entitled to entertain the petition to determine if the proceedings were not an abuse of process of court. But while exercising discretion the court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it and, therefore, should exercise it for the sake of justice in rare and exceptional cases, the details of which

B cannot be fixed by any rigid formula. [627 H, 628 A-BJ

2. The power given to High Court under Article 226 is an extraordinary power not only to correct the manifest error but also to exercise it for the sake of justice. Under the scheme of the Constitution a High Court is the highest Court for purposes of exercising civil appellate, criminal or C even constitutional jurisdiction so far as that state is concerned. The jurisdiction possessed by it before coming into force of the Constitution was reserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function within the D framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was absuing its power and was acting in violation of the constitutional guarantee. Rather it has a constitu- E tional duty and responsibility to ensure that the State machinery was acting fairly and not on extraneous considerations. [626 B-E]

3. Thus the High Court has jurisdiction to entertain a petition under Article 226 in extreme cases. What are such extreme cases cannot be put p in straight jacket. But the few on which there can hardly be any dispute are if the High Court is of opinion that the proceedings under TADA were an abuse of process of court or taken for extraneous considerations or there was no material on record that a case under TADA was made out.

If it be so than there is no reason why should the High Court not exercise its jurisdiction and grant bail to the accused in those cases where one or G the other exceptional ground is made out. (626 F-G)

State of Haryana v. Bhajan Lal, (1992) Supp. 1 SCC 335; Narcotics Control Bureau v. Kishan Lal, [1991) 1 SCC 705; Waryam Singh, v.Amarnath, AIR (1954) SC 215; State of Gujarat v. Vakhatsinghji Vajesinghji H Vaghela (dead) by LRs and Ors., [1968) 3 SCR 692; Mohd. Yunus v. Mohd.

KARTAR v. STATEOFPUNJAB 433

Mustazin and Ors., [1983) 4 SCC 566; State of Maharashtra v.Abdul Hamid A Haji Mohammed, (1994) 2 JT 1 and Paras Ram v. State of Haryana, [1992) 4 sec 662, referred to.

Quaere (xix) : Whether Section 22 of 1987 Act which provides for identification of proclaimed TADA offenders through photographs is unconstitutional ?

Per S. Ratnavel Pandian (For himself, M.M. Punchhi and S.C. Agrawal, !!.)-

Ramaswamy and Sahai, J. (Concurring) : c If the evidence regarding the identfication on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, gross injustice to the detriment of the persons suspected may result. Accordingly Section 22 of the 1987 Act is struck down as being opposed to the fair and reasonable procedure enshrined in D Article 21 of the Constitution. [557 H, 562 Fl

Quaere (xx) : Whether under section 2(1)(i) of the 1984Act and under section 2(1)(f) of the 1987 Act the Government should make periodic review for denotification of 'Terrorist Affected Areas' and 'Notified areas ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,

JJ.)-

Ramaswamy and Sahai, JJ. ( Concuring) :

Section 2(l)(i) of 1984 Act defines the expression 'terrorist affected F area' meaning an area declared as a terrorist affected area under Section 3 and Section 2(1)(1) of TADA of 1987 defines 'notified area' meaning such area as the State Government may, by notification in the Official Gazette, specify. Some of the State Govenments have notifie1 almost all the areas of the State as 'notified area'. But no notified area seems to have been deootified after notification. Further, nothing has been brought to the G notice of this Court about the denotification of any area in any State.

Therefore, the State Governments should review periodically and take decision either to denotify.-any area or continue the same as 'notified area' and act accordingly. The Screening or Review Committee may also be empowered by the respective Governments to scrutinise the prevailing H

SUPREMECOURTREPORTS


A situations and the make recommendations to the State Government, recommending either to continue or to discontinue the notification. This may also to followed in the case of declaring any area as 'Terrorist affected area'. (558 8-D]

Quaere (xxi) : Whether Section 3 of 1984 Act which empowers the Government to declare areas as 'Terrorist affected area' is vague and without guidance ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal, !!.)-

Ramaswami and Sahai, JJ. (Concurring):

1. Unless all the three conditions, which are sine quo non for declaring any area as 'terrorist affected area' by the Central Government by virtue of the authority conferred on it under Section 3(1) of 1984 Act, are D fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as 'terrorist affected area'. In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked.

Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited. [ 479 H, 480 El

2. There is some force in the contention that the Legislature considered it proper to prescribe a uniform procedure for serious offences having a direct relationship with peace and tranquility of the area in the notified area after the notified date and that serious offences which are likely to create terror and panic in the minds of the people were/are sought to be dealt with under the Act by prescribing a speedier trial so that disturbed situations could be brought under control without loss of time to prevent the situation from getting deteriorated and spreading to other areas. [ 480 Fl

Writ Petition No. 1833 of 1984 Etc. Etc.

(Under Article 32 of the Constitution of India.)

K.T.S. Tulsi, V.R. Reddy and Altaf Ahmad, Additional Solicitor Generals, Ram Jethmalani, V.M. Tarkunde, M.S. Gujral, Rajinder Sachhar, S.K. Dholakia, Hardev Singh, M.R. Sharma, Dr. N.M. Ghatate A.K. Sen, H Hogeshwar Prasad, Balwant Singh Malik, R.S. Suri, Miss. A. Subhasbini,

KARTAR v. STATEOFPUNJAB (PANDIAN, J.] 435

Sarvas Bisaria, Rajiv Sharma, R.S. Randhawa, Kr. Sultan Singh, A Rudrakalon, D.B. Vohra, Ms. Kamini Jaiswal, Ms. Lala krishnamurthi, R.S.

Sodhi, Sarup Singh, R.C. Mishra, Dr. Meera Aggarwal, Arun Kumar Sharma, Anip Sachthay, Mrs. Meenakshi Arora, Ms. Madhu Moolchandani, Harjinder Singh, Ms. Anjana Sharma, R.N. Joshi, Sudarsh Menon, Dr. B.L. Wadhera, K.V. Venkataraman, I. Subramaniam, K.V. Viswanadhan, Nagesh Reddy, K. Rajendra Chowdhary, R.K. Sharma, Shivi Sharma, B V.G. Parasaran, P.S. Narsimhan, A.K. Srivastava, Shiv Pujan Singh, Mohan Pandey, Sunil K. Singh, Sreepal Singh, A.S. Pundir, Ujjal Singh, J.P. Singh, Anis Ahmed Khan, Vikrant Yadav, K.B. Rohatgi, S.K. Dhingra, Baldev Atreya, Ms. Aparna Rohtgi, Mrs. Rani Chhabra, Mrs. Rani Gupta, Advs. with them for the appearing parties.

The Judgments of the Court were delivered by

S. RATNAVEL PANDIAN, J. The above batch of matters consisting of a number of with petitions, criminal appeals and SLP are filed challenging the vires of the Terrorist Affected Areas (Special Courts} Act (No. 61 D of 1984}, the Terrorists and Disruptive Activities (Prevention} Act (No. 31 of 1985} and the Terrorists and Disruptive Activities (Prevention) Act, 1987 (No. 2S/87} - commonly known as TADA Acts - (hereinafter referred to as the Act of 1984, Act of 1985 and Act of 1987 respectively} and challenging the constitutional validity of Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976 (Act No. 16 of 1976} by which the E Legislative Assembly of Uttar Pradesh has deleted Section 438 of the Code of Criminal Procedure as applicable to the State of Uttar Pradesh. Though originally, a number of other matters falling under various Acts such as the U.P. Gangsters and Antisocial Activities (Prevention} Act of 1986 (Act 7 of 1986}, the Prevention of Illicit Traffic of Narcotics Drugs and Psychotropic Substances Act of 1988 and some provisions of the Conser- F vation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA}, were listed for hearing, we have fully and conclusively heard only the matters pertaining to the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976.

Therefore, we are now rendering a common judgment pertaining to G the vires of these three Acts and Section 9 of U .P. Act 16 of 1976. At the same time, we make it clear that the merits of the individual cases will have to be decided separately after the validity of these three Acts is decided.

Before going to the question of the validity of these three Acts, we feel that a factual and archival account and exposition of the three relevant H

A Acts may be summarised.

PREFATORY NOTE OF THE THREE ACTS:

(A) The Te"orist Affected Areas (Special Courts) Act, 1984 (Act 61of1984)

B The above Act 61 of 1984, applicable to the whole of India except the State of Jammu and Kashmir received the assent of the President on 31.8.1984 replacing Ordinance No. 9 of 1984 promulgated on 14th July 1984, the object of which is to provide for the speedy trial of certain offences in terrorist affected areas and for matters connected therewith.

Section 2 (1) of this Act defines the expression 'terrorist affected area' as C an area declared as a 'terrorist affected area' under Section 3 which provision empowers the Central Government by notification to declare any area to be 'terrorist affected area' and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit provided in its opinion the offences of the nature specified in the schedule appended to that Act are being committed in any area by terrorists on such a scale D and in such a manner that it is expedient for the purpose of coping with such terrorists to have recourse to the provisions of the Act. The notification issued under Section 3(1) in respect of an area should specify the period during which the area shall for the purpose of this Act be a 'terrorist affected area'. As per Section 3 (2) a notification under Section 3(1) in E respect of an area specifying the period during which the area shall for the purpose of this Act, be a terrorist affected area, and where the Central Government is of the opinion that the terrorists had been committing in that area from the date earlier than the date of issue of the notification, offences of the nature specified in the Schedule on such a scale and in such a manner that it is expedient to commence the period specified in the p notification from such earlier date, the period specified in the notification may commence from that date subject to the proviso thereto.

This Act contains 21 Sections relating to the establishment of Special Courts, its composition, jurisdiction and appointment of Judges and provision for an appeal as a matter of right from any judgment, sentence G or order (not being an interlocutory order) of a Special Court to the

Supreme Court both on facts and law.

Though in the original Schedule to this Act qua the definition of the expression 'Scheduled Offence' [(vide section 2 (l)(f))], various enactments including 58 sections under the Indian Penal Code of which 23 are bailable H were specified, the Legislature by the Amendment Act 45 of 1985, publish-

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 437

ed in the Gazette of India, dated 26th August 1985, retained only Sections A 121, 121-A, 122 and 123 of the Indian Penal Code and sections 4 and 5 of the Anti-Hijacking Act 1982 and deleted the rest from the original Schedule.

It has been brought to our notice by Mr. K.T.S. Tulsi, the learned Additional Solicitor General that the Central Government established B judicial zones in Jullundur, Patiala, Ferozepur and Chandigarh but abolished them by notification Nos. S.0. 692, S.0. 693, S.0.694 and S.0.695 '"'-, dated 25th September 1985 and transferred the cases pending before those Courts to ordinary courts. Two additional courts were constituted by the '• Government of India for trial Hijacking cases and Golden Temple case at C Ajmer and Jullundur but these two Courts were also abolished by the Government vide notification Nos. S.O. 655 (E) and S.O. 722 (E) dated 24th August 1990 and 28th September 1993 respectively. However, this Act ,. is not repealed, but is in operation.

The Terrorist and Disrnptive Activities (Prevention) Act, 1985 (Act 31 of D 1985)

This Act which received the assent of the President on 23rd May 1985 and was published in the Gazette of India, Extra., Part II, Section, dated 23rd May 1985, came into force on 24th May 1985 in whole of India for a period of two years. Though originally the proviso to sub-Section (2) E to Section 1 was added reading, "Provided so much of this Act as relates to terrorist Acts shall not apply to the State of Jammu and Kashmir", this proviso was omitted by Act 46 of 1985. The provisions of this Act were made applicable to the State of Jammu and Kashmir w.e.f. 5th June 1985.

The preamble of this Act read that the special provisions of this Act were F made "for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto". The Statement of Objects and Reasons of this Act read as follows:

"Prefatory Note - Statement of Objects and Reasons - Terrorists had been indulging in wanton killings, arson, looting of properties G and other heinous crimes mostly in Punjab and Chandigarh. Since the 10th May, 1985, the terrorists have expanded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices H

in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter serious concern."

The Bill as introduced sought to make provisions for combating the menace of terrorists and disruptionists, inter-alia, to

(a) provide for deterrent punishment for terrorist acts and disruptive activities;

(b) confer on the Central Government adequate powers to make such rules as may be necessary or expedient for the prevention of, and for coping with, terrorist acts and disruptive activities; and

(c) provide for the constitution of Designated Courts for the speedy and expeditious trial of offences under the proposed legislation.

In Section 2, clauses (c) and(!) the expressions 'disruptive activity' and 'terrorist act' are defined. This Act in all contains 24 Sections which are segregated into four parts i.e. Part I (Section 1 to 2), Part II (Section 3 to 6), Part Ill (Sections 7 to 16) and Part IV (Sections 17 to 24), dealing with punishment for, and measures for coping with, terrorist and disruptive activities, constitution of Designated Courts constituted under Section 7 of the Act, its jurisdiction and powers, the procedure to be followed, production of witnesses, appointment of Public Prosecutors and the provision for appeal as a matter of right from any judgment, sentence or order, not being an interlocutory order, of the Court direct to the Supreme Court both on facts and law (vide Sections 7 to 16) and other miscellaneous provisions regarding the modified application of certain prnvisions of the Code of Criminal Procedure, 1973, competence of Central Government to exercise G powers of State Government and delegation of powers, power of the

Supreme Court of India to make rules etc.

The Terrorist and Dismptive Activities (Prevention) Act, 1987 (Act 28 of 1987)

H The Act 28 of 1987 was enacted as the Act 31 of 1985 was due to

.,..

.. ;.

KARTAR v. STATE OF PUNJAB (PAND!A.;"l, J.] 439

expire on 23rd May 1987 and as it was felt that in order to combat and A cope with terrorist and disruptive activities effectively, it was not only necessary to continue the said law but also to strengthen it further. Since both the Houses of Parliament were not in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on 23rd May B 1987 which came into force w.e.f. 24th May 1987. However, this Act repealing the Ordinance, received the assent of the President of India on 3rd September 1987 and was published in the Gazette of India, Extra., Part II, Section 1, dated 3rd September 1987. The scheme of the Act 31 of 1985 and Act 28 of 1987 as reflected from their preambles is the same. The Scheme of the special provisious of these two Acts were/are "for the C prevention of, . and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto."

As per sub-section (1) of Section 1, Sections 5, 15, 21 and 22 came into force at once and the remaining provisions of this Act were deemed D to have come into force on the 24th day of May 1987. According to sub-section ( 4) of Section 1, this Act was to remain in force for a period of two years from 24th May 1987 but subsequently sub-section ( 4) was amended by virtue of the amendment Act 16 of 1989 whereby for the words "two years", the words "four years" were substituted and the validity of this Act was extended for a further period of two years. Resultantly, the Act E was to expire on 23rd May 1991. Thereafter as it was felt that the Act should continue, the President promulgated an Ordinance whereby for the words 'four years", "Six years" were substituted in sub-section ( 4) of Section

1. Subsequently, this Ordinance was repealed by Act 35 of 1991 thus extending the life of the Act 28 of 1987 to six years. As the Act even by F the extended period of six years was to expire on 23rd May 1993, another Amendment Act 43 of 1993 which received the assent of President on 22nd May 1993, was enacted extending the life of the Act for eight years instead of six years.

Incidentally, it may be stated that some insertions, substitutions and G ommissions to some of the sections of this Act have been made. This Act contains 30 Sections grouped under four Parts i.e. Part I (Sections 1 and 2), Part II (Sections 3 to 8), Part III (Sections 9 to 19) and Part IV (Sections 20 to 30). Part II of the Act deals with punishment for, and measures for coping with terrorists and disruptive activities. Part III deals with constitu- H

A tion of Designated Courts, its jurisdiction, Powers, and the procedure to be adopted. It also provides provisions for appeal to the Supreme Court both on facts and law as in the case of other Acts. The provisions under Part IV under the heading "Miscellaneous" deal with the modified application of certain provisions of the Code, presumption as to offences under

Section 3, identification of accused, power of the Supreme Court to made rules etc.

We give the following table of some of the provisions which are similar in the Act of 1985 and the Act of 1987:

The Terrorist and The Terrorist and Disruptive Activities Disruptive Activities (Prevention) Act, 1985 (Prevention) Act, 1987

Section 7 Section 9

Section 8 = Section 10

Section 9(2) Section 11(2)

Section 13 Section 16

Section 16 = Section 19

Section 17(2) = Section 20( 4)

Section 17( 4) = Section 20(7)

Section 17(5) = Section 20(8)

A galaxy of senior lawyers, namely, M/s. V.M. Tarkunde, Ram Jethmalani, M.S Gujarat, Rajinder Sachhar, Hardev Singh, M.R. Sharma, AK.

Sen, Balwant Singh assisted by a team of lawyers, M/s. R.S. Sodhi, S.

Biseria, D.B. Vohra, K. Rajendra Chowdhary, AK. Srivastava, Shiv Pujan Singh, Ujjal Singh, Mohan Panday - all appearing for the petitioners/appe!lants made the most virulent fusillade against the constitutional validity of all the Acts in general and the various provisions of those Acts in particular mainly on the grounds that (1) that the Central Legislature has no legislative competence to enact the legislations and (2) these impugned Acts or some of the provision of these Acts are in contravention of or ostensibly in violation of any of the fundamental rights specified in Part III

-~ _,.

' < KARTAR v. STATE OF PUNJAB [PANDIAN, J.J 441

of the Constitution; they also triggered off a volley of at tacb against the A validity of the provisions of these Acts on some other grounds also.

According to them, these Acts and the provisions thereto, which are in utter disregard and breach of hum>nitarian law and universal human rights, not only lack impartiality bnt also fail the basic test of justice and fairness which are well established and recognised principles of law.

After critically analysing a number of penal and procedural provisions relating to issue of arrest, investigation, bail, mode and methodology of trial, right of the accused during the trial etc. etc., the learned counsel have strenuously articulated that these Acts with which we

are confronted, are draconian, ugly, vicious and highly reprehensible, the C brutality of which cannot and should not be minimised of ignored though this Court is not called upon to condone the penalised conduct of the real terrorists and disruptionists. Then they made a scathing attack seriously

conlnding that the police by abusing and misusing their arbitrary and uncarmalised power under the impugned Acts are doing a 'witch-hunt' D against the innocent people and suspects stigmatizing them as potential criminals and hunt them all the time and over-react and thereby unleash a reign of terror as an institutionalised terror perpetrated by Nazis to Jews.

The above challenges have been countervailed by the learned Additional Solicitor General, Mr. K.T.S. Tulsi assisted by Mr. R.S. Suri appearing for the State of Punjab, the learned Additional Solicitor General, Mr.

AJtaf Ahmed assisted by Ms. by Ms. A Subhashini appearing for the Union

of Inida, Mr. V.R. Reddy, the learned Additional Solicitor General assited by Mr. K.V. Venkataraman and Mr. I. Subramalliam for the State of Tamil Nadu, Mr. S.K. Dholkia for the State of Gujarat and Mr. N.M.

Ghatate for the State of U.P. contending the all the veiled attacks challengmg the validity of the Acts and the provisions thereto are mainly due to

the unjustifiable hostility and sentiments and souring of respect for those Acts. According to them, the events of the past and the continuous long term threats of terrorism and disruption unleashed by a team of seasoned G criminal by spreading their wings and sharpening their claws have forced the legislature to respond to this menance without sacrificing the national values and to combat the terrorism by extending and expanding the legal powers of the State and taking steps/measures in a legalised way and that the outcome of such response is the enactmeru: of these Acts after a prolonged debate in both Houses of Parliament as the Legislature has felt H

A that the ordinary criminal laws - both penal and procedural - are quite inadequate to meet the challenges especially when the incidents of terrorists' and disruptionists' activities have astronomically increased. It has been submitted that it was only in the above background, the Parliament in its wisdom thought that the enactment of these Acts (TADA) is the only

solution for all the ills, besetting the nation and accordingly enacted these Acts under challenge in order to put down the terrorism and the impending danger in a legalised manner and a comprehensive survey of the anatomy of the entire Acts and a dispassionate examination of them would unmistakably show that these Acts cannot be said to be, in any way, contravening any of the fundamental rights of our Constitution or suffering from lack of legislative competence.

Supplementing the above submission, it has been very seriously contended by Mr. K.T.S. Tulsi that the terrorists are resorting to mix of specific terrorist operations including armed attacks in a very cruel, unusual and D inhumane manner for a variety of reasons, some of which being (1) to instill

(a) a sense of fear and helplessness among civilians either to alienate them from the Government duly established or to make them lose faith in the Government's ability to protect them, (b) a sense of impotence among Government officials or to intimidate them as a means of neutralizing their active opposition to the terrorists groups; (2) to undermine the national E economy by discouraging foreign investment, dissuading foreign tourists from visiting the country and spurring capital flight by domestic investors; and (3) to provoke harsh Governmental reprisals to gain sympathy of the population or to create an international incident to publicise their political cause and so no. He further states that all their violent activities are

F designed to get maximum media coverage of their demands including political demands and of publicity and that many times the targets of the victims of the most inhumane physical attacks are the innocent persons whether they are individuals or group of persons.

Notwithstanding the merits and demerits of the submissions and G counter-submissions, irrefutably the talented lawyers and learned Additional Solicitors General using their formidable legal skill, extensive

r-- 1" "

scholarly knowledge and vast and rich ppctical experience in criminal /"- proceedings and trials analysed the various provisions of the Acts under separate heads in the light of the well recognised principles of criminal H jurisprudence with reference to human rights, but sometimes with oc-

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 443

casional outbursts and caustic exchanges. In support of their respective A contentions advanced during their expanded arguments, they cited a long line of decisions of not only this Court and the High Courts of this country but also foreign decisi:ms ad legislations.

Before we make an indepth examination of the challenges canvassed which are manifestly and pristinely legal, with regard to the impugned Acts and some of their provisions with a comprehensive and exclusive survey, it has become inevitable for us to give a brief sketch of the historical background and the circumstances which forced the legislature to enact these laws, as gathered from the Parliamentary Debates, Statement of Objects and Reasons and prefatory notes of the impugned C Acts etc. etc.

From the recent past, in many parts of the word, terrorism and disruption are spearheading for one reason or another and resultantly great leaders have been assassinated by suicide bombers and many drastardly D murders have been committed. Deplorably, determined youths lured by hard-core criminal and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity. In spite of the drastic action taken and intense vigilance activised, the terrorists and militants do not desist from triggering lawlessness if it suits their purpose. In short, they are waging a domestic war against E the sovereignty of their respective nations of against a race or community in order to create an embryonic imbalance and nervous disorder in the

socity either on being stimulated or instigated by the national, transnational or international hard-core criminals or secessionists etc. Resultantly, the security and integrity of the countries concerned are at peril and F the law and order in many countries is disrupted. To say differently, the logic of the cult of the bullet is hovering the globe completely robbing off the reasons and rhymes.· Therefore, every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected.

Thus, terrorism and disruptive activities are world-wide phenomenon and India is not an exception. Unfortunately in the recent past this country has fallen in the firm grip of spiraling terrorists' violence and is caught between the deadly pangs of disruptive activities. As seen from the Objects H

A and Reasons of the Act 31 of 1985 "Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh" and then slowly they expanded their activities to other parts of the country i.e. Delhi, Haryana, U .P. and Rajasthan. At present they have outstretched their activities by spreading their wings far

B and wide almost bringing the major part of the country under the extreme violence and terrorism hy letting-loose unprecedented and unprovoked repression and disruption unmindful of the security of the nation, personal liberty and right inclusive of the right to live with human dignity of the innocent Citizens of this country and destroying the image of many glitzy cities like Chandigarh, Srinagar, Delhi and Bombay by strangulating. the C normal life of the citizens. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, madkilling even without spring women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation.

Everyday, there are jarring pieces of information through Electronic and Print media that many innocent, defenceless people particularly poor, politicians, statesmen, Government official, police officials, army personnel . inclusive of the jawans belonging to Boarder Security Force have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich like attitude completely ignoring the impending danger. Whatever may be the reasons, indeed there is none to deny that.

The speeches made by the then Home Minister, the then Minister of State for Home Affairs and many Members of Parliament during the Debates at the time of the introduction of the Act of 1987 and at the subsequent stage of its extension and modification, would unfold the magnitude and seriousness of the terrorist and disruptive activities and their consequent dangerous impact on the security of the nation.

G On 8th April 1988, the then Home Minister in his speech before the Lok Sabha stated thus:

"As I told in the beginning, the forces working to destabilize the country are being encouraged from outside as well as inside of the country ......................................................... According to the information received, it appears that its master mind is somewhere else

,,. .

KARTAR v. STATE OF PUNJAB [PANDJAN, J.] 445

and it is also inside."

The then Minister of State for Home Affairs gave an extensive speech with regard to the commission of heinous crimes on a large scale not only threatening the security and territorial integrity of the nation but

also extremely affecting the normal life of the people and stressed the importance of the enactment of law providing the special procedure and B speedy trial of those offences.

One of the Member of Parliament (Shri Kamal Chaudhary) expressing his view during the discussion on the Bill on the Terrorists and Disruptive Activities (Prevention) Act, 1987 stated:

" ........ Punjab is burning. The legend goes that in the rivers of pun jab milk used to flow but they are now drenched with blood. There is hatred all over. What is a democratic solution for Punjab ........ .

How many women are beating their breasts every night? We feel

the pinch only when our near and dear ones get killed." D

Yet another Member of Parliament (Shri Anoopchand Shah) speaking on the Bill presented before the House said:

" ................................................... Today terrorism has not remained confined to Punjab only. It has rather spread to every corner of E the country. The same terrorism which exists in Punjab is makings its presence felt in Delhi and Maharashtra dlso ................................. "

One another Member of Parliament (Shri Jagan Nath Kaushal) taking part in the Debate on the Act of 1987 spoke thus:

" .................... The hon. Members know that we are not dealing with normal peaceful times. We are dealing with extra-ordinary times.

Shri Satyendra Narayan Singh has said that not only for Punjab but do something for Bihar also because in the garb of political

party etc. greater terrorism is prevailing there also." G

We feel that it is not necessary to swell this judgment by reproducing the entire speeches made by the then Home Minister, the Minister of State for Home Affairs and some Members of Parliament on the atrocities committed by terrorists and disruptionists and on the necessity of bringing the . Acts (TADA) to effectively prevent the consequent violence. But H

A suffice to give the compelling reasons as shown in the Statements of

Objects and Reasons for enacting the Acts of 1985 and 1987 which are to the effect that the terrorists and disruptionists by their expanded activities have created dreadful fear and panic in the minds of the citizens and disrupted communal peace and harmony; that their activities are on an

escalation in many parts of the country; that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.

The totality of the speeches made by the Ministers, Members of the Parliament during the Debates in the Parliament, the Statements of Objects and Reasons, the submissions made by the learned Additional Solicitors General converge to the following conclusions:

(1) From mid eighties, the prevailing conditions have been surcharged with the terrorism and disruption posing a serious threat to the sovereignty and integrity of India as well as creating pnic and sense of insecurity in the minds of the people. Added to that the brutality of terrorism let-loose, by the secessionists and antinationals in the highly vulnerable area of Indian territory, (prejudicial to the defence of India), is causing grave concern even about the chances of survival of the democratic polity and process;

(2) there were also continuous commission of heinous offences such as gruesome mass killings of defenceless innocent people including women, children and bystanders, disturbing the peace, tranquillity and security;

(3) The existing ordinary criminal laws are found to be inadequate to sternly deal with such activities perpetrated on humanity.

G It was only in the above prevailing circumstances, the legislature has been compelled to bring forth these Acts (TADA) to prevent and deal with the peril of the erupting terrorism and the consequent potential disorder among others disrupting the law and order and to sternly deal with many groups lurking beneath the murky surface, aiding, abetting, nourishing and fomenting terrorism besides giving financial support and supplying sophis- H ticated automatic lethal arms and ammunitions both from inside and

KARTAR v.STATEOFPUNJAB [PANDIAN, J.] 447

outside of India. It may not be out of place to mention that the facts of the A cases appealed against and set out in the writ petitions and SLP, if accepted in their entirety, reveal the multiple acts of vio:ence let-loose; and the acts of savage revenge perpetrated against individuals, group of persons or any particular community or religious sects show that the violent threat which has manifested itself is not evidently going to vanish with such inexplicable suddenness as would seem to have been visually presumed.

In this context, a question may arise as to whether Judges can take

>· notice of matters of common knowledge and authenticated report. This question has been examined by a Full Bench of the High Court of Punjab

and Haryana in Sukhdev Singh v. Union Territory, Chandigarh AIR (1987) C P & H 5. M.M. Punchhi, J. (as he then was) speaking for the majority observed:

"I know that in order to sustain the presumption of constitutionality of a legislative measure, the Court can take into consideration matters of common knowledge, matters of common report, the D history of the times and also assume every state of facts which can be conceived existing at the time of the legislation."

To redress all the multiple dimensions of crimes - whether of national or trans-national or international - committed by individual or group of E criminals, is of course a very difficult task because the crimes and criminals do not respect frontiers and the field of operation of the activities of the criminals know no territorial limits.

The Parliament, evidently, taking note of the gravity of terrorism committed by terrorists either \vith an intention to overawe the Govern- F ment as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different section of the people and the consequent widespread apparent danger to the nation, has felt the need of not only continuing but also further strengthening the provisions of TADA (Act 31 of 1985) in order to cope with the menace of terrorism, enacted Act 28 of G 1987 bringing drastic changes with regard to the admissibility of confessions made to police officials prescribing special procedures and providing condign punishments etc., leave apart the question with regard to the validity of these provisions to be tested on tested on the touchstone of the Constitution.

A Keeping in view the above historical background, we shall unbiasedly

and without any pre-conceived notion, examine the various legal problems presented inclusive of the constitutional validity of the three Acts (TADA) in general and of the various provisions in particular of those Acts on the touchstone of the Constitution of India.

While so testing the vires of these Acts, we shall also scrupulously analyse the various penal and the procedural provisions embodied in those Acts relating to the issues of definition of certain terms, arrest, investigation, bail, mode of trial, jurisdiction of the Designated Courts, the permissible legal rights of the accused guaranteed under the Constitution etc. etc. in the light of the constitutional provisions as well as the legal provisions of the existing procedural law with the spectrum of experience so far we have gained in the field of implementation of these impugned Acts.

When Law ends, Tyranny begins;

Legislation begins where Evil begins.

The function of the judiciary begins when the function of the Legislature ends,

because the law is, what the Judges say it is since the power to interpret E the law vests in the Judges.

Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implicit obedience.

It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crisis.

G Where all traditional law enforcement institutions are under suspicious scrutiny, only rational application of the functions of law and a thorough understanding of its complexities and limitations can protect the integrity and survival of legal order.

But it is certainly true that the probiem has received a new intensity H and a new range as the law extends and variegates the range of its concerns

KARTAR v. STATE OF PUNJAB (PANDIAN, J.) 449

and application and as the interests and modes of articulation of those A ministering to the law become more and more specialised and technical.

Needless to stress that the life of man in a society would be a continuing disaster if not regulated. The Principle means for such regulation is the law which serves as the measure of a society's balance of order and compassion and instrument of social welfare rooted in human rights, liberty and dignity.

Emphasising the importance and potentiality of the law, Lord Chancellor Sankey once remarked:

"Amidst the cross currents and shifting sands of public life the law C is like a great ark upon which a may may set his foot and be safe."

C.G. Weeramantry in The Law in Crisis - Bridges of Understanding Emphasising the importance of 'Rule of Law' in achieving social interest has stated thus: D

"The protections the citizens enjoy under the Rule of Law are the quintessence of twenty Cf?nturies of human struggle. It is not commonly realised how easily these may be lost. There is no known method of retaining them but eternal vigilance. There is no known authority to which this duty can be delegated but the community E itself. There is no known means of stimulating this vigilance but education of the community towards an enlightened interest in its legal system, its achievements and its problems.

Harking-back to the Acts with which we are concerned, the Act 31 of 1985 and Act 28 of 1987 have been enacted by Parliament as a piece of F emergency legislation for a certain length of time which period has been extended periodically by the Parliament on revision and they have been extended to the whole of India and made they have been extended to the whole of India and made applicable to citizens of India even outside India, to persons in the service of the Government, wherever they may be; and G to persons on ships and aircraft registered in India, wherever they may be.

With the above brief introduction, we shall now proceed to deal with the submissions made by the learned counsel for the parties with reference to the main questions, firstly whether the Acts suffer from lack oflegislative competence and secondly, whether the Acts or any of the provisions H

- A thereof contravene any fundamental right specified m Part III of the Constitution, as well as other cognate questions.

It has been serio.usly contended by Mr. Balwant Singh Malik, Senior Counsel that the Act 28 of 1987 (TADA) is ultra-vires since the Central Legislature, namely, the Parliament, lacked legislative competence under Article 246 read with the topic of legislation enumerated in List I (Union List) and List III (Concurrent List) of the Seventh Schedule to the Constitution, to enact the TADA Act and that the subject matter of the impugned Acts in fact fell within the legislative field assigned to the States under Entry 1 of List II (State List), namely, 'Public Order' which is a most comprehensive term with widest import encompassing every activity which leads to violence or disturbs public tranquility.

According to him, the subject matter of the Act (TADA) is not referable to any of the matters enumerated in List I of the Seventh Schedule and the presumptive attempt of the Union of India to rely upon D Entry 1 of List III for the competency of the Parliament to enact the TADA Act cannot find favour. Entry 1 of List III read:

"Criminal law, including all matters included in the Indian Pen3!

Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union on aid of the civil power"

According to him, the above Entry is left with only 'offences against F laws' with respect to matters specified in subsequent Entries of the Concurrent List. As the TADA Act cannot be held to be referable to any other topic in the Concurrent List, its subject matter could not, on that basis be held to fall under Entry 1 of that List. It has been further submitted that the contents of the heading 'Criminal Law' in Entry 1 of List III are derivative in nature and carry no meaning of their own because the criminal G law comprising 'offences against laws' are with respect to the matter in the three Lists. He continued to urge that the subject matter of the TADA Act which deals with the 'security of the State' and 'public safety' involving violence even of the highest degree tending to cause grave public disorder is plainly covered under Entry 1 of List II and that the individual States H under Entry 64 of List II alone are competent to legislate with respect to

- -

~ r

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 451

offences against public order.

After drawing our attention to some of the laws enacted by various States with respect to maintenance of public order, such as-

(1) Assam Disturbed Areas Act (19 of 1955);

(2) The Punjab Security of State Act, 1949;

(3) The Bihar Maintenance of Public Order Act, 1949;

(4) The West Bengal (Prevention of Violent Activities) Act, 1970;

(5) The U.P. Gangsters and Anti-social Activities (Act 7 of 1986);

(6) 'The J.K. Enemy, Agents Ordinance No. VIII of San 2005;

(7) The Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers and Drug Offenders Act, 1981; D

(8) The Kamataka Prevention of Dangerous Activities of Bootleg- .gers, Drug offenders, Goondas, Gamblers, Immoral Traffic and

Slum Grabbers Act, 1985it has been said that all those laws fall within the ambit of 'public order' E appearing in Entry 1 of List II. Mr. Balwant Singh Malik, in support of his contention, cited the following decisions declaring competency of the Provinces/States of the Federation/Union to make laws under 'public order':

(1) Lakhi Narayan Dass v. Province of Bihar, AIR (1950) F.C. 59; (2) F Romesh Thappar v. State of Madras, [1950] SCR 594; (3) Rev. Stainslaus v.

State of Madhya Pradesh, [1977] 2 SCR 611 and ( 4) Ashok Kumar Dixit v.

State of U.P., AIR (1987) All. 235 (F.B.).

Though, according to him, the individual States are legislatively G competent to provide for the maintenance of public order by creating new offences and by taking other measures within the States, if a situation with regard to the maintenance of public order concerns more than one State or the country as a whole, then it may be necessary for the Parliament to step in under Articles 249, 250 and 252 of the C9nstitution (which provisions have, however, not been relied upon when enacting the TADA) H

A and enact the law. Ho•vever, this will not justify giving any other meaning to Entry 1 of List III namely, 'Criminal Law' and Entry 1 in List II, namely, 'Public Order' read with Entry 64 and Entry 65 of that List.

Elaborating some of the entries of List II, it has been urged that the legislative power of the State of enact laws under 'Public Order' is contained in Entry 1 of List II and the power of the State to create the police-investigating agency - is under Entry 2 of List II and the legislative power to vest jurisdiction and confer powers on Courts to try such State offences falls under Entry 65 of List II and that a combined reading of the excluding clause of Entry 1 of List III and Entry 93 of List I and Entry 64 of List II completely exempts offences relating to 'Public Order' from the heading, 'Criminal Law' under Entry 1 of List III.

It has been further urged that the legislative power of the parliament under Articles 245 and 246(1) (2) read with List I and List III of the Seventh Schedule to the Constitution in regard to creating offences, under D Entry 93 of List I extends only to matters enumerated in that List and

under Entry 1 of List III in regard to matters in subsequent entries of that List.

Supplementing the above arguments, Mr. Ram Jethmalani, Senior Counsel advanced the other facet of the argument stating that this Act (28 of 1987) in 'pith and substance' relates to 'Public Order' as reflected from its preamble itself declaring the Act to be an Act to make special provisions for the prevention of and for coping with terrorist and disruptive activities and for matters connected therewith or incidental thereto. The 'pith and substance' of the Act, according to him, is in Sections 3, 4, 5 and 6 to which the rest of the Sections are merely incidental to or necessary for the implementation of the paramount purpose of the Statute and that if the 'pith and substance' of the legislation of covered by a particular Entry, any incidental encroachment on some other Entry does not change the character of the Act. The amendments brought under Act 28 of 1987 creating G Special Courts called Designated Courts, prescribing new procedure and inserting some provisions with regard to the admission of evidence in trials before the Designated courts, would justify that these amendments fall within Entry 2 and Entry 12 of List III whilst the Act remains as one falling under Entry 1 of List II.

H In support of his submission with regard to the doctrine of 'pith and

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 453

substance', he referred to the decisions in (1) Prafu/la Kumar Mukherjee A and others v. Bank of Commerce, AIR (1947) P.C. 60; (2) Ram Krishna Ramnath Agarwal v. Secretary, Municipal Committee, [1950] SCR 15; and

(3) The Kera/a State Electricity Board v. Indian Aluminum Co. [1976] 1 SCR

552. The learned counsel also cited two other decisions with regard to the scope of Entry 2 of List II, those being, (1) Ramesh Thappar (supra) wherein the Court after approving a pa>S_age from Stephen's Criminal Law of England has held that unlawful assemblies, riots, insurrections, rebellions etc. are all offences against public order, the difference among them being only a difference of degree and The Superintendent, Central Prison v.

Dr. Lohia [1960] 2 SCR 821.

Mr. Hardev Singh in his written arguments in Writ Petition No. 15432/84 which have been filed by the petitioner, Mr. Amrinder Singh as a public interest litigant challenging the constitutional validity of Act 61 of 1984 raised a similar contention that the Terrorist Affected Areas (Special Courts) Act, 1984 is unconstitutional for want of legislative competence.

Mr. K.T.S. Tulsi, the learned Additional Solicitor General in his attempt to expose the fallacy of the above submissions stated that the highly classified and strictly confidential information collected by and received from the Intelligence Organisation, which information is not to be disclosed

in public interest, unmistakably enfold that the secessionists forces working E to destabilize the sovereignty of India and its integrity are being encouraged by the neighbouring countries and that there are many training camps on the borders of India where training is imparted to militants and terrorists not only in the use of sophisticated and heavy weapons, including rocket launchers, machine guns, mines, explosives and wireless com- F munications but also to indulge in illicit trafficking of narcotic drugs, and psychotropic substances which unassailable facts are a matter of common knowledge and which can be taken into consideration by way of judicial notice. Many countries across the borders, according to him, are supplying deadly arms and ammunitions and are providing sanctuary to the extremist elements as a base for their training and doctrination.

In view of the above outrageous and volcanic circumstances and situations, in pith and substance, the Act is not related to 'Public Order' falling under Entry 1 of List II but relates to the 'Defence of India' falling under Entry 1, as well as Entries 2 and 2-A of List I read with Entries 1 H

A and 2 of List III.

According to Mr. Tulsi, the submissions of the other side that the subject of the impugned Act falls under Entry 1 of List II, namely, 'Public Order' is incorrect and fallacious.

We shall now carefully examine the submission made by the respective parties in the light of the import and intendment of the Acts under challenge and find out as to whether this Act (TADA) falls under Entry 1 of List II, namely, 'Public Order' or under Entry 1 of List I, namely, 'Defence of India' as well as entries 2 and 2{A) of List I read with Entries 1 (Criminal Law) and 2(Criminal Procedure) of List III. But before we do so, we would briefly taken note of the constitutional scheme relating to distribution of legislative powers between the Union and the States.

Under clause (1) of Article 2446, notwithstanding any thing in clauses

(2) and (3) of the said Article, the Parliament has exclusive power to make D laws with with respect to any of the 97 subject enumerated in List I of the

Seventh Schedule. Under clause (3) of the said Article, the State legislatures have exclusive powers to make laws with respect to 66 items enumerated in List II. The Powers in respect of the 47 items enumerated in List III are concurrent i.e. both the Parliament and the Legislature of

any State, subject to clause (1) have power to make laws. With regard to a law made in respect of matters enumerated in the Concurrent List provision has been in article 254 which gives overriding effect to a law made by Parliament in the event of there bring any repugnancy between the said law and the law made by legislature of a State and the State law would prevail over a law made by parliament only if such state law was enacted after the law made by Parliament and has received the assent of the President. While examining the question of legislative competence of parliament to make a law, the proper approach is to determine whether the subject matter of the legislation falls in the State List which Parliament cannot enter.

G If the law does not fall in the State List, the Parliament would have the legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question whether it falls under any entry in the ,.,,.. Union List or Concurrent List (See Union of India v. H.S. Dillon, [1972] 2 SCR 33 at Page 61 and 67-68; (ii) S.P. Mittal v. Union of India, (1983) 1 H SCR 729 at Page 769-770; (iii) Khandelwal Metal Works v. Union of India, -

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 455

Suppl. 1 SCR 750 at Page 775). It is, therefore, necessary to examine A whether the Act falls within the ambit of Entry I read with Entry 64 of the State List as contended by the learned counsel for the petitioners. But before we do so we may briefly indicate the principles that are applied for construing the enteries in the legislative lists. It has been laid down that the entries must not be construed in a narrow and pedantic sense and that widest amplitude must be given to the language of these entries. Sometimes the entries in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of the Court to find out its true intent and purpose and to examine the particular legislation in its 'pith and substance' to determine whether it fits in one or other of the lists. (See: Synthetics & Chemicals Ltd. v. State of U.P., [1989] Suppl. 1 SCR 623 at page 672.; India Cement Ltd. v. State of Tamil Nadu, [1989] Suppl. 1 SCR 692 at page 705).

This doctrine of 'pith and substance' is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e., a law D dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e., on a matter included in the List belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.

Lord Porter speaking for the Judicial Committee of the Privy Council F in Praful/a Kumar Mukherjee and Others v. Bank of Commerce, Khulna, AIR 34 (1947) PC 60 quoted with approval the observations of Sir Maurice Gwayer, C.J. in Subramanyan Chettiar v. Muttuswamy Goudan, (1940) FCR 188 to the effect:

"It must inevitably happen from time to time that legislation G though purporting to deal with a subject in one list touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting H

them may appear to have legislated in a forbidden sphere. Hence

r A ,

the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this

B list or in that."

Thereafter, their Lordship of the Privy Council held:

"Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment c of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with.

D Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between

E degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that it true nature is not concerned with Provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not F money-lending but promissory notes or banking? Once that ques-

~ tion is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content.

See also (1) re The Central Provinces and Berar, Act No. XIV of 1938

G AIR (1939) FC l; (2) Governor-Genera/ in Council v. Province of Madras, AIR (1945) PC 98; (3) Union of India v. H.S. Dillon, [1972] 2 SCR 33 and

(4) J and K State v. M.S. Farooqi, [1972] 3 SCR 881 wherein the dictum laid down in Subramanyan Chettear (Supra) has been referred to. >

Reference may now be made to the relevant Entries, namely Entries H 1 and 64 of State List which are as under:

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 457

"Enlry 1 : Public order (but nol including (the use of any navel, military or air force or any other armed force of the Union or of any other force subject to control of the Union or of any contingent or unit thereof) in aid of the civil power).

Entry 64 : Offences against laws with respect to any of the matters in this List.

Under the Government of India Act, 1935, the Provincial legislature had been conferred the power to enact laws in respect of matters enumerated in the Provincial List and Item 1 of the provincial List covered

the field of "public order (but not including the use of His Majesty's navel, C military or air forces in aid of the civil power)".

In Lakhi Narayan Das v. Province of Bihar, (1949-50) FCR 693, The expression

11public ordcr 11 has been described as a 'most comprehensive term' and it has been held that "maintenance of public order within a province is primarily the concern of that province". It has also further D observed that if the legislature has not exceeded its powers, il is not for the courts to criticise the wisdom or policy of the legislature. In Ramesh T7iapper v. The State of Madras, [1950] SCR 598 while holding that "public order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a E result of the internal regulations enforced by the Government which they have established, the Court has drawn a distinction between "public order" and security of a State. After referring to Entry 3 of the Concurrent List, the Court has observed:

''The Constilution thus requires a line to be drawn in the field of F public order or tranquility marking off, may be, roughly, the boundary belween those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if G they were differences in kind."

In Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 SCR

~~ 709, Hidayatullah, J (as the learned Chief Justice then was) has brought out the distinction between Jaw and order\ ''public order!! and !•security of the State" in the following observation : H

"It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public

order". One has to imagine three concentric circles. Law and order, represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."

C Having regard to the limitation placed by Article 245 (1) on the legislative power of the legislature of the State in the matter of enactment of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to "public order" under Entry I in the State List has to be confined to disorders of lesser gravity having D an impact within the boundaries of the State. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under Entry I of the State List but would fall within the ambit of Entry I of the Union List relating to defence of India and in any event under the residuary power

E conferred on Parliament under Article 248 read with Entry 97 of the Union List. The petitioners can succeed in their challenge to the validity of the Act with regard to the legislative competence of Parliament, only if it can be said that the Act deals with activities relating to public order which are confined to the territories of a particular State.

F In order to ascertain, the pith and substance of the impugned enactments, the preamble, Statement of objects and Reason, the legal significance and the intendment of the provisions of these Acts, their scope and the nexus with the object that these Acts seek to subserve must be objectively examined in the background of the totality of the series of events - due to the unleashing of terrorism, waves after waves, leading to G the series of bomb blasts causing extensive damage to the properties, killing of hundreds of people, the blood-curdling incidents during which the blood of the sons of the soil had been spilled over the soil of their motherland itself, the ruthless massacre of the defenceless and innocent people espe- ,/ cially of poor as if they were all 'marked for death' or for 'human sacrifice' H and the sudden outbreak of violence, mass killing of army personnel,

KARTAR v. STATE OF PUNJAB [PANDIAN.J.J 459

jawans of Boarder Security Force, Government officials, politicians, statesmen, heads of religious sects by using bombs and sophisticated lethal weapons thereby injecting a sense of insecurity in the mind of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the aliened violent crimes is shown to have been perpetrated, the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecedented and unprovoked occurrences, lead to an inescapable illation and conclusion that the activities of the terrorists and disruptionists pose a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges come by way of external aggression or internal disturbance.

The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public Order' disturbing the "even tempo of the life community of any specified locality" - in the words of Hidayatullah, CJ in Arnn Ghosh v. State of West Bengal, [1970] 3 SCR 288 but it is :nuch D more, rather a grave emergent situation created either by external force particularly at the frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity.

E The above view gets strengthened from the very definition of expression 'terrorist act' as defined in Section 2 (1) (h) of the Act 28 of 1987 stating that the said expression "has the meaning assigned to it in sub-section (1) of Section 3" according to which the intention to commit any offence or offences specified therein should be for ofie or more clearly defined objectives as expressly mentioned in section 3(1) reading:- F

"Whoever with intent to overawe the Government as by law estab- . lished of to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or G thing ..............................

Similarly, the expression 'disruptive activity' as defined under Section 2(1) (d) has the meaning assigned to it in Section 4. Section 4(1) prescribes only the quantum of punishment for disruptive activities. Section 4(2) gives the meaning of that expression thus: H

"4(2) For the purposes of sub-section (1), "disruptive activity" means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, -

(i) which question, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or

(ii) which is intended to bring about or supports any claim, whether directly of indirectly, for the cession of any part of India or the secession of any part of India from the Union.

" Explanation - For this purposes of this sub-section, ..

(a) "cession" includes the admission of. any claim of any foreign ·. country to any part of India, and

(b) "secession" includes the assertion of any claim to determine whether a part of India will remain within the Union."

The above definitions, would themselves make it clear that the expression 'Terrorist and Disruptive Activities' deploved in the preamble of the Act (28 of 1987 - TADA) contemplates the commission of any specified offence or offences with a specific intention one of which being "to overawe the Government as by law established" {Vide Section 3(1)} and "any action taken,' whether by act or by speech or through any other media or in any other'manner whatsoever, which questions disputes or is intended to disrupt whether directly or indirectly the sovereignty and territorial integrity of India or which intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union". {Vide Section 4(2)}

Therefore, the submission made by Mr. J ethmalani that the preamble of the Act gives a clue that the terrorist and disruptive activities only mean G a virulent form of the disruption of public order is inconceivable and unaceeptable.

In our view, the impugned legislation does not fall under entry 1 of List II, namely 'Public Order'. No other Entry of List II has been invoked.

The impugned Act, therefore, falls within the legislative competence of H Parliament in view of Article 248 read with Entry 97 of List I and it is not

1'-

•. ,,

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 461

necessary to consider whether it falls under any of the Entries in List I or A List III. We are, however, of the opinion that the impugned Act could fall within the ambit of Entry 1 of List 1, namely, 'Defence of India'.

Mr. Hardev Singh in his written arguments also challenged the vires of Act 61 of 1984 on many grounds (about which we shall deal separately while examining the various provisions of TADA Act, one of which being B the legislative competence). The learned counsel has questioned the legal competence of the impugned Act on the same line of arguments as advanced by Mr. Balwant Singh Malik. In support of his contention, he cited Dr. Ram Manohar Lohia v. State of Bihar and Others, (1966] 1 SCR 709 wherein this Court while dealing with Rule 30( 1) (b) of the Defence of C India Rules, 1962 had explained the difference between 'Public Order'.; 'Law and Order' and 'Security of India'.

In Act 61of 1984, the expression 'terrorist affected area' is defined in Section 2(1) (i) as meaning an area declared as a terrorist affected area under Section 3. Section 3( 1) reads thus: D

"3(1) If the Central Government is of the opinion that offences of the nature specified in the Schedule are being committed in any area by terrorists on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such E terrorists to have recourse to the provisions of this Act, it may, by notification,-

(a) declare such area to be a terrorist affected area; and

(b) .......................... .

The word 'terrorist' is defined in Section 2(1) (h) as follows:

"2(1) (h) "terrorist" means a person who indulges in wanton killing of persons or in violence or in the disruption of services or means

of communications essential to the community or in damaging G property with a view to-

(i) putting the public or any section of the public in fear; or

(ii) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; H

(iii) coercing or overawing the Government established by law; or

(iv) endangering the sovereignty and integrity of India''.

The above definition also requires more or less the intention as required under Section 3(1) of TADA, namely, Act 28 of 1987, and also the motive for commission of the terrorist act is akin to that of Section 4 of the TADA Act of 1987, i.e. one of the motives being to endanger the sovereignty and integrity of India. In short, the definition of the expressions 'terrorist act' and 'disruptive activity' under Section 2(1} (h} and (d) of Act 28 of 1987 (TADA) respectively are conjointly brought under the definition of the word 'terrorist act' in Act 61 of 1984. Therefore, the Act of 1984 also cannot be said to have contemplated only 'Public Order' but envisages a more grave situation threatening the sovereignty and integrity of India.

For all the reasons stated above, we hold \hat the contention the Acts 61 of 1984, 31 of 1985 and 28 of 1987 are ultravirus on the ground of suffering from lack of legislative competence and as such the entire Acts are liable to be struck down, is to be rejected and accordingly that contention is rejected as devoid of any merit.

The next spinal issue arises for our deepest probe and scrutiny i:s whether the impugned Acts in general or any of the provisions thereof in particular contravene any other fundamental right specified in Part III of the Constitution. All the learned counsel who have challenged the vires of these Acts and the provisions thereof have advanced their legal arguments both topic-wise as well as with reference to the individual provisions of the Acts.

To begin with their polemics, it was with reference to the proposition G of speedy trial which is the main objective 0f these Acts under challenge.

It was the submission of the learned counsel that though the professed object of Act 61of1984 (Special Courts Act) and of TADA Acts (Acts 31 of 1985 and 28 of 1987) is for speedy trial of the scheduled offences committed within the Terrorist Affected Areas (Special Courts) Act 1984 and of the offences falling within the definition of "Terrorist Act" and H "Disruptive Activity" under the TADA Acts, in reality these Acts make not

KARTAR v.STATEOFPUNJAB [PANDJAN, J.] 463

only a drastic departure from the prevalent procedure in respect of the A trial of similar offences in regular courts, but also serious inroads in the substantive rights in may respects causing irreparable erosion of the independence of judiciary and totally undermining both the Constitutional precepts and lex-scripta (statute law). According to them the procedural provisions of those Acts under the guise of speedy trial violate the venerated basic principles of fair trial, held dear all along, namely, that every person will be presumed innocent till his guilt is proved beyond reasonable doubt, 'according to the procedure established by law.'

The procedure prescribed under these Acts does not met the requirements implicit in Article 21 of the Constitution because the said C procedure is the anti thesis of a just, fair and reasonable procedure. Under the guise of providing speedy trial not only the procedural safeguards have been completely denied to the accused who are subjected to trial by Special Courts under 1984 Act or by the Designated Courts under the TADA Acts, but also the Acts have been substantially altered to the prejudice of the D accused. Therefore, the procedure prescribed by the Acts which falls foul of Article 21 should be held to be arbitrary, unfair, oppressive or unreasonable. In support of the above argument,. they drew our attention to Maneka Gandhi v. Union of India, [1978] 2 SCR 621 wherein it has been hold that any law which deprives a person of his life and liberty must be just and reasonable. To borrow the words of Krishna Iyer, J in that case E "'procedure' in Article 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece."

The preamble of Act 1984 (Special Courts) Act reads that it is "An Act to provide for the speedy trial of certain offences in terrorist affected F areas and for matters connected therewith." The object of the preamble is manifested in Sections 3(1) and 4(1) of that Act reading "For the purpose of providing speedy trial of scheduled offences committed in a judicial zone, the Central Government may est"blish, by notification, a Special Court... ............... " Though there is no explicit manifestation of such expres- G sion, 'speedy trial' found either in the preamble or in any of the provisions of the TADA Acts as in 1984 (Special Courts) Act, the scope and intendment of the various provisions of these TADA Acts perceivably conveys that the TADA Acts also contemplate speedy trial of cases. In fact, the 'Statement cif Objects and Reasons' of Act 31 of 1985 reading, "This is a new and overt phase of terrorism which requires to be taken serious note H

A of and dealt with effectively and expeditiously" makes it clear that the constitution of Designated Courts was for the speedy and expeditious trial of offences under the impugned legislation.

Now let us examine the principle of speedy trial underlying in Act 28 of 1987 (TADA).

The constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette for notified area/areas to try specified cases or class or group of cases (vide S. 9 of Act 28 of 1987); the procedure prescribed for disposal C of cases by making every offence punishable under the Act or any rule ma, de thereunder to be a cognizable offence within the meaning of clause

(c) of Section 2 of the Code of Criminal Procedure (vide Section 20); the dispensation o, f the committal proceedings (vide Section 14(1); the vesting of jurisdiction on the Designated Courts to try all offences under the Act by giving precedence over the trial of any other case against the accused D in any other court (not being a Designated Court) notwithstanding anything contained in the code or any other law (vide Section 17); the conferment of power on Designated Courts to try the offences triable by them punishable with imprisonment for a term not exceeding 3 years or with fine or with both in a summary way in accordance with the procedure prescribed E in the Code notwithstanding anything contained in sub-section ( 1) of Section 260 or 262 of the code and also as far as may be by applying the provisions of Sections 263 to 265 (vide Section 14 (2) and the vesting powers of a Court of Sessions on the Designated Courts for the purpose of trial of any offence-[vide Section 14(3)] and the empowerment of authority on the Designated courts to proceed with the trial even in the F absence of accused or pleader for the reasons to be recorded by it, but subject to the right of accused to recall witnesses for cross-examination (vide Section 14(5), the right of appeal straight to the Supreme Court as a matter of right against any judgment, sentence or order not being an interlocutory order (vide Section 19(1) etc., - all postulate the concept of G speedy trial in spirit under TADA Acts.

Speedy Trial:

The right to a speedy trial is a derivation from a provision of Magna Carta. This principle has also been incorporated into the Virgin.ia Decla- H ration of Rights of 1776 and from there into the Sixth Amendment of the

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 465

• Constitution of United States of America which reads, "In all criminal A , prosecutions, the accused shall enjoy the right to a speedy and public trial. ................. ' 1

It may be pointed out, in this connection, that there is a Federal Act of 1974 called 'Speedy Trial Act' establishing a set of time limits for B carrying out the major events, e.g. information, indictment, arraignment in the prosecution of criminal cases. See Black's Law Dictionary (Sixth Edilion) p. 1400.

The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing c

the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right is actuated in the recent past and the Courts have laid down series of dcisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the Courts for quashing of proceedings on the ground of inordinate and undue delay D stating that the invocation of this right even need not await formal indictment or charge.

The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and li"erty guaranteed and preserved E under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at .. all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it

~ consummates into a finality, can be averted. In this context, it may be noted F that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code Criminal procedure.

This Court Hussainara Khatoon and others (I) v. Home Secretary, State of Bihar, [1980] 1 SCC 81 p. 80 while dealing with the Article 21 of G the Constitution of India has observed thus:

"No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral H

and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would, be the consequent if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."

C See also (1) Sunil Batra v. Delhi Administration, [1979] 1 SCR 392;

(2) Hussainara Khatoon and Others v. Home Secretary, State of Bihar, (1979] 3 SCR 169; (3) Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, (1979] 3 SCR 532; (4) Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Govt. of Bihar, Patna, (1979] 3 SCR 1276; (5) Karda Pahadia

v. State of Bihar, (1983] 2 SCC 104; ( 6) T. V. Vathesswaran v. State of Tamil D Nadu, [1983] 2 SCR 348 and Abdul Rehman Antulay v. R.S. Nayak, [1992] 1sec225.

Thus this Court by a line of judicial pronouncements has emphasised and re-emphasised that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure E 'reasonable, just and fair' procedure which has a creative connotation after the decision of this Court in Maneka Gandhi (supra).

It is appropriate to refer two of the decisions of the Supreme Court of United States of America dealing with the scope of speedy trial which is a gnaranteed fundamental right incorporated by the Sixth Amendment of the Constitution of United States.

In Beavers v. Haubert 198 US 77, 87 (1905] the Supreme Court of U.SA. has observed thus:

"'The right of a speedy trial is necessarily relative. It is inconsistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

Recognising the right of an accused to approach the Court for dismissal of a criminal proceeding on the ground of speedy trial, the U .S H Supreme Court held in Strnnk v. United States, 412 US. 434 (1973] that the

KARTAR v. STATEOFPUNJAB [PANDIAN, J.] 467 - denial of an accused's right to speedy trial results in a decision to dismissal A ~

the indictment or in reversion of a conviction. See also United States v.

MacDonald, 435 U.S. 850 (1977].

Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice B by the delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantage to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factor: (1) Length of delay, (2) the justification for the delay, (3) the c accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons for delay will vary, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally, the deliberate D absence of witness or witnesses, crowded dockets on the file of the Court etc.

When the issue under debate is examined in the light of the above briefly enuciated principle of speedy trial, the said principle, expressly contemplated in the Act 61 of 1984 (Special Courts Act) and manifested E in the two TADA Acts under various provisions as pointed out supra, is evidently incorporated as the essential feature of those Acts. There can be no controversy or difference of opinion in invoking the speedy trial of cases under the impugned Acts but the question is whether the procedure

-~ prescribed violates any of the fundamental rights of the Constitution.

Yet another argument qua the just and fair trial read into Article 21 has been submitted firstly contending when there is no proclamation of emergency in operation and when all the fundamental rights conferred by Part III of the Constitution are available for enforcement, the right to have G a fair trial cannot be whittled down or militated against and; secondly even when a proclamation of emergency is in operation, the President under Article 359( 1) of the Constitution of India can by order declare that the right to move any Court for the enforcement of the fundamental rights conferred by Part III and all the proceedings in any Court for the enforcement of such rights, shall remain suspended during the period of emer- H

A gency but not the rights conferred by Articles 20 and 21. To put in nutshell, the enforcement of the fundamental rights conferred under Articles 20 and 21 of the Constitution can be exercised and enforced even during emergency. To better understand, the legislative history with regard to the exemption of Articles 20 and 21 from operation even during emergency

B may be briefly recapitulated.

Prior to the enactment of the Constitution (Forty-fourth Amendment) Act, 1978 hich came into force w.e.f. 20th June 1979, .Ji the rights conferred by Part III including the rights under Articles 20 and 21 could be suspended during emergency. But the exemption was given by the above C Amendment Act for the reasons spelt out in the 'Object and Reasons' of the Forty-forth Amendment, which read thus:

'. "Objects and Reasons . ' ..

Recent experience has shown that fundamental rights, granted to citizens, by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one on the primary objects of this Bill.

.~ ···················································································································· 'l• ···················································································································· :I

As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move. the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty :: ................................................................................... .

" To achieve the above objects, the Parliament by Act, 1979 substituted the words "the rights conferred by Part III (except Article 20 and 21)" in clauses (1) and (lA) of Article 359 for the ward "the rights conferred by H Part !Ir'. t

KARTAR v. STATE OF PUNJAB [PAND!AN, J.] 469

Undeniably, when the three Acts Under challenge were enacted, A there was no emergency. Therefore, all the fundamental rights under part III since the enactment of Act of 1984 continued to be enforceable rights.

But it is not the contention of the parties that the Acts impugned or any Act similar to them should not be enacted in the absence of proclamation of emergency. Needless to emphasise that it is for Parliament to enact any B law without infringing any of the provisions of the Constitution and within its legislative competence depending upon the need for such enactment.

Now we shall examine the key questions (1) whether the procedure prescribed under the Acts of 1984 and 1987 is the antithesis of the just, fair and reasonable procedure; (2) whether the procedural safeguards to which the accused is entitled to, have been completely denied to the prejudice and disadvantage of the accused, (3) whether the Acts are tyrannical and despotical in character and discriminatory in application and ( 4) whether the provisions of these Acts are violative of the fundamental rights embodied under Articles 14, 19 and 21.

D We shall now give a close a scrutiny to all those above complicated questions of unrivalled complexity debated before us which cause considerable anxiety to the Court for reaching a satisfactory conclusion, under different topics with reference to the various provisions of the Acts by carefully scanning through the legal submissions eloquently articulated by E both sides, and decide as to whether the provisions under challenge have to read them down or to read anything into them.

Definition of the 'Word', ''Abet":

It has been seriously contended that the definition of the word 'abet' F in Section 2 (l)(a) of 1987 Act is without any clarity and is an instance of the first kind of unfairness and also blissfully vague creating a state of tyranny and this imprecise definition helps in even innocent persons who are totally free from any moral blameworthiness, to be arrested, detained and prosecuted. It is further stated that the word 'abet' is adequately defined in Section 107 of the Indian Penal Code to meet every legitimate G need and purpose of criminal law, and that the definition of the word as given in the Act which smacks of arbitrariness is an instance of the first kind of unfairness within the dictum laid down in Maneka Gandhi and deserves to be struck down as being violative of Articles 14 and 21 of the Constitution.

The learned Additional Solicitor General countering the above arguments stated that the expanded definition of 'abet' is to fulfill the objects of the Act during the period when the terrorists activities on escalated scale continue unabated in any notified area and in such disturbed times it is difficult for the prosecution to prove 'mens ren' or 'intention' while proving the physical facts. In continuation he stated that the submission that the definition is vague, is unfounded as the said definition is merely inclusive and illustrative and the very nature of things could not have been exhaustive. He listed a number of various provisions of a number of enactments wherein the proof of the element of mens rea is excluded, namely, (1) Sections 7 and 16 of the Food Adulteration Act of 1954; (2) Section 8(1), C 23(A) and 23 (l)(A) of the Foreign Exchange Regulation Act; (3) Section 178-A of the Sea Customs Act, 1878; ( 4) Section 123 (7) of the Representation of People Act.

He also placed reliance on a number of decisions in support of the D above submission, namely, (1) Satju Prasad v. State of U.P., [1961] 3 SCR 324 at page 327; (2) Pukhraj v. D.R. Kohli, [1962] Supp. 3 SCR 866 at page 873; (3) NaOiu/al v. State of M.P., AIR (1966) SC 43; (4) Dr. Y.S. Pannar

v. Shri Hira Singh Paul, [1959] Supp. 1 SCR 213; (5) State of Maharashtra

v. Mayer Hans George, [1%5] l SCR 123. (6) Jagdish Prasad v. State of West Bengal, [1972] 2 SCR 845; and (7) Collector of Customs v. Chetty, [1962] 3

E SCR 786.

The definition of the word 'abet' as defined under Section 2 (l)(a) of 1987 Act is as follows:

"2(1)In this Act, unless the cor:text otherwise requires, -

(a) 'abet', with its grammatical variations and cognate expressions, includes -

(i) the communication or association with any person or class of persons \Vho is engaged in assisting in any manner terrorists ot disruptionists;

(ii) the passing on, or publication of, without any lawful authority, any information likely to assist the terrorists or disruptionists and the passing on, or publication of, or distribution of, any document or matter obtained from

I •

KARTAR v.STATEOFPUNJAB [PANDIAN, J.] 471

terrorists or disruptionistS;

(iii) the rendering of any assistance, whether financial or otherwise, to terrorists or disruptionists;"

The above definition is an inclusive definition. The meaning of the word 'abet' which is a verb is that whoever is in communication or associa- B tion with any person or class of persons engaged in assisting in any manner terrorists or disruptionists or passes on, or publishes of, without any lawful authority, any information likely to assist the terrorists or disruptionists' or passes on or publishes or distributes any document or matter obtained from the terrorists or disruptionists and/or renders any assistance whether financial or otherwise to the terrorists and disruptionists. c

In common parlance, the word 'abet' means assistance, cooperation and encouragement and includes wrongful purpose.

In Corpus Juris Secundum Vol. 1 at page 306, the meaning of word 'abet' is given as follows: D

"To abet has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce, or assist; to encourage or to set another on to commit.

Used with 'aid'. The word 'abet' is generally used with the word 'aid' and similar words."

Section 107 of/ndian Penal Code defines the word, 'abetment' (which is a noun) as follows:

"107. Abetmcnt of a thing - A person abets the doing of a thing, who -

First - Instigates any person to do that thing; or

Secondly - Engages with one or more other person or persons in G any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

Section 108 of the Indian Penal Code defines the word, 'abettor' thus:

"108. Abettor - A person abets an offence, who abets either the commission of an offence, or the commission of an act which would B be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."

,- The offence of 'abetment' is committed by a person either c

(1) by instigating a person to commit an offence; or

(2) by engaging in a conspiracy to commit it; or

(3) by jntenlionally aiding a person to cdmmit it.

D In order to bring a person abetting the doing of a thing, under any one of he clauses enumerated under Section 107, it is not only necessary to prove that the person who has abetted has tabn part in the steps of the transactions but also in some way or other he has been connected with those steps of the transactions which are criminal. The Offence of abetment

E depends upon the intention of the person who abets, and not upon the act

- which is actually done by the person whom he abets.

Section 3(1) of The General Clauses Act, 1897' gives the meaning of the word 'abet' thus:

F "3(1) - 'abet', with its grammatical variation and cognate expressions, shall have the same meaning as in the Indian Penal Code ( 45 of 1860)"

The lexicon meaning of the word 'abet' is given in Collins English Dictionary as, "to assist to encourage, esp. in crime or wrong doing." G The learned counsel who critically attacked the definition of the word "abet' stated that under the definition 2(2)(a) even a person who is entirely innocent of any terrorist or disruptive activities may be punished and subjected to the prescribed minimum sentence of five years, and, therefore, • in order to remedy the patent deficiency or defect in this definition, the H principle of 'mens rea' should be injected and read into it.

KARTAR v. STATE OF PUNJAB (PANDIAN, J.] 473

The learned counsel in support of the above argument drew our A attention to a decision of this Court in Inder Sain v. State of Punjab, [1973] 2 SCC 372 wherein this Court while disposing a criminal appeal in which the accused stood convicted under Section 9( a) of the Opium Act, 1878 on the allegations that the appellant was found in possession of a parcel which was on opening found to contain opium, held:

" ........................................ Knowledge is an essential ingredient of the offence as the word 'possess' connotes, in the context of Section 9, Possession with knowledge.

The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession. 11

On the strength of the dictum laid down in the above decision, they D submitted that 'mens rea' is an essential element in every offence and in the absence of proof of 'mens rea' none can be mulcted with any criminality especially in cases where deterrent sentence is called for.

In support of their submission that the definition is very vague, our attention was drawn to a passage from the judgment of Chandrachud, CJ E in A.K Roy, etc. v. Union of India and Another, (1982) 2 SCR 272 at 293 which reads as follows:

" ..................... The word 'established' is used in Article 21 in order to denote and ensure that the procedure prescribed by a law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. "

(emphasis supplied)

Though normally the plain ordinary grammatical meaning of an G enactment affords the best guide and the object of interpreting a statue is to ascertain the intention of the legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning. See (1) Salmond: "Jurisprndence,' 11th Edition, P. 152; (2) H

A South Asia Industries (Pvt.) Ltd. v. S. Sarnp Singh, AIR (1966) SC 346, 348 and (3) S. Narayanaswami v. G. Panneerselvam, AIR (1972) SC 2284, P. 2285.

In a recent decision in Directorate of Enforcement v. Deepak Mahajan & Anr., (1994) 1 JT 290 at p. 302 a Bench of this Court to which one of us

(S. Ratnavel Pandian, J) was a party has held that " .......... it is permissible for Courts to have functional approaches and look into the legislative . intention and sometimes may be even necessary to go behind the words and enactment and.take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result ................. "

In a criminal action, the general conditions of penal liabilities are indicated in old maxim

1'Actus non facit rea1n nisi mens sitrea" i.e. the act alone does not amount to guilt, it must be accompanied by a guilty mind.

But there are exceptions to this rule and the reasons for this is that the D legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge.

However, unless a statute either expressly or by necessary implication rules E out 'mens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions of the Statute. The question is not what the word means but whether there are sufficient grounds for inferring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of 'abet'.

F There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into cGnsideration as to whether the element of 'mens rea' or actual knowledge should be imported into the definition. See (1) Brand v. Wood 62 TLR 462-463; (2) Sherras v. De Rutzen, 1 B 918; (3) Nichols v. Hall, LR [1873] G 8 CP 322; and (4) Inder Sain v. State of Punjab (Supra).

This Court in State of Maharashtra v. M.H. George, AIR (1965) SC 722 while examining a question as to whether mens rea or actual knowledge is an essential ingredient of the offence under Section 8(1) read with Section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, when H it was shown that the respondent (accused) in that case voluntary brought

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 475

gold in India without the permission of Reserve Bank, held by majority that A the Foreign Exchange Regulation Act is defined to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country and the provisions have therefore to be stringent aiming at eliminating smuggling. Hence, in the background of the object and purpose of the legislation, if the element of mens rea is not by necessary implication invoked, its effectiveness as an instrument for preventing of smuggling would be entirely frustrated.

But Subba Rao, J dissented and held thus:

" ........ the mere fact that the object of a statue is to promote welfare C activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law: can he do anything to promote the observance of the law? Mens rea by D necessary implication can be excluded from a statute only where it is absolutely clear tat the implementation of theobject of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied E in a statute creating an offence depends upon the object of the Act and the provisions thereof."

Thereafter, a similar question arose in Nathu Lal v. State of Madhya Pradesh, AIR (1966) SC 43 as regards the exclusion of the clement of mens rea in the absence of any specific provision of exclusion. Subba Rao, .I.

F .- reiterated his earlier stand taken M.H. George and observed thus:

•••••••••• Mens rea is an essential ingredient of a criminal offence.

Doubtless a statute may excluse the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in G conformity with the common Jaw rather than against it unless the statute expressly or by necessary implication excluded mens rea.

The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded H

from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated."

See also (1) Srinivas Mall v. King Emperor, AIR (1947) PC 135; (2) Hariprashada Rao v. State, (1951] SCR 322; and (3) Smjoo Prasad v. State

of Uttar Pradesh, (1963] 3 SCR 324.

In this connection, we would also like to make reference to a judgment of Bombay High Court in State v. Abdul Aziz, AIR (1962) Vol. 49 C Born. 243 wherein a Division Bench while dealing with Section 5 of the Imports and Exports (Control) Act, 1947 under which the respondent

(accused) was prosecuted has held thus:

"Section 5 of the Act of 1947 by itself makes no reference to mens rea. Abetment of the contravention of the Order is coupled D together with contravention itself in the same provision. It must, therefore, be treated as standing on the same footing. In our view, therefore, the offence of abetment also would not require any kind of mens rea.

The above observation would be tantamount to saying that "when no E mens rea is essential in the substantive offence, the same Is also not necessary in the abetment thereof."

• We shall now go into the question as to whether the Legislature has imported the essential ingredient of criminal offence, i.e. 'mens rea' in the substantive offences of the Act of 1987.

True, the provisions of the TADA Acts are framed with very stringent provisions, of course, 'for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto'. The question may be whether effectiveness of this G instrument would be entirely frustrated if the element of mens rea or the element of actual knowledge on the part of the offender is to be injected or read into the definition.

Generally, it is one of the essential principles of Criminal Jurisprudence that a crime is not committed if the mind of a person doing H the act in question, is innocent. Therefore, to constitute a crime, the intent

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 477

and act must both concur.

In the backdrop of the above legal position, we shall deal with the submissions made by the learned counsel with reference to the substantive offence or offence specified under the main Act itself.

In the Act of 1984, the word 'abet' is not defined. But the definition B of the word 'terrorist' in that Act requires the person indulging in the act of terrorism and to be show to have committed the terrorist act with a view of committing any of the offences enumerated under clauses (i) to (iv) of the definition of the word 'terrorist' given under Section 2(1) (h). The scheduled offences i.e. Sections 122 and 123 of the India Penal Code expressly require intention on the part of the person committing those offences, though intention is not required under Sections 121and121-A of the !PC and Sections 4 and 5 of the Anti-Hijacking Act, 1982 which are also scheduled offences in that Act. Under the note given lo the Schedule,

il is stated that the offence of criminal conspiracy or attempt to commit, or abetment of, an offence specified in this Schedule shall be deemed to D be a schedule offence.

Under the Act of 1985 also, the word 'abet' is not defined. Nonetheless Sections 3 and 4 of this Act which deal with punishments for the substantive offences of terrorism and disruption respectively make the E abetment of both the substantive offences also as penal offences. The definition of the word, 'abet' is given for the first time in the Act of 1987

(TADA).

Section 3(1) which gives the meaning of the expression 'terrorist' specifically requires the intention on the part of the offender committing a F terrorist act. Similarly, Section 4(2) (i) and (ii) also requires that the person committing the disruptive act should be shown to have intended to do that act. The provisions of Sections 3 and 4 of the Acts 1985 and 1987 are identical. Thus, it is very clear that the substantive offences require intention on the part of the person committing the terrorist act or the disruptive G act. The abetment of the commission of these two offences come under Sections 3(3) and 4(1) of the Act of 1987. The word 'abet' does also appear under section 6(2) which deals with 'enhanced penalties'.

Therefore, when the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offenc.e, can H

A it be said that the ingredient of intention should be excluded on the part of the abettor who abets those substantive offences. In other words, can it be said that the abettor has abetted the substantive offence without any guilty mind (mens rea) or without actual knowledge as to what would be tlie consequence of his designed act.

B Now turning to the definition, in question, clauses (ii) and (iii) need not require any exposition since both the clauses themselves are self-ex- •· planatory. As rightly pointed out, the definition of the word, 'abet' as given ,_/ , in Section 2(1) (i) is with wide flexibility rather than with meticulous specificity. Therefore, we have to explore its allowable meaning so that C there may not be any uncertainty inevitably leading any person in much difficulty in understanding acts prohibited by law so that he may act accordingly.

It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws D offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissible delegates basic policy matters to policemen and also Judges for resolution E on an ad-hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to 'steer far wider of the unlawful zone ....... than if the boundaries of the forbidden areas were clearly marked'.

Let us examine clause (i) of Section 2(1)(a). This Section is shown F to be blissfully and impermissible vague and imprecise. As rightly pointed out by the learned counsel, even innocent person who ingenuously and undefiledly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any G manner terrorists or disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted.

The counter submission made by learned Additional Solicitor H General justifying the exclusion of 'n1ens rea' or intention or knowledge on

KART AR v. STATE OF PUNJAB [PANDIAN, J.] 479

the part of the person who communicates or associates with any person A who is Cngagcd in assisting in any manner terrorists or <lisruptionists cannot be countenanced in view of the fact that the substantive offences require by express provisions the intention on the part of the abettor. The decision relied upon by him cannot be of any assistance to support his plea for exclusion of intention in vie\v of the various factors inclusive of the requirement of the intention for the substantive offences.

Therefore, in order to remove the anomaly in the vague and im-

1 -... precise definition of word, 'abet', we for the abovementioned reasons, are of the view that the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any C manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged \ in assisting in any manner the terrorists and disruptionists.

To encapsuiate, for the discussion above, the expressions D 'communication' and 'association' deployed in the definition should be qualified so as to save the definition, in the sense that 'actual knowledge or person to believe' on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning "the com- E munication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists" so that the object and purpose of that clause may not otherwise be defeated and frustrated.

F Section 3 of Special Courts Act, 1984

Challenging the validity of Section 3 of Act of 1984, it has been contended that the power vested under Section 3 (1) on the Central Government to declare by notification any area as 'terrorist affected area' G and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit, is not only vague but also without any guidance.

The pre-requisite conditions which are sine-quo-non for declaring any area as 'terrorists affected area' by the Central Government by virtue of the authority conferred on it under Section 3(1) of the Act of 1984 are: H

(1) The offences of the nature committed m any area to be declared as 'terrorists affected area' should be one or more specified in the Schedule;

(2) The offences being committed by terrorists should satisfy the definition of the nature of the offence mentioned in Section 2(1)(h), namely, indulging in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to commit any of the offences enumerated under any of the clauses (i) to (vi) indicated under the definition of the word 'terrorist';

(3) The scheduled offences committed by terrorists should be on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act.Tl

Unless all the above three conditions are fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as 'terrorist affected area'. In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that the Section 3(1) suffers from vagueness and lacks guidance is unmerited.

In this regard, we would like to add that the learned Additional Solicitor General in his attempt to sustain the validity of Section 3 of the F 1984 Act, submitted that the Legislature considered it proper to prescribe a uniform procedure for serious offences having a direct relationship with peace and tranquillity of the area in the notified area after the notified date and that serious offences which are likely to create terror and panic in the minds of the people were/are sought to be dealt with under the Act by prescribing a speedier trial so that disturbed situations could be brought G under control without loss of time to prevent the situatoin from getting deteriorated and spreading to other areas.

We see some force in the above submission while negativing the contention of the counsel challenging the validity of Section 3 of the Act H of 1984.

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KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 481

Sections 3 and 4 of 1987 Act (TADA)

The legality and the efficaciousness of Sections 3 and 4 of 1987 Act have been assailed on the following grounds, namely,-

(1) These two Sections cover the acts which constitute offences under ordinary laws like the Indian Penal Code. India Arms Act B and Explosive Substance Act;

(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under this impugned Act of 1987; and c

(3) This Act and Sections 3 and 4 thereof should be struck down on the principle laid down in State of West Bengal v. Anwar Ali Sarkar, (1952] SCR 284 and followed in many other cases including A.R. Antu/ay v. union of India, (1988] 2 SCC 764.

Section 3 of the Act is as follows: D

"3. Punishment for terrorist acts. - (1) Whoever with intend to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affected the harmony amongst dif- E ferent sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, F or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist G act.

(2) Whoever commits a terrorist act, shall, -

(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also H

be liable to fine;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

( 4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine".

Since the Parliament has introduced two more sub-sections (5 and

6) to Section 3 of the Act of 1987 by the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (Act 43 1993) w.e.f. 22nd May 1993, in order to have the full text of the Section as amended, we reproduce those sub-sections hereunder:

"(5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

( 6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

Section 4 of the Act reads as follows:

4. Punishment for disruptive activities -

(1) Whoever commits or conspires or attempts to commit or abets,

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KARTAR v. STATEOFPUNJAB [PANDIAN, J.] 483

advocates, advises, or knowingly facilitates the commission of, any A disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(2) For the purpose of sub-section (1), "disruptive activity" means B any action taken, whether by act or by speech or through any other media or in any other manner whatsoever -

(i) which questions, disrupts or is intended to, whether directly or indirectly, the sovereignty and territorial integrity of India,; or

(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.

Explanation. - For the purpose of this sub-section -

(a) "cession" includes the admisoion of any claim of any foreign country to any part of India, and

(b) "secession" includes the assertion of any claim to determine whether a part of India will remain within the Union.

(3) Without prejudice to the generality of the provisions of subsection (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner

whatsoever, which - F

(a) advocates, advises, suggests or incites; or

(b} predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt,

the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of the India or any public servant shall be deemed to be a disruptive activity within the meaning of this section

( 4) Whoever harbours or conceals, or attempts to harbours or H

conceal, any disruptionist shall be punishable With imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

True, the offences arising out of the acts, enumerated in Sections 3 and 4 may be similar to the offences falling under the ordinary penal laws.

In other words, various offences arising out of the terrorist or disruptive activities may overlap some of the offences covered by the other ordinary penal laws. It is not in dispute that the above provisions which define the expressions 'terrorist act' and 'disruptive activities' provide severe punishment and also prescribe minimum sentence for some acts constituting offences falling within the two provisions. Section 6 of the Act of 1987 provides 'Enhanced penalties' for a person who with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable Substances Act, 1952 (20 of 1952) - of not less than five years but which D may extend to imprisonment for life and with fine, notwithstanding anything contained in the Acts, or the rules made under the respective Acts.

Section 6(2) reads:

"For the purposes of Section, - any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provision of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of sub-section (1) shall, in relation to such person, have effect subject to the notification that the reference to 'imprisonment for life' shall be construed as a reference to 'imprisonment for ten years'

11 •

Part III of the creates a special machinery for trying the terrorists and disruptionists charged with the commission of any offence under the G Act, namely, constitution of Designated Courts, its jurisdiction, power, power of trial with respect to other offences and to transfer cases to regular Courts, procedure to be followed etc.

As we have indicated above, the Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punish H ments and to some other offences enhanced penalties also. The provisions

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 485

prescribing special procedures aiming at speedy disposal of cases, depart- A ing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with offenders indulging in terrorist and disruptive activities, secondly that the incensed offences are arising out of the activities of the terrorists and disruptionists B which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the cession of any part of India or the secession of any part of India from the Union, and which create terror and a sense of insecurity in the minds of the people. Further, the Legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under C this law so that the object of the legislation may not be defeated and nullified.

As pointed out by Ahmadi, J in Niranjan Singh K.S. Punjabi v.

Jitendre Bhimraj Bijjaya, [1990) 4 SCC 76 the statutes which impose a term of imprisonment for criminal action under that law must be strictly con- D strued. In fact, this Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, [1988] 2 SCC 271 has observed as under:

"The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The E intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country."

Agreeing with the above view in Usmanbhai's case (supra) Ahmadi, J in Niranjan's case (supra) stated thus: F "While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences G under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judges to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those H

whom .the legislature. did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him. 11

Therefore, having regard lo object and purpose of the Act of 1987 C as reflected from the preamble and the Statement of Objects and Reasons of the Act, the submission made questioning the legality and efficaciousness of Sections 3 and 4 on the grounds (1) and (2) mentioned above cannot be countenanced. So far, as the ground No. (3) is concerr ; d since we intend to deal with the principle laid down in Anwar Ali (supra) with reference to Article 14 of the Constitution while dealing with issues of the D class or classes or offences and 'test of equality' before law, in the later part of this judgment in detail, for the present we may say that the validity of these two provisions cannot be challenged under the third ground also as we do not find any discrimination in view of the separate machinery provided for the trial of the cases under this Act to achieve the object of E it.

Section 8 of 1987 Act

Mr. V.M. Tarkunde attacks this provision which provides for forfeiture of property of certain persons convicted by the Designated Court of F any offence punishable under this Act or any rule made thereunder,

contending that this Section is violative of Articles 21 and 14 on the ' grounds that (1) no guidelines have been provided for when the properly of a convicted person should or should not be forfeited; and (2) forfeiture to Government 'free from all encumbrances' may amount in many cases to G unmerited punishment of third parti_es who have no concern whatsoever with the offence with which the person under this provision has been convicted and who have got interest by advancing money on the security of the forfeited property. ,

This argument is resisted by the learned Additional Solicitor General H contending that Section 8 only vests the property or interest of the

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 487

 'terrorist' in the state and does not forfeit the third party's interest and that A the third party can always enforce its rights against the 'terrorists' in respect of its interest in the forfeited property according to law notwithstanding the forfeiture.

Section 8(1) of the Act gives discretionary power to the Designated B Court while awarding any punishment on conviction of an offence under the Act or any rule made thereunder, to pass an order in writing, declaring that any property whether movable or immovable or both, specified in the order belonging to the convicted person, shall stand forfeited to the Government free from all encumbrances. c Sub-section (2) of Section 8 states that it is open to the De.signaled Court truing an accused for ariy offence under the Act or any rule made thereunder to pass an order attaching "11 or any of the properties belonging to the accused during the period of his trial and in case the trial ends in conviction, the property will stand forfeited to the Government free from D all encumbrances.

Sub-section 3(a), (b) and (c) of Section 8 gives discretionary authority to the Designated Court to attach the property of an absconding accused and also the power to the Designated Court. to apply Sections 83 . to 85 of the Code of Criminal Procedure to such attachment as if the E attachment was made under the Code of Criminal Procedure.

Section 82 of the Code deals with proclamation of persons absconding. Section 83 deals with attachment of property of persons absconding.

Section 84 deals with the Claims and objections to attachment. Sub-section F

(1) of Section 84 envisages that if any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person on the ground that the claimant or objector has an interest in such property and that such interest is not liable to attachment G under Section 83, the claim or objection shall be inquired into, and may be allowed in whole or in part.

We are not very much concerned about the sub-sections (3) and (4) of Section 8 of the TADA but only with regard to sub-sections (1) and (2) of Section 8.

The discretionary power given to the Designated Court under Section 8 (1) and (2) is to be exercised under the strict contingencies, namely that (1) there must be an order of forfeiture and the order must be in writing; (2) the property either movable or immovable or both must belong to the accused convicted of any offence of TADA or Rule thereunder; (3) the property should be specified in the order; ( 4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise.

The very fact that the order should be in writing implies that the Designated Court must give reasons for such an order even though the C Section does not specifically require the Designated Court to record its reasons for so doing, because the word 'order' even according to the lexicon meaning is that it is a decision of direction either interlocutory or preliminary or final by the Court trying the offence. Secondly, under Section 19 of the Act, an appeal lies straight to the Supreme Court as a D matter of right from any order not being interlocutory order both on facts and law.

For the above reasons, this contention fails.

Section 9 of 1987:

The validity of this Section, which deals with the constitution of one or more Designated Courts for such area of areas, or for such case or class or group of cases specified in the notification issued by the Central Government or a State Government, is assailed firstly on the ground that it is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution, and secondly that sub-section (7) of Section 9 is opposed to the principle of fair trial enshrined in Article 21 of the Constitution.

We shall now deal with the first contention.

We have elaborately discussed about the legislative competence of the Parliament in legislating this law and rendered our finding that the Parliament is competent to enact the law (TADA) under residuary power under Article 248 of the Constitution read with Entry 97 of List I as well as Entry 1 of List I, namely, 'Defence of India' but not under Entry 1 of H List II, namely 'Public Order'. Entry 95 of List I reads "Jurisdiction and

KARTAR v. STATE OF PUNJAB (PANDIAN, J.] 489

powers of all courts, except the Supreme Court, with respect to any the A matters in this List. .................. "

As we have now found this impugned Act is enacted under Entry 1 of List I, the constitution of the Designated Courts by the Central Government cannot be said in violation of Entry 65 of List II which empower the State Legislature to constitute the Courts. Under Section 9 of the Act, both B the Central Government and the State Governments are authorised to constitute Designated Courts by notification under sub-section (2) of Sec- • .,_ tion 9. It is made clear that the Courts constituted by the Central Government either before of after the issue of the notification constituting the Designated Courts by the .State Government shall have jurisdiction to try C any offence committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try

• ' •

any offence committed in that area or areas.

In addition, sub-section (3) of the impugned Section states that where any question arises as to the jurisdiction of any Designated Court, D the decision taken by the Central Government in the regard will be final.

For the foregoing discussion, we see no substance in the contention that Section 9 is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution.

Now let us proceed to consider the second attack on the validity of sub-section (7) of Section 9.

Under Section 9(1), the Central Government or a State Government

may constitute one or more Designated Courts for such area or areas, or F for such case or class or grotip of cases as may be specified in the notification. Sub-Section (2) of the Section deals v, ith the jurisdiction of the Designated Court constituted by the Central Government and preferential jurisdiction of the Designated Court constituted by the Central Government qua the Designated Court Constituted by a State Government.

Sub-section (3) deals with the decision to be taken by the Central Govern- G men! in case of any question of dispute whatsoever with regard to the jurisdiction of any Designated Court as earlier pointed out. Subsections

(4) and (5) speak of the appointment of Judges to the Designated Court while sub-section (6) speaks of the qualification of the Judge to be appointed.

Sub-section (7) of Section 9 which speaks of the continuance of the service of the Judge is challenged on the ground that the continuance of a Judge of a Designated Court even after attainment of the age of superannuation is a regressive provision because a Judge who is permitted to hold the office, hitherto held, after superannuation will not be having his judicial independence; but on the other hand he, holding the office on the pleasure of the executive, will be subversive since there is nothing to prevent the executive from terminating his appointment as and when it likes. This legal sanction of continuance in the service, according to the learned counse~ will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Article 21. For sustaining the above submission, reliance was placed on In re special courts Bill, [1979] 2 SCR 476.

In that case, reference was made by the President under Article 143

(1) of the Constitution for consideration of the question whether the Special Courts Bil~ 1978 or any of its provisions if enacted would be constitutionally invalid. Clause (7) of the Bill provided that a Special Court D shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge in a High court in India and nominated by the Central Government in consultation with the Chief Justice of India. (As we are concerned only with the question of the continuance of a Judge holding the office even on attaining the age of E superannuation, we are not concerned about the other provisions or clauses of the Special Courts Bill.)

Chandrachud, CJ speaking for the majority answered this question holding thus:

"We are, therefore, of the opinion that clause 7 of the Bill violates article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to pre-side over a Special Court, merely in consultation with the Chief Justice of India."

On carefully going through the decision, we are of the view that the observation of this Court with reference to clause (7) of the Special Courts Bill cannot be strictly applied to the situation of the continuance of a judge of a Designated Court under Section 9(7) for the reason that the person who was to be nominated by the Central Government in consultation with H the Chief Justice of India under clause (7) or the Special courts Bill was a

.. .

1.,.

KARTAR v.STATEOFPUNJAB (PANDIAN, J.] 491

person who had held the office as a Judge of the High Court, that is to say A the appointment was after the retirement. But in the present Act, the Judge is permitted to continue the same judicial service as a Judge or Additional Judge, as the case may be, on the attainment of superannuation. In other words, the Judge on the attainment of the age of superannuation does not retire.

Therefore, we see no force in the above argument challenging the constitutional validity of Section 9(7) by availing the observation in Jn re Special Courts Bill. However, we would like to suggest that the Central Government and the State Government at the time of appointing a Judge

or an Additional Judge to the Designated Court with the concurrence of C the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence Section 9(7) does not offend any Constitutional provision.

Section 11(2) of 1987 Act

A serious argument has been advanced in respect of Section 11(2)

of the 1987 Act (TADA) which provides for the transfer of any case pending before one Designated Court in State to any other Designated E Court within that State or to any other Designated Court in any other State.

According to Mr. V.M. Tarkunde, unless it is read into Section 11(2) that a transfer will be made only after hearing the accused, the provision would be contrary to the rule of natural justice and the Sec::on 11(2) would F be violative of Article 14 of the Constitution. He further contends that an order, giving concurrence under Section 11(2) should be held to be judicial in character. In support of his argument, he relied upon the decision in A.K Kraipak & Ors. etc. v. Union of India & Ors., [1970] l SCR 457 and stated that the principle of natural justice, the purpose of which is to G prevent miscarriage of justice, applies not only to judicial and quasi-judicial order but also to administrative order. Reference was also made to (1) In

re: H.K (An Infant}, 1967 (2) Q.B. 617, 630; and (2) State of Orissa v. Dr. (Miss)Binapani Devi & Others, [1967] 2 SCR 635.

During the course or the argument, Mr. Tarkunde stated that even 1-i

A if, on consent of the accused, the concurrence is given, it would be a quasi-judicial order and that the authority to transfer a case by way of a motion under Section 406 of the Code of Criminal Procedure vested on the Supreme Court is not taken away by the provision of this Act. He asserted that the accused should be given an opportunity for making his

objection, if any, before any order is passed. He further stated that when cases are transferred en masse from one Designated Court to another Designated Court, he will not have any objection, but if the concurrence is sought to be obtained in an individual or a particular case, then the person, to be affected by such transfer must be afforded an opportunity of being heard; that if the Government seeks the concurrence to transfer on the request of the accused, then there may not be any necessity of issuing notice to the accused and that it depends upon the exigencies of every particular case. Lastly Mr. Tarkuude in support of his plea drew our attention lo paragraph 34 of the judgment rendered by a Full Bench of the Punjab & Haryana High court in Bimla Kaur v. Union of India AIR 1988 P & H 95 at 102 wherein it is stated that the "learned counsel for the Union of India, conceded that the accused would be entitled to have his say before the Chief Justice of India before the latter gives his consent to the transfer of the case.

Mr. Hardev Singh also made his submission in th same line challeng- E ing the Constitutional validity of Section 11(2).

In opposition the learned Additional Solicitor General argued that since the provision pre-supposes the existence of a notification with regard to any area having been declared as 'terrorist affected area' or 'disturbed F area' it is imperative that fair trial within that area would not normally be feasible and that, therefore, the Legislature having regard to such prevailing explosive situation has provided for a liberal procedure for transfer of cases so that a fair and just trial is held in an unsurcharged atmosphere.

However, the legislature has incorporated the safeguard of obtaining the concurrence of the Chief Justice of India as a condition precedent to such G transfers and that when such a safeguard is incorporated, it cannot be said that a transfer without hearing the accused is bad in law. He has urged that the parliament is fully empowered to exclude the invocation of the rule of natural justice under certain extraordinary circumstances, having regard to the fact that the entertainment of any objection would only frustrate the H proceeding and paralyse the meaningful purpose of the provision. Reliance

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 493

was placed by the learned ASG on Tutsi Ram Patel 1985 (3) SCC 398 in A which D.P. Madon, J speaking for the majority of the Constitution Bench has observed thus:

" ........... .it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded.

This right ean also be excluded where the nature of the action to B

be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administration process or where the need for C promptitude or the urgency of taking action so demands."

In addition, he drew our attention to the decision in (1) Satya Vtr Singh v. Union of India, [1985] 4 SCC 252 and (2) C.B. Guatam v. Union of India, [1993] 1 SCC 78.

Coming to the other aspect of the argument of Mr. Tarkunde with reference to Section 406 of the Code the learned Addition Solicitor General relied upon Section 25 of TADA which deals with the overriding effect of the provisions of the Act notwithstanding anything inconsistent therewith contained in any other enactment other than the TADA. He further stated that the dictum laid down in A.K Kraipak (supra) is not at all applicable to the present case because that was the case where the hearing of the accused was excluded by the Act either expressly or by necessary implication:

The above controversiai debate involves important questions namely

(1) what is the nature of the order, the Chief Justice of India passes on the motion moved in that behalf and (2) whether the accused is entitled to have an opportunity of being heard before the concurrence is given by the Chief Justice of India.

Sub-sections (2) and (3) of Section 11 of the Act read thus:

"11 (1) ·······································································································

(2) If, having regard to the exigencies of the situation prevailing in

a State, the Central Government is of the opinion that - H

(a) the situation prevailing in such State is not conducive to a fair, in1partial or speedy trial, or

(b) it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Designated Court or any of them; or

( c) it is not otherwise in the interests of justice,

it may, with the concurrence of the Chief Justice of India (such concurrence to be obtained on a motion moved in that behalf by the Attorney General), transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in any other State."

(3) Where the whole or any part of the area within the local limits of the jurisdiction of a Designated Court has been declared to be, or forms part of, any area which has been declared to be a disturbed area under any enactment for the time being in force making provision for the suppression of disorder and restoration and maintenance of public order and the Central Government is of opinion that the situation prevailing in the State is not conducive to fair, impartial or speedy trial within the State of offences under this Act, or the rules made thereunder which such designated Court is competent to try, the Central Government may, with the concurrence of the Chief justice of India, specify, by notification in the official gazette in relation to such court (hereafter in this sub-section referred to as the local court) a Designated Court outside the State (hereafter in this section referred to as the specified court), and thereupon -

(a) it shall not be competent, al any time during the period of operation of such notification, for such local court to exercise any jurisdiction in respect of, or try, any offence under this Act or the rules made thereunder;

(b) the jurisdiction which would have been, but for the issue of such notification, exercisable by such local court in respect of such offences committed during the period of operation of such notifica-

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 495

lion shall be exercisable by the specified Court;

( c) all cases relating to such offences pending immediately before the date of issue of such notification before such local court shall stand transferred on that date to the specified Court;

( d) all cases taken cognizance of by, or transferred to, the specified B court under clause (b) or clause (c) shall be dealt with and iried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offences had been committed within the local limits of the jurisdiction of the specified court. or, as the case may be, transferred for trial to it under sub-section (2).

Explanation 1. ........................ .

Explanation 2 .......................... "

The concurrence of the Chief Justice of India has to be obtained on D a motion moved in that behalf by the Attorney General of India, or in his absence the Solicitor General of India, or in the absence of both, one of the Additional Solicitors-General of India - vide sub-section (2) of Section 11 read with Explanation 2.

E Sub-section (3) of Section 11 requires the Central Government to specify a Designated Court outside the State by issuing a notification in the official gazette with the concurrence of the Chief Justice of India;

The authority to give concurrence is vested upon an independent judicial authority who is none other than the head of judiciary in India, F namely, the Chief Justice of India as a person a designata. The vesting of this power in the Chief Justice of India is evidently with the purpose of making it known that the Central Government is not seeking to obtain the concurrence either with a motivation of bias or malafide, or on being influenced by any extraneous consideration, but on a reasonable and justifiable ground taking into consideration of the prerequisite essential G conditions; those being (1) that the situation prevailing in the State from which a case under Section 11 (2) is sought to be transferred to. some other Designated Court is not conducive to have a fair, impartial or speedy trial;

(2) that it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public H

A Prosecutor and the Judge of the Designated Court or any of them; and (3) it is not otherwise in the interests of justice. Under sub-clause (3) of Section 11 the Central Government is empowered to seek the concurrence of Chief Justice of India to specify a Designated Court outside the State when it is of opinion that the situation prevailing in the State is not

conducive to fair, impartial and speedy trial within the State.

No doubt, if is true that there are specific provisions already in vogue under the Constitution and some statutes for transfer of cases and appeals from one court subordinate to the transferring court to another court.

Under Article 139-A of the Constitution of India either the Attorney General of India or a party to any case can move the Supreme Court on an application to transfer of certain cases as contemplated in that Article. ' Of course, the Supreme Court also on its own motion may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself.

For transfer of criminal cases under Section 406 of the Code of Criminal Procedure, the Attorney General of India or a party interested may move an application by way of a motion (unlike Section 407 of the Code) accompanied by a supporting affidavit or affirmation before the Supreme Court to transfer cases and appeals from one High Court to another High Court or from a criminal court subordinate to one High Court to another Criminal court of equal or superior jurisdiction subordinate to another High Court.

Under Section 24 of the Code of Civil Procedure, the High Court and the District Court are given general power of transfer and withdrawal of cases either on an application of any of the parties after issuing notice and hearing them or on their own motion. Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any suit, appeal and other proceedings from a High Court or civil court in and state to a High Court or other Civil Court in any other State on the application of a party G and after issuing notice and hearing them.

The new Section 25 of the Civil Procedure Code substituted by an Amendment Act, 104 of 1976 provides for the transfer to the Supreme Court the existing power hitherto vested with the State Government and to confer on the Supreme Court such wide powers of transfer as it has in H criminal cases under Section 406 of the Code. Section 25, in fact, is wider

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 497

in scope than Section 406 of the Code of Criminal Procedure, 1973. A Though, there is no express provision in Article 139-A of the Constitution and in section 406 of the Code of Criminal Procedure to the effect that the Supreme Court before passing any order on the application made or moved for transfer of cases should issue notice and hear the parties as required under Sections 24 and 25 of the Code of Civil Procedure, on the principle B of 'audi altram partem', notice is given to the party/parties who are likely to be affected by any final order. But the question of issuing a notice and hearing the parties may not arise if the order is pru.sed by the Supreme Court on suo moto.

Harking back to Section 11 (2) and (3) of TADA Act, the concur- C rence of the Chief Justice is sought for when the exigencies of the situation . prevailing in the State is not conducive to a fair, impartial or speedy trial.

The reasons for seeking such concurrence, of course, will be manifested in the motion moved by the law officers. The Chief Justice of India, while discharging his statutory function passes a statutory order and gives or D refuses the concurrence on drawing his requisite subjective satisfaction on the materials placed before him in the motion.

It may be added, in this context that the Central Government cannot transfer any case under Section 11 (2) or issue a Notification under Section 11(3) in case the Chief Justice refuses to give the concurrence. To say E differently, to pass an order either under Section 11(2) or 11(3) the concurrence of the Chief Justice is sine quo non. But at the same time one should be alive to the legal position that the mere according of concurrence by itself is not an order of transfer but it only facilitates the Central Government to pass an order under either of the above provision. In other F words, the obtaining of concurrence of the Chief Justice of India is one of the specified conditions to be fulfilled or complied with before any order either under sub-section (2) or sub-section (3) of Section 11 is passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the G concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. Therefore, the according of concurrence which is a condition precedent for passing the transfer order by the Government is only a statutory order and not a judicial order because there is no adjudication of any 'lis' and determination of any issue.

A Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government.

In this connection, we may refer to the decision in R. V Cain R v.

Schollick, (1975) 2 All ER 900. In that case, the appellant was charge for ao offence under the Explosive Substances Act, 1883. Section 7(1) of that Act required to obtain the consent of the Attorney General before proceeding further in that matter. The consent of the Attorney General as per that provision, was accorded in that case which was challenged on the ground that the document of consent form the Attorney General did not constitute sufficient consent for the purpose of Section 7. That challenge was rejected by the Court of Appeals holding that the duty of the Attorney General was to consider the general circumstances of the case and to decide whether any, and, if he thought fit, which of the provisions of the Act could properly be pursued against the defendant who had been D charged before the Magistrate with one such offence.

See also Gouriet v. Union of Post Office Workers and Others, (1977] 3 All ER 70.

The contention of Mr. Tarkunde is that the concerned accused who is likely to be affected by such transfer, should be given an opportunity of making his representation in compliance with the principle of natural justice by the Chief Justice of India before he gives his concurrence.

The learned Additional Solicitor General contended that the Parlia- F ment is fully empowered to exclude the application of the rule of 'audi a/tram partem' when the nature of the action to be taken, the object and purpose as well as the scheme of the relevant statutory provisions are likely to be paralysed or frustrated. According to him, the concurrence of the Chief Justice of India is sought to be obtained only having regard to the G exigencies of the situation prevailing in a State which are not conducive to a fair, impartial or speedy trial.

j (

As we have repeatedly pointed out, the concurrence by the Chief , Justice of India under Section 11(2) and (3) is given or denied in the discharge of his statutory function on drawing the requisite subjective H satisfaction on the reasons given in the motion or any material placed

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 499 ,

before him explaining the exigencies of the situation prevailing in the State A which has necessitated the Central Government to obtain the concurrence and then transfer the case. Therefore, we feel that notwithstanding the power of the Parliament to exclude the application of rule of 'audi alteram partem' in exceptional circumstances, it may be open to the Chief Justice of India in an appropriate case to have the view of the accused.

The question involved for consideration on the submission made by the learned counsel are answered accordingly.

Section 15 of 1987 Act

A blistering attack was made on the validity of the hotly debated c

Section 15 as per which the confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act D

) or rules made thereunder. (It may be mentioned that the words "or co-accused, abettor or Conspirator" are inserted after the words "trial of such person" by the TADA (Amendment") Act 1993 (No. 43of1993) w.e.f. 22nd May, 1993, with a proviso, reading 'Provided that coaccused, abettor or Conspirator is charged and tried in the same case together with the E accused.') But before recording the confession under sub-section (1), the

prson making the confession should be given a statutory warning as contemplated under sub-section (2) of Section 15.

Mr. Ram Jethmalani made a scathing attack on this provision con- ,, ,. tending that this provision is atrocious and totally subversive of any civilized F trial system and overrides Sections 25 and 26 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure. According to him when the existing Codes of Law which have life history of more than a century proceed on the footing that police confessions are untrustworthy, afortiori, the confessions recorded on mechanical devices are certainly G inferior to confessions recorded by Magistrates in open Courts with all the precautions prescribed by the Statute, High Court Rules and judicial

~ decisions. There will be many infirmities in such recording of confessions .... such as selective recordings, tampering, tailoring and editing and the confessions so recorded on mechanical devices are not as reliable as written confessions and signed by the makers of those confessions. There- H

A fore, he contends that this provision should be held to be unjust and unreasonable and bad in law under both Articles 14 and 21 of the Constitution. In this connection, he made reference to Section 21 (1) (c) as per which that a confession made by a co-accused that the accused has commilted the offence, if proved a presumption shall be drawn by the Desig-

B nated Court that the accused has committed such offence unless the contrary is proved. This provision, according to him, totally subverts Section 30 of the Evidence Act and that the confession by the co-accused is not the evidence as defined in the Evidence Act. Two decision were cited by him to strengthen his submission, firstly, Bhuboni Sahu v. King, AIR

(1949) PC 257 wherein the Privy Council after having approved the obserc vation of Reilly, J in re Peryaswami Noopan, (1913) !LR 54 Mad. 75 at 77 that "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that

evidence" has held that " ........ a confession of a co-accused is obviously

D evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in s.3 of the Evidence Act. It is not required to be given on oath, not in the presence of the accused, and it cannot be tested by cross-examination"; and secondly Haricharan Kurmi & logia Hajam v.

State of Bihar, [1964) 6 SCR 623 in which Gajendragadkar, CJ speaking for the Constitution Bench stated that "though a confession mentioned in s. 30 E of the India Evidence Act is not evidence as defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non-technical way.· But in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other

F evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence 11 •

G In continuation of his argument, the learned senior counsel has stressed that a police officer can easily find his own favourite informer, record his confession implicating whomsoever he wants and all those persons, forfeit their life and liberty unless they prove the contrary, namely, their innocence, which is an impossible burden to discharge and in that H sense Section 21 (1) (c) is subversive of all civilized nations of justice and

i (

.~.

. "

.,._

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 501

renders a criminal trial a total farce.

- )' Mr. Harjinder Singh, the learned counsel supplementing the arguments of the other counsel cited the decision, namely, Olga Tellis v.

Bombay Municipal Corporation, [1985] 2 Supp. SCR 51, wherein it has been observed that "if a law is found to direct the doing of an act which is B forbidden by the Constitution or to compel, in the performance of an Act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down" and also made reference to (1) E.P.

\ Royappa v. State of Tamil Nadu, [1974] 2 SCR 348; (2) Maneka Gandhi (supra); (3) M.H. Hoskot v. State of Maharashtra, [1979] 1 SCR 192; (4) Sunil Batra v. Delhi Administration, [1979] 1 SCR 392; (5) Sita Ram v. State c of U.P., (1979] 2 SCR 1085; (6) Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, (1979] 3 SCR 532; (7) Hussainara Khatoon II v.

Home Secretary, State of Bihm; Patna, (1980] l SCR 81; (8) Sunil Batra II -

v. Delhi Administration, (1980] 2 SCR 557; (9) Jolly George Verghese v. Bank of Cochin (1980] 2 SCR 913; (10) Kasturi Lal Lakshmi Reddy v. State of D Jammu and Kashmir, [1980] 3 SCR 1338 and (11) Francis Coralie Mullin v.

Administrator, Union Territory of Delhi, [1981] 2 SCR 516.

On the dictum laid down in the above decisions, he concluded by saying that unreasonableness vitiates not only law but also the procedure a like and, therefore, it is essential that the procedure prescribed by law E for depriving a person of his fundamental right must conform to the norms of justice and fairplay.

All the counsel who challenged the validity of the provisions of this Act made similar submissions as that of Mr. Jethmalani and stated in chorus that Section 15 of the Act gives a death-knell or to the very basic F

' principle hitherto recognised and followed that a confession made before a police officer under any circumstance as well as a confession to a Magistrate or a third party while a in police custody is totally inadmissible and that such confession cannot be proved as against a person accused or any offence.

The learned Additional Solicitor General strains his every nerve to overthrow the above argument articulating that the constitutional validity • of Section 1.5 is to be determined on the basis of the competence of the Parliament to vary the procedure which is just and fair in the facts and circumstances of the situation with which the statute tends to grapple and H

A not on the touch-stone of the Evidence Act. This Section, according to him, contains a significant safeguard by vesting the power of recording confession in superior police officer in order to prevent any misuse or abuse which safeguard has been approved by this Court in Gurbachan Singh v.

State of Bombay, [1952] SCR 737 at 743 wherein it has been held that a

B law which contains an extraordinary procedure can be made to meet the exceptional circumstances otherwise the purpose and object of the Act would be defeated.

Coming to the intrinsic value to be attached to the evidence, it has been said by Additional Solicitor General that this Section does not lay C down the probative value of the confession nor does it indicate that conviction can be based on confession alone made before a police officer.

He continues to state that the probative value of the confessions is left to the Court to be determined in each case on its own facts and circumstances. Then he drew our attention to certain provisions in various statutes empowering the officers specified therein to secure of arrest the offenders D and to record statements from them which statements are held to be admissible in evidence in criminal proceeding as against them by judicial pronouncements of the various High 'courts and this Court. Those being;

(1) Section 12 of the Railway Protection Force Act, 1957; (2) Sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966; (3) Section E 108 of Customs Act, 1962; and ( 4} Section 40 of Foreign Exchange Regulation Act, 1973.

Now let us analyse Section 15 as amended by Act 43 of 1993 and examine the merit of the contentions of the respective parties with reference to certain relevant provisions of the Constitution, general procedural law and Evidence Act.

Section 15 of the Act, as amended reads as follows:

"15. Certain confessions made to police officers to be taken into consideration -

(1) Notwithstanding anything m the Code or in the Indian Evidence Act, 1872 (l of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device

' ,,

KARTAR v.STATEOFPUNJAB [PANDIAN, J.] 503

like cassettes, tapes or sound tracks in the trial of such person or A co-accused, abettor or conspirator for an offence under this Act of rules made thereunder.

Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound

to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he C has reason to believe that it is being made voluntarily."

• In recording a confession by a police officer, the said police officer under Rule 15 of the Rules made under the Act has to observe some legal formalities and comply with certain condition. If the confession is reduced into writing, then under sub-rule (3) of Rule 15, the said confession should D be signed by the person making the confession and the police officer who > records the confession should append a certificate as required by the rule.

As the Rule 15 has to be read with Section 15 of the TADA, we feel that it would be necessary to reproduce the rule so that the legal formality to be observed may be properly understood.

Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 is as follows:

"15. Recording of confession made to police officers - A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession made and if that is not practicable, in the language nsed by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.

(2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession.

(3) The confession shall if it is in writing, be-

(a) signed by the person who makes the confession; and

(b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect:-

"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.

Sd/- Police Officer"

( 4) Where the confession is recorded GD any mechanical device, the memorandum referred to in sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession.

(5) Every confession recorded under the said Section 15 shall be sent fortiiwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence."

Before proceeding further, we may point out that Section 21(1)(c) in respect of which some argument has been advanced is ommitted along with Section 21(1)(d) by the Amendment Act 43 of 1993.

H In our Constitution as well as procedural law and Law of Evidence,

KARTAR v. STA1EOFPUNJAB [PANDIAN, J.] 505

there are certain guarantees protecting the right and liberty of a person in A a criminal proceeding and safeguards in making use of any statement made by him. Article 20(3) of the Constitution declares that "No person accused of any offence shall be compelled to be a witness against himself."

Article 20(3) of our Constituiion embodies the principle of protection against compulsion of selfincrimination which is one of the fundamen- B

tal canons of the British System of Criminal Jurisprudence and which has been adopted by the American System and incorporated in the Federal Acts. The Fifth Amendment of the Constitution of the United States of America Provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a C Grand Jury, except in cases arising .............. nor shall be compelled in any criminal case to be a witness against him .................... "

The above principle is recognised to a substantial extent in the criminal administration of justice in our country by incorporating various D statutory provisions. One of the components of the guarantee contained in Article 20(3) of the Constitution is that it is a protection against compulsion resulting in the accused of any offence giving evidence against himself.

There are a number of outstanding decisions of this Court in explaining the intendment of Article 20(3). We feel that it would be suffice if mere reference is made to some of the judgments, those being; (1) M.P. Shanna E and Others v. Satish Chandra, District Magistrate, Delhi and others, [1954] SCR 1077; (2) Raja Narayan/a/ Bansilal v. Maneck, [1961] 1 SCR 417: (3) State of Bombay v. Kathi Kalil Oghad, [1962] 3 SCR 10 and ( 4) Nandini Satpathy .v. P.L. Dani and Another, [1978] 2 SCC 424.

F Article 22 (1) and (2) confer certain rights upon a person who has been arrested. Coming to the provisions of Code of Criminal Procedure, Section 161 empowers a police officer making an investigation to examine orally any person supposed to be acquainted with the fa'ct and circumstances of the case and to reduce into writing any statement made to him in the course of such examination. Section 162 which speaks of the use of the G statement so recorded, states that no statement recorded by a police officer, if reduced into writing, be not signed by the person making it and that the statement shall not be used for any purpose save as provided in the Code and the provisions of the Evidence ·\ct. The ban imposed by Section 162 applies to all the statements whether confessional or otherwise, H

A made to a police officer by any person whether accused or not during the course of the investigation under Chapter XII of the Code. But the statement given by an accused can be used in the manner provided by Section 145 of the Evidence Act in case the accused examines himself as a witness for the defence by availing Section 315 (1) of the Code corresponding to

B Section 342-A of the old Code and to give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.

There is a clear embargo in making use of this statement of an accused given to a police officer under Section 25 of the Evidence Act, C according to which, no confession made to a police officer shall be proved as against a person accused of any offence and under Section 26 according to which no confession made by any person whilst he is in custody of a police officer unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The only exception is given under Section 27 which serves as a provision to Section 26. Section 27 con- 0 templates that only so much of information whether amounts to confession or not, as relates distinctly to the fact thereby disc0vered, in consequence of that information received form a person accused of any offence while in custody of the police can be proved as against the accused.

E In the context of the matter under discussion, two more provisions

also may be referred to - namely Sections 24 and 30 of the Evidence Act and Section 164 of the Code.

Section 24 of the Evidence Act makes a confession, caused to be made before any authority by an accused by any inducement, threat or promise, irrelevant in a criminal proceeding. Section 30 of the Evidence Act is to the effect that a confession made by one of more person, affecting himself and some others jointly tried for the same offence is proved, the Court may take into consideration such confession as against such other persons as well as the maker of the confession. The explanation to the G Section reads that "offence" as used in this Section includes the abetment of, or attempt to commit, the offence.

Section 164 of the Code speaks of recording of confessions and statements by Magistrates, specified in that section by complying with the legal formalities and ob, erving the statutory conditions including the ap- H pendage of a Certificate by the Magistrate, recording the confession as

...

KARTAR v. STATE OF PUNJAB [PANDIAN, J.J 507

contemplated under sub-sections (2) to ( 6) thereof.

Though in the old Code, there was a specific embargo on a police officer recording any statement or confession made to him in the course of an investigation embodied in the main sub-section (1) of Section 164 itself, in the present Code the legal bar is now brought by a separate proviso to sub-section (1) of Section 164 which reads:

"Provided that confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law in force. 11

This is a new provision but conveys the same meaning as embodied in the main sub-section (1) of Section 164 of the old Code.

Thus, an accused or a person accused of any offence is protected by

the constitutional provisions as well as the statutory provisions to the extent that no self-incriminating statement made by an accused to the D police officer while he is in custody, could be used against such maker.

The submission of the Additional Solicitor General that while a confession by an accused before a specified officer either under the Railway Protection Force Act or Railway Property (Unlawful Possession) Act or Customs Act or Foreign Exchange Regulation Act is made admissible, the special E procedure prescribed under this Act making a confession of a person indicted under the TADA given to a police officer admissible cannot be questioned, is misnomer because all the officials empowered to record statements under those special Acts are not police officers as per the judicial pronouncements of this Court as well the High Courts which principle holds the field till date. See (1) State of U.P. v. Durga Prasad, F AIR (1974) SC 2136; (2) Balkishan v. State of Maharashtra, AIR (1981) SC 379; (3) Ramesh Chandra Mehta, (1969) 2 SCR 461; (4) Poolpandi and Others v. Superintendent, Cemral Excise and Others, [1992] 3 SCC 251; (5) Directorate of Enforcement v. Deepak Mahajan and Others, JT (1994) 1 SC 290 and (6) Ekambaram v. State of Tamil Nadu, (1972) Mad. Law Weekly, G Cr. 261; (4) We feel that it is not necessary to cite any more decisions and swell this judgment.

The above constitutional and statutory procedural guarantees and safeguards are in consonance with the expression, !!according to procedure established by law" enshrined in Article 21 of the Constitution within which H

A fold the principle of just and fair trail is read into.

The procedure contemplated by Article 21 is that the procedure must be 'right, just and fair' and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of natural justice, that is, 'fair - play in action'.

If the procedural law is oppressive and violates the principle of just and fair trial offending Article 21 of the Constitution and is discriminatory violating the equal protection of laws offending Article 14 of the Constitution, then section 15 of TADA is to be struck down. Therefore, it has become inevitably essential to examine the classification of 'offenders' and 'offences' so as to enable us in deciding whether Section 15 is violative of Articles 14 and 21 of the Constitution.

The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting Jaws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.

The limit of valid classification must not be arbitrary but scientific and rational. It must always rest upon some real and substantial distinction bearing reasonable and just relation to the needs in respect of which the classification is made.

Coming to the distinction made in TADA Act grouping the terrorists and disruptionists as a separate class of offenders from ordinary criminals under the normal laws and the classification of the offences under TADA as aggravated form of crimes distinguishable from the ordinary crimes have G to be tested and determined as to whether this distinction and classification are reasonable and valid within the term of Article 14 of the Constitution.

In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction and classification which of course need not be made with H mathematical precision. Suffice, if there is little or no difference between

' '

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 509

the persons and the things which have been grouped together and those A left out of the groups, the classification cannot be said to be a reasonable one. In making the classification, various factors have to be taken into consideration and examined as to whether such a distinction or classification justifies the different treatment and whether they subserve the object so:ight to be achieved.

/ There is a catena of outstanding ju'dgments on the above principle of law and it is not necessary to refer to all those decisions except to make mention of a few, namely, (1) Chiranjit Lal v. Union of India, [1950] SCR 869; (2) Ramloishna Dalima v. Justice Tendolkar, [1959] SCR 279; (3) In re: Special Courts Bill, [1979] 2 SCR 476.

As pointed out supra, the persons who are to be tried for offences specified nnder the provisions of TADA are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from

the ordinary criminals and procedure. This distinction and classification of D grouping of the accused and the offences to be tried under TADA are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well as the 'Statement of Objects and Reasons' about which we have elaborately dealt with in the preceding part of this judgment.

We have already disposed of the question with regard to the competence of the Parliament and have held in the earlier part of this judgment that the Parliament has got the legislative competence to enact this law - namely - the TADA and the Special Courts Act of 1984. When the validity of this Section is scrutinised in the above background, we can safely hold

that the procedure prescribed unde_r this Act cannot be said to be unjust, F unfair and oppressive, offending Articles 14 and 21 of the Constitution.

The learned Additional Solicitor General by giving a comparative chart of the provisions of TADA and of the Northern Ireland Emergency Provisions Act of 1978 wherein there are various provisions akin to some of the provisions of TADA including the mode of trial of scheduled G offences specified thereunder in a more stringent manner and the onus of proof in relation to offences corresponding to the provisions of TADA Acts and relating to presumption as to offences under Section 3 and so on, contended that the procedure prescribed under this Act for trying the commission of heinous crimes cannot be said to be discriminatory. He also H

A made reference to the Prevention of Terrorism (Temporary Provision) At, 1984 (U.K.) and some other Acts enacted in India which are now repealed prescribing special procedure and providing severe punishments.

The learned Additional Solicitor General in continuation of his arguments stated that the procedure under the normal penal laws had become grossly inadequate and ineffective to try the distinct group of offenders, i.e. terrorists and disruptionists for the classified aggravated nature of offences and that his submission is fortified by the statistics with regard to the terrorist crimes in the State of Punjab from 1984 to 1992, annexed in the compilation of his written submission before the Court and the debates and discussion made in the parliament at the time of introduction of the Bill (TADA). He placed reliance on (1) Dr. N.B. Khare v. State of Delhi, [1950] SCR 519; (2) Kathi Raning Rawat v. State of Saurashtra, [1952] SCR 435 at pages 447-450; (3) Kedar Nath Bajoria v. State of West Bengal, [1954] SCR 30 at pages 38-43; ( 4) State of Bombay v. RMD Chamarbaugwala, [1957] SCR 874 at 927 which decision have held that D stringency and harshness of provisions are not for courts to determine; (5) Pannalal Bingraj v. Union of India, [1957] SCR 233, wherein it has been said that mere possibility of abuse is not a valid ground to challenge the validity of a Statute; (6) Talib Haji Hussain v. Madhukar P. Mondkar, [1958] SCR 1226 at 1232 wherein it has been ruled that fair trial has two objects in view, namely, it must be fair to the accused and also to the prosecution; E

(7) Kangsari Haldhar v. State of West Bengal, (1960] 2 SCR 646 at pages 651, 654, 656; and (8) A.K Roy v. Union of India, (1982] 1 SCC 271 wherein it has been held that liberty of individual has to be subordinated to the good of the people.

F He on the basis of the above dictum laid down in those cited decisions, concluded that the reasonable and scientific classification of the offences and offenders under TADA Acts cannot be said to be offending either Article 14 or Article 21 and as such the contention of the learned counsel attacking this provision should be thrown overboard.

G Mr. Tulsi, the other learned Additional Solicitor General and the other counsel supporting the validity of this provision made a common submission that the contention of the counsel attacking the legality of this provision tantamounts to an attempt to forcibly drag the substantive law through the coiled barbed wires of procedural law thereby making the substantial law bleeding and becoming dysfunctional and as such that H contention should be discarded.

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 511

~ In the light of the 'ratio decidendi' regarding the legislative com- A petence to enact a law prescribing a special procedure departing from the procedure for trying offenders in the normal circumstances for achieving the object of the Act and the classification of 'offences' and 'offenders' to be tried under separate procedure for the offences specified - in the present case under the TADA - we shall examine the rival contentions of B the parties and determine whether the procedure prescribed under this Act violates Articles 14 and 21 of the Constitution.

There is a line of decisions in support of the proposition that the Legislature is free to make classification of 'offences' and 'offenders' in the application of a statute. We would like to refer few of them.

In Asbury Hospital v. Cases County, (1945) 90 Law Ed 6 at P. 13, it has been stated:

"The Legislature is free to make classifications in the application of a statute which are relevant to the legislative purpose. The D ultimate test of validity is not whether the classes differ but whether the differences between them are pertinent to the subject with respect to which the classification is made."

In Gassert v. Cleary, (1948) 93 Law ED 163 (E) a Michigan Statute forbidding women being licensed as bartenders and at the same time making an exception in favour of the wives and daughters of the owners of liquor establishments was held by a majority of the court not to violate the equal protection clause of the Fourteenth Amendment.

Likewise, a city regulation which prohibited advertising vehicles in F city streets, but permitted the putting of business notices upon business delivery vehicles, so long as they were used merely or mainly for advertising was held not to violate the Fourteenth Amendment in - 'Railway Express Agency v. New York', [1948] 93 Law ED 533 (F). The exception was upheld because the classification had relation to the purpose for which it was made G and Douglas, J remarked that it was by practical considerations based on experience rather than oy theoretical exigencies that the question of equal > protection should be answered.

Of course, the Supreme Court of the United States had struck down certain exemption provisions on the ground that the classification was H

A arbitrary and illusory and did not rest on any ground having a fair and substantial relation to t, he object of the legislation.

Looking back on the meaning and scope of Article 14 of the Constitution of India, this Court has rendered several judgments about the principle and policy of equality enshrined therein.

Fazal Ali, Jin State of Bombay v. F.N. Balsara, AIR (1951) SC 318 at 326 approving the scope of Article 14 discussed in the case of Chiranjit Lal v. Union of India, [1950] SCR 869, has laid down seven propositions as follows:

"l. The presumption is always in favour of the constitutionality of an enactment since it must be assumed that the legislature understands and correctly appreciates the needs of its own people that its laws are directed lo problems made mainfest by experience and its discriminations are based on adequate grounds.

2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.

3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment of circumstances in the same position and the varying needs of different classes of persons often require separate treatment.

4. The principle does not take away from the State power of classifying persons for legitimate purposes.

5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.

6. If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other H persons.

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 513 ..

7. While reasonable classification is permissible such classification A must be based upon rnme real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis."

See also Co11stitutio11a/ Law by Prof Willis Edn. 1 Page 578.

Keeping the above proposition, we have to decide whether the provisions of Section 15 of the 1987 Act (TADA) contravene Article 14.

True, if the classification is shown to be arbitrary and unreasonable and without any subst;, ntial basis, the law would be contrary to the equal c protection of laws by Article 14.

Reliance was strongly placed on the decision of this Court in State of West Be11gal v. Anwar Ali Sarkar (supra) by all the counsel attacking this provision. In that decision, the validity of the West Bengal Special Courts Act was impugned. The object of that Act as declared in the preamble was D "to provide for the speedier trial of certain offences". Section 3 of the Act empowered the State Government by notification in the official gazette to constitute special courts, and Section 5 provided that :

"A special Court shall try such offences or classes of offences or cases or classes of cases, as the State Govenment may by general E or special order in writing, direct"

A procedure different in several respects from that laid down by the Code of Criminal Procedure for trial was laid down by the Act. It was contended that Section 5 was unconstitutional inasmuch as it contravened F > Article 14 of the Constitution. It was held by a majority of the Court, the ...

Learned Chief Justice dissenting that Section 5 was void as it contravened Article 14.

F azal Ali, J in his separate judgment while disposing the contention that Section 5 was suffering from unconstitutionality observed ; G

"There is nothing sacred or sacrosanct about the test of reasonable

) classification, but it undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the grounds of infringement of the equality principle ............... In my opinion, it will be dangerous to introduce a subjective test when the Article itself H

lays down a clear and objective test .................................... it seems to me that S. 5 of the Act, or at least that part of it with which alone we are concerned in this appeal, does offend against Art. 14 of the Constitution and is therefore unconstitutional and void."

Mahajan, J. agreeing with the judgment of Mukherjee, J. expressed his view thus:

"The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial Government ...............

Even if it be said that the statute on the face of it is not discretionary, it is so in its effect and operation inasmuch as it vests in the executive Government unregulated official discretion and therefore has to be adjudged unconstitutional."

Mukherjee, J. in his separate judgment has said :

"But when the statute itself makes a discrimination without any proper or reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory."

The 'ratio decidendi' of this decision was that Section 5 did not classify or lay down any basis for classification of the cases which may be directed to be tried by the Special Court, but left it to the uncontrolled discretion of the State Government to direct any cases which it liked to be tried by the Special Court.

The above decision, in our view, cannot be availed of for striking

..;

KARTAR v. STATE OF PUNJAB (PANDIAN, J.) 515

; down Section 15 of TADA Act because the classification of 'offenders' and A ..

'offences' to be tried by the Designated Court under the TADA or by the Special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification of the offenders as terrorists and disruptionists in the TADA Act and the terrorists under the Special Courts Act, B 1984 as well as the classification of offences under both the Acts.

' Therefore, the complaint of incorporation of invidious discrimination in the Act has to be turned down. All that the Court has to see are whether the power is used for any extraneous purpose i.e. to say not for achieving the object for which the power is granted and whether the Act (TADA) c has been made on grounds which are not germane or relevant to the policy

~ and purpose of this Act and whether it is discriminatory so as to offend Article 14. In our considered opinion, the classifications have rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14 of the D Constitution.

The next qnestion is whther the procedure in recording the confession is just and fair.

The counsel were severly critical of the mode and method of obtain- E ing a confession from an accused person. According to them, the oppressive behaviour and excessive naked abuse and misuse of power by the police in extorting confession by compelling the accused to speak under the untold pain by using third degree methods with diabolical barbarity in utter violation of human rights, cannot be lost sight of or consigned to ;. oblivion and the Courts would not be justified by showing volte-face and F turning a blind eye to the above reality and drawing a legal presumption that the confession might have been obtained by a Police Officer not lower in rank than a Superintendent of Police in terms of Section 15(1) only in accordance with the legally permissible procedure. They castigated the conduct of the police officers in whisking away the accused either on arrest G or on obtaining custody from the Court to an unknown destination or unannounced premises for custodial interrogation in order. to get compulsory self-incriminating statement as a source of proof to be produced before a Court of Law.

This Court on several occasions has awarded exemplary compensa- H

A tion to the victims at the hands of the police officials which can be testified by a series of pronouncements of this Court.

As we have repeatedly pointed out supra, if it is shown to the Court that a confession has been extorted by illegal means such as inducement, threat or promise as contemplated µnder Section 24 of the Evidence Act the confession thus obtained from an accused person would become irrelevant and cannot be used in a criminal proceeding as against the maker.

It may be recalled that Sections 330 and 331 of the Indian Penal Code provide punishment to one who voluntarily causes hurt or grievous hurt as the case may be to extort the confession or any information which may lead to the detection of an offence or misconduct.

Thus the Constitution as well as the statutory procedural law and Law of Evidence condemn the conduct of any official in extorting a confession or information under compulsion by using any third degree methods.

In this connection, we would like to reproduce the view of the National Police Commission (Fourth Report - June 1980) with regard to the admissibility of confession made to a police officer as evidence, which is to the following effect :

"27.33. ...................... ................ This total ban on the entry of a confessional statement recorded by a police officer into the area of judicial proceedings has placed the police at a great disadvantage as compared to several other enforcement agencies who also handle investigational work leading to prosecution in Court.

This provision in the Evidence Act which was enacted in 1872 bears relevance to the then situation in which the police were practically the only enforcement agency available to the Government and they had acquired notoriety for the adoption of several gross mal-practices involving torture and other pressure tactics of an extreme nature to obtain confessions from accused persons. More than 100 years have rolled by since then. We are aware that the police are still not totally free from adopting questionable practices while interrogating accused persons, but one cannot possibly deny that the greater vigilance now exercised by the public and the press, growing awareness of citizens about their individual rights under the law and increasing earnestness and commitment of the senior

KAR TAR v. STATE OF PUNJAB [PANDIAN, J.] 517

levels of command in the police structure to put down such A ''"-. mat-practices have all tended to reduce the prevalence of such "' practices in the police to a lesser degree than before .........................

After a careful consideration of all aspects of this much debated question we feel that the stage has arrived now for us to take a small positive step towards removing this stigma on the police and B make it possible for a confession made before a police officer to enter the area of judicial proceedings, if not as substantive evidence, at least as a document that could be taken into consider a- • ' tion by the court to aid it in inquiry or trial in the same manner as now provided in regard to case diaries under section 172(2) Cr.

P.C. and the confession of a co-accused under section 30 of the c Evidence Act. We are also of the view that this approach to the evidentiary admissibility and value of a confession made before a police officer should apply not only to the police but to all persons in authority before whom a confession may be made. If the Evidence Act reflects this approach to confessions as a class, it D would largely remove the present feeling of the police that they have been unjustly discriminated against in law."

Whatever may be said for and against the submission with regard to the admissibility of a confession made before a police officer, we cannot avoid but saying that we - with the years of experience both at the Bar and E on the Bench - have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial F deaths caused during interrogation are brought to our notice. We are very .. much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers even though no general and sweeping condemnation can be made.

In this connection, we feel it would be appropriate to extract the G

views expressed by National Judicial Commission (Fouth Report) discountenancing the conduct of police in practising the third degree methods :

" ............. Nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their custody. Police H

A image in the estimate of the public has badly suffered by the prevalence of this practice in varying degrees over several years. ..

We note with concern the inclination of even some of the supervisory ranks to countenance the practice in a bid to achieve quick results by short-cut methods. Even well meaning officers are some-

B time drawn towards third degree methods because of the expectation of some complainants in individual cases that the suspects named by them should be questioned by the police with some kind of pressure .............. "

... •

c Though we at the first impression thought of sharing the view of the learned counsel that it would be dangerous to make a statement given to a police officer admissible (notwithstanding the legal position making the confession of an accused before the police admissible in some advanced countries like United Kingdom, United States of America, Australia and Canada etc.) - having regard to the legal competence of the Legislature to D make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endagering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at

E the risk of their life, to give evidence - hold that the impugned Section cannot be said to be suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situation warrant such a legislation then it is constitutionally permissible as ruled in a number of decisions of this Court, provided none of the fundamental rights nnder Chapter III of the Constitution is infringed.

~ In view of the legal position vesting authority on higher police officer to record the confession hithe:to enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure

G and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hypercriticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when a Judge remarked, "Am I not to hear the truth", • the prosecution giving a startling answer,

11No, Your Lordship. is to hear

"'" H only the evidence. 11

J - KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 519

As the Act now stands after its amendment consequent upon the A •

deletion of Section 21(1)(c), a confession made by a person before a police officer can be made admissible in the trial of such person not only as against the person but also against the co-accused, abettor or conspirator provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused, namely, the maker of the B confession. The present position is in conformity with Section 30 of the Evidence Act.

Under Section 21(l)(d), in a prosecution for an offence under subsection (1) of Section 3, if it is proved that the accused had made a confession of the offence to any person other than a police officer, the c Designated Court could raise a presumption that the accused had committed such offence unless the contrary is proved. By Act 43 of 1993, clause ( d) of Section 21(1)(d) has.now been omitted. The resultant position is that no presumption can be raised by the Designated Court against the accused as to offences under Section 3 on the basis of Section 21.

D As per Section 15(1), a confession can either be reduced into writing or recorded on any mechanical device like cassettes, tapes or sound tracks from which sounds or images can be reproduced. As rightly pointed out by the learned counsel since the recording of evidence on mechanical device can be tampered, tailored, tinkered, edited and erased etc., we E strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession under Section 15(1) so that the possibility of extorting any false confession can be prevented to some appreciable extent.

Sub-section (2) of Section 15 enjoins a statutory obligation on the F

part of the police officer recording the confession to explain to the person making it that he is not bound to make a confession and to give a statutory warning that if he does so it may be used as evidence against him.

Rnle 15 of the TADA Rules imposes certain conditions on the police G officer with regard to the mode of recording the confession and requires • the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he was not bound to

~ make the confession and that the confession, if made by him, would be used as against him and that he recorded the confession only on being .. satisfied that it was voluntarily made. Rule 15(5) requires that every H

A confession recorded under Section 15 should be sent forthwith either to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and the Magistrate should forthwith forward the recorded confession received by him to the Designated court taking cognizance of the offence.

B For the foregoing discussion, we hold that Section 15 is not liable to be struck down since that Section does not offend either Article 14 or 21 of the Constitution.

Notwithstanding our final conclusion made in relation to the intend- C ment of Section 15, we would hasten to add that the recording of a confession by a Magistrate under Section 164 of the Code is not excluded by any exclusionary provision in the TADA Act, contrary to the Code but on the other hand the police officer investigating the case under the TADA can get the confession or statement of a person indicted with any offence under any of the provisions of the TADA recorded by any Metropolitan D Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate of whom the two latter Magistrates are included in Section 164(1) by sub-section (3) of Section 20 of the TADA Act and empowered to record confession.

E The net result is that any confessio~- or statement of a person under TAD A Act can be recorded either by a police officer not lower in rank than of a Superintendent of Police, in exercise of the powers conferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate or Special Executi;" Magistrate who are empowered to record any confession under Section 164(1) in view of sub-seep tion (3) of Section 20 of the TADA. As we will be elaborately dealing with Section 20(3) in the later part of this judgment, we do not like to go into detail any more.

However, we would like to lay down following guidelines so as to G ensnre that the confession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of police is not tainted with any vice but is in strict conformity of the well recognised and accepted aesthetic principles and fundamental fairness :

( 1) The confession should be recorded in a free atmosphere in the H same language in which the person is examined and as narrated

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 521

by him; A

(2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on B mechanical device without unreasonable delay;

(3) The Chief metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of C any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant D Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a Police Officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act.

More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to . investigate the offences under those specified Acts.

(5) The Police Officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody;

(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must re., pect

his right of assertion without Making any compulsion to give a H

statement of disclosure;

The Central Government may lake not of these guidelines and incorporate them by appropriate amendments in the Act and the Rules.

Though it is entirely for the Court trying the offence to decide the B question of admissibility or reliabilty of a confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was no trap, no track and no importune seeking of evidence during the custodial interrogation and all the conditions required arc fulfilled. c In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a Screening Committee or a ReView Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other concerned Secretaries of the various Departments to review all the TADA cases instituted by the Central Government as well D as to have a quarterly administrative review, reviewing the States' action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law E Secretary, Director-General of Police (Law and Order) and other officials as the respecitve Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on.

F Section 16 of 1987 Act

Much argument was advanced stating that Section 16(1) is violative of the provisions of Article 14 of the Constitution on the ground that this provision destroys the guarantee of an open trial and the proviso thereto G transfers to the public prosecutor the rights of the accused as well as of the public in demanding of the cases in openness in conformity with fair trial to the discretion of the Public Prosecutor.

The learned Additional Solicitor General made a detailed argument opposing an attack made against the validity of this provision and relied fl upon the observation made in A.K Roy's case (supra) to the effect that

....

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 523

"The right to a public trial is not one of the guaranteed rights under our Constitution as it is under the 6th Amendment of the American Constitution which secures to persons charged with crimes, a public, as well as speedy, trial."

While disposing a similar question, the Full Bench of the Punjab & Haryana High Court in Bimal Kaur (supra) struck down Section 16(1) as offending Article 14 of the Constitution holding that Section 16(1) leaves no discretion to the Court in the matter of deciding as to whether the Court is to be held in public or in camera and also does not provide any guideline to instruct the public prosecutor as to in what cases he should demand open trial.

No doubt, the trials are traditionally open which is an indispensable attribute of the criminal justice. This characteristic flowed not merely from the public interest in seeing fairness and proper conduct in the administration of criminal trials, but, more important, the "therapeutic value" to the public of seeing its criminal laws in operation, purging the society of the outrage felt with the commission of many crimes, convincingly demonstrated why the tradition developed and is maintained. This is the accepted practice of guaranteeing.a public trial to an accused as having its roots in the English Common Law heritage. But, however, though it is an indispensable attribute of the criminal justice, in exceptional circumstances there cannot be any legal ban in having the trial in camera. Though the criminal justice prevailing in our country recognises and accepts the practice of only open trial, there is an exception to such trial as contemplated under Section 237(2) of the Code of Criminal Procedure falling under Chapter XVIII with caption 'Trial Before a Court of Session' which provides an exemption to the general practice. The relevant sub-section reads :

"Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do."

Under the 'General provisions as to enquiries and trials' falling under G Chapter XXIV there is a specific provision, namely, Section XXIV there is a specific provision, namely, Section 327 with a caption 'Court to be open' according to which the inquiry and trial of any offence should be held in an open Court, to which general public m;; y have access. However, under the proviso the discretion is given to the Presiding Judge .or H

A Magistrate to regulate the public generally, or any person in particular in

I/' having access to, or be or remain in, the room or building used by the Court. An exemption is given for the open court trial under Section 327(2) which is as follows :

B "Notwithstanding anything contained in sub-section (1) the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal Code ( 45 of 1860) shall be conducted in camera. '

Provided that the presiding judge may, if he thinks fit, or on c an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court."

We feel that no detailed discussion against the challenge of Section 16(1) is required since a new sub-Section is substituted to the original D Section 16(1) of the principal Act by the Amendment Act 43 of 1993. The new sub-section reads thus : >

"Notwithstanding anything contained in the Code, the proceedings under this Act may be held in camera if the Designated Court so desires." E By this new substituted sub-section now the discretion is given to the Designated Court either to hold or not to hold the proceedings in camera.

It is the further contention of the counsel that the remaining sub-sections of Section 16, save sub-Section (1) of that Section empower a Court F to keep back from the defence the names and addresses of the witnesses ' without which the accused cannot prepare his defence or successfully defend himself at the tiral. The object of the cross-examination, according to them, in such circumstances, becomes futile and impotent. In continuation, it has been urged that Section 16(2) and (3) of Act 1987 empower the

G Designated Court to take measures for keeping the identity and address of witnesses secret and to issue directions for securing that their identity is not disclosed and that these provisions turn a trial under the provisions of ' TADA into a farce.

Mr Tarkunde states that it is true that in some cases the safety of

•· H witnesses requires the non-disclosure of the identity of the wirnesses, but

KARTAR v.STATEOFPUNJAB (PANDIAN, J.] 525

at the same time the cross-examination of witness is liable to be largely A ineffective if their identity is not known to the accused and his counsel. He suggests that a proper course must be that when the Designated Court finds that the identity of witnesses cannot safely be disclosed, the trial should be dropped and the accused may, if the authority so decides, be detained under the Preventive Detention Law.

With reference to the arguments relating to sub-section (2) of Section 16, it has been submitted by the learned Additional Solicitor General that the Legislature has merely regulated the right of fair trial and the right of accused to effectively defend himself keeping in view the requirements of

the situation prevailing in terrorists affected areas where the witnesses are C living in a reign of terror and are unwilling to depose against the terrorists in Courts for fear of retribution or reprisal. Stating that the right of cross-examination is neither absolute nor a constitutional right, the learned Additional Solicitor General placed reliance on (1) Gurbachan Singh v.

State of Bombay, (1952] SCR 737 at 743; (2) Hira Nath Mishra v. Rajendra D Medical College, (1973] 1SCC805; (3)A.K Roy (supra); (4) Russel v.Duke of Norfolk, (1949] 1 All ER 109 and (5) Byrne v. Kinematograph Renters Society Ltd., [1958] 2 All KR 579. According to him, the person accused should know; firstly the anture of accusation made, secondly he should be given an opportunity to state his case and thirdly, that .the tribunal should act in good faith beyond that there is nothing more.

Before we make a discussion on the intendment of Section 16(2) and (3), we would like to make reference of the decision in Bimal Kaur (supra) wherein an identical question with regard to the identify of the witnesses has been examined by the Full Bench of the Punjab and Haryana High F Court and was rejected holding that Section 16(2) cannot be considered to contain a procedure that can be held to be µnreasonable, unjust or unfair.

But notwithstanding the conclusion, the Court has observed that the identity of the witnesses should be disclosed well before the start of the trial.

Under the Code of Criminal Procedure, whether it is a trial before G a Court of Session or a trial of warrant cases by Magistrates there are specific provisions, prescribing the mode of recording evidence with the > right of cross-examination of any witness by the accused as contemplated under Sections 244 as well as Sections 273, 275 and 276 of the Code. Both under the session trial and trial of warrant cases, the accused is given a. H

A discretionary right of deferring the cross-examination of any witness or recalling any witness for further cross-examination [vide Sections 231 (2), proviso to Section 242 sub-section (3)].

Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of Jaw that cross-examination is an aci~-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

(2) to elicit facts in favour of the cross-examing lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said 1vitness

and the questions to be addressed in the court of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.

The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party.

Under the provisions of this Act, the right of cross-examination is not taken away but the identity, and addresses of the witnesses are permitted to be withheld. The submission of the counsel attacking sub-sections

(2) and (3) of Section 16 is that the withholding or the issuance of any direction not to disclose the identity, names and addresses of the witnesses G prevents the accused from having a fair trial to which right he is otherwise legitimately entitled to. As we have already pointed out that in the normal course this difficulty does not arise. In fact when the copies of the documents on which the prosecution proposes to rely upon are furnished to the accused with a memo of evidence under Section 173 of the Code, he is H informed of the names and addresses of the witnesses.

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 527

Notwithstanding the provisions of the Evidence Act and the proce- A dure prescribed under the Code, there is no imposition of constitutional or statutory constraint against keeping the identity and address of any witness secret it some extraordinary circumstances or imperative situations warrant such non-disclosure of identity and address of the witnesses.

There are provisions in some local laws e.g. Section 56 of Bombay Police Act, 1951 the constitutional validity of which has been approved as well as observations of this Court in various decisions touching the question under consideration.

The Constitutional Bench of this Court while examining the constitu- C tional validity of Section 27(1) of Bombay Police Act, 1902 (which provision is akin to Section 56 of Bombay Police Act, 1951 in Gurbachan Singh v. The State of Bombay and Another, (1952] SCR 737 gave its finding with regard to the non-disclosure of the identity and address of the witnesses who deposed against him and on whose evidence the proceedings for externment were started, thus : D

" ........ In our opinion this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases E where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menance to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect .................... It is true that a procedure different from F what is laid down under the ordinary law has been provided for a particular class of persons against whom proceedings could be taken under Section 27(1) ;:if the City of Bomaby Police Act, but the discrimination if any is based upon a reasonable classification which is within the competency of the legislature to make. Having G regard to the objective which the legislation has in view and the policy underlying it, a departure from the ordinary procedure can certainly be justified as the best means of giving effect to the object of the legislature."

In Hira Nath Mishra and Others v. The Principa~ Rajendra Medical H

A College, Ranchi and Another, (1973] 1 SCC 805, a complaint was made by some girl students residing in the girls hostel of the College, alleging that the appellants with some others in a late night had entered into the compound of the girls hostel and walked without clothes on them. In respect of this allegation, an Enquiry Committee was constituted and that

B Committee recorded the statement of some of the girl students but not in the presence of the appellants and finally was of the view that the students deserved deterrent punishment and recommended expulsion from the hostel. The appellaots-the students questioned the order on maoy grounds, the chief contention of which was that the rules of natural justice had not been followed before the order was passed since the inquiry had been held C behind their back; the witnesses who tendered evidence against them were not examined in their presence and there was no opportunity to crossexamine the witnesses with a view to test their veracity. Rejecting this contention, this Court held thus:

"The very reasons for which the girls were not examined in the presence of the appellants, prevailed on the authorities not to give copy of the report to them. It would have been unwise to do so ........................... Rules of natural justice cannot remain th~ same applying to all conditions. We know of statntes in India like the Goonda Acts which permit evidence being collected behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected.

Care is taken to see that the witnesses who give statements would not be identified. In such cases there is no question ofthe witnesses being called aod the goonda being given ao opportunity to crossexamine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a judicial mind, these are facts of life which are to be faced."

In this connection, the observation made by Chandrachud, 0. speal- G ing for the Constitution Bench in A.K. Roy (supra) may be recalled, which is as follows:

" .............. Whatever it is, Parliament has not made any provision in the National Security Act under which the detenu could claim the H right of cross-examination aod the matter must rest there.

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KAR TAR v. STATE OF PUNJAB [P ANDIAN, J.] 529

We are therefore of the opinion that, in the proceedings before A the Advisory Board, the detenue has no right to cross-examine either the persons on the basis of whose statement the order of detention is made or the detaining authority."

Under Section 16(2) of the 1987 Act, the Designated Court is given only a discretionary authority to keep the identity a1, d address of any B witness secret on the following three contingencies :

(1) On an application made by a witness in any proceeding before it; or

(2) On an application made by the Public Prosecutor in relation C to such witnesses; or

(3) on its own motion

Sub-section (3) classifies only the measures to be taken by the Designated Court while exercising its discretion under subsection (2). If D neither the witness nor the public prosecutor has made an application in that behalf nor the Court has taken any decision of its own then the identity and addresses of the witnesses have to be furnished to the accused The measures are to be taken by the Designated Court under any one of the above contingencies so that a witness or witnesses may not be subjected to E any harassment for having spoken against the accused

Generally speaking, when the accused persons are of bad character, the witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. The persons who are put for trial under this Act are terrorists and disruptionists. Therefore, the F witnesses will all the more be reluctant and unwilling to depose at the risk of their life. The Parliament having regard to such extraordinary circumstances has thought it fit that the identity and addresses of the witnesses be not disclosed in any one of the above contingencies,

In this context, reference may be made to Section 228-A of the Indian G Penal Code as per which the disclosure of the identity of the victims of certain offences, as contemplated under subsection (1) of that Section is punishable but subect to sub-section (2). However, when the witnesses are examined in the presence of the accused then aceused may have the chances of knowing the identity of the witnesses if they are already known f

SUPREME COURT REP OR TS


A to the defence. But if the witnesses are unknown to the defence then there is no possibility of knowing the identity of the witnesses even after they enter into the witness box. During a trial after examination of the witnesses in chief the accused have got a right of deferring the cross-examination and calling the witnesses for cross-excamination on some other day. If the

witnesses are known to the accused they could collect the material to cross-examine at the time of cross-examination in such circumstances.

Whatever may be the reasons for non-disclosure of the witnesses, the fact remains that the accused persons to be put up for trial under this Act which provides severe punishments, will be put to disadvantage to effective cross-examining and exposing the previous conduct and character of the witnesses.

T, herefore, in order to ensure the purpose and object of the crossexamination, we feel that as suggested by the full Bench of the Punjab and Haryana High Court in Bimal Kaur, the identity, names and addresses of the witnesses may be disclosed before the trial commences; but we would D like to qualify it observing that it should be subject to an exception that the court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially for the potential witnesses whose life may be in denger.

E Section 19 of 1987 Act

This Section provides that notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order not being an interlpcutory order of a Designated Court to the Supreme Court both on facts and on law. Sub-section (2) of that Section F makes it clear that except as contemplated under sub-section (1) of that Section, no appeal or revision shall lie to any other Court.

The above provision is attacked solely on the ground that the conferment of the right of appeal and further appeal to the Supreme Court on grant of leave under Article 136 of the Constitution, both at the remedial G and procedural level, is taken away by the statutory compulsion under the guise of speedy trial even in respect of a conviction under the provisions of ordinary cirminal law even though the charge for the offence under the TADA Act has ended in acquittal, and the taking away of the right traditional appeal or revision will cause great hardship and make one to H suffer in incurring heavy expenditure especially those who are far away

.. ....

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KAR TAR v. STATE OF PUNJAB (PANDJAN, J.] 531

from the situs of the Supreme Court.

The above argument is vehemently resisted by the learned Additional Solicitor General. He extols the specialised procedure of appeal directly to the Supreme Court both on facts and on law as a matter of right, without approaching t.he iraditional appellate and revisional Courts and submits that this appeal procedure is a very si&'Ilificant advantage to the person B tried by the Designated Court and the professed object of it is in conformity with the doctrine of 'speedy trial'. He adds that such a procedure of adjudication of appeals is cheaper, faster, procedurally simpler and less formal than other traditional procedure. The Additional Solicitor General relying on the dictum laid down in (1) Syed Qasim Razvi v. State of C Hyderabad, [1953] SCR 589 and (2) State (Delhi Admn.) v. V.C. Shukla, AIR (1980) SC 1382 submitted that the appeal procedure prescibed by the TADA Act cannot be said to be prejudicial or less advantageous to the accused merely on the ground that the right of appeal provided under the Code of Criminal procedure is taken away.

Leave apart the question whether this provision entails or excludes a great deal of delay then the usual course of disposal of appeals, the indisputable reality is that the Supreme Court is beyond the reach of an average person considering the fact of distance, expense etc. One could understand the right of appeal directly to the Supreme Court under Section E 19 of the Act against any judgment pronounced, sentence passed or order made by a Designated Court solely under the provisions of TADA or under both the provisions of TADA and the ordinary criminal law .. Bnt it would be quite unreasonable to compel a person to prefer an appeal only to the Supreme Court even in a case wherein the trial was for charges under both F the provisions of TADA and the ordinary or general criminal law and the trial has ended in acquittal of the offences punishable under the TADA but in conviction of the offences under the penal provisions of general law alone.

We see no logic or convincing reasoning in providing no choice but G forcing a person aggrieved by the judgment, sentence or order of the Designated Court passed only under the ordinary criminal law to prefer an appeal to the Supreme Court directly in which case the aggrieved person has to deny himself. firstly, the right of appeal to the High Court and secondly, the benefit of approaching the Supreme Court under Article 136 H

A of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA has to approach the Supreme Court from far-flung areas, many of the persons suffering from financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on that count.

B The statutory compulsion, in such a situation as pointed out by the counsel, would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure.

This predicament and practical difficulty, an aggrieved person has to C suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA but convicted only under other penal provisions, is given the right of preferring an appeal before the next appellate court as provided under the Code of D Criminal Procedure and if the State prefers an appeal against the acquittal of the offence under the provisions of TADA then it may approach the Supreme Court for withdrawal of the appeal or revision, as the case may be, preferred by such person to the Supreme Court so that both the cases may be heard together.

E We have adverted to the practical difficulties faced by the aggrieved persons under the appeal provisions and how the same can be removed so that Parliament may take note of them and devise a suitable mode of redress by making the necessary amendments in the appeal provisions. This does not, however, mean that the existing appeal provisions are constitu- F tionally invalid.

Section 20 of 1987 Act

Very intense and sharp arguments occasionally filled with emotions were advanced by both the parties with regard to the scope of sub-sections G 3, 4, 7 and more particularly of sub-section (8) Section .20 of the Act which call for an intense, explicit and candid debate and discussion. As every issue involved in respect of every sub-section is a volatile one bringing the parties almost to the critical cross-roads, it has becme inevitable to examine the burning issues especially with regard to the grant of bail very objectively H and dispassiontely.

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KAR TAR v. STATE OF PUNJAB [P ANDIAN, J.] 533

Sub-section (3) of Section 20 of the Act reads thus : A

"Section 164 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder, subject to the modification that the reference in sub-section (1) thereof to "Metropolitan Magistrate or Judicial Magistrate" shall be construed as a reference to "Metropolitan Magistrate, Judicial B Magistrate, Executive Magistrate or Special Executive Magistrate".

In order to have a better understanding of the above sub-section, we reproduce the sub-section (1) of Section 164, which reads thus :

"164. Recording of confessions and statements - (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at

any time afterwards before the commencement of the inquiry or D trial :

The reading of these two sub-sections in juxtaposition shows that Section 164( 1) of the Code is made substantially applicable in relation to a case involving an offence punishable under the TADA or any rule made thereunder. But the modification is only with reference to Judicial Magistrates who are empowered to record any confession or statement made to him in the course of an investigation under Chapter XII or under any other law for the time being in force, that is to say, the expressions 'Metropolitan Magistrate' and 'Judicial Magistrate' should be construed as

a reference to Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate. In other wurds, the Executive Magistrate and Special Executive Magistrate are included along with the Metropolitan Magistrate and Judicial Magistrate and they are all em- O powered to record the confession or statement.

Section 3 of the Code deals with the construction of references to the words "Magistrates", 'Maistrate of the Second class', 'Magistrate of the First Class' and 'the Chief Judicial Magistrate'. The classes of criminal Courts contemplated under Section 6 of the Code reads as follows : I-

"6. Classes of Criminal Courts-Besides the High Courts and the Courts constituted under any law; other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely-

(i) .................................. .

(ii) ................................. .

(iii) .................... , ........... .

(iv) Executive Magistrale"

Section 20(1) of the Code empowers the State Government lo appoint as many persons as it thinks fit to be Executive Magistrates in every district and in every metropolitan area, and that one of the Magistrates so appointed should be appointed as District Magistrate. Section 20( 4) of the Code empowers the State Government to place an Executive Magistrate D in charge of a sub-division and the said Magistrate so placed should be called as sub-divisional Magistrate. Section 21 deals with the appointment and functions to be performed by the Special Executive Magistrates. This Section empowers the State Government to appoint for such term as it may think fit, Executive Magistrates to be known as Special Executive

E Magistrates for particular areas or for the performance of particular function and confer on such Special Executive Magistrate such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit.

The contention of the learned counsel is that the inclusion of the

I< Executive Magistrate or Special Executive Magistrate to record any confession or statement is with an obliql!e motive of naking it possible that the confession or statement may be recorded and admitted in evidence even if the confessions or statements are not made voluntarily but are extorted under coercion or inducement. The empowering of these two

~ Magistrates, according to them, is against the very principle of separation

J of judiciary from the executive enunciated in Article 50 of the Constitution, and therefore, this provision is bad under Articles 14 and 21 of the the Constitution. It has been further stated that the conferment of judicial functions on the newly added non-judicial authorities, who cannot be expected to have judicial integrity and independence, is totally opposed to I the fundamental principle of govenance contained in Article 50 of the

. '

' 1

j •

KART AR v. STATE OF PUNJAB [PANDIAN, J.] 535

Constitution.

Now let us examine the above submission.

As we have pointed out supra, the Executive Magistrates are also brought as one of the classes of Criminal Courts in every State. This revised set up and the allocation of magisterial functions between the two categories of Magistrates, Judicial under the control of the High Court and the Executive under the control of the State Government, the new Code has provided for, make for the simple scheme of separation of the judiciary from the executive on an all India basis. The Executive Magistrates have not been further classified evidently for the reason that the judicial functions lo be performed by the Executive Magistrates under the new Code are very few. Broadly speaking the functions which are essentially of judicial nature are for the Judicial Magistrates as appears from the rules

of consideration contained in sub-section (4) of Section 3. When Section 6 brings Executive Magistrates' Courts as one of the classes of criminal D Courts it must be held that it is acting as a criminal Court. The orders passed by the criminal Courts inclusive of the Executive Magistrates are revisable as having been passed in 'judicial proceedings'. See Subramaniam

v. Commissioner of Police, AIR {1964) Mad. 185. As pointed out above, there is no classification or gradation of the Courts of Executive Magistrates but the Special Executive Magistrate is the one appointed by E the State Governemnt for a particular area or for the purpose of particular functions.

Under the Code, the Executive Magistrates and Special Executive Magistrates are empowered to perform certain functions some of which F are 'judicial or guasi judicial' in character. Besides they also perform statutory functions in their executive capacity. Reference may be made to Sections 22, 23, 40, 44, 78, 79, 80, 81 and 93 etc. Apart from the above, the Executive Magistrates are also assigned significant funCtions for prevention and dealing with the investigation and trial of criminal offences. Various quasi-judicial and judicial functions are also assigned to Executive G Magistrates and Special Executive Magistrates under Section 107, 108, 109, 110, 133, 144, 145, 146, 174, 176 etc. In additional, under sub-section (2A) of Section 167 of the Code which has been inserted by Act 45 of 1978 w.e.f. 18.12.78, an Executive Magistrate is also authorised to perform certain judicial functions of authorising the detention of the accused in such H

A custody as he thinks fit for a term not exceeding 7 days in an aggregate for the reasons to be recorded in writing and also releasing the arrestee on bail on the expiry of the period of detention so authorised by him when the police officer making an investigation transmits to the nearest Executive Magistrate conferred with the powers of Judicial Magistrate when the

B Judicial Magistrate is not available, a copy of the entry in the police diary and forwards the accused to such Executive Magistrate. The above functions of authorising detention and releasing the arrestee on bail are normally_ performed by the judicial Magistrates in the discharge of their judicial functions.

C Under Chapter VIII of the Code of Criminal Procedure dealing with security for keeping the peace and for good behaviour Section 106 empowers the Court of Session or Court of a Magistrate of the first class to take security from that person convicted of any offences specified in sub-section (2) of Section 106 or of abetting any such offence. Sections 107, 108, 109 and 110 of the Code empower the Executive Magistrate to deal D with the cases under security proceedings. In order to bring the mode of taking evidence as contempolated under Section 273 to proceedings under Chapter VIII also an explanation was added to Section 273 of the Code reading:

11ln this Section,

11accused 11 includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.''

It may be noted, in this connection that certain legislative changes were made in Section 436 of the old Code corresponding to Section 398 of F the new Code by substituting the expression 'person accused of an offence' by Act XVIII of 1923 so as to make Secticn 436 of the Code inapplicable to the security proceedings as well as the proceedings under Sections 133, 134 and 135 of the Code. See Directorate of Enforcement v. Deepak Mahajan & Anr. (supra).

G Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA, it cannot be said that it is contrary to the accepted principles of crimina.1 H jurispru-dence and that the Executive Magistrates an; i SpecialExecutive

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 537

Magistrates are personam outside the ambit of machinery for adjudication A

,_; 1 of criminal cases.

! ..

The next question that falls for our consideration is whether the conferment of judicial function to record confessions or statements by the Executive Magistrate is opposed to the fundamental principles of governance contained in Articles 50 of the Constitution.

The Indian Constitution provides for an independent judiciary in the States and in order to place the independence of the subordinate judiciary beyond question, provides in Article 50 of the Directive Principles for the separation of the judiciary from the executive.

We, without entering into the wide range of the scope and value underlying Article 50, would confine ourselves to the issue whether the Executive Magistrates falling under one of the classes of criminal Courts under Section 6 of the Code are judicial officers.

This Court in Statesman (Private) Ltd. v. H.R. Deb & Ors., [1968] 3 SCR 614 had an occasion to examine the question who is a 'judicial officer' and Hidayatullahl CJ speaking for the Constitution Bench answered the same thus:

" ........ All learned Judges seem to agree that a magistrate exercises E judicial functions. This does not admit of any doubt and no reasons are required. }'hat his duties are partly judicial and partly other does not in any way detract from the position that while acting as a Magistrate he is a judicial officer."

Further, the bench agreed with the view expressed by Bachawat, J that a Magistrate holds a 'judicial office, dissenting from the view taken by Banerjee, J that a Magistrate could not be said to hold judicial office. See Sharee Hanman Foundaries v. H.R. Deb & Ors., Matter No: 1220/61 decided on July 28, 1965.

Recently, this Court in Shri Kumar Padma Prasad v. Union of India ' and Others, [1992] 2 SCC 428 has observed as follows :

!!The expression

1judicial office' in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Under the Criminal Procedure H

Code, 1973 powers of judicial Magistrate can be conferred on any person who holds or has held any office under the Government.

Officers holding various posts under the executive are often vested with the Magisterial powers to meet a particular situation."

After having thus observed, the learned Judges went further to the question with regard to the interpretation of Articles 217(2)( a) and 236(B) and so no which are not germane for the determination of the qusestion with which we are confronted.

See also Chandra Mohan v .. State of Uttar Pradesh, [1967] 1 SCR 77.

In this context, we feel that it would be quite significant to recall the opinion of a Constitution bench in Ram Jawaya v. State of Punjab, AIR 1955 SC 549 at 556. In that case, Mukherjea, 0 which dealing with the scope of separation of powers has observed thus :

"The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate exemption, by one organ or part of the State of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.

It can also, when so empowered exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution, but as have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.

The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the from of the executive which our Constitution Ii.as set up. Our Constitution, though federal in its

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KARTAR v.STATEOFPUNJAB (PANDIAN, J.] 539

., f' structure, is modelled on the British Parliamentary system where A the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State."

In view of the discussions made above and also in the light of the B

principles laid down in the various decisions cited above, we hold that the

I Executive Magistrates while exercising their judicial or quasi-judicial func- • tions though in a limited way within the frame of the Code of Criminal Procedure, which judicial functions are normally performed by Judicial Magistrates can be held to be holding the judicial office. Therefore, the c contention of the learned counsel that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. Resultantly, we hold that sub-Section (3) of Section 20 of the TADA does not offend either Article 14 or D 21 and hence this sub-section does not suffer from any constitutional in

I validity. "

Though we are holding that this Section is constitutaionally valid, we, in order to remove the apprehension expressed by the learned counsel that the Executive Magistrates and the Special Executive Magistrates who are E under the Control of the State may not be having judicial integrity and independence as possessed by the Judicial Magistrates and the recording of confessions and statements by those Executive Magistrates m_ay not be free from any possible oblique motive, are of the opinion that it would be always desirable and appreciable that a confession or statement of a person F is recorded by the Judicial magistrate whenever the Magistrate is available in preference to the Executive Magistrate unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates.

Sub-section (4) of Section 20 of 1987 Act G

Sub-section ( 4) of Section 20 (as amended by Act 43 of 1993) reads • ,! thus:

"4. Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule ade H

thereunder. subject to the modifications that -

(a) the reference in sub-section (1) thereof to "Judicial Magistrate" shall be construed as a reference to "Judicial Magistrate or Executive Magistrate or Special Executive Magistrate";

(b) the reference iu sub-section (2) thereof to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "sixty days", "one hundred and eighty days" .and "one hundred and eighty days" respectively.

(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely :-

Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eightydays, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days; and

(c) sub-section (2-A) thereof shall be deemed to have been omitted.

The modification in sub-section 4( a) of Section 20 is in the same line of sub-secti<Jn (3); in that the Executive Magistrate and the Special Execu- F tive Magistrate are included along with the Judicial Magistrate. Therefore, whenever a person is arrested for an offence under the provisions of TADA Act, the arrestee can be transmitted to the Judicial Magistrate or the Executive Magistrate or Special Executive Magistrate though the transmission of the accused under Section 167(1) for other offences is still only to the Judicial Magistrate. It may be recalled that under sub-section 2-A G of Section 167, a police officer can transmit the copy of the entry in the diary relating to the case and forward the accused arrested normally to the Judicial Magistrate and when he is not available, to a nearest Executive Magistrate who is empowered to authorise detention only for a specified period not exceeding seven days in the aggregate. But by the modification H of Section 167 in relation to sub-section 4(a) of Section 20 of TADA, the

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 541

Executive Magistrate or Special Executive Magistrate can perform all the A powers of a Judicial Magistrate.

U ndcr sub-section 4(b) of Section 20, the modification is only with reference to the period of detention of the accused in custody. As per Section 167(2), the Magistrale is authorised to detain the accused from time to time, in such custody as he thinks fit for a term not exceeding fifteen days in the thinks but the period of fifteen days now is extended to sixty days and the authorisation of the detention of an accused person otherwise than in the custody of police can be up to ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days where the investigation relates to any other offence. The 'ninety days' and 'sixty days' arc construed to be under clause (b) of sub-section 4 as 'one year' and 'one year' respectively. However, by the amendment Act 43 of 1993, one year period is reduced to one hundred and eighty days but subject to

the newly introduced proviso whereunder 'one hundred and eighty days' D can be extended up to 'one year' on the report of Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention beyond the said period of 'one hundred and eighty days'. The extended period of remand of one year now reduced to one hundred eighty days, subject to the proviso, is attacked on the ground that this extended period of detention of an accused is not in tune with the spirit .of the doctrine of 'speedy trial'. This criticism is resisted by the learned Additional Solicitor General stating that in view of the activitites of terrorists and disruptionists covering wide range of area both domestically and interntionally justifiably require the extended period of detention since it is not possible to complete the investigation within a shorter period.

Be that as it may, the other scathing attack is that by availing the extended period of detention, the prosecution makes the accused not only to languish in incarceration but also denies the right to get bail within that period. We will deal with the seco:>d attack while disposing the contention in relation to sub-section (8) of Section 20.

For the reasons mentioned in the preceding part of the judgement while disposing the submission made with reference to sub-section (3) of Section 20, we hold that the criticism that the inclusion of Executive Magistrate and Special Executive Magistrate in subsection (1) of Section H

A 167 is with an ulterior motive, cannot be countenanced and this provision cannot be said to be unconstitutional.

In view of this finding, the conclusion in Bimal Kaur that "clause (a) of sub-section ( 4) of Sction 20 is held to be ultra vires" is liable to be vacated and accordingly set aside.

Sub-section (7) of Section 20 of 1987 Act

Sub-section (7) reads thus:

"Nothing in Section. 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act or any rule made thereunder. n

This provision, according to Mr. Jethmalani, takes away the right of an accused in availing the anticipatory bail which the arrestee would have D otherwise is entitled to. Section 438 of the Code, according to him, is a most essential safeguard for liberty of a person and that it is found necessary to meet the obvious cases of misuse of police power.

Mr. Tarkunde raised the same contention and then drawing strength E from the judgment in Gurbaksh Singh S.ibbia Etc. v. State of Punjab, [1980] 3 SCR 383 supplements the argument that abolition of the right of anticipatory bail amounts to deprivation of personal liberty as enshrined in Article 21 of the Constitution.

The High Court of Punjab and Haryana in Bimal Kaur (supra) has examined a similar challenge as to the vires of Section 20 (7) of TADA Act, and held thus :

"In my opinion S. 20(7) is intra vires the provisions of Art. 14 of the Constitution in that the persons charged with the commision of terrorist act fall in a category which is distinct from the class of persons charged with commission of offences under the Penal Code and the offences created by other statutes. The persons indulging in terrorist act from a member of well organised secret movement. The enforcing agencies find it difficult to lay their hands on them. Unless the Police is able to secure clue as to who H are the perons behind this movement, how it is organised, who are

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 543

its active members and how they operate, it cannot hope to put an A end to this movement and restore public order. The Police can secure this knowledge only from the arrested terrorists after effective interrogation. If the real offenders apprehending arrest are able to secure anticipatory bail then the police shall virtually be denied the said opportunity."

It is needless to emphasise that both the Parliament as well as the \ State Legislatures have got legislative competence to enact any law relating to the Code of Criminal Procedure. No provision relating to anticipatory

bail was in the old Code and it was introduced for the first time in the present Code of.1973 on the suggestion made of the Forty-first Report of C the Law Commission and the Joint Committee Report. It may be noted that this Section is completely omitted in the State of Uttar Pradesh by Section 9 of the Code of Criminal Procedure (Uttar Paradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976) w.e.f. 28.11.75. In the State of West Bengal, .a proviso is inserted to Section 438(1) of the Code w.e.f. D 24.12.1988 to the effect that no final order shall be made on an application .j filed by the accused praying for anticipatory bail in relation to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, without giving the State not less than seven days notice to present its case. In the State of Orissa, by Section (2) of Orissa Act 11 of 1988 w.e.f. 28.6.1988, a proviso is added to Section 438 E stating that no final order shall be made on an application for anticipatory bail without giving the State notice to -present its case for offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years.

It is relevant to note one of the reasons given by the Law Commission for its suggestions to introduce the provision for anticipatory bail, that reason being " ...... where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse

his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail". G To put it differently, it can be de.duced from the reasoning of the Report , i of the Law Commission that where a person accused of a non-bailable offence is likely to abscond or otherwise misuse of his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism H

A and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail. Evidenlly, the Parlia- '"~

ment has thought it fit not to extend the benefit of Section 438 to such offenders.

Further, at the risk of repetition, we may add that Section 438 is a new provision incorporated in the present Code creating a new right lf that new right is taken away, can it be said that the removal of Section 438 is violative of Article 21. In Gurbaksh Singh there is no specific statement that the removal of Section 438 at any time will amount to violation of Article 21 of the Constitution.

Hence for the aforementioned reasons, the attack made on the validity of sub-section (7) of Section 20 has to fail.

Section 9 or Code of Oiminal Procedure (U.P. Amendment) Act, 1976

As the constitutional validity of Section 9 of U.P. Act 16 of 1976 is attacked on the same ground of sub-section (7) of Section 20 of the Act, we would like to dispose of a batch of writ petitions filed by several petitions confining the question only with regard to the constitutional validity of Section 9 of the U .P. Amendment Act 16 of 1976 by which the

U.P. Legislature has deleted the operation of Section 438 of the Code w.e.f. 28.11.1975. The facts of the cases are not relevant, except to the extent that the First Information Reports in all those cases have been lodged for various offences mainly under Section 302 !PC. The question which arise for consideration are, (1) whether the State Legislature has legislative competence to delete Section 438 of the Code; and (b) whether the U.P.

Act 16 of 1976 is violative of Articles 14, 19 and 21 of the Constitution.

The learned counsel for the State of U.P. submitted that this Act is a valid piece of legislation as it does not suffer from the legislative competence and the State Legislature is empowered to pass this Act in taking G into consideration the crime infected situation in the State and this amendment was necessary keeping in view the prevailing situation and the increasing rate of offences in the State. According to him, it was in order to meet the deteriorating situation, the State Legislature besides deleting Section 438 of the Code was compelled to promulgate the U .P. Dacoit H Areas Act, 1983 and other like enactments.

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 545

The competence of the State Legislature to amend Central Act has A been recognised in U.P. State Electric Supply Co. v. R.K Suhkla, [1969] 2 SCC 400. The Legislature has passed the Act No. 16 of 1976 in exercise of powers under List III (Concurrent List) of the Seventh Schedule and deleted Section 438 of the Constitution. Moreover, the Amendment Act which has received the assent of the President of India on 30.4.76 by virtue B of Article 254(2) of the Constitution prevails in U .P. State, notwithstanding any prior law made by the Parliament. As the Act is applied through out the State, there is no question of discrimination in the application of this provision in the State of Uttar Pradesh.

Hence, in view of the discussion made in relation to Section 20(7) of C the TADA and of the legislative competence of the State, the contention that it is violative of Articles 14, 19 and 21 of the Constitution has no merit and as such has to be rejected.

Sub-Section (8) of Section 20 of 1987 Act

The construction of the above sub-section which imposes severe limitations on the grant of bail in addition to the limitations contained in Section 437(3) of the Code, has led to a fiery articulation by both the parties. Of course, it is one of the most important debatable issue which repeatedly comes up before this Court for interpretation in addition to the E question whether the High Court in exercise of its extraordinary prerogative right under Article 226 can entertain an application and pass an order either granting or denying bail. As sub-section (9) which in term provides that the limitations on granting of bail specified in sub-sectiori (8) are in addition to the limitations under the Code or other law for the time being in force on granting of bail, serves as a qualifying provision to sub-section F (8), it has become imperative while interpreting sub-section (8) to construe sub-section (9) also along with sub-section (8). Therefore, we would like to reproduce both the sub-sections (8) and (9) of Section 20 hereunder :

"(8) Notwithstanding anything contained in the Code, no person C accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless -

(a) the Public Prosecutor has been given an opportunity to oppose the application for such relase, and r

(b) where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail."

Much earlier to the enactment of the Acts of 1984, 1985 and 1987, there was a similar provision, namely, Rule 184 of the Defence and Internal Security of India Rules, 1971 (for short 'Rules of 1971') (with which we are not concerned otherwise). It runs as follows:

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond uniess -

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) Where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Goverment may by notified o•der specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention."

F Sub-section (8) of Section 20 commences with a non-obstante clause as in Rule 184 of the Rules of 1971 (referred to above) and in its operation imposes a ban on release on bail of a person accused of any offence punishable under the TADA Act or any rule made thereunder unless the two conditions specified in clauses (a) and (b) of that sub-section are G satisfied.

In relation to the question involved, a lot of arguments were advanced at the bar and voluminous decisions were relied upon. It is the common grievance of all the counsel assailing this provision that whilst Section 20(7) makes Section 438 of the Code inoperative, Section 20(8) H makes the grant of bail as an impossible one. According to them, an

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 547

over-generous infusion of constraints and restrictions as well as un- A reasonable restrictions which are not found in any of the bail provison of the Code, have made this provision as prescribing a procedure which is unjust and unfair.

Mr. V.M. Tarkunde impugns this prov1srnn contending that this sub-section infringes the underlying principle of Articles 21 and 14 of the Constitution as the manifested intention of this provision makes it impossible for even an innocent person to get bail when he is falsely charged with an offence under the TAD A. When the salutary principle of criminal justice is that every person is presumed to be innocent till he is proved to

be guilty, this provision under challenge goes diametrically contrary to that C principle. Placing reliance on the decision in Gudikanti v: Public Prosecutor, [1978] 2 SCR 371 wherein Krishna Iyer, J has commenced his judgment with a prefatory note reading, "Bail or Jail?" - at the pre-trial or post-conviction stage - belongs ot the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion and observed, "The significance and sweep of Art. 21 make the D deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19" - Mr. Tarkunde asserts that this provision is totally in violation of Article 21.

Mr. Jethmalani attacks this provision contending that it is the most E obnoxious and unfair provision, requiring the Court to certify that 'the accused is not likely to commit any offence while on bail'. He pleads to declare this clause as unconstitutional, based on the observation of the Full Bench of Punjab and Haryana High Court in Bimal Kaur.

The learned Additional Solicitor General attempts to meet the above agruments stating that there is no question of unconstitutionality of the provision and in fact, the conditions imposed under clause (b) of sub-section (8) is in consonance with the requirements prescribed under clauses

(i) and (ii) of subsection (1) of Section 437 and clause (b) of sub-section G

(3) of that Section. In any event, according to him, the conduct of an accused seeking bail in the context of his background and the nature of crime commited are to be evaluated before the concession of bail can be

,.I granted and that the evaluation is fundamentally from the point of view of his likelihood of either tampering with the evidence or unleashing a threat to the society during the period when he may be allowed to be on bail. He H

548 SUPRE!viE COURT REPORTS

[1994) 2 S.C.R.

A also quotes another observation of Krishna Iyer, J in Gudikanti (supra) at

page 376 in support of his submission which reads, " ...... .All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised ..... : ..... No seeker of justice shall play confidence tricks on the court or community. 11

Sub-section (8) which imposes a complete ban on release on bail against the accused of an offence punishable under this Act minimises or dilutes that ban under two conditions, those being (1) the Public prosecutor must be given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the Court must be satisfied that the two conditions, namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offence and (b) be is not likely to commit any offence while on bail.

D Sub-section (9) qualifies sub-section (8) to the effect that the above two limitations imposed on grant of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. Section 436 of the Code provides for grant of bail to a person accused of a bailable offence, while Section 437

provides for grant of bail to any accused of, or suspected of, the commission of any non-bailable offence. Nonetheless, sub-section (1) of Section 437 imposes certain fetters on the exercise of the powers of granting bail on fulfillment of two conditions, namely ( 1) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; and (2) if the offence complained of is a cognizable offence and that the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a non-bailable and congnizable offence. Of course, these two conditions are subject to three provisos attached to sub-section ( 1) of Section 437. But we are not very much concerned about the provisos.

G However, sub-section (3) of Section 437 gives discretion to the Court to grant bail attached with some conditions if it considers necessary or in the interest of justice. For proper understanding of those conditions or limitations to which two other conditions under clauses (a) and (b) of sub-section

(8) of Section 20 of the TADA Act are attached, we reproduce those H conditions in Section 437(3) hereunder :

KART AR v. STATE OF PUNJAB [PANDIAN,.l.J 549

"437 (3) -

(a) in order lo ensure thal such person shall attend in accordance with lhe conditions of the bond executed under this Chapter, or

(b) in order lo ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission B of which he is suspected, or

(c) otherwise in the interests of justice. 11

Section 438 of the Code speaks of bail and Section 439 deals with the special powers of High Court or Court of Session regarding bail. It will be relevant to cite Section 439(1)(a) also, in this connection, which reads as follows :

"439. Special powers of High Court or Court of Session regarding bail - (l) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature spcified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) ..................................................... "

In this connection, we would like to quote the following observation of this Court in Usmanbhai Dawoodbllai Memon v. State of Gujarat, [1988]

2 sec 271 with which WC arc in agreement : F

'Though there is no express provision excluding the applicability of Se<.:tiun 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result G must, by necessary implication, follow .. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the H

limitations under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session' within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act."

Reverting to Section 20(8), if either of the two conditions mentioned C therein is not satisfied, the ban operatres and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA.

D Though the conditions of Rule 184 of 1971 Rules are more or less similar to those of the limitations imposed in Section 20(8) of the Act, this Court in Ba/chand Jain v. State of Madhya Pradesh, [1977] 2 SCC 52 set aside the order of the arrest rejecting the bail application on the ground that the power conferred by Section 438 is not taken away by Rule 184 as there was no provision in that rule over-riding Section 438. (But under the E TADA Section 20(7) completely excludes the application of Section 438 of the Code). However, in Ba/chand (supra) Bhagwati, J (as the learned Chief Justice then was) speaking for the Bench observed as follows :

"The Rule, on its plain terms, does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under the Rules, if in custody, shall not be released on bail unless the aforesaid two conditions are satisfied. It imposed fetters on the exercise of the power of granting bail in certain kinds of cases and removes such fetters on fulfilment of the aforesaid two conditions. When these two conditions are satisfied, the fetters are removed and the power of granding bail possessed by the Court H under the Code of Criminal Procedure revives and becomes exer-

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KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 551

cisable. The non-obstante Clause at the commencement of the Rule A also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule 184 as laying down a self-contained code for grant of bail in case of a person B accused or convicted of contravention of any Rule or order made under the Rules so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any C Rule or order made under the Rules. These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason of the non-obstante clause overridden by rule 184."

In Usmanbhai, this Court after considering the above view expressed in Balchand and the opinion expressed by the High Court of Himachal Pradesh in Ishwar Chand v. State of Himachal Pradesh I.L.R. (1975) HP

569 held that both the decisions are clearly distinguishable and opined that Section 439 as well as Section 482 of the Code cannot be availed of for grant of bail in cases under the Act of TADA on the principle in Balchand E dealing with Rule 184 of 1971 Rules. The relevant finding of this Court is thus:

" ......... Further, while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Courts would have F no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would G imply that not only the High Court bui also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the Code, no person H

accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. Lastly both the decision in Balchand Jain an<l that in lshwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971.

They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 an<l 439 exists. We must accordingly uphold the view e''Pressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code.

That takes us to the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under Section 20(8). The sub-section in terms places fetters on the powers of a Designated Court on granting of bail and the limitation specified therein are in addition to the limitations under the Code.''

E We are in full agreement with the above view expressed by the learned Judges in Usmanbhai. In that case, this Court finally set aside the orders passed by various Designated Courts and remitted the cases with a direction that the Designated Courts should consider each particular case on merit as to whether it fell within the rurview of Section 3 and/or 4 of F the TADA of 1987 and if so whether the accused in the facts and circumstances of the case were entitled to bail, while keeping in view the limitations on the powers of the Court under Section 20(8) of the Act and transfer the other category of cases not falling within the purview of the TADA Act for trial to the ordinary criminal courts.

G The conditions imposed under Section 20(8)(b ), as rightly pointed ou by the Additional Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of subsection (1) of Section 437 and Clause (b) of sub-section (3) of that Section Similar to the conditions in clause (b) of subsection (8), there are provisions in various H other enactments - such as Section 35(1) of Foreign Exchange Regulation

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KARTAR v. STATEOFPUNJAB [PANDIAN, J.] 553

Act and Section 104(1) of the Customs Act to the effect that any authorised A or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs water has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the codition that "there are grounds for believing that he is not guilty of an offence", which condition in different from is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the princple of Article 21 of the Constitution.

In ; iew of the detailed discussion made above, we set aside the C conclusion of the Punjab and Haryana High Court in Bimal Kaur holding, "Therefore, the last portion oi cl. (b) of subsection (8) of Section 20 of the Act, which reads : 'and that he is not likely to commit any offence while on bail' alone is ultravires!I.

No doubt, liberty of a citizen must be zealously safeguarded by the Courts; nonetheless the Courts while dispensing justice in cases like the

one under the TADA, should keep in mind not only the liberty of the accused but also the interest of the victims and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial E administration and indulge in private retribution.

It is true that on many occasions, we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA with an oblique motive of depriving the accused persons from getting bails and in F some occasions when the Courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the Courts invoke the provisions of the TADA. This kind of invocation of the provisions of TADA in cases. the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police. Unless, the public prosecutors rise to the occasion and G discharge their onerous responsibilities keeping in mind that they are prosecutors on behalf of the public but not the police and unless the Presiding Officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Constitution to which H

A they have been assigned the role of sentinel on the qui vive, it cannot be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment.

Reference may be made to State of Maharashtra v. Anand Chintman

B Dighe, [1990] 1 sec 397.

The. next nagging question that frequently comes up for our considcration is with regard to the right of a person indicted of an offence under the TADA Act to approach the High Court for bail under Article 226 of the Constitution of India. Some of the High Courts have taken the • c view that the jurisdiction of the High Courts under Article 226 of the Constituation to entertain bail applications and pass orders in cases registered under the provisions of TADA can not, in any way, be taken away or whittled down. In fact, bail applications are freely entertained by some High Courts. Relating to this question, we would like to refer to a decision of a Division Bench of the Bombay High Court in Rafiq Abid Patel D v. Inspector of Police, Thane, (1992) Cr!. L.J. 394. In that case the learned Judges disagreeing with the view taken by another Bench in Criminal Writ Petition No .. 458 of 1991 in its order dated 25th April 1991 refusing to

~ exercise its jurisdiction under Article 226 of the Constitution, observed thus: ~

E "The points which have been urged before us do not appear to have been urged before the Division Bench or considered by it, ' namely that it is only at the stage of taking congnizance of the r offence after filing of the charge-sheet that the Designated Court can exercise its powers u/s. 18 of the TADA Act and till then, if F the investigation has taken a considerable period of time, as in the f present case, and if no prima facie case is disclosed for applying

~ the provision of the TADA Act, the Court can exercise its powers under Art. 226 of the Constitution to entertain a petition ............. "

G In Usmanbhai (supra), one of the questions of substantial importance was as to the jurisdiction and power of the High Court to grant bail under Section 439 of the Code or by recourse to its inherent powers under Section 482 to a person held in custody accused of an offence under Sections 3 ancl 4 of the TADA Act of 1987. During the course of the discussion, one of :,,,. the questions posed for consideration was whether a bail application can H be moved before the High Court under Article 226 or 227 of the Constitu-

KARTAR v. STATE OF PUNJAB !PANDIAN, J.] 555

tion. The Court answered that question holding thus :

"Al the very oulsot, Shri Potli, learned counsel appearing for the Stale Government with his usual fairness, unequivocally accepted th al the provisions of the Act to do not take away the constitutional remedies avilable to a citizen to approach the High Court under Article 226 or Article 227 or move this Court by a petition under Article 32 for the grant of an appropriate writ, direction or order.

It must necessarily follow that a citizen can always move the High Court under Article 226 or Article 227, or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Section 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification, was a fraud on powers and thus constitutionally invalid."

A careful reading of the above observation makes it clear that it is not the rule laid down by this Court on a detailed discussion of the legal provisions, but on the other hand, it i::: only the reflection of the opinion of a counsel who appeared in that case, as seen from the beginning of the

sentence, "It must necessarily follow ........... ". Except this passing observa- E tion, no discussion has been made in the entire judgment.

In a recent judgment, this Court in State of Maharashtra v. Abdul Hamid Haji Mohammed after examining a question regarding the justification of the High Court to exercise its jurisdiction under Article 226 for quashing the prosecution for an offence punishable under the TADA Act F has observed thus:

............. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex-facie it cannot constitute an offence punishable under TADA G Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act.

We may hasten lo add that this can happen only in extreme cases which would be rare and that power of the High Court is not H

exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstance, if proved to be true, is likely to resul in conviction for an offence under TADA Act ......................................... .

There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act."

After observing thus, the Court finally concluded:

" ............... The view taken by the High Court on this aspect is contrary to law apart from, being unjustified and impermissible in exercise of its jurisdiction under Article 226 of the Constitution."

Shri V.R. Reddy, the learned Additional Solicitor General appearing D in Criminal Appeal No. 172/92 has raised a serious objection that the High Court in its power of superintendence under Article 227 C>f the Constitution has no jurisdiction in matters relating to TADA provisions ignoring the manifest intentin of the Parliament to exclude the jurisdiction of the High Courts in such matters. In support of his submission, he cited several

decisions dealing with the power of superintendence of the High Court under Article 227, those being - (1) Waryam Singh and Another v.Amamath and Another, [1954] SCR 565; (2) State of G•; jarat etc. v. Vakhtsinghji Veghe/a and Others etc., (1968] 3 SCR 592; (3) Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand and Others, (1972] 1 SCR 898; (4) Mohd. Yunus v. Mohd. Mustaqim and others, (1983] 4 SCC 566 and (5) Mani Nariman Daruwala v. Phiroz N. Bhatena and Others, [1991] 3 SCC

141. He also cited another decison in Narcotics Contol Bureau v. Kishan Lal, [1991] l SCC 705 in which the decision of Usmanbhai was relied upon.

Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them G with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any H judgment, sentence or order (not being an interlocutory order) or a Desig-

...

).. .

...

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KARTAR v. STATEOFPUNJAB [PANDIAN, J.) 557

nated Court etc. The over-riding effect of the provisions of the Act (i.e. A Section 25 of TADA) and the Rules made there under and the nonobstante cause in Section 20(7) reading, "Notwithstanding anything contained in the Code ......... " clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment

of the Parliament would be completely defeated and frustrated. But the same time it cnnot be said that the High Courts have no jurisdiction.

Therefore, we totally agree with the view taken by this Court in Abdul C Hamid Haji Mohammed (supra) that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 D cannot be put in straight jacket. However, we would like to emphasise and re-emphasise that the judicial discipline and comity of Courts require that the High Courts should refrain from exercising their juridiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution.

Section 22 of Act of 1987

Though no oral argument has been advanced by the learned counsel challenging the validity of this provision, since we are scrutinising the entire F Act, we feel that it would be better if our view on this provision is also recorded. However, Mr Jetbmalani in his written submissions has stated that this Section is unintelligible and that it is quite impossible to identify any person on the basis of his photograph especially in the present day when the trick photographs are being taken I see much force in this submission.

If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspected may result. Therefore, we are inclined to strike down H

A this provision and accordingly we strike down section 22 of the Act. \.

Re. Section 2(J)(i) of 1984 Act and Section 2(1)(j) of 1987 Act.

Section 2(1)(i) of 1984 Act defines the expression 'terrorist affected area' meaning an area declared as a terrorist affected area under Section B 3, and Section 2(1)(!) of TADA of 1987 defines 'notified area' meaning such area as the State Government may, by notification in the Official Gazette, specify. We are given to understand that in some of the States, the State Governments have notified almost all the areas of the State as 'notified area'. But no notified area seems to have been denotified after c notification. Furthers, nothing has been brought to our notice about the denotification of any area in any State. Therefore, we suggest that the State Governments should review periodically and take decision either to ... denotify any area or continue the same as 'notified area' and act accord ingly. The Screening or Review Committee which we have suggested while dealing with Section 15 of the 1987 Act, may also be empowered by the D respective Governments to scrutinise the prevailing situations and to make

11 recommendations to the State Governments, recommending either to con ' - tinue or to discontinue the notification. Our opinion in this regard may aslo be followed in the case of declaring any area as "Terrorist affected area".

E Before formulating our conclusions, we would like to express our opinion on the role of the police in the implementation of these Acts.

'In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well-trained and welldisciplined force of police whom it can trust : and enough of them to be able to prevent crime F before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct' - so says Lord Denning in his treatise 'The Due Process of Law'.

G It is heart-rending to note that day and day out wecome across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have bee~ committed, in utter disregrd and in all breaches of :<. humanitarian law and universal human rights s well as in total negation of the constitutional guarantees and human decency. We are undoubtedly committed to uphold human rights even as a part of long standing heritage H and as enshrined in our constitutional law. We feel that this perspective •

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 559

needs to be kept in view by every law enforcing rnthority because the A recognition of the inherent dignity and of the equal and inalienanble rights of the citizens is the fonndation of freedom, justice and peace in the world.

If the human rights are outraged, then the Court should set its face against such violation of human rights by exercising its majestic judicial authority.

The protection that the citizens enjoy under the Rule of Law are the quintessence of two thousand years of human struggling .from Adams. It is not commonly realised how easil this may be lost. There is no known method of retaining them but by elternal vigilance. There is no institution

to which the duty can be delegated except to the judiciary. If the law enforcing authority becomes a law beaker, it breeds contempt for law, it C invites every man to become a law unto himself and ultimately it invites anarchy.

Many a time in human history, great societies have crumbled into oblivion through their failure to realise the significance of crisis situations operating within them. True, our' is a country which stands tallest even in D troubled times, the country that clings to fundamental principles of human rights, the country that cherishes its constitutional heritage and reject simple solutions that compromise the values of that lie at the root of our democratic system: Each generation of .mankind has considered its perplexities and concerns to.be unique and consequently their fundamental E demands are more :-

the cry for justice the longing for peace and and the felt-need for security

The above are to maintain the higher rhythms of pulsation democratic lifein a constitutional order.

TO SUM UP:

(1) The Terrorist Affected Areas (Special Courts) Act, 1984 (Act

61 of 1984); The Terrorist and Disruptive Activities (Prevention) Act, 1985 (Act 31 of 1985); and The Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987) fall within the legislative competence of Parliament in view of Article 248 read H

with Entry 97 of List I and could fall within the ambit of Entry 1 of List I, namely, 'Defence of India'.

(2) As the meaning of the word 'abet' as defined under Section 2(1)(i)(a) of 1987 Act is vague and imprecise, 'actual knowledge or reason to believe' on the part of a person to be brought within the definition, should be read into that provision instead of reading that provision down;

(3) The power vested on the Central Government to declare any area as 'terrorist affected area' within the terms of Section 3(1) of the Act of 1984 does not suffer from any invalidity;

( 4) The contention that Sections 3 and 4 of the Act of 1987 are liable to be struck down on the grounds that both the Sections cover the acts which constitute offences under ordinary laws and that there is no guiding principle as to when a person is to be D prosecuted under these Sections, is rejected :

(5) Section 8 of the TADA Act is not violative of Articles 14 and 21 of the Constitution;

( 6) The challenge on the validity of Section 9 on the ground of lack of legislative competence has no merit;

(7) We uphold sub-section (7) of Section 9 of the TADA Act with a suggestion that the Central Government and the State Govenments at the time of appointing a Judge or an Additional Judge to the Designated Court should keep in mind that the Judge designate has sufficient tenure 'of service even at the initial stage of appointment so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation;

(8) The order granting 'concurrence' by the Chief Justice of India on a motion moved in that behalf by the Attorney General to transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in other State, is only a statutory order and not a judicial order since there is no adjudication of any '!is' and determination of any issue. Therefore, sub-sections (2) and (3) of Section 11 are not violative of Articles

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 561 ..

-<' 14 of the Constitution; A

(9) Section 15 of the TADA Act is neither viuiarive of Arricle 14 nor of 21. Bur the Central Government may take note of certain guidelines which we have suggested and incorporate them by appropriate amendments in the Act and the Rules made there- B under;

(10) The challenge made to Section 16(1) does not require any consideration in view of the substitution of the newly intoroduced sub-section by Amendment Act 43 of 1994 giving discretion to the Designated Court either to hold or not to hold the proceedings in c camera;

(11) Sub-sections (2) and (3) of Section 16 are not liable to be struck down. However, in order to ensure the purpose and object of cross-examination, we uphold the view of the full Bench of the D •

Punjab and Haryana High Court in Bimal Kaur holding, "the identity, names and addresses of the witnesses may be disclosed before the trial commences" but subject to an exception that the Court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of potential witnesses, whose life may be in danger; E

(12) The existing appeal provisions provided under Section 19 are not constitutionally invalid. But having regard to the practical difficulties to be faced by the aggrieved person under the appeal -·"'

provisions, the Parliament may devise a suitable mode of redress F by making the necessary amendments in the appeal provisions, as suggested during the discussion of the validity of Section 19;

(13) Sub-sections (3) and (4)(a) of Section 20 do not suffer from any infirmity on account of the inclusion of the Executive G Magistrate and Special Executive Magistrate within the purview of Sections 164 and 167 of the Code of Criminal procedure in respect '

of their application in relation to a case involving an offence ' punishable under the TADA Act or any rule made thereunder.

Likewise, clause (a) of Section 15 of the Special Courts Act, 1984 does not suffer from any infirmity; H

(14) Section 20(7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the Rules made thereunder, cannot be said to have deprived the personal liberty of a person as enshrined in Article 21 of the Constitution;

(15) The deletion of the application of Section 438.in the State of Uttar Pradesh by Section 9 of the Code of Criminal procedure (U.P.) Amendment, 1976 does not offend either Article 14 or 19 or 21 of the Constitution and the State Legislature is competent to delete that Section, which is one of the a matters enumerated in the concurrent List (List III of the Seventh Schedule) and such deletion is valid under Article 254(2) of the Constitution;

(16) Sub-section (8) of Section 20 of TADA Act imposing the ban on release of bail of a person accused of any offence punishable under the Act or any rule made thereunder, but diluting the ban • only on the fulfillment of the two conditions mentined in clauses

(a) and (b) of that sub-section cannot be said to be infringing the princip!e adumberaied in Article 21 of the Constitution;

( 17) Though it cannot be said that the High Court bas no jurisdiction tC> entertain an 'appliation for ball under Article 226 of the Constitution and pa5s orders either way, relating to the cases under the Act of 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of Courts require that the High Courts.should refraill from exercising the extraordinary jurisdiction in such matters; ,

(18) Section 22 of the TADA Act is struck down a being opposed to the fair and reasonable procedure enshrined in Article 21 of the Constitution. ' .

Keeping in view the doctrine of 'speedy trial' which is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution and which concept is manifested in, the Special Court act, 1984 and TADA Act, 1987, the Designated Courts should dispose of the cases pending before them H without giving room for any complaint of unreasonable delay. The Governt

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KARTAR v. STATEOFPUNJAB [K.RAMASWAMY, J.] 563

ment concerned should ensure that no vacancy of Presiding Officer of the A Designated Court remains vacant and should take necessary steps to fill up the vacancy as soon as any vacancy arises and also if necessitated, should constitute more Designated Courts so that the undertrials charged with the provisions of TADA do not lenguish in jail indefmitely and the cases are disposed of expeditiously.

.. In the result, the legal questio~ raied. and debate.d are answered accordingly. The Writ Petitions, Criminal Appeals and SLP are disposed of accordingly with no costs. The contentions raised on the facts of each case will be. decided separately by the appropriate Bench.

c Before pating with this judgment, we place on record our unin'. hibited high appreciation on the valuable and painstaking assistance rendered and co-operation extended by the learned Additional Solicitors General, learned senior counsel and advocates - who by their thorough study of the complicated legal issued involved and by their research and analysis of the historical background with formidable knowledge in con- D stitutional and criminal law have presented their conflicting views on point.s raised in all the petitions and appeals listed before us.

K. RAMASWAMY, J.

I have had the benefit of reading the jndgment pregnant with scholarship and erudition of my learned brother Ratnavd Pandian, J. whom I hold in high personal esteem. But law respects no individuals and abiding to her command, with all my profound respect to his learning discernible even to a causal reader, I may be permitted to tread my lone path iri three areas: Constitutionality of Section 9(7); Section 15 and partly of the propriety iii exercisirig the power under Art. 226 by the High Court of the matters covered under the Act. In other respects I am iri full agreement.

The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty, and fraternity iri secular and socialist Republic iri which every G iridividual has eqµal opportunity to strive towards extellence and of his dignity of person iri an iritegrated egalitarian Bharat. Right to justice and equality and stated liberties which include freedom of expression, belief and movement. are the means for excellence. The right to life with human dignity of person is a fundamental right of every citizen for pursuit of H

A happiness ;111<.i excellence. Personal freedom is a basic condition for full development of human personality. Article 21 of the Constitution protects right to life which is the most precious right in a civilised society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of homan dignity. One of the gifts of democrary to mankind is the right to

B personal liberty. Life and personal freedom are the prized jewels under Art. 19 conjointly assured by Arts. 20(3), 21 and 22 of the Constitution and Art. 19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at C his best. The essence of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse Articles in the chapter of fundamental rights part III in harmony with social good envisaged in the directive principles in part IV of the Constitution. Freedom cannot last long unless it is coupled with order.

D Freedom can never exist without order. Freedom and order may co-exist.

It is essential that freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive.

Fundamental rights are the means and t:1e directive principles are essential ends in a welfare state. The evolution of the state from police state to a welfare state is the ultimate measure and accepted standard of democratic E society which is an avowed constitutional mandamus. Though one of the main functions of the democratic government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes antisocial or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundantental rights of F its citizens but also to establish egalitarian social order. The individual has to grow within the social confmes preventing his unsocial or unbriddld growth which could be done by reconciling individual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be over bearing to justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a G companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common goods; liberty and responsibility whiclt are concomitants for orderly progress and social stability. Man being a rational individaual has to live in harmony with equal rights of others and more differently for the attaimnent of antithetic desires. This inter.ed net H

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1 KAR TAR v. STATE OF PUNJAB [K. RAMASWAMY, J.] 565

work is difficult to delienate within defined spheres of conduct within A which freedom of action may be confined. Therefore, liberty would not always be an absolute licence but must arm itself within the confmes of law.

In other words there can be no liberty without social restraint. Liberty, therefore, as a social conception is a right to be assured to all members of a society. Unless restraint is enforced at and accepted by all members of B the society, the liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of estblishing liberty must be a problem of organising restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to undermine social welfare and order. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution.

The modern social evolution is the growing need to keep the individual to be as free as possible, consistent with his corelative obligation to the society. According to Dr. Ambedkar in his closing speech in the Constitutent Assembly that the principles of liberty, equality and fraternity

are not to be treated as separate entities but in a trinity. They form the E union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality.

Equality cannot be diversed from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative F Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel qui vive, therefore must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizen.

As seen one of the functions of the State is to maintain peace and G order in the society. As its part, State is not only the prosecutor of the offender but also the investigator of crime. To facilitate such investigation police has been given wide powers to arrest the suspect without warrant interrogate him in custody, search and seize incriminating material, to collect the evidence and to prosecute the offender. Deprivation of dignity H

A of person self respect and inviolable right to life, would only be within the prescribed limits set down by law; assiduously supervised by courts; and executive excesses strictly be limited. Excessive authority without liberty is intolerable. Equally excessive liberty without authority and without responsibility soon become intolerable. Lest the freedoms and fundamental rig! •s

become sacrificial objects at' the alter of expediency. Unrestricted liberty make the life too easy for criminals and too difficult for law abiding citizens. In a free society too many crooks blatently break the law, blight young lives traffic in drugs and freely induge in smuggling and claim fundamental rights to exploit weak iinks of law, indulge in violence and commercial camonflauge. Our values are drastically eroded, because many a man with no more moral backbone than chocolate edair claim the freedom and free action which results inevitably in increasing the members of violent criminals.

The Criminal Procedure Code, 1973 for short 'the Code' and its predecessor occupied the field. Police have been empowered to carry out D thorough investigation, as is practicable and reasonable in a cognizable offence, in order that all relevant information and facts about the allegations of the crime are collected and placed for the trial of the offender within the limits set down by law. A suspect, if under arrest, be placed as

expeditiously as possible before the Magistrate within 24 hours after excluding the time taken for jonrney. Though every person has social or statutory duty to assist the police, exceptions have been engrafted and it is a constitutional mandate under Arts. 20(3; & 21 as a fundamental right against self-incrimination. Article 3 of Declaration -of Human Rights assures that everyone has right to life, liberty and security of person. The constitutional and human rights commitmen~ therefore, is that no one shall be constrained to commit himself out of his own mouth. In other words, the procedural checks are the valued means to prevent excess and civilises the actions of the executives. Articles 20(3) & 21 accord, therefore, to every person privilege against self-incrimination as part of right to life which reflects many of fundamental values, the notable ones being unwillingness G to subject those suspected of crime to the cruel or inhuman treatment of self-accusation, and abuse of person. It is a protection to the innocent or may be a shelter or sheild to the guilty but so far as the constitutional protection is available, its deprivation is permissible only in accordance with law consistent with the mandate of Arts. 20 to 22 of the Constitution.

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KARTAR v.STATEOFPUNJAB (K.RAMASWAMY, J.] 567

Custodial interrogation exposes the suspect to the risk of abuse of A his person or dignity as well as distortion or manipulation of his self-incrimination in the cirme. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof undermines the peoples faith in the efficacy of criminal justice system. Interrogation in police lock up are often done under conditions of pressure and tension and B the suspect could be exposed to great strain even if he is an innocent, while the culprit in the custody to hide or suppress may be doubly susceptible to confusion and manipulation. A delicate balance has, therefore, to be maintained to protect the innocent from conviction and the need of the society to see the offender punished. Equally every one has right against self-incrimination and a right to be silent under Art. 20(3) which implies C his freedom from police or anybody else. But when the police interrogates a suspect, they abuse their authority having unbriddled opportunity to exploit his moral position and authority inducing. the captive to confess against his better judgment. The very fact that the person in authority puts the questions and exerts pressure on the captive to comply. Silence or the D part of the frightened captive seems to his ears to call for vengeance and induces a belief that confession holds out a chance to -avoid torture or to get bail or a proinise of lesser punishment. The resourceful investigator adopts all successful tactics to elicit confession as is discussed below.

In confessiOns : Recent Devlopments In England and Austraiia by E Kumar Anlarasekara, Lecturer, Faculty of Law, Manash University [International and Comparative Law Quarterly, Vol. i9, (1980) pp. 377-329) ihe exclusion of the confession on the ground of oppressive treatment ofthe accused is stated elaborately. It is stated that the Criminal Law Revisional Cominittee of Australia recommended that use of oppressive treatment of F the accused should be an additional ground for excluding a confession.

Intimidation, persistence, sustaned or undue insistence or pressure are some of the grounds which can render a confession involuntary. The use of prolonged, sustained pressure on a suspect tO'make him confess has long been recognised in Australia as ground of exclusion. Whether such pressure was exerted by persistent interrogation or' other means such as induc- G ing mental and physical strain, the question of voluntariness has somethimes to be decided as a matter of degree. In Confession and the Social Psychology of Coercion by Edwin D. Driver, Professor of Sociology.

University of Massachusetts [1968-69 (82) Harward Law Review p.42 at 48, 50-60), it is stated that voluntariness is a test for' admissibility of confession. H

A Courts have to consider mental abuse as well as physical force and threats, deficiencies and talents peculiar to the individual defendant are to be assessed, and an investigation into the totality of the circumstances surrounding the confession are required to be gone into. Since in custody interrogations are highly secretive, the Courts have to infer what transpired

B from questionable data. Police adopt successful tactics for eliciting confssions, crucial importance is of self-confidence, which may not remain intact in interrogation. Barred are physical abuse or threats, mental coercion, lengthy detention or interrogations, inducements or promises of legal gains which are some of the grounds to infer involuntariness. In addition to the interrogation setting and the propensites of the interrogator, the C ethical interrogator still has an adequate range of persuasive and manipulative tactics at his disposal to obtain confession. First, the interrogator communicates by word and gesture that he strongly believes the suspect guilty. The next tactics is to provide factual evidence in the support of this belief. It is, however, self-confidence and self-assertion which incigents, a D category into which over one half the ferony defendants fall, are likely to lack; thus a majority of suspects in their passivity and uncertainty will be little protected against the pressures of even proper interrogation.

Moreover, the imbalance between the slate and the defendant begins with arrest and detention, for these experiences influences the detenue in ways analogous to interrogation, the negative implications of silence, the self- E mortification or extreme numiliation at being arrested, the desire to shield the self from potentially, humiliating questioning, and the emotional stress caused by the symbols of the laws authority even in persons of higher status would get lost.

F In Crime and Confession by Arthur E Butherland, Jr., Professor of law, Harvard Law School, reported in [1965-66, Vol. 79. Harvard Law

" ;

Review pp. 21-25, 32, 36-37, 39-41, 93-97), stated that the zealous executive >- agents of public authority must comonstrate the suspect's offence to impartial judicial officers, and people insist on the correlative principle that the citizen may stand mute without prejudice in the face of official accusa- G tion. Despite centuries of experience in which people have chosen thus to weigh the scales in favour of the accused, many of those officers to whom people look for the difficult task of enforcing our criminal law are "still not convinced of the wisdom of adopting rightful means in interrogation and eliciting confession\!. "It is a nice theory 11 , such an officer might say. "\Ve H subscribe to this, at any rate for those wrongly accused. But when we gel

KARTAR v.STATEOFPUNJAB [K.RAMASWAMY, J.] 569

wicked men in our hands we cannot afford to let technicalities permit them A J to escape condign punishment". But the officers know of persons in some ,... way connected with the event, family or associates, persons seen in vacinity, men with records suggesting that they are likely to have been involved in offences of the sort in question ....... Much worse than the conviction of the innocent in its ultimate consequence is the undermining of public con- B fidence in the whole administration of criminal justice, which ensues when public officers commit widespread violations of the constitutions of the United States and the states, and follow these by cynical accounts of • 1'.voluntariness 11 1 not convincing to any person who studies the record, or ~

even to the casual newspaper reader and delay would suspect the constitutional and legal rights systematically deny them on grounds of expediency, c popular respect for the system for the processes of law enforcement, and for the men engaged in it inevitably declines. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declary that in the administration of the criminal law the end justifies the means - to D declare that the Government may commit crimes in order to secure the

':i_ conviction of a private criminal would bring terrible retribution. The only effective way to establish a constitutional regime in the administration of criminal justice is for the administrative superiors of police and prosecutors to insist on compliance of the constitutional mandate to see that nothing occurs which deprives the accused of a right which he is entitled to assert. E The Constitution of United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of its grave exigen- F cies of government. In the Psychology of Evidence and Trial Procedure edited by Saul M. Kassin and Lawerence S. Wrightsman at pp. 78-80, it was stated from a psychological standpoint, that the suspect readily make false confession to escape an aversive situation and to secure a favourable self-outcome. Interrogation process is like a hypnosis. He refers to Foster theory in this behalf "station house syndrome at p. 690-91" that police G interrogation can produce a trance like state of heightened suggestibility so that "truth and falsehood become hopelessly confused in the suspect's > mind". He explained that due to hypnosis the suspect lose initiative and in the heightened fantasy, confabulation and distortion get mixed np due to H

A leading questions. A study by Weistein Abranams and Subbons said to have

revealed that implanting a false sense of guilt by hypnosis would not pass "41 a polygraphic lie detector test. He cited Munsterberg (1908) Report in a ' murder case in which the accused was convicted and executed on the basis of a confession that might have been elicited through hypnotic induction that he raped Bessie Hollister. That statement obtined through hypnosis was subjected to medical analysis. His statement was denied at the trial, namely, "I saw the flash of steel in front of me. Then two men got before me. I can remember no more than that about it. I suppose I must have made those statements, since they all say I did. But I have no knowledge of having made them''. It was proved later that those statements were made under the hypnosis. Hugo Munsterberg and William James, the renowned psychologists noted some instances that under conditons normally associated with telling the truth, subject comes to believe the lies they had been inducted to tell. The minimum of inducement and the mildest and most subtle forms of coercion used could be sufficient to extract false D confession. In [1991, Law Quarterly Review, Vol. 107] "Should coGfessions be corroborated" by Rosemary Patenden of University of East Anglia stated at pp. 318- 19 that coercion is produced by situational factors - accusation by a person in a position of authority by fact and intimidating environment - and the use of psychological interrogation techniques by the police. The police use these tactics to extract true confession, but an E innocent suspect who is susceptible to intimidation may respond by confessing to something which he did not do. The majority of untrue statements that come before the courts, however, the probably from coerced-complaint suspect. The suspect goes along with the views of the interrogator without internalising these views as his own in order to please F or to gain some temporary advantage - bail, termination of an unpleasant interrogation, possibly an end to violence or the threat of violence. According to an eminent forensic psychologist Armstrong confession falls into various categories. In the principles of Criminal Evidence by AA.S. Suckerman at pp. 302- 306 it is stated that in order to preserve our freedom from excessive state interference the police powers have to be strictly G limited and assiducusly supervised. The custodial interrogation lays the suspect open to two particular risks of harm against which the law must protect him the risk of abuse of this person or dignity and the risk of distortion or manipulation of his statements so as to implicate him in cirme.

The questioning in the police station is often conducted under conditions H

KARTAR v.STATEOFPUNJAB [K.RAMASWAMY, J.] 571

of pressure and tension. Suspects under investigation are likely to ex- A perience considerable strain even if they are innocent, while those who have something to hide or fear may be doubly susceptible to confusion and manipulation. If one adds to this the natural tendency of the investigator to manipulate the suspect's responses and interpret them in a way that confirms his own suspicion, one realizes that the scope for unreliability of B confessions is not insignificant. However, the need to safeguard reliability does not necessarily reate a confilict between the protection of the innocent from conviction and the need of the community to see that the offenders are punished becuase the latter only demands the conviction of the guilty, not of the innocent. It is difficult for a suspect to insist his privilege and refuse to answer police questions, considering the mental pressures C generated by police iJ1terrogation and the fear that silence would be construed as an admission of guilt which would operate as a factor to make false confession. However, when the police interrogate the suspect they have an opportunity to exploit his moral position and induce the suspect to confess against his better judgment Bentnam observed that the very fact D that questions are put by a person in authority exerts pressure on the suspect to comply with, silence on the part of the affrighted culprit seems to his ear to call for vengeance, confession holds out a chance for indulgence. Physical abuse, threat, mental coercion, prolonged detention or interrogation, inducement, promise are per se prohibited methods to obtain confession. In addition interrogator conveys to the captive that he strongly E believes that the captive committed the crime and he has. evidence in support of that behalf. In Harvard Law Review, Vol. 82 (1968-69), Prof.

Driver stated at pp. 48-50 that psychological control, assumed personal roles of the interrogator, certain persuative or manipulative tactics may substantially influence suspects to change their ideas and memories.

Undoubtedly organised crimes are being committed and the precious lives of countless innocent people are put an end to and innocent people are at the mercy of the terrorists and gangsters by planting bomb at public places, etc. Law abiding citizens become easy targets of killing and equally of law enforcement officers to demoralise the public or to achieve their G object of intimidating the political power to come to terms with them or the people who rally around them to achieve their alleged perceptions or programmes undermining the constitutional limitations. They violate law with contempt and destabilise social well-being and order. Large number H

SUPREMECQU]{TREPORTS


A of youth and educated unemployed are indoctrimated to crime or indulge in violence. Hardend criminals are equally involved in greater number.

They are using latest sophisticated arms and amunition, weaponary in committing heinous crimes.

Equally true that in the midest of clash of interests, the individual interest would be subserviet to social interest, yet so long as ubi jus ebi remedium is available the procedure prescribed and the actions taken thereon by the law enforcement authority must meet the test of the constitutional mandates.

In a recent working Paper on "Custodial Crimes", the Law Commission of India stated that custodial violence and abuse of police power has been concern of international community. The C-eneral Assembly of the United Nations adopted on December 9, 1975 the declaration for protection of persons from being subjected to torture and other crimes of D inhuman or degrading treatment or punishment. It prohibited the member

States to permit or tolerate abuse of powers even in exceptional circumstances such as state of war or threat of war or internal political instability. Article 5 thereof required comprehensive training of law enforcement officers against torture. Article 7 required system of review of the

interrogation, methods and practices as well as custodial arrangements. It obligates the States to ensure that the acts of torture are made offences under National Criminal Law. The declaration is a part of binding international law and in our country it has not yet been implemented. There is a code of conduct for law enforcement officials adopted by the General Assembly on December 7, 1979, under which substantive norms were prescribed for "effective maintenance of ethical standards" by the officials.

Article 5 thereof prohibits law enforcement officials from inflicting, instigeting or tolerating any act of torture. It was followed by another declaration on December 10, 1984, by a convention which provides more elaborate procedure in 33 Articles. The United Nations' General Assembly adopted yet another declaration known as "Carcus Declaration on Basic G Principles of Justice for the VictiLls of Crime and Abuse of Power" on November 29, 1985, which obligates the State to define laws nrohibiting the criminal abuse of power and also for prohibition of recourse to third degree methods. The aforestated working J>-per says that India being a party to the declarations and Conventions, is under an obligation to take effective steps to prohibit abuse of power, including torture and custodial H violence, etc. in accordance with Art. 51 of the Constitution.

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KARTAR v.STATEOFPUNJAB [K.RAMASWAMY, J.] 573

Neither the Evidence Act 1872 nor the Code, nor its predecessor A denied "confession". This court in Palvinder Kaur v. State of Punjab, [1953] SCR 94 at p.104 ruled that -

"A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively in- B criminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is o' some fact, which if true, would negative the offence alleged to be confessed".

Therefore, confession means an admission of certain facts which constitute an offence or substantially al the facts that constitute the offence, made by a person charged with the offence which is the subject matter of the statement. In Pakala Narayana Swamy v. The King-Emperor, 66 Indian Appeals p.66 Lord Atkin, !J.eld at p. 81 thus :

"An admission of a gravely incriminating fact, even a conclusively

incriminatg fact, is not of itseH a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revol; er which caused a death with no explanation of any other man's possession."

Sections 24 to 30 of the Evidence Act deal with provability or relevancy of

a confession. A confession made by an accused person is irrelevant if it appears to the court to have been caused by inducement, proffiise or threat having a reference to the charge proceeding from a person in authority. By Section 25 there is an absolute ban at the trial against proof of a confession F to a police officer, as against a person accused of any offence. The partial ban under s. 24 and total ban under s.25 applied equally with s.26 that no confession made to any person while the accused is in the custody of a police officer, unless it is made in the immediate presence of a magistrate, shall be proved as against such person. Section 27 makes an exception to ss. 24, 25 & 26 and provides that when any fact is deposed to as discovered u in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The provisions in ss. 28-30 are not relevant 'or discussion. The fasicule of ss. 24 to 30 aim to zealously protect H

A the accused against becoming the victim of his own delution or the mechanisation of others to self-incriminate in crime. The confession, therefore, is not received with an assurance, if its source be not omni suspicious mojes, above and free from the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect

equanamity and must not have been operated upon by fear or hope or inducement. Hence threat or promise or inducement held out to an accused makes the confession irrelevant and excudes it from consideration.

A confession made to a Police Officer while the accused in the custody or made it before he became an accused, is not provable against him in any proceeding in which he is charged to the commission of the said offence.

Equally a confession made by him, while in the custody of the police officer, to any person is also not provable in a proceeding in which he is charged with the commission of the offence unless it is made in the immediate presence of the Magistrate. Police officer is inherently suspect of employing coercion to obtain confession. Therefore, the confession D made to a police officer under s.25 should totally be excluded from evidence. The reasons seem to be that the custody of police officer provides easy opportunities of coercion for extorting confession. Section 25 rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it

E might have been procured by the exercise of coercion or by enticement.

The legislative policy and practical reality emphasise that a statement obtained, while the accused is in police custody, truely be not the product of his free choice. So a confessional statement obtained by the law enforcement officer is inadmissible in evidence.

F In Chapter 12 of the Code information by the police and their powers to investigate, s. 162 mandates that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, G at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Under the proviso to sub-s. (1) it may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by s. 145 of the Evidence Act or for the purpose of explaining any matter referred H to in the cross examination by re-examining such witness. In Paka/a

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KAR TAR v. STATE OF PUNJAB [K. RAMAS',\lAMY, J.] 575

Narayana Swami's case the Privy Council held that any person referred to A in s.162 would include a person who eventually became an accused. "Any such statement", must therefore, include such a case and it would appear that if the statement is to be admitted at ali it can only be by limiting the words "used for any purpose" by the addition of such words "except as evidence for or against the person making it when accused of an offence". B Accordingly it was held that "the words of s.162 in their Lordships view plainly are wide enough to exclude any confession made to a police officer in the course of investigation, whether a discovery is made or not. They may, therefore, pro tanto repeal the provisions of the section which would otherwise apply. If they do not, presumably it would be on the ground that s.27 of the Evidence Act is a special law within the meaning of s.l, sub-s. C

(2) of the Code of Criminal Procedure, and that s.162 is not a specific provision to the contraty. In Tahsi/dar Singh v. State of U.P., AIR (1959) SC 1012, the constitution bench held that it must be used only for cross examination of the maker under s.145 of the Evidence Act.

Section 164 of the Code gives power to the Metropoliton Magistrate or Judicial Magistrate to record confession and statements during the course of investigation under Chapter 12 or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. The Magistrate may record confession or statement made

to him. But before doing os he is enjoined by sub-s. (2) thereto to explain E to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. He shall record the confession in the manner provided in s. 281 for recording F the examination of the accused person. It shall not only be signed by the Magistrate, but also by the accused himself. The Magistrate shall also append a memorandum at the foot of the record as laid down in sub-s. (4).

If he has no jurisdiction to inquire or try the offence he shall forward the confession so recorded to the Magistrate by whom the case is to be inquired into or tried. High Courts have made rules in this behalf ot give G sufficient time to the accused for reflection, relevant warnings other related procedural safeguards, etc.

The Magistrate before recording the confession should properly question the accused, as far as may be necessary, elicit from him whatever H

A facts he is willing to state; to understand exactly what his meaning is and how far he intends his confession or admission to go. The confession must be recorded with great care and circumspection. The Magistrate must record the questions put to the accused to ascertain whether the confession was of voluntary nature; that he will not have to go back to the police

custody after statement was recorded; to warn the accused of the consequences which would ensue if the confession is false or in the hope of release implicated himself and to ask the accused whether the police or any other person had subjected him to illtreatment etc. No hard and fast rule could or should be laid down as to the procedure which would be adopted when an accused is brought before the Magistrate to record his confession. Confession extracted while in custodial interrogation excites suspicion of its voluntariness. But when it is recorded by the judicial Magistrate it removes the stains and assures voluntariness. The object of keeping the accused/suspect in judicial custody and giving him sufficient time for reflection and necessary warnings reinforces if since sufficient time D given, the accused frees himself from the pressure of police interrogation and for reflection before making confession. It will have soberring effect on the accused/suspect.

In Nazir Ahmade v. Kin!fEmperor, AIR (1939) P.C. 253, the Privy Council held that the Magistrate acting under s. 164, though is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense, the recording of the confession shall be in compliance with s.164 read withs. 364 (s. 281 of the 1973 Code). The confession shall be recorded in the manner prescribed under s. 164 and the standing orders and in no other way. The Magistrate had not recorded the confession as enjoined under s. 164. He tendered his oral evidence of the confession made by the accused. It was held that the confession was inadmissible and the accused was acquitted. In Ram Chandra v. State of U.P., AIR (1957) SC 381 at 386 this court held that the confession must be recorded in open court and during the court hours unless for exceptional reasons if it is not feasible to do so. This is a very important provision which emphasises that G the Magistrate in recording confession is exercising ''part of his judicial function" in the manner prescribed by the law. One of the instructions provides that the Magistrate should inquire the reason why the accused is making the confession knowing that it may be used against him. In that case since the confession was recorded in the police lock up, it was held H that it was inadmissible.

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KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 577

It would thus be clear that the provisions of s. 164 are mandatory A and it is the duty of the Magistrate to follow the procedure strictly. If he fails to do so, he would be failing in his discharge of judicial duty. If the statement or confession was recorded in strict compliance with the ss. 164, 281 and the rules made thereunder, the confession would be admissible, although it is retracted. In Nazir Ahmad's case, it was held that a confession B recorded by a Magistrate without conforming to the provisions of ss. 164 or 364 of Cr. P.C. renders the precautions laid in those provisions of such trifling value as to be almost idle. A confession duly recorded with the prescribed certificate appended to it may be presumed to be voluntary and be admissible in evidence subject to the conditions contained in ss. 24 to

30. A retracted confession may form basis for conviction of that accused, C if it receives some general corroboration from other independent source.

When Indian Evidence Act was enacted, the British Parliament had with them the Law Commission's Report that the police resorted to extort confession by force, threat or inducement and therefore had taken care of D elaborate safeguards engrafted ss. 24 to 30 to exclude from evidence confession obtained in the stated circumstances with an exception of s. 27 that fact discovered in consequence of the statement made by the accused alone was made admissible.

It i• equally settled law that a statement cannot be said to be properly E recorded under s.164 of the Code, if a police officer is present or allowed to be present at that time or is allowed to put question to the accused.

Equally it is settled law that confession would not be recorded during night time or late hours after the accused has been subjected to interrogation by the police officer for 3 to 4 hours and had broken down under the continued interrogation. It is not enough for a Magistrate to give the accused a warning that the confession, if made, would be used against him but it is essential that he should put questions to satisfy himself that the confession was in fact voluntary and the questions with answers must be recorded. The court before whom the confession is used must have material on which it can be satisfied that the confession was .in fact voluntary. It is mandatory under s.164 of the Code that the Magistrate must record the confession strictly in accordance with the prescribed procedure.

Sufficient time should be given to the accused for reflection, but no hard

and fast rule could be laid as to the proper time. It is settled law that at least 24 hours should be given to the accused to decide whether or not be H

A should, make a confession. If the circumstances generate any suspection that the accused was induced or coerced or threatened to make a confession, even longer period should be given as held by this Court in Sarwan Singh v. State of Punjab, AIR (1957) SC 637 at 643 so much is the concern, protection and safeguard provided by the Evidence Act.

B The question from the afore scenerio emerges whether s.15(1) of the

Terrorist and Disruptive Activities (Prevention) Act, 1987 for short "the Act" empowering the police officer not below the rank of the Superintendent cif Police to record the confession is constitutionally valid.

Section 15(1) of the Act reads thus:

"15(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by "a person" before a police

(emphasis supplied)

officer not lower in rank that a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder.

(2) The police officer shall, before recording any confession unde: sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily''.

There cannot be a dispute with the proposition, as argued by Sri G Tulsi, learned Additional Solicitor General, that the Legislature when has power to make the Evidence Act, has equally power to amend and alter the pre-existing procedure in the light of the changing needs of the society and that there is no vested right to procedure. The legislature can equally take away the procedure by omitting it by amendment. We are not concerned so much with the power of the Parliament to make the law and H it does possess such power under Art. 248 and Entry 97 or List I. Equally

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KARTAR v. STATEOFPUNJAB [RAMASWAMY, J.] 579

it is settled law that conferment of power in a high ranking officer is A presumed to be exercised according to law or rules. Such conferment of power may be prima facie presumed to be valid. But the crux of the question would be whether the power given as to the Police Officer unlike an Independent agency from which the suspicion least generates is a civilised procedure. The angulation from these perspectives protects the B liberty. As seen, a voluntry confession is a valuable piece of evidence in proof of the guilt of the accused. If the confession is found to have been made voluntarily in penetentia, it would form basis for conviction. In State of Maharashtra v. Sukhdev Singh @ Sukha & Ors., JT (1992) Sc 73, this Court confirmed the conviction of an accused on the basis of admissions made during trial and he examination, under s. 313 of the Code. Even C retracted confession if it receives general corroboration would form basis for conviction.

Under Art. 20(3) of the Constitution, "no person, accused of an offence, shall be compelled to be a witness against him self'. Art 21 assures D of right to life or personal liberty. It would be deprived only according to procedure validly established by law. Art. 20 is not confined to individual or common law offences. It extends to statutory offences. Offences under the Act are statutory offences. As soon as a formal accusation constituting an offence under the Act has been make before S.H.O. or in a private complaint the person is entitled to the protection under Arts. 20(3) and E

21. Their violation, except in accordance with valid procedure est&blished by law, are in violation of human right to life assured by Art. 21 of the Constitution. liberty of every citizen is an invaluable and precious right.

Burden is on the State to establish that its deprivation is constitutionally valid. In the State of West Bengal v. Anwar Ali Sarkar, [1952) SCR 284, it F was held that procedural law as well as substantive law must pass the tests prescribed by Art. 14. Art. 21 is not intended to be a limitation upon the powers of the legislature which it otherwise has under the Constitution. Yet the substantive as well as the procedure law made, modified or amended must be just, fair and reasonable. The purity of the procedure to discover truth shall always remain fair, sensitive to the needs of the society and fairly G and justly protect the accused. The procedural safeguards are indispensible essence of liberty. The history of personal liberty is largely the history of procedural safeguards. The procedure contemplated by Art. 21 of the Constitution means just and fair procedure and reasonable law but not formal or fanciful. The standard of fairness in recording confession under H

A s. 15(1) of the Act must be within constitutionally sustainable parmenters. ' }- No person shall be deprived his life or personal liberty except in accordance with the procedure established by law mandated by Art. 21, would mean that a person shall not be subjected to coercion which does not admit of legal justification. Procedure envisaged in Art. 20(3) is the manner,

B means and the form in which the right is enforce'1, or the person is subjected to. Though the Constitution does not guarantee any particular procedure and the legislature is left free to lay down the procedure, Arts. 14 and 21 prescribe inbuilt limitation in prescribing the procedure, i.e. }.~

there must be fundamental fairness in the, procedure prescribed by law and should not be unconscienable or oppressive. c Article 50 enjoins the State to separate the judiciary from the Executive. Having done so by the Code and entrusted under Art. 164 judicial duty on the Judicial Magistrate of First Class, whether conferment of self self same power on Superintendent of Police under s.15 by employing

D non-obstante would be just, fair and reasonable? The constitutional courts are sentinals Quivive and guardians of human rights and common man looks upon them as their protectors. Where two procedures co-exist and ,

classify one pr0cedure to one set of accused and another one for some other accused, both must satisfy the test of Arts. 14 and 21. It is true and courts also would take judicial notice that terrorists or organised criminals E have committed and have been committing murders of innocent people in countless number, thereby rudely shaking the foundations of stable social order. Equally the lawless elements who flout the law, with impunity need to be nealt with separately. But suppression of crime by harsh procenure whether meets the test of Arts. 14 and 21.

F ;..

In the State of Bombay v. Kathi Ka/u Oohad, AIR (1961) SC 1808, a Bench of 11 Judges, per majority, interpreting Art. 20(3) held on "testimonial compulsion" that ,

11e can see no reason to confine the contents of the const:tutional guarantee to bare literal import so as to limit Art.

20(3) would be to rob the guarantee of its substantial purpose and to miss the substance for sound as stated in certain American decisions. Indeed every positive act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures positive oral evidence. The ' acts of the person, of course, is neither negative attitude of silence or submission on his part, nor is there any reason to think that the protection H in respect of the evidence procured is confined to what transpires at the

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KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 581

trial in the court room. l)f~ phrase used in Art. 20(3) is to be a witness A • and not to appear as witness. It follows that the protection accorded to an accused insofar as it is related to the phrase "to be a witness" is not merely in respect of the testimonial compulsbn in the court room but may well extend to compel testimony obvioudy obtained form him. The guarantee was, therefore, held to include not only oral testimony given in a court or out of court, but also should be in writing ·.vhich incriminated the maker when transpired as accused person. In Nandini Satpathy v. Dani (PL) and Ors., [1978] 3 SCR 608, It was further held that compelled testimony must be read as evidence procured not merely by physical threat or violence but

by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like C not legal penalty for violation.

The expression "life of personal liberty" in Art. 21 of the Constitution as stated hereinbefore inclucfes right to live with human dignity which would include guarantee against torture and assault by the State. This court D in Sunil Batra v. Delhi Administration, AIR (1978) SC 1675 and Sunil Batra

v. Delhi Administration, AIR (1980) SC 1579, held that Art. 21 guarantees protection against torture and assault by the State while a person is in custody. It is a legitimate right of the police to arrest a suspect on receiving some credible information or material, but the arrest must be in accordance with law and the interrogation should not be accompanied with E torture of use of third degree methods. The interrogation and investigation should be in true sense purposeful to make the investigation effective. This Court in Seila Barse v. State of Maharashtra, AIR (1983) SC 3-78, held that the accused should be produced before the Magistrate. It should be mandatory for the Magistrate to inquire from the arrested person whether F he has any complaint of torture or mal-treatment in custody and he should further be informed that he has a right under s.54 of the Code of Criminal Procedure to be medically examined. In Nandini Satpathi's case this court held that the accused is entitled to have his counsel during interrogation.

Torture or beating of arrested person in the lock-up is generally carried on behind the closed doors and no member of the public is permitted to G be there and instances are not wanting that even the family members of the arrested persons are not allowed to meet the suspect.

A police officer is clearly a person in authority and insistence on the accused/suspect to answer his interrogation is a form of pressure, especially H

A in the atmosphere of police station unless certain safeguards erasing duress are adhered to. Policy or rational or object of tbe Act have little relevance in determining the constitutional validity of the offending provision. The Court is not sitting ever policy of the State in enacting the law, nor at this stage to sift the evidence. Fair criminal trial is the fundamental right under

B Art. 21. Though the State is free to regulate the procedure for investigation of a crime, to collect evidence and place the offender for trial in occurrence with its own perceptions of policy, yet in its so doing if it offends sc ne hmdamental principles of fair justice rooted in the traditions and conscience of our people, it would be classified or characterised or ranked as unjust and unfair procedure. Appearance of injustice is denial of justice.

C Builtin procedural safeguards assure a feeling of fairness. When the procedure prescribed by the statute offends the principle of fair justice of established judicial ethos or traditions or shocks the conscience, it could be said that it is fundamentally unfair and violative of the fundamental fairness which are essential to the very concept of justice and civilised D procedure. Whether such fundamental fairness has been denied is to be determined by an appraisal of the totality of facts, gathered from the setting, the contents and the procedure which feed the end result. The procedure which smacks of the denial of fundamental fairness and shocks the conscience or universal sense of justice is an anthema to just, fair or

E reasonable procedure. Articles 14 and 21 from against arbitrary and oppressive procedure.

The procedure envisaged in Art. 21 means the manner and method of discovering the truth. Section 36 of the Code also empowers "superior police officer" or an officer in-charge of the police station to exercise the F same powers throughout his local area. '!'he Superintendent of Police is in-charge of the Dist. Police administration, Under s.2(h) of the Code investigation includes all proceedings under the code for collection of evidence conducted by the police officer other than an authorized Magistrate in that behalf. A superior police officer in-charge to maintain law and order, while recording confession of a person in police custody G though, ostensibly complying with s.15(2) of the Act whether would raise above the stream and transcends above the weather of the day and exhibits the even equanimity and objectivity of a trained judicial Magistrate? While the Code and the Evidence Act seek to avoid inherent suspicion of a police officer obtaining confession from the accused, does the same dust not H cloud the vision of superior police officer? Does such a procedure not

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KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 583

shock the conscience of a conscientious man and smells of unfairness? A Would it be just and fair to entrust the same duty by employing nonobstinate clause in s. 15(1)? Whether mere incantation by employing nonobstante clause cures the vice of fore enumeration and becomes valid under Arts. 14 and 21? My answer is "NO", "absolute no no". The constitutional human rights perspectives projected hereinbefore; the history in working B of the relevant provisions in the Evidence Act and the wisdom denied s.164 of the Code ignites inherent invalidity of sub-s. (1) of s. 15 and the court would little afford to turn the Nelson's blind eves to the above scenario and blissfully bank on s.114(e) of the Evidence Act that official Acts are done according to law and put the seal that sub-s.(1) of s.15 of the Act pass off the test of fair procedure and is constitutionally valid. In C re 17ie Special Courts Bill, (1978) AIR (1979) SC 478, at P. 518, it was held that the procedure prescribed by the Bill was unjust and unfair to the accused violating Art.21 of the Constitution on the ground that there was no provision in the Bill for the transfer of a case from one Special Court to another, though the presiding Judge had a bias. The appointment of the D Judge to the Special Court during the pleasure of the Govt. is subversive of judicial independence and appointment of a retired Judge to preside over a Special Court violates Arts.21. The Division Bench of the Andhra Pradesh High Court reported in VM. Ranga Rao v. State of A.P., (1985) 2 A.P.L.J. 361, considering the validity of conferment of judicial powers on high ranking police officers, Superintendent of Police as a Special Execu- E live Magistrate to try offence under ss.107(2), 110, 133, 143 to 145, held that the appointment violates Art. 21. It was further held that the faith of the people is the savour and succour of justice. Any weakening link would rip apart the edifice of law. The principle of justice is ingrained in our conscience and though ours is a nanscent democracy it has now taken deep F roots in our ethos of adjudication, judicial process, be it judicial, quasijudicial or administrative, is hall-mark. Respect for law is one of the essential principle for an effective operation of popular Govt. It is the courts and not the legislature that our citizens primarily feel with keen abiding faith for redress, the cutting edge of the law. If they have respect for the working of their courts, their respect for law will survive the G short-comings of every other branch of the Govt. If they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of the society. Conferment of judicial powers in higher degree on the police will erode public confidence in the administra- H

A tion of justice. The veil of expediency to try the cases by the persons acquainted with the facts and to track the problems posed or to strike down the crime or suppression thereof cannot be regarded as a valid ground to give primacy to the arbitrary or irrational or ultra vires action taken by the government. In appointing the police officers as Special Executive

B Magistrate, nor the right of revision against his decision is a solace. It not only sullies the stream of justice as its source but also chills the confidence of the general public and erodes the efficacy of rule of law and is detrimental to ihe rule of law.

In Andrew R. Mallory v. USA., 354 US 449 = 1 L. ed. 2d 1497, the C defendant of 19 years old lad on limited intelligence, was arrested by the police on suspicion of rape. The police interrogated him for half an hour and then asked him to submit to a lie detector test and subjected to another such test four hours after further detention without telling him of his right to counsel to be present or to preliminary examination before a magistrate, D nor was he warned that he might keep silent, etc. His confession was used at the trial and he was convicted imposing death sentence for the offence of rape. In a unanimous decision Frankfurter, J., Speaking for the court, held that the confession was in violation of Rule 5( a) of the Federal Rules of Criminal Procedure and the confession was inadmissible.

In Winston Massiah v. United States, 377 US 201 = 12 L. ed. 246, the defendant while on bail had a conversation in the absence of his counsel with one of his co-defendants without knowing that latter was cooperating with the Govt. agent who had allowed the installation of a radio transmitter under the front seat of the automobile, by means of which a federal agent listened the conversation. At the trial the co'lversation was testified as incriminating confessional statement made by the defendant which resulted in his conviction. On certiorari, the Supreme Court, by majority of six Judges, held that the confession was in violation of sixth amendment guaranteeing the right to assistance of a counsel and the confession was held inadmissible.

In William Malloy v. Patrick J. Hogan, 378 US 1 = 12 L. ed. 2d 653, the petitioner a witness in a state inquiry into gambling and other crimes, availed of his privilege against self-incrimination, refused to answer a number of questions related to the events surrounding his previous arrest H during a gambling raid and his conviction of pool selling. He was convicted

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 585

for contempt and sent to prison for his unwillingness to answer.

His A application for habeas corpus was rejected. On certiorari, the U.S. Supreme Court held, per majority of five Judges, that the fifth amendment makes the privilege against self-incrimination applicable to the states. The privilege, if properly invoked in a state proceeding, is governed by federal standards and the petitioner's claim for the privilege should have been B upheld.

In William Murphy v. Wateifront Commission of New York Harbor, [373 US 52 = 12 ed. 2d 678], when the witnesses refused to answer the questions on the ground that the answers may tend to incriminate them under federal law, to which the grant of immunity did not purport to extend, the superior court, the New Jersey Supreme Court held them guilty c

of civil contempt. On certiorari, the Supreme Court of U.S., per majority, held that the constitutional privilege against self-incrimination protects the witnesses against incrimination under federal as well as state law and the federal Govt. is prohibited from making any use of testimony which the D witnesses were compelled to give after grant of immunity by the state laws.

Therefore, it was held that they did not commit any civil contempt.

In Ernesto A. Miranda v. State of Arizona, [16 L.Ed. 2nd US 436, 694], it was held, "the confession obtained from an accused in police custody and E subjected to interrogation offends Fifth Amendment privilege against selfincrimination and "inherently compelling pressure" held of custodial interrogation without proper safeguards (right of the counsel to be present) inevitably and inherently work it to undermine the individual's will to resist and to compel him to speak what he would not otherwise do so freely".

In Edward v. Arizona, 451 U.S. 477 [1981], during the interrogation, Police and Edward discussed a possible deal and Edward stated finally that, "I want an attorney before making a deal". He was returned to Jail, but next morning he was interrogated again by two detectives, not involved in the earlier discussion. They aga:.n warned Edward and after waiving his G rights, he made the incriminative statement. The Court held that the statement was inadmissible. In that scenario it was held that, "when and accused has invoked his right to have counsel present during custodial interrogation .......... he is not subject to further interrogation by the authorities until the counsel is made available to him, unless the accused H

A himself initiates further communication, exchanges or makes further conversation with the police. (at 484 & 485). This rule was further expanded in Arizona v. Roberson, (486 U.S. 675 (1988)], where the suspect was approached by an officer who was unaware with Robertson of earlier discussion with other officer, invoked his right to counsel, the second

B officer successfully questioned Robertson concerning an offence unrelated to the offence with which the first interrogation had been concerned. The Court held explaining Edward's ratio that the former was based upon the need to vigorously discourage the police activities - reapproaching the suspect who has been interrogated by police when he was not capable to undergoing interrogation when the lawyer helps ..... that creates a specially C high risk of involuntary waiver. This rational applies when the suspect is reapproached concerning a different offence since there is no basis for concluding that the officers interrogation such offence will lack the "eagerness to obtain a confession that this situation doses the high risk to self-

incrimination interest.

It would, therefore, be clear that any officer not below the rank of the Superintendent of Police, being the head of the Dist. Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of Officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that builtin procedural safeguards have to be scrnpulously adhered to in recording the confession and trace of the taint must be abscent. It is, therefore, obnoxious to confer power on police officer to record confession under s.15(1). If he is entrusted with the solemn power to the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anethema to rule of law, spirit of judicial review and a clear negation of Art. 50 of the Constitution and the Constitutional creases. It is, therefore, G nnfair, unjust and unconscienable, offending Art. 14 and 21 of the Constitution.

The further contention of Sri Tulsi that the Parliament being competent to enact s.15(1) of the Act and the effect of Sections 24 to 30 of H Evidence Act can equally be taken away by employing non obstante clause;

1 )

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 587

the Legislature adopted the above device in its legislative claim to contain A the escalated large scale crimes by organised terrorists and gangsters and the apprehended misuse is eliminated as it was vested in high-ranking officer cannot be given acceptance for the aforestated reasons.

The next question is whether Sec. 9 of the Act constituting Designated Court; appointment of a Sessions or Addi. Sessions Judge to that Court and his continuance in office beyond superannuation find hospitable soil in constitutional contours. Section 9(1) empowers the Central Government or the State Government to constitute, by notification published in the Official Gazette, one or more Designated Courts for such area or areas, or ior such case or class or group of cases, as may be specified in the notification. Under sub-section ( 4) thereof the Designated Court shall be presided over by a Sessions Judge to be appointed by the Central Government or the State Government, as the case may be, with the concurrence

of the Chief Justice of the High Court. Under sub-section (5) Additional Session Judge is eligible to be appointed as designated court. Under Sub-section (6) a Sessions Judge or additional Sessions Judge, in any State, D shall be qualified for appointment as a Judge of a Designated Court.

Sub-section (7) is material for the purpose of this case which reads thus: "for the removal of doubts, it is' hereby provided that the attainment of a person appointed as a Judge or additional Judge of a Designated Court of the age of superannuation under the rules applicable to him in the service to which he belongs, shall not affect his continuance as such judge or additional judge". Sub-sections (2) and (8) are omitted as being immaterial for the present purpose. Section 6 of the Code classifies criminal courts in every State, namely, besides the High Courts and courts constituted under any law other than Code, there shall be, in every State.

(I) Courts of Session;

(II) Judicial Magistrates of the First Class and, in any metropolitan area metropolitan magistrates;

(III) Judicial Magistrates of second class; and

(IV) Executive Magistrates.

Under Section 9 of the Code the State Government should establish

a Court of Session for every sessions division. Under sub-section (2) H

A thereof, the Court of Session shall be presided ovr by a Judge to be appointed by the High Court. Under Sub-section (3) the High Court also may appoint Additional or Assistant Sessions judges to exercise jurisdiction in a Court of Session. The other sub-sections are not material. Hence they are omitted. The High Court or the State Government, as the case may be,

by order under ss.32 and 33 empower these persons specially by name or in virtue of their offices or classes of officials generally by their official titles to perform the functions of Court of Session. Under the Code throughout any local area, such persons exercise the powers in local area or any other local area to which they are so appointed, in addition. They are subject to appellate or revisional jurisdiction of the High Court.

In Chapter V, Part VJ of the Constitution of India, with the caption

- "The High Courts in The States" Art. 214 provides that there shall be a High Court for each State and it shall be a court of record under Art. 215.

Articles 216 to 224 are not relevant here. Under Art. 225, subject to the D provisions of the Constitution and the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislat

ture, the jurisdiction of the High Court would continue to be exercised with )'.' the respective powers of the judges thereof in relation to the administration of justice in the Court etc., etc. By operation of Art. 227, every High Court shall have superintendence "over all courts and tribunals throughout the E. territories in relation to which it exercises jurisdiction". That apart it also

has the power to call for returns from such courts, make rules regulating the practice and procedure of such courts etc. etc. In Chapter VI. "Subordinate Courts". Art. 233 deals with appointments to and promotion of district judges. They shall be made under Article 233(1) by the Governor F of the State in consultation with the High Court. Other judicial officers other than district judges of the judicial service of a state shall be made by the Governor in accordance with the rules made by him in that behalf after consultation with the Public Service Commission and with the High Court as envisaged in Article 234. Art. 235 gives control to the High Court over G district courts and courts subordinate thereto including posting and promotion of the officers in the judicial service of the State. Such control "shall be vested in the High Court. By operation of the interpretation clause ; n Art. 236, the expression district judge includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small causes court, chief presidency magistrate, additional chief H presidency magistrate, sessions judge, additional sessions judge and assistant

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 589

sessions judge. The judicial service shall mean the service consisting ex- A elusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. It could thus be clear that the recruitment of the officers to the judicial service of the State below the level of the district judge is either by the public service commission of the State or by the High Court in some States. Equally recruitment to the post of district judge shall be by the High Court and the Governor makes appointment of the candidates selected and recommended by the High Court as District or Addi. District Judges. They are invested with powers of Sessions Division under the Code. All the judicial officers shall be exclusively under the control of the High Court including their promotion, posts, transfer, grant of leave and disciplinary control, etc. till they attain the age of superannuation prescribed under the relevant rules. By operation of Art. 237 the High Court has the control on all the judicial officers.

They are the core members and floor level officers of the judicial service

of the State exposed to direct public gaze. It is settled law that the High Court has exclusive control over judicial officers and the Governor should D normally act according to the recommendation of the High Court. Even in respect of dismissal, removal, reduction in rank etc. of Subordinate Judicial officers the Government Advocates, it is made in consultation with and advice of the High Court. The constitutional scheme thus guarantees and secures independence of the subordinate judiciary as well.

It is the basic postulate under the Indian Constitution that the legal sovareign power has been distributed between the legislatures to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution. The courts are intermedia! y between the people and the other organs of the state in order to F keep the latter within the parameters delienated by the Constitution. There can be no liberty if the power of judging be not separated form the legislative and executive power. Art. 50 of the Constitution, therefore, enjoins the State and in fact separated the judiciary from the executive in the public services of the State. It is the Constitutional duty of the judiciary to adjudicate the disputes between the citizen and the citizen; citizen and G the State; the States inter se and the States and Centre in accordance with the constitution and the law.

Independent judiciary is the most essential attribute or rule of la~ and is indispensable to sustain democracy. Independence and integrity of H

A the judiciary in a democratic system of government is of the highest importance and interest not only to the Judges but to the people at large who seek judicial redress against perceived legal injury or executive excesses. Dispensation of justice by an impartial presiding judge, without fear or favour, affection or ill-wil~ is the cardinal creed and zealously protected B by the constitution. Judicial review is the structure and independent judiciary is the cardinal feature and an assurance of faith enshrined in the constitution. Confidence of the people in impartial dispensation of justice is the binding force for acceptance of justice delivery system. Independence is not limited to insulating the judges from executive pressures alone. Its sphere extends to many other impeccable zones of pressures of prejudices.

C Judges should be made of stern stuff unbending before the power, economic or political which alone would ensure fair and affective administration of justice. The officer exercising judicial power vested in him must be, of necessity, free to act upon his own conscience and without apprehension of personal consequences to himself of lure of retrial D rehabilitation. The judge should be made independent of most of their restraints, checks and punishments which are usually called into play against other public officers and he should be devoted to the conscientious performance of his duties. Therefore, he must be free from external as well as internal pressures. The need for independent and impartial judiciary manned by persons of sterling character, impeccable integrity, undaunting E courage and determination, impartiality and independence is the command of the constitution and call of the people. He would administer justice without fear or favour affection of ill-will. His sanction and succur are nurtured and nourished from the constitution itself. The ability and integrity of the judge to make a decision free from external interference or F influence or external cravings is an essential component and an inbuilt assurance to shape the orderly life of the community. Independent and impartial judiciary thus sustain the faith of the people in the efficacy, effectivity and impartial judicial process. Independence of the judiciary has been secured by providing security of tenure and other conditions of service. Judicial independence means total liberty of the presiding judge to G try, hear and decide the cases that have come before him according to the set procedure and decide the cases and give binding decision on merits without fear or favour, affection or ill-will.

The subordinate judiciary is complement to constitutional courts as H part of the constitutional scheme and plays vital part in dispensation of

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KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 591

justice. Its decisions ore subject to appeal or revision to the High Court A which exercises control and supervision over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry but administrative or quasi-judicial functions within its territorial jurisdiction.

Judicial review is not only concerned with the merits of the decision but also of the decision making process. It intends to protect the individual against the misuse or abuse of the power by a wide range of authorities.

Judicial review is a protection to the individual and not a weapon. It, therefore, concerns with the manner in which the authority makes the decision. The court of appeal though substitutes its own decision to that of the. subor.dinate courts or the tribunal etc. on merits, it is to ensure that the individual is given a fair treatment. Judicial review ensures that the authority acts fairly and the order is not vitiated by illegality, unreasonableness, irrationality or procedural impropriety. The civil rights and criminal justice are integral parts of judicial process. Procedure is the hand maid

to substantive justice. Law, therefore, has to be vigilant to ensure adequate safeguards for those whose rights are affected or to exercise their rights or D acts. Equally the exercise of the executive power of the government should be put under control. Judicial review, therefore, is the process by which the constitutional courts i.e. the Supreme Court and the High Court exercise supervisory jurisdiction over the prpce_edings and decisions of the suLordinate courts, etc. tribunals or authority or persons entrusted with administrative or quasi-judicial acts or duties. Subordinate courts also, as said earlier, exercise, in a small measure judicial review of administrative E

acts. Subordinate courts are integral part of the judiciary under the Constitution. In Black's Law Dictionary, 6th Ed., Judicial power has been defined at p.849 thus: "The authority exercised by that department of government which is charged with declaration of what law is an its conp struction; the authority vested in the courts and judges, as distinguished from the executive and legislative power; Courts have general power to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision; a power involving exercise of judgment and discretion in determination of question of right in specific cases effecting interests of person or property, as G distinguished from ministerial power involving no discretion; inherent authority not only to hear and determine controversies between adverse parties, but to make binding orders or judgments; power to decide and pronounce a judgment and carry it into effect between persons and parties H

A who bring a case before the court for decision; power that adjudicates upon and protects the rights and interests of persons or property, and to that end declares, construes and applies the law".

Judicial power, therefore, means the judicial power whichever authority i.e. "courts i.e. High Court and subordinate judiciary, established under chapters V and VI of Part and the Union judiciary constituted in Chapter I in part V, "the Supreme Court of India" must of necessity have to decide controverses between citizen and the citizen, citizen and the State or the States inter se, whether the rights relate to life, liberty or property.

The courts have power and authority to declare the law, apply the law and give a binding and authoritative decision between the parties before it and carry it into effect.

The Courts of Sessions constituted by Section 6 of the Code and ' invested with the powers under the Code arc manned by Dist. and Addi.

D Dist. or Joint Dist. Judges appointed under Article 233 of the Constitution.

They are called Sessions or Addi. Sessions Judges. Criminal Law (Amendment) Act, 1952 or the Prevention of Corruption Act either of 1947 or 1988 Act, Delhi Special Police Establishment Act, empower the Central or State ' Govt. by notification to appoint Special judges i.e. Sessions or Addi.

Sessions Judges to deal with the offences relating to corruption by public E servants. The offences under Essential Commodities Act and the order issued thereunder are dealt with by Sessions or Addi. Sessions Judges.

They remain under the administrative and judicial control of the High Court including their transfer and postings and disciplinary control till they attain the age of superannuation according to the relevant rules or the law F laid by this court. A conjoint reading of ss.9, 11 and 12 of the Act does not indicate to preserve the control or supervision of the High Court over the Designated courts or judges holding the posts, though thy were appointed initially with the concurrence of the Chief Justice of the High Court. Section 19 of the Act provides an appeal to the Supreme Court from any judgment, sentence or order of the designated court both on, facts and G under law. Control of the High Court over the judicial work of the judge or additional judge of the designated court was taken out. Thus it would be clear that appointment of sessions or additional sessions judges as judge of tho designated court under Section 9(1) are outside the scheme of the Constitution and the Code but a creature of the Act. Though the appoint- H ment of the District or Add!. Sessions Judge to the designated court by the

l i

KARTAR v. STATE OF PUNJAB {RAMASWAMY, J.] 593

central government or the State government, as the case may be, is with A the concurrence of the Chief Justice of the High Court, thereafter the High Court ceases to have any administrative or judicial supervision or control over them. On appointment as a Judge of the designated court, the Sessions or Addl. Sessions Judge is transposed to the administrative control of the executive, be it the Central or State Government. In other words the B concurrence of the Chief Justice of the High Court is necessary only for the initial appointment of a Judge of the designated court and thereafter the High Court ceases to have any administrative and judicial control and supervision of him. Sub-section (7) of Section 9 of the Act postulates its fulcrum without mincing any word that despite the judge or additional judge of a designated court attained the age of superannuation under rules C applicable to him in the state judicial service, he shall be entitled to continue as such judge or additional judge by employing unequivocal language "shall not effect his continuance as such judge or additional judge". In other words, the legislative intention is clear that though designated judge attained superannuation under the relevant rules applicable to D him in his normal judicial service as a sessions or additional sessions judge, he shall remain in service during the pleasure of the central or the ap-

~ propriate state government. What would be its message? Is it consistent with the independence of the judiciary? Would it create confidence in the accused that the designated judge would be of stern stuff unbending before power or lure of personal advantage? The constitutional validity of s. 9(1) E of the Act should be addressed from the above setting and perspectives.

The concern here is not so much with the initial appointment as designated Judge but with the control and supervision over his discharge of judicial functions and as its part is he insulated from executive influence overtly or covertly?

In DJ.F.D. Lyanage and Ors. v. The Queen, [1%7] 1 AC 259, t!ie Criminal Law (Special Provisions) Act 1of1962 made by the Parliament of Ceylon contained special procedure for nomination of special judges by the Minister of Justice to try certain off enders or class of offences which G was later amended giving power of nomination to the Chief Justice of the Ceylon Supreme Court. Power was also given to the police to record . confession of those in police custody. The vires of Section 9 modifying

)<.

Section 440A of the Criminal Procedure Code and the nomination of three judges who tried the offenders and other sections and the consequential conviction of them were challenged as being ultra vires and void. The H

A Supreme Court of Ceylon held that the power of nomination was ultra vires

of clause 4 of the Chapter of Justice, 1833. The conviction were set aside. '- On appeal, the Judicial Committee held that the provision of Chapter of Justice 1833 manifest an intention to secure to the judiciary freedom from political, legislative and executive control. They are wholly appropriate in

B a Constitution which intends that judicial power shall be vested only in the judiciary. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining where it was for more than a century, in the hands of the judicature and was inconsistent with any intention that hencec forth it should pass on to or be shared by the executive or the legislature.

It was further held that each case has to be decided in the light of its own facts and circumstances including the true purpose of the legislation, the situation to which it was directed the existence (where several enactments are impugned) of a common design and the extent to which the legislation

D affects, by way of direction or restriction, tl.~ discretion or judgment of the judiciary in specific proceedings. It is, therefore, necessary to consider more closely the nature of the legislation's challenge. It was further held , that "The Act made admissible that statements inadmissibly -obtained b~ the police during the detention. It altered the fundamental law of evidence so as to facilitate their conviction and finally it altered the ex-post facto the - E punishment to be imposed on them. Still further it was also held that the

true nature and purpose of these enactments are revealed by their conjo~ impact on the specific proceedings in respect of which they were designe and they take their colour in particular, from the alterations they P' • ported to make as to their ultimate objection, the punishment of th F convicted. These alterations constituted a grave and deliberate incurs under the judicial sphere" ................. "It was beset by a grave situation a .,#-- it took grave measures to deal with it, thinking, one must presume, tb ...

had power to do so and was acting rightly. But that consideratio~ irrelevant and gives no validity to acts which infringe the Constitv What is done once, if it be allowed, may be done again and in a lesser~

I G ' t and less serious circumstances. And thus judicial power may be e; Such an erosion is contrary to the clear intention of the Constitutim

In Norlhem Pipeline Construction Co. v. Marathon Pipe Line Co United States, 73 L. Ed. 2nd 598; 458 US 50 [1982) under the Bankr H Act of 1978 established, in each federal judicial district as an adjut

' -l

1 I

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 595

the Federal District Court for the District, United States Bankruptcy Court A and the President, with the advice and consent of the Senate, appointed Judges with office for 14 years terms. The Judges were subject to emoval ?> by the judicial council of the circuit on account of incompetence, miscon- J duct, neglect of duty or physical or mental disability. Their salaries were V set by statute and were subject to adjustment. The Act grants the court -, -jurisdiction over all civil proceedings arising under title 11 or arising in or B

' related to cases under title 11 128 USES Sec. 1471 (b). When proceedings

were initiated in Bankruptcy Court for the District of Minnesota, a suit against corporation was filed for damages fobreach of contract and warranty. The defendant sought dismissal of the suit on the ground that the Act is unconstitutional offending Art. III conferring judicial power upon C Judges who lacked life tenure and protection against salary diminution.

The bankruptcy Judge denied the motion. On appeal the District Court for the District of Minnesota, entered an order granting the motion on the ground that delegation of authority in 28 USCS Sec. 1471 to the Bankruptcy Judges to try cases otherwise relegated under the Constitution to Art. III D judges was unconstitutional. On appeal, the United States Supreme Court confirming the decision, per majority, held that bankruptcy judges created by the Act, not being Art.III judges, Art. III bars the Congress fro:n establishing under Article III Schedule 1 legislative courts to exercise jurisdiction over all matters arising under the bankruptcy law. The establishment of such courts not falling within any of the historically recognised E situations - courts of the territories of the United States or the District of Columbia, courts marital and courts created by Congress to adjudicate public rights in which general principle of independent adjudication commanded by Art.III does not apply, nor there being any reason why the Bankruptcy Courts so established lie beyond reach of Art. III. Section F 241(a) of the Bankruptcy Act having impermissibly removed most, if not all of the essential attributes of judicial power from Art.III District Court and having vested those attributes in a non-Art. III adjunct, which grant of jurisdiction cannot be sustained as an exercise of Congress power to create adjuncts to Art. III courts. The Federal Judiciary was designed to stand independent of the executive and the Legislature. Periodical appointments G are fatal to the Independence of the Judiciary. If the power of appointment is committed either to the executive or legislature, there would be danger of improper compliance to the branch which possessed it. A judiciary free from control of the executive and legislattire is essential to relieve the H

A judiciary from potential domination by other branches of Govt. The inexonable command of Art.III, S.l is that judicial power shall be vested in Supreme Court and inferior courts. Bankruptcy judges whose offices are created under the Act are under the Executive control. The Congress's majority to control the manner in which the rights adjudicated, through

B assignment of historically judicial functions to a non-Art. III adjunct must be unconstitutional. Accordingly the Court declared the Act to be ultravires power of the Congress. However the declaration was held prospective in operation since retrospective operation would surely visit substantial injustice and hardship upon those litigants who relied upon the Act's vesting jurisdiction in the Bankruptcy Courts. The court gave time to the C Congress to amend the law and the operation of the judgment was postponed till specified date.

In re Special Courts Bill, (1978) AIR (1979) SC 478, a bench of seven judges were called upon to answer Reference No.l of 1978. Clause 7 of the Special Courts Bill provided constitution of Special Court and nomination, D in consultation with the Chief Justice of India, a sitting judge of a High

Court of India or a person who has held office as a judge of a High Court in India nominated by the Central Govt. in consultation with the Chief Justice of-India is valid in law. A bench of 7 judges opined against the reference. Shinghal, J. pointedly considered the question in a separate but E concurrent opinion of the validity of Clauses 2 & 7and held:

"that is in fact necessary to ensure the independence of every court dealing with civil and criminal matters. It may be permissible to create or establish civil and criminal courts in a State with designations other than those expressed in Art. 236, namely those covered by the expression district judge, or by any existing designation in the Codes of Civil and Criminal Procedure,~ but that is far from saying that it is permissible to establish a hierarchy of courts other than.that envisaged in the Constitution."

It was also further held that

"the Constitution has thus made ample and effective provision for the es.tablishment of a strong, independent and impartial judicial administration in the country, with the necessary complement of civil and criminal courts. It is not permissible for parliament or a State Legislature to ignore or bypass that scheme of the Constitu-

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 597

tion by providing for the establishment of a civil or criminal court, A parallel to a High Court in a State, or by way of an additional or extra or a second High Court, or a court other than a court subordinate to the High Court. Any such attempt would be unconstitutional and will strike at the independence of the judiciary which has nobly been enshrined in the Constitution and so careful!v nursed over the years 11 •

It was further held that

"It is beyond any doubt or controversy that the Constitution does

not permit the establishment of a criminal court, of the status of C a court presided over by a district judge as defined in Art. 235, which is not subordinate to the High Court". . ...... Dealing with an argument based on s.6 of the Code that it was a court under the Code, this Court held that "all that the section states is that the five classes of criminal courts stated in it shall be in addition to the High Courts and courts that may be constituted under any D other Law. and it cannot be said with any justification that it provides for the constitution of courts parallel to or on the same footing as the High Court, or of criminal courts which are not subordinate to the High Court." ........ "Section 6 of the Code does ·

not therefore justify the creation of Special Courts of the nature E contemplated in the Bill, and the argument to the contrary is quite untenable."

It was further opinion that all persons charged with crime must, in law. stand on the same rooting at the Ban of Justice. Such an equality should be assured not only between one accused and another but also between the prosecution and the accused. Thus this is not a mere rights explosion but, F

as will appear, it is what our Constitution has carefully, assuredly and fully provided for every citizen of the country. Art. 21 of the Constitution is, by itself, enough to bring this out. Nomination of the retired judges was found with disfavour. This principle reinforces that the judicial function must be G coterminous with superannuation and no longer.

It would thus be seen that constitution of a designated court per se may be valid but as a court parallel to courts of Sessions and appointment of Sessions Judge or Addi. Sessions Judge of judge of the designated court without administrative and judicial control of the High Court concerned H

A and continuance in office after attaining superannuation are clearly in negation of and subversive to the independence of the judiciary, carefully

conservd and given to the people of India. It would foster the "pleasure doctrine" laying the seeds to bear fruits of poisoned tree to destroy independence and impartiality of justice which the Constitution of India consciously avoided. It is, therefore, unconstitutional.

This conclusion does not mean that the offences under the Act cannot be tried by the regular courts especially assigned by the High Courts to the Sessions or Addi. Sessions or joint Sessions Judges to exercise those functions or the power under the Act. Moreover, s.19 confers appellate power on this Court. It is true as contended by Sri Tulsi, expeditiot ; trial and disposal of the cases and appeals is one of the aims of the Act. But as rightly contended for the accused that many an accused being indigen•., cannot effectively pursue the remedy of appeal in the Supreme Court due to oppressive distance and heavy litigation costs, conferment of appellate power on the High Court would be just and fair remedy. I find considerable D force in the contention. Yet it being a legislative policy, it would be left to the wisdom of the parliament to decide and suitably amend the Act, keeping in view Art. 39A which itself is a fundamental right to the indigent. . ' The remedy of appeal to the High Court would be easily accessible at the

State level, lest the poor may be constrained to forgo the remedy of appeal.

The right to approach this Court under Art. 136 has constitutionally been E preserved to everyone.

In Managing Director, ECIL, Hyderabad v. B. Karnnakar, J.T. (1993) 6 SC p.1, in a separate but concurrent judgment, I have considered elaborately the need to give prospective operation of a decision of this F Court, be it, constitutional, civil or criminal. In paragraph 73 it was held that the cut of date to give effect to the law laid down in (he judgment is the dated of the judgment. Though I had held that the parties before the Court in that judgment were entitled to the relief, majority held otherwise to which I am bound,. In Victor Lin/defter v. Victor G. Walker, 14 L.Ed 2nd, 601 381 US 618 [1965], it was held that though the evidence was collected G in illegal search and seizure violating 4th amendment, and the conviction based thereon is not valid. The decision was held to be prospective and the conviction there under was not interfered with. In Ennesto A. Miranda

v. State of Arizona, 16 L.Ed. 2nd. 694,384 US 436, a confessional statement

obted from the accused violating his constitutional right and evidence H was held to be inadmissible, yet the conviction based thereon was not

• y

KARTAR v. STATEOFPUNJAB [RAMASWAMY, J.] 599

interferred with. Same view was followed in Danny Escobeoo v. I/linois, 12 A L. Ed. 2nd, 977, 378 US 476 and Sylvester Johnson v. State of New Arsey, 16 L.Ed. 2nd, 882, 384 US 719, Whererio the conviction and sentence were not ioterferred with though held that evidence obtaioed in violation of the constitutional right was ioadmissible. It is already seen that in Northern pipeline Construction Co. case, though the establishment of the bankruptcy courts was held to be unconstitutional, the operation of the judgment was B declared prospective and time was given to the congress to amend the la, w without disturbiog the judgments already rendered. Art. 233-B validated the appointed of district Judges which were declared to be iovalid. In G.

Ramaraju v. Andhra Pradesh, [1981] 3 SCR 474 this court applied the doctrine of de facto authority and validated the conviction or sentence C awarded by the Sessions Judges whose appointments were declared illegal.

In Gokaraju Rangeraju, etc v. State of A.P. [1981] SCR 474 at 484-85 this court held that

D "a judge, de facto, therefore is one who is not a mere iotuder or usurper out one who holds office, under colour of lawful authority, though his appoiotment is defective and may later be found to be defective whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and function of the office, albeit unlawfully, have E the same efficacy as judgments pronounced and acts done by a Judge de Jure. Such is the de facto doctrioe born of necessity and public policy to prevent needless confusion and endless mischief'.

This court also further .held that the validity of the appointment F cannot be challenged io colateral proceediogs. It is true that in the light of the findiog that s. 9(7)is invalid. violative of the basic structure and judicial iodependence envisaged in the constitution, public policy requires that the doctrioe of de facto be engrafted on necessity to protect the ioterest of the public and the iodividuals G iovolved io the official acts of persons exercising the duty of an office without actually beiog one io strict poiot of law. Therefore, though, de jure they are not by title validely appoioted, but by colour of title the exercise and Functions as Judge of the designated court, trial conducted, judgments renderred, orders passed, punishments imposed and convictions made are legal and valid. H

The de facto doctrine is not a stranger to the Constitution or to the Parliament and the legislature of the States. kticle 233A recognises this doctrine brought by constitution Twentieth Amendment Act, 1966. Therefore the trial conducted, judr, ments pronounced and the orders of punishment imposed under the Act under the Act remained valid.

Thus it must be held that the confessions recorded by any police officer below the rank of Superintendent of police under s.15(1) and the appointment of Sessions and Addi. Sessions Judges to the designated court under s.9(7) are unconstitutional. Yet the confessions so recorded by C exercising the power nndcr, s.15(1) shall remain valid and would be considered at the trial, or in appeal in accordance with law. Any judgment or order made and conviction renderred exercising powers under the Act and sentence imposed relying thereon does not become invalid or void. We further hold that it is open to the Parliament to amend ss.9(7) and 15(1) of the Act Suitably. The operation of this judgment is postponed for a year D from today to carry out the amendments and necessary steps be taken to have ss.15(1) and 9(7) suitably amended. If no amendments are effected within the period or extended period on and from the date of expiry of the period aforementioned, or any extended time by order of this court, s.15(1) and s.9(7) would thereafter becc.me void.

E The further question is whether the High Court would be justified to exercise its power under Article 226 of the Constitution in respect of the matters covered under the Act?

The legislature treated terrorism as a special criminal problem under F the Act and the ordinary criminal courts created under the Code were divested of the power and jurisdiction to try the offences governed under the Act and invested the same in the designated Court and appellate powers to this court.

From the scheme of the Act therefore it is clear that the offences G created thereunder are exclusively triable by the designated court and conviction made or orders passed, whether final or interlocutory orders pending trial are regulated under the provisions of the Act. Right of appeal thereon bas been provided by Section 19 to this Court. Under the Code the Court of Sessions and the High Court play major role in the administra- H lion of criminal justice, from the stage of arrest of an accused or suspect

KARTAR v. STATEOFPUNJAB [RAMASWAMY, J.) 601

till the trial is concluded or conviction became final. The High Court has A jurisdiction and control over the court of sessions or the Magistrate, but under the scheme of the Act there is a wall of separation and complete exclusion of the jurisdiction of the High Court is total. The designated court is neither subordinate to the High Court, nor the High Court has any control or supervisory jurisdiction under Article 227.

From this scenario, the question emerges whether the High Court under Article 226 would be right in entertaining proceedings to quash the charge sheet or to grant bail to a person accused of an offence under the

Act or other offences committed during the course of the same transaction exclusively triable by the designated court. Nothing is more conspicuous C than the failure of law to evolve, a consistent jurisdictional doctrine or even elementary principles, if it is subject to conflicting or inconceivable or inconsistent result which lead to uncertainty, incongruity and disbelief in the efficacy of law. The jurisdiction and power of the High Court under Article 226 of the Constitution is undoubtedly constituent power and the D High Court ha< untremelled powers and jurisdiction to issue any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the court of the constituent power engrafted under Article 226. A superior court is deemed to have general jurisdiction and the law presumes that the court has acted within E its jurisdiction. This presumption is denied to the inferior courts. The judgment of a superior court unreservedly is conclusive as to. all relevant matters thereby decided, while thejudgment of the inferior court involving a question of jurisdiction is not final. The superior court therefore, has jurisdiction to determine its own jurisdiction, may be rightly or wrongly.

F Therefore the court in an appropriate proceeding may erroneously exercise jurisdiction. It does not constitute want of jurisdiction, but it impinges upon its propriety in the exercise of the jurisdiction. Want of jurisdiction can be established solely by a superior court an that in practice no decision can be impeached colaterally by an inferior court. However, acts done by a superior court is always deemed vaiid wherever it is relied upon. The G exclusion thereof from the rule of validity is indispensable in its finality.

The superior courts, therefore, are the final arbiters of the validity of the acts done not only by other interior courts or authorities, but also their own decisions. Though they are immune from colateral attack, but to avoid confusion the superior court's decisions lay down the rules of validity, are I'

A not governed by those rules. The valid decision is not only conclusive, it may effect, but it is also conclusive in proceedings where it is sought to be colaterally impeached. However, the term conclusiveness may acquire other specific meaning. It may meant that the finding upou which the decision is founded - as distinct or it is the operative part - or has to be

B conclusive or these findings binc.I only parties on litigated disputes or that the organ which has made the decision is itself precluded from revoking, rescinding or otherwise altering it.

The decision or order or a writ issued by the High Court under Article 226 is subject to judicial review by an appeal to this Court under C Article 136 whose sweep is wide and untramelled. The question, therefore, is whether the High Court would be proper to exercise its power under Article 226 over the proceedings or the offences, or the other offences committed in the course of the same transaction, covered under the Act.

The jurisdiction of the high court though was not expressly excluded under D the Act, by necessary implication it gets eclipsed not so much that it lacked constituent power but by doctrine of concomitance.

In re Connolly Brothers Ltd. Wood v. Connolly Brothers, Ltd. [1911] 1 Chancery Division 731 the facts were that Palatine court and Chancery Division have Co-ordinate jurisdiction over debenture holder of a company carrying on business in the County Palatine of Lancaster. When the debenture holder was indicted of an offence of cheating, Palatine court and the Chancery Division simultaneously had taken cognizance of the offence on a motion, the High Court issued an injunction restraining the plaintiff in the Palatine action while the proceedings in Palatine court had jurisdiction to grant the same injunction. The question was whether the Palatine Court was justified in taking cognizance and issuance of the injunction prayed for Parker. J. as he then was, exercising the jurisdiction of the Chancery Division issued the injunction restraining the plaintiff in the Palatine court from proceeding with the action. On appeal Fletchen Moulton, L.J., of G Court of Appeal, as he then was held that a man has a right to bring an actiun in a court of interior jurisdiction when the circumstances of the case entitle him to do so and if he is within the right, he is neither more nor less liable to be restrained from proceeding with an action in a Court of co-ordinate jurisdiction. The question of jurisdiction to grant the injunction H has nothing to do with the status of the court. It has to do with the

KARTAR v.STATEOFPUNJAB [RAMASWAMY, J.] 603

circumstances of the case as bearing on the conduct of the party enjoined. A That being so, the Court held that the case turns upon propriety of making the order. The existence of the jurisdiction does nor warrant the Court in exercising it on occasions when its exercise is not fully justified by the facts of the case. It held that since the Chancery Court has avoided vexation, the Chancery Court was justified in exercising the jurisdiction in issuing the B injunction.

In Imperial Tobacco Ltd. v. Attorney General, [1979] 2 All E.R. 592 the plaintiff Tobacco company launched sales promotion known as "spot cash" for a particular brand of cigarette. The Director of P.C. Prosecution C laid prosecution in the crone against the Company under Lotteries and Amusement Act 1976. The plaintiff initiated action in the commercial Court, High Court, Seeking a declaration text schemes are lawful. Before charges were tried in the Commercial Court, the Crown Court took jurisdiction to grant declaration sought for and if it were to be held in its jurisdiction it regulated to decline to be summoned the declaration on the D ground that criminal cases was already pending in the coordinate jurisdiction, namely the Crown Court. In that context the Court of Appeal through Ormrod LL following Connolly Brothers Ltd. case held that the case is one of concurrent jurisdiction, the Crown Court of co-ordinate jurisdiction, it is unusual that the Court of Co-ordinate jurisdiction is a criminal court. E This is clearly a major factor to be taken into account in deciding whether the High Court in its discretion, to assmne or decline jurisdiction to near the smnmons on its merits. It was held,

"The basic principles are not in doubt. The object of all procedural F rules is to enable justice to be done between the parties consistently with the public interest. So, the choice between courts of concurrent jurisdiction must always depend on where and how justice can best be done. Many factors have to be considered, but, where the conflict lies between courts of civil and criminal jurisdiction, the G most important consideration is the obvious one; criminal courts exist to deal with criminal matters, and their procedural rules are designed for that purpose. It is only in those relatively rare cases where the sole issue is one of law that a case can be made for the high court to assmne jurisdiction. This is because, there being no issue of fact to be determined, trial by jury is otiose; the issue of H

guilt will be determined by the judge of the Crown Court on submission of law, leading inevitably to a normal direction to the jury to acquit or convict, as the case may be. The criminal procedure, is no better designed, indeed it is often less well adapted than the civil procedure to determine pure questions of law.

Appeals in either case lie to the same court. Where issues of law can best be determined, therefore, is essentially a question of convenience in the true sense of that word"

Accordingly it was held that when the proceedings were initiated in the High Court, though the Crown courts was the court of co-ordinate C jurisdiction, the matter being pure question of law untremelled by questions of facts, the summons issued by the High Court was held to be efficacious and upheld.

In Santoshi Tel Utpadak kendra v. Dy. Commissioner of Sales Tax, D [1981] 3 SCC 466, the Commissioner and the Tribunal undn Bombay Sales

Tax Act had concurrent jurisdiction to entertain revision against the orders of the Dy. Commissioner. When the proceedings before the Tribunal were pending, the Commissioner entertained the revisional jurisdiction. When the propriety of the exercise thereunder was questioned, the High Court upheld that the exercise of the jurisdiction by the Commissioner on the E ground that the Tribunal cannot decide the matter on merits. On appeal this court held thus:

Now it seems to us past question that when the appellate jurisdiction of superior authority is invoked against an order and that authority is seized of the case, it is inconceivable for a subordinate authority to claim to exercise jurisdiction to revise that very order.

The Tribunal is the supreme appellate and revisional authority under the Statute. It cannot be divested of its jurisdiction to decide on the correctness of an order, it cannot be frustrated in the exercise of that jurisdiction, merely because a subordinate authority, the Commissioner, has also been vested with juri, diction over that order. Unless the statute plainly provides to the contrary that appears to us to be incontrovertible. It is not open to the Commissioner to invoke his power under clause (a) of sub-section

(1) of Section 57 and summon the record of an order over which the Tribunal has already assumed appellate jurisdiction. The sub-

KARTAR v. STATE OF PUNJAB [RAMASWAMY, J.] 605

ordinate status of the Commissioner precludes that."

In Tilokchand Modichand v. H.B. Munshi, Commissioner of Sales Tax, Bombay, AIR (1970) SC 898, a Constitution Bench of this court considering the power of this court under Article 32 vis-a-vis the High Court under Article 226, held that this constitutes "a comity between Supreme Court and the High Court". When a party had already moved, the High Court with a similar complaint and for the same relief and falied, this court insists on an appeal to be brought before it and does not allow fresl proceedings under Art. 32 to be started.

In Lakshmi Charan Sen v. A.KM. Hassan Uzzaman, [1985] Suppl. 1 SCR 493 another Constitution Bench considered the question whether the High Court would be justified in exercising its powers under Article 226 in staying general elections to the West Bengal Legislative Assmebly and held

that though the High Court did not lack jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the D exercise of its power under Article 226 should pass any order, interim or otherwise which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything or direct anything to be done, which will postpone that process indefinitely by creating a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. In State of Maharashtra v. Abdul Hazi Mohammad, Crl. A. No. 62/1994 dated February 21, 1994 the Bombay High Court quashed the charge sheet filed under TADA exercising the power of Art. 226 and directed to relase the respondent on bail. This Court held that where the facts ex facie does constitute an offence or contentions question arises, the High Court does not have power to entertain the proceedings. Otherwise it has jurisdiction in ordinary cases. This court allowed the appeal and see aside the order of the High Court holding that the allegations does not fall outside the scope of the Act.

In Pate Darr v. C.P Bwford, 339 US 200 94 L.Ed. 791 (1949], the Supreme Court of the United State of America in considering the question of issuing habeas corpus, the prisoner whether would come within the State

Act or the federal constitution, it was held that the District Court must H

A observe the doctrine of comity and stated thus :

"the doctrine of comity teaches that one court should defer action of causes properly within its jurisdiction until the court of another sovereignty with concurrent powers, and already cognizant of the litigation, has had an opportunity to pass upon the matter".

This principle was reiterated in Eve/le J. Younger v. John Hanis, 401 US 37, 27 L.Ed. 2nd 669, [1971]. In Lawrence S. Huffman etc. v. Pursue, Ltd., 420 US 592, 43 L.Ed. 2nd 482 [1975], it was held that federal courts confronted with requests to interfere with state civil functions should abide C by standards of restraint that go well beyond those of private equity jurisprudence. In United States v. Edgar H. Gillock, 445 US 360, 63 L.Ed. 2nd 454 [1980], it was held that while principles of comity command careful consideration by federal courts, comity must yield where important federal interests are at stake, such as in the enforcement. of federal criminal D statutes.

Thus it could be seen that though the High Court has jurisdiction and power under Article 226 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable E under the Act or offence jointly triable with the offences under the Act, the High Court being amenable to appellate jurisdiction and judicial review under Article 136 to this Court, and this court having been. statutorily invested with the power and jurisdiction under Article 19 of the Act, Judicial Pragmatism, concomitance between this Court and the High

F Court, the latter must observe comity and self imposed limitation, on the exercise of the power under Article 226 and refuse to pass an order or to give direction which would inevitably result in exercising the jurisdiction and power conferred on this court under Section 19 of the Act or sitting over the appellate 'orders passed by this court. Instances are not wanting that when this court declined to grant bail under Section 19, some High G Courts did entertain proceedings under Article 226 and granted bail to the self same accused, in fact even though this Court already declined to grant relief. Exercise of the power - even in exceptional cases or circumstances is therefore, incompatible with or inconsistant with comity. Therefore, the only check up on a court's exercise of power is one's own sense of H self-restraint and due respect to comity. Judicial fragmatism, therefore,

KARTAR v. STATE OF PUNJAB [SAHAJ, J:] 607

poignantly point, per force to observe constitutional propriety and comity A imposing self-discipline to deciline to entertain proceedings under Article 226 over the matters covered under Section 19 or the matters in respect of which remedy under Section 19 is available or taken cognizance; issue of process or prima facie case in the complaint or cahrge sheet etc., in other words all matters covered under the Act. Thus the High Cort's jurisdiction B got eclipsed and denuded of the powers over the matter covered under the Act.

I respectfully express my regrets for not falling in line with my brethren that the High Court may in exceptional cases exercise such power for the reasons aforesaid.

R.M. SAHAI, J.

To my utter regret, but with profound humility to Brother Pandian, J., for whose erudition and learning of crimianl law I have the greatest D regard and above all the respect for him as an elder brother, I am adding few words, more, by way of concurring opinion than, as an appeal to the brooding spirit of law to the intelligence of a future day', as the law which was enacted to tackle extraordinary problem in one or two States now stands extended to many States of the country and the alarming news which E appears in press and the shocking instances which have come to notice of this Court require highlighting certain aspects for whatever worth they may be.

Various provisions of the Terrorists and Disruptive Activities (Prevention)Act, 1987 (Act 28 of 1987) and Act 31 of 1985 (hereinafter referred to as 'TADA') enacted to make special provision for the prevention of, and for coping with, terrorists and disruptive activities and for matters 'connected therewith or incidental thereto', were assailed not only for infraction of fundamental rights guaranteed by the Constitution but also

for being in violation of fair trial, the sine qua non of any civilised criminal G jurisprudence. Validity of Act. 31 of 1985 and the Terrorist Affected Areas (Special Courts) Act, 1984 (Act 61 of 1984) was also challenged.

The attack varied from lack of legislative competence to enact these legislations to vague and wide definitions of expressions such as, 'terrorist activity' and 'abet'; to constitution of designated courts with persons who a

SUPREMECOURTREPORTS


A could continue even after superannuation, thereby 1educing its credibility; providing arbitrary procedure more to serve political purpose than to secure impartial justice for instance holding of courts in camera, non-disclosure of names of 1vitnesses, recording of confession by police officers, presumption of guilt etc. and above all harsh provision of punishment with B unfettered power to exercise it.

Terror according to dictionary menas, 'extreme fear or fright'. But 'terrorist' and 'terrorism' have become associated with, 'ideology of overthrowing a govenment by resorting to violent fear inspiring methods', 'opposition to government by methods which excite fear or any series of C terrifying, unlawful deeds which tend to intimidate'. Some 'consider it as a desperate response of the growing number of weak or powerless groups challenging the rigidities of frontiers, powers and resource of distribution'.

An abused understanding of the terrorism is said lo be 'prejorative for freedom fighting or rebellion disapproved by the authorities'. Terrorism D politically is 'coercive intimidation'. Systematic use of murder and destruction to instill the feeling of fear and terror in one or all, individual or group, institutions or government is its acknowledged method. The most reprehensible part of it is that its victims are usually innocent persons having nothing to do either with politics or government. Whatever their E

ideology or colouring terrorist are desperate people bitterly opposed to the prevailing regime, 'they are fond of using romantic euphemism for their murderous crime. They claim to be revolutionary heroes yet they commit cowardly act and lack the heroic qualities of humanity and magnanimity.

They profess to be revolutionaries yet they attack only by stealth, murder and main the innocent. They claim to bring liberation whereas in reality they seek power for themselves'. ['Terrorism & the Liberal State' by Paul Wilkinson].

Terrorism is a global phenomenon. Hijacking, diplomatic killings, bombing, kidnapping, innocent murders, destruction have become order of G the day. It may be politically motivated or revolutionary in outlook or sponsored by one country against other in shape of proxy war. But in either case its method being violative of human rights it is neither legally justified nor ethically acceptable. In our country terrorism unlike European countries such as Baader-Meinh of gang of West Germany or the Japanese H Red Army, or Italy's Red Brigades, or PIRA in Ireland, is described as

"'\

KARTAR v. STATE OF PUNJAB [SAHAI, J.] 609

the, 'classical manifestation of, sponsored terrorism'. The objective of such A unconventional war is to destabilise and weaken the government and break up the social, political and economic order. It is adopted by one country against another by promoting use of violence and encouraging disruptive activities, feeding vague imaginations of the misguided, extending false hopes and promises, providing financial assistance, weapons, training and B sanctuary.

Terrorism, irrespective of its slogans, personal glorification, is an evil which cannot be tolerated by any society. No State can put up with it as it is responsible to protect its citizens, their lives, property, institutions and their legitimate and democratically elected government. Protest by minority C is the essence of democracy. Strike, boycott, marches, demonstration are legitimate methods of expressing dissatisfaction and inviting attention of government to the demands. The extreme form of such political and moral pressure may be civil disobedience. But once the protest degenerate into violence it is opposed to basic democratic values. It shakes the rule of law D the structural basis of any democracy. Whether such action is result of frustration or generatd due to feeling of injustice or oppression it cannot be accepted as legitimate and legal by any civilised society, or any form of government. It may be that founders of many nations were in a state of rebellion against existing order and were hailed as patriots on achieving E their mission but that does not legitimize the methods adopted by terrorists or any political group as it largely depends on innocent killing and attacking soft targets.

Such being the terrorist ideology and philosophy a State which is obliged not only to maintain the rule of law, and peace but to maintain social environment for cultural progress and development of the society is legally entitled and morally justified to take such measures as are necessary

to combat such undesirable activity. Use of force by the State to overcome such inhuman menace invading State's monopoly to counter it cannot be seriously doubted. Killing of democracy by gun and bomb should not be G permitted by a State but in doing so the State has to be vigilant not to use method which may be counter productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to H

A such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, ,,__ • liberty and injustice. A country where terrorism or militancy is becoming

religion and creed of the frustrated, weak and the misguided the State has a constitutional duty to uphold the authority with firmness and determina-

B lion by directing its repressive measures towards quelling terrorism without sliding into general repression or exploiting the crisis for its own political advantage or to destroy legitimate opposition. Measures adopted by the State should be to create confidence and faith, in the government and democratic accountability should be so maintained that every action of the ' • c government be weighed in the scale of rule of law. No further need be said as Brother Pandian, J., has elaborately and lucidly dealt the background of the legislation and its necessity.

Having prefaced the discussion it may now be examined if the three enactments can be declared as invalid for being, 'legislative tyranny' or D 'State violence' of the fundamental rights guaranteed in Chapter III of the Constitution. But before entering upon an examination of different provisions of the Act it appears appropriate to deal, at the threshold, with the argument of legislative competence. In substance the submissions were ,

~ twofold, one, that the subject matter of the impugned legislation in pith

E and substance was public order, which fell in exclusive domain of State Legislature under Entry I of List II, therefore, the power could not have been exercised by the Parliament. And even if by straining the language of Entry I in List III it could be held to be criminal law the latter part of the Entry operated as a bar, on exercise of such power by the Parliament. Are these submission well founded ? Power to frame or enact law for the F governance of the country by the supreme body exercising the sovereign power is known as legislative power. In a democrcy which has opted for federal structure of governance with a written constitution the legislative ,.

powers either of the Central or the State Legislature are derived from the Constitution itself. In our Constitution the Legislatures under Article 246

G have plenary powers. Both are supreme in their sphere. But the field of legislative activity of the two sovereign legislatures is regulated and is exercised in consonance with Entry in List I and II of the Vllth Schedule.

Apart from exclusive field of activity provision is made empowering both the legislatures to exercise legislative power in respect of any of the matters enumerated in List III in the Vllth Schedule known as concurrent list. How H ,_

KARTAR v.STAIBOFPUNJAB [SAHAI, J.] 611

these entries should be construed, what is the effect of their overlapping A marginally have been discussed and explained by this Court time and again, therefore, it is not necesssary to recount all that. Although the learned Additional Solicitor General attempted to urge that the exercise of power could be traced to Entry 1, 2 and 2A of List I and it has been accepted by Brother Pandian, J., but I would confine it to the alternative submission made by the learned counsel that the legislation could be upheld under Entry I of List III which is extraced below :

"Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified C in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 11

In Harakchand Ratanchand banthia v. Union of India, AIR (1970} SC 1453 it was observed at p. 1458, D

"This power to legislate is given to t_he appropriate legislatures by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislatures can operate. It is well E established that the widest amplitude should be given to the language of the entires. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each o!her. It is then the duty of this Court to reconcile the entries and bring about a harmonious construction."

From the language used it is apparent that the Entry is couched in very wide terms. The words following the expression 'criminal law' enlarge

the scope to any matter which can validly be considered to be criminal in nature. The exercise of power under this entry, therefore, has to be construed liberally so as to give full play to the legislative activity. The width G of the entry, however, is controlled by the latter expression which takes '\way the power of either legislature to legislate in respect of offences against Jaws with respect to any of the matters specified in List I or List II. Since this part restricts and narrows the ambit of the entry it has to be construed strictly. Since under the Federal structure the law made by the Parliament has supremacy [See Union of India v. H.S. Dhillon, AIR (1972} H

A SC 1061, any enactment made in exercise of power under Entry in concurrent list shall have over-riding effect subject to restrictions that may be spelt out from the entry itself. A legislation by Union Parliament to be valid under this entry must satisfy two requirements; one, that it must relate to criminal law and the offence should not be such as has been or could be

provided against laws with respect to any of the matters specified in List II). What is a criminal law? Any act or rule dealing with crime. '(The) criminal justice system is a firmly societal defensive reaction to intolerable behaviour. From the beginning it was consideraed as a tool designed to protect an established order of values atuned to the political organisation of the community. Transgression of some important norms reflecting these values was seen as a crime and, as such, demanded punishment'.

Wbat is a crime in a given society at a particular time has a wide connotation as the concept of crime keeps on changing with change in political, economic and social set-up of the country. Various legislations D dealing with economic offences or offences dealing with violation of industrial activity or breach of taxing provision are ample proof of it. The Constitution makers foresaw the eventuality therefore, they conferred such powers both on Central and State Legislatures to make laws in this regard.

Such right includes power to define a crime and provide for its punishment.

Use of the expression, 'including all matters included in the Indian Penal Code at the commencement of the Constitution' is unequivocal indication of comprehensive nature of this entry. It further empowers the legislature to make laws not only in respect of matters covered by the Indian Penal Code but any other matter which could reasonably and justifiably be considered to be criminal in nature. Terrorist or disruptive activity is criminal in content, reach and effect. The Central and State Legislature both, therefore, are empowered to legislate in respect of such an activity in exercise of the power conferred under Enter I of the concurrent list. But this wide power is otherwise controlled and restricted by the latter part of the entry. It carves out an exception by precluding either of the legislatures G from exercising the power if it is in, 'respect of offence against laws with respect to any of the matters specified in List I or II'. The controversy, narrows down to if the offences under the TADA are such in respect of which the State Legislature could make a law. In other words if the legislation relating to TADA can fall in Entry 1 of List II then the State .

H Legislature would have competence to make a law under this entry and

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KARTAR v. STATEOFPUNJAB [SAHAJ, J.] 613

create offences for violation of such law under item 64 of List II and the A Central Legislature would be precluded from making any law. But the would happen if it is held that law relating to TADA is either in fact or in pith and substance a law relating to, 'public order'. This expression was construed in Ramesh Thappar v. The State of Madras, AIR (1950) SC 124.

It was held, B

"Now 'publice order' is an expression of wide connotation and signifies that state of tranquillity prvailing among the members of a political society as a result of the internal regulations enforced by the Government which they have. instituted."

In Ram Manohar Lohia v. The State of Bihar and another, AIR (1966) SC 740 = [1966] 1 SCR 709 it was observed as under :

"It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less D gravity then those affecting "security of state'', "law and order" also comprehends disorders of less granty than these affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order E but not public order just as an act may affect public order but not security of the State."

Can it be said that offences dealt under TADA relate to public order? Is the distinction between public order as visualised in Entry I List II and TADA of degree only or they are substantially differnt? 'Terrorism constitute a direct repudiation of liberal and human values and principles, and that terrorist ideology is ................ and constantly deployed in a struggle to defame and discredit democracy.' The terrorism with which our country is faced has been described as explained earlier is sponsored terrorism. Terrorism whether it is sponsored or revolutinary or even politi- G cal by its nature cannot be considered to be public order as explained by this Court. Conceptually public order and terrorism are different not only in ideology and philosophy but also in cause or the mens rea the manner of its commission and the effect or result of such activity. Public order is well understood and fully comprehended as a problem associated with law H

A and order. Terrorism is a new crime far serious in nature, more graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the State. The submission thus advanced on legislative competence, more as a matter of B form than with any feeling of conviction and belief in its merit, does not appear to be sound.

TADA having been enacted under Entry I of List III oi the VI!th Schedule, it did not suffer from lack of legislative competence, yet the question is if any of the provisions impinge upon the fundamental right guaranteed under the Constitution and is, therefore, ultra vires. Before embarking upon this exercise it may be worthwhile examining the depth of Article 21 of the Constitution as any law of punitive or preventive detention has to be tested on the touchstone of the constitutional assurance to every person that he shall not be deprived of his liberty except in accordance D with procedure established by law. It is declaration of deep faith and belief in human rights. In the, 'pattern of guarantee woven in Chapter III of the Constitution, personal liberty of a man is at the root of Article 21.' Modern history of human rights is struggle for freedom and independence of the

man. One may call the right guaranteed under Article 21 as, 'natural right' or 'basic human right' but a society, committed to secure to its citizen, 'justice social, economic and political; liberty of thought equality of status and liberty to promote amongst themselves fraternity' the foundation on which edifice of the Constitution has been structured could not have done otherwise than to provide for the human dignity and freedom as has been done by Article 21 of the Constitution which reads as under :

"21. Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law."

G Each expression used in this Article enhances human dignity and value. It lays foundation for a society where rule of law has primacy and not arbitrary or capricious exercise of power. 'Life' dictionarily means, 'state of functional activity and continual change peculiar to organised matter, . and esp. to the portion of it constituting an animal or plant before death, H animate existence, being alive'. But used in the Constitution it may not be

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KARTAR v. STATE OF PUNJAB (SAHAI, J.] 615

mere existence. As far back as 1877 Field, J. in Munn v. Illinois, (1877) 94 A

US 113 construed similar expression in the American Constitution as 'more than animal existence'. It has been approved by our Court in Khadak Singh

v. State of UP., (1964] 1 SCR 332 and reiterated in Sunil Batra v. Delhi Administration, (1979] 1 SCR 392. It was given new dimension in Menaka Gandhi v. Union of India, (1978] 2 SCR 621 and extended in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981] 2 SCR 516 when it was held,

"protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right

to live with human dignity and all that goes along with it, namely, C the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings."

Liberty is the most cherished possession of a men. 'Truncate liberty in Article 21 and several other freedom fade out automatically'. Edmond Burke called it 'regrilated freedom'. Liberty is the right of doing an act which the law permits. This article instead of conferring the right, purpose ly, uses negative expression. Obviously because the Constitution has recog nised the existence of the right in every man. It was not to be guaranteed or created. One inherits it by birth. This absolutism has not been curtailed

or eroded. Restriction has been placed on exercise of power y the State using the negative. It is State which is restrained from interfering with freedom of life and liberty except in accordance with the procedure established by law. Use of the word 'deprive' is of great significance.

According to the dictionary it means, 'debar from enjoyment; prevent (child etc.) from having normal home life'. Since deprivation of right of any person by the State is prohibited except in accordance with procedure established by law, it is to be construed strictly against the State and in favour of the person whose rights are affected. Article 21 is a Constitutional G command to State to preserve the basic human rights of every person.

Existence of right and its preservation has, thus, to be construed liberally and expansively. As a corollary to it the exercise of power by the State has to be construed norrowly and restrictively. It should be so unmderstood and interpreted as not to nullify the basic purpose of the guarantee. No legislative or executive action can be permitted to get through unless it H

A passes through the judicial scanning of it being not violative of the cherished right preserved constitutionally. If the Article i~ construed as empowering the State to make a law and deprive a person as the Constitution permits it then the entire concept of personal liberty shall stand frustrated. A political party voted to power may adopt repressive measures

against its political foes by enacting a law and it may well be said that deprivation being in accordance with procedure established by law it is within constitutional frame up. The procedure adopted by State either legislatively or executively must therefore satisfy the basic and fundamental requirement of being fair and just. The word 'except' restrict< the right of the State by directing it not to fiddle with this guarantee, unless it enacts a law which must withstand the test of Article 13. Today it appears well nigh settled that procedure established by law, extends both, to the substantive and procedural law. Further mere law is not sufficient. It must be fair and just law. Even in absence of any provision as in American Constitution fair trial has been rendered the basic and primary test through D which a legislative and executive action must pass.

How fundamental is the guarantee under Article 21 of the Constitution can be well appreciated when one looks to the constitutional amendment made in the year 1978. By 44th Amendment Act 1978 Article 359 was amended and it was provided that Article 20 and 21 could not be E suspended even during emergency. The occasion for it arose due to narrow construction placed by this Court in Additional District Magistrate, Jabalpur

v. Shivakand Shukla, AIR (1976) SC 1207 denying a citizen his right to challenge even arbitrary detention and arrest.

F Having analysed the scope of Article 21 and traced its history, judicially and legislatively, it is proposed to take up few provisions of 1987 Act as I have nothing to add to what has been said by Brother Pandian, J., on 1984 Act and 1985 Act with which I respectfully agree. Taking up 1987 Act I may mention at the very outset that I fully agree with the reasoning and conclusions arrived at by Brother Pandian, J., in restpect of most of G the sections. For instance, I agree with him that sub, clause (1) of the definition of 'abet' should be amended in order to avoid the ambiguity and make it immune from arbitrariness. As regards Sections 3 and 4 they are not liable to be struck down for vagueness. Their scope has been elaborately discussed by Brother Pandian, J. But the one section, with which H I could not reconcile, even though it was raised in written submissions, only,

1 )

KAR TAR v. STATE OF PUNJAB (SAHAJ, J.] 617 ,

"' is Section 5 which is extracted below : A

"5. Possession of certain unauthorised arms, etc. in specified areas.

- Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III( a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other B explosive substances unauthorisedly in a notified area, he shall, ' notwithstanding anything contained in any other law for the time ,

~ beiog in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine". c

Mere possession of arms and ammunition specified in the Section has been made substantive offence. It is much serious in nature and graver in impact as it result in prosecution of a man irrespective of his associotion or connection with terrorist or terrori't activity. A comparison of this Section with Section 3 and 4 demonsfrates the arbitrariness inherent in it. D t Section 3 operates when a person not only iotends to overawe the Govern- '

ment or create terror io people etc. but he uses tile arms and ammunitions which results in death or is likely to cause death and damage to property etc. In other words, a person becomes a terrorist or is guilty of terrorist activity when iotention, action and consequence all the three iogredients E are found to exist. Similarly Section 4 applies to those activities which are directed towards disrupting sovereignty and territorial integrity of the country. Thus a terrorist or a disruptionist and a person possessing any of the arms and ammunition mentioned in the Section have been placed at

~·-.0. par. In Sections 3 and 4 the offence arises on the act having been done F whereas in Section 5 it is founded ouly on possession. Even under sub-section (3) of Section 3 a person is liable to be prosecuted for abetting the offence if he assists or co.mmunicates with a terrorist. Sub-sections 5 and 6 inserted by Act 43 of 1993 to Section 3 also require that a person can be prosecuted only if he is found to be a member of a terrorist gang or terrorist organisation etc. The Act, therefore, visualises prosecution of the G

...... terrorist or disruptionist for offences under Sections 3 and 4 and in others only if they are associated or related with it. That is in keepiog with the objective of the Act. The legislation has been upheld as the legislature is comepetent to enact io respect of a cirme which is not otherwise covered by any Entry in List II of the Seventh Schedule. The definition of the crime, H

A as has been discussed earlier, is contained in Sections 3 and 4. of the Act , J and it is true that while defining the crime it is open to the legislature to make provision which may serve the objective of the legislation and from a wider point of view one may say that possession of such arms, the use of which may lead to terrorist activity, should be taken as one of the offences B as a preventive or deterrent provision. Yet there must be some interrelation between the two, howsoever, remote it may be. The harshness of the provisions is apparent as all those provisions of the Act for prosecuting a

person including forfeiture of property, denial of bail etc., are applicable > to a person accused of possession any arms and ammunition as one who is charged for an offence under sections 3 and 4 of the Act. It is no doubt true that no one has justification to have such arms and ammunitions as are mentioned in Section 5, but unjustifiable possession does not make a person a terrorist or disruptionist. Even under Ireland Emergency Provisions Act, 1978 on which great reliance was placed by learned Additional Solicitor General there is no snch harsh provision like Section 5.

D Since both the substantive and procedural law apply to a terrorist and disruptions! or a terrorist act or a disruptive act, it is necessary, in my opinion that, this Section if it has to be immune from attack of arbitrariness may be invoked only if there is some material to show that the person who

was possessed of the arms intended it to be used for terrorist or disruptionist activity or it was an arm and ammunition which in fact was used.

I agree with Brother Pandian, J., in respect of Sections 8, 9, 10 and 11 except that I would like to add that no one should be appointed as a designated court who has retired from the service. I also agree with him on construction of other sections but coming to Section 15 the then Hon'ble Minister who piloted the Bill while advocating for conferring power on police officer to record the confession and for makiog it admissible supported the departure from age old law in Evidence Act by taking illustration of England and America where confessions are permitted to be recorded by police constable. He made an appeal that a confession made G to a police constable in those countries was admissible and, therefore, a time has come when this country should depart from what Sir James Fitz Stephen felt when Indian Evidence Act 1872 was enacted and a police man was not treated as worthy of trust. In support of giving power to higher police officers to record confession he stated, H

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KARTAR v. STATE OF PUNJAB (SAHAJ, J.] 619

"Perhaps it is correct and good among many levels of Police A Officers. But are we going to live with that kind of a slur on the entire police for 120 years ? Are we going to say for ever and ever there will be nobody in the police force, no Indian, no son, no daughter in India, if he or she joins the police force will ever be fair just and objective? All our children will join the police force. B They will rise to be the SP of police force. They will rise to be the GIG of Police and IG of Police. Yet, is Parliament going to say for ever and ever that this will be the only country in the world where a confession to a high police officer, whatever the safeguards, will be an untrustworthy statement? Are we going to C live with that kind of a slur? What we are trying to do is, for a period of two years, in an extraordinary situation, dealing only with one kind of offence namely, terrorist offences, we say, that a confession made to a high police officer of the rank of Superintendent of Police and above, under very restricted conditions, will D be admissible in a court of law."

[Parliamentary Debates p. 724)

The appeal made by the them Hon'ble Minister might appear plausible.

There may be no difficulty in even sharing his views that at some point of E time the distrust with which the police is looked upon has to be given up.

But has the time come for that? Was the political, administrative and social climate of the country mature for it? What should not be forgotten that it is not the efficiency or honesty of the police force at higher level which was relevant for taking such a momentous decision. What was required to be considered was if the approach of the police force has undergone a change.

It would not be out of place to extract a paragraph from 5th National Police Commission Report :

"41.30. We find that policemen have a tendency to become cynical.

We also find that frequently such cynicism is developed, within G very few years of service. Policemen very rapidly pick up the knowledge that what the law requires is one thing but what has actually to be done in practice is another. Once this dichotomy takes root in their minds, all training, all exhortations are a waste.

Thus, the law is that third-degree is not permitted, but in practice H

that is the only way. Very often people themselves expect the police to beat up goondas and when this is not done charges of bribery and corruption are hurled at the police. People complain that police are partial in their conduct, but policemen learn that while under the law all are equal, as things happen, a rich man is more equal than a poor man, a common citizen different from a politician or one who has the support of a politician, a bureaucrat different from an ordinary government employee - the list is endless."

When Evidence Act of 1872 was passed it was enacted by a Parliament C which was committed to rnle the country and not govern. Yet the power to record confession was not entrusted to police officer. The rationale is not far to seek. There is a basic difference between the approach of a Police Officer and a Judicial Officer. A Judicial Officer is trained and turned to reach the final goal by a fair procedure. The basis of a civilized D jurisprudence is that the procedure by which a person is sent behind the bars should be fair, honest and just. A conviction obtained unfairly has never been countenanced by a system which is wedded to rule of law. A Police officer is trained to chieve the result irrespective of the means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of E the officers. A Sub-Inspector of the Police may be uncouth in his approach and harsh in his behaviour as compared to a Superintendent of Police or Additional Superintendent of Police or any highter officer. But the basic philosophy of the two remains the same. The Inspector of Police is as much interested in achieving the result by securing confession of an accused F person as the Superintendent of Police. By their training and approach they are different. Procedural fairness does not have much meaning for them.

It may appear unfortunate that even after independence a force which was created to implement harsh and draconian laws of imperial regime, ruthlessly and mercilessly, has not changed much even in people regime.

Dignity of the individual, and liberty of person the basic philosophy of G Constitution has still not percolated and reached the bottom of the hierarchy as the constablery is still not accountable to public and unlike British police it is highly centralised administrative instrwnentality meant to weild its s'ick and spread awe by harsh voice more for the executive than for the law and society. One of the reasons for it may be, as observed by the H

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KARTAR v. STATE OF PUNJAB [SAIW, J.] 621

National Police Commission, the political set up of the country which has A used it more to serve its purpose than to serve the society.

The police constable in England and America is duty bound to inform the accused not only that whatever he was going to state could be treated as confession in a court of law but he was entitled to have his lawyer and any relative he desired. Section 62 of Criminal Law Act of 1973 of B England made it mandatory for the police officer arresting a person to send information to his relative about arrest and place of detention. Circular No. 74 of 1978 issued in England permitted the accused to have assistance of lawyer. In America same safeguards are provided by judicial decisions. In Section 24 of the Evidence Act a confession obtained by threat or inducement or by force is rendered inadmissible. By Section 25 a confession made c

to a police officer is deemed to be inadmissible ipso facto. But if the same confession is made in presence of a magistrate then by Section 26 it is not treated as suspect. The obvions reason for these provisions is to ensure fair trial. A confession made to a police officer is suspect even in England and D America. But it has been made admissible subject to the safeguards mentioned above. Why? Because what is provided by Section 26 of the Evidence Act stands substituted by presence of lawyer or near relative. A confession to a police officer in presence of a Magistrate is admissible as it having been recorded in presence of judicial authority it becomes E credible. Same credibility attaches if the confession is recorded in England and America before a lawyer or near relative. Presence of Magistrate under Section 26 of the Evidence Act and of lawyer or relative in England and America lend credibility to the confession recorded by a police office

F as the element of inducement, threat, duress or force stands removed. The inadmissibility attaches to a confession recorded by a police officer not because of him but becuase of nncetainty if the accused was not made a witness against himself by forcing out something which he would not have otherwise stated. Further a confession made to a Police officer for an offence committed irresspective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to G notified area. An offence under TADA is considered to be more serious as compared to the one under Indian Penal Code or any other Act.

Normally graver the offence more strict the procedural interpretation. But here it is just the otherwise. What is inadmissible for a murder under H

A Section 302 is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. How the methods applied by police in extracting confession has been deprecated by this Court in series of decisions need not reproduced. But all that changed overnight when TADA was enacted. Giving power to police officer to record confession

may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by eductaion and training has to be made aware of their duties and responsibilities, as observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, 20(3) and 14 of the Constitution any confession to police officer was inadmissible. It has been established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to D be justified on law existing in other countries.

Since for justifying various provisions of the Act reliance was placed on Ireland Emergency Provision Act 1978 and it was attempted to be argued that the provisions in the TADA were fair and just it appears necessary to say few words. In 1971 in England an internment operation of provisions was made which led to many arrests which were challenged in High Court. And the High Court held that those exercising emergency powers were nonetheless required to fulfil ordinary common law requirement of informing the person arrested of the reason for his arrest. This led to constitution of Dip lock Committee which resulted in Northern Ireland (Emergency Provisions) Act of 1973. This empowered the army to arrest any suspected terrorist for a period of four hours for establishing identity after which it was required to hand over the accused to the police.

This led to abuse of power what came to be called, "military security" approach. And the survey made in that country noticed, 'that the procedure G for arrest and questioning and for extra-judicial detention has been abused.

The security authorities have in some areas mounted a "dredging" operation based on widespread screening. This has resulted, in our view, in large numbers of wholly innocent persons being arrested and large numbers whose involvement in terrorist activities is relatively unimportant being

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KARTAR v. STATEOFPUNJAB [SAHAJ, J.] 623

detained' [Terrorism and Criminal Justice' by Ronald D. Crelinsten]. This A led to replacement of 1973 Act by the new Act which is in force. Various safeguards were made in the Act. Subsection (2) of Section 8 of the Act excludes any statement obtained by torture or inhuman treatment from admissibility. But Section 15 of the TADA throws all established norms only because it is recorded by a high policeofficer. In my opinion our social B environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantee.

A confession is an admission of guilt. The person making it states something against himself, therefore it should be made in surroundings C which are free from suspicion. Otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself. The word 'offence' used in the Article should be given its ordinary meaning. It applies as much to an offence committed under TAD A as under any other Act. The word, D 'compelled' ordinarily means 'by force'. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired.

In either case it is compulsion. A confession made by an accused or E obtained by him under coercion suffers from infirmity unless it is made freely, and voluntarily. No civilised democratic country has accepted confession made by an accused before an police officer as volun!ry and above suspicion, therefore, admissible in evidence. One of the estabilished rule or norms accepted everywhere is that custodial confession is presumed to be tainted. The mere fact that the Legislature was competent to make the law, as the offence under TADA is one which did not fall in any State Entry, did not mean that the Legislature was empowered to curtail or erode a person of his fundamental rights. Making a provision which has

the effet of forcing a person to admit his guilt amounts to denial of the liberty. The class of offence dealt by TADA may be different than other G offence but the offender under TADA is as much entitled to protection of Articles 20 and 21 as any other. The difference in nature of offence or the legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. If the constructionas suggested by the learned H

A Additional Solicitor General is accepted it shall result in taking the law back once again to the days of Gopa/an A.K Gopalan v. State of Madras,

AIR (1950) SC 27. Section 15 cannot be. held to be valid merely because ,..l it is as a result of law made by a which has been found entitled to make the law. The law must still be fair and just as held by this Court. A law B which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20(3) and 21 of the Constitution.

Section 19 provides for an appear! as a matter of right from any judgment, sentence or order not being an interlocutory order of a designated court to the Supreme Court both on facts and law. Such provision C existed in 1984 and 1985 Act as well. It may be mentioned that when 1984 Act was passed by the Legislature, it was primarily made due to grave situation prevailing in the State of Punjab. Today the 1987 Act has been extended even to far off States. The effect of such extension is that for every sentence, may be under Section 3 or 4 or any other section, one has to D approach this Court. In many cases, the remedy of appeal may be illusory For instance, one may be prosecuted under Sections 3, 4 and 5 or under any other section and provision. He may be acquitted for the offence under Sections 3 and 4 and yet may be convicted under other sections or provision for minor offences which were tried by the designated court by virtue of E Section 12 of the Act. He may not be able to approach this Court because of enormous expenditure and exorbitant legal expenses involved in approaching this Court. It should not be forgotten that ours is a vast country with majority on the poorer side. The knowledge of economic inability of seizable section of the society to approach this Court by way of appeal may

F result in arbitrary exerise of power and excesses of the police. A provision for appeal to this Court in minor cases may result in defeating the remedy itself. Inability to file appeal due to financial reasons in petty matters may amount to breach of guarantee under Articles 14 and 21 of the Constitution. It may in many cases be denial of justice. I would, therefore, suggest that it may be examined if a proviso to sub-section (1) of Section 19 can G be added that a person convicted of any offence other than Sections 3 and 4 of the Act shall be entitled to file an appeal in the High Court under whose jurisdiction the designated court is situated. Further in case the State files an appeal against acquittal of the accused under Sections 3 and 4 in this Court then the appeal of the accused filed in the High Court shall H

KARTAR v. STATE OF PUNJAB [SAHA!, J.] 625

stand, automatically, transferred to this Court and shall be connected and A heard along with appeal filed by the State. The State on such transfer should allow the accused to have a counsel of his choice the expenses for which should be borne by the State.

Coming to sub-section (8) of Section 20 one of the issues debated was if a person accused of an offence under the TADA was entitled to invoke extraordinary jurisdiction of the High Court either for quashing of

the proceeding as on facts no offence was made out and the proceedings were invoked as an abuse of process of court or for extraneous reason and whether the order rejecting the bail by the designated court could be subjected to judicial review under Article 226.

Law on the subject is fairly settled. In State of Haryana v. Bhajan Lal, [1992] Supp. 1 SCC 335, a Bench of this Court of which one of us (Pandian, J .,) was a member after detailed examination of the ji:dicial decisions held,

'where the allegations made in the first information report or the com- D plaint, even if they were taken at their face value and accepted in their entirety did not prima facie constitute any offence or make out a case against the accused', or 'v here the allegations made in the FIR or complaint were so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion that there was sufficient E ground for proceeding against the accused, or 'where a criminal proceeding was manifestly attended with ma/a fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudje', them the proceedings were liable to be quashed. In Usmanbhai

(supra) it was conceded that petition under Article 226 was maintainable.

It was urged that the observation made by this Court in Usmanbhai's case in relation to exclusion of High Court's jurisdiction under Sections 439 and 482 were squarely applicable to Article 226. Reliance was placed on Narcotics Control Bureau v. Kishan Lal, (1991] 1 SCC 705 also. It was urged

that as for back as Waryam Singh v.Amamath, AIR (1954) SC 215 it having G been observed by this Court that power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds and their authority and not in correcting errors the High Court should not be permitted to entertain a petition against rejection of bail under Article 226 H

A and 227. Reliance was also placed on State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (dead) by L.R.s. and others, (1968] 3 SCR 692; and Mohd. Yunus v. Mohd. Mustazim and others, (1983] 4 SCC 566. The power given to High Court under Article 226 is an extraordinary power not only to correct the manifest error but also to exercise it for sake of justice.

B Under the scheme of the Constitution a High Court is the highest court for purposes of exercising civil appellate, criminal or even constitutional jurisdiction so far that state is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on C it to ensure that the subordinate authorities act not only in accordance with law but they also funcion within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. In England even in absence of Constitution whenever an attempt was made by Parliament to provide that the order was final and no writ of certiorari would lie the High Court always struck down the D provision. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a .citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was acting in violation of the constitutional guarantee. Rather it has a contitutional duty and responsibility to ensure E that the State machinery was acting fairly and not on extraneous considerations. In Sta!e of Maharashtra v. Abdul Hamid Haji Mohammed, (1994) 2 JT 1 this Court after examining the principle laid down in State of Hayana

v. Bhajan Lal, (supra) and Paras Ram v. State of Haryana, (1992] 4 SCC 662 held that the Higli Court has jurisdiction to entertain a petition under F Article 226 in extreme cases. What are such extreme cases cannot be put in straight jacket. But the few on which there can be hardly any dispute are if the High Court is of opinion that the proceedings under TADA were an abuse of process of court or taken for extraneous considerations or there was no material on record that a cases under TADA was made out.

G If it be so then there is no reason why should the High Court not exercise its jurisdiction and grant bail to the aceused in those cases where one or the other exceptional ground is roade out.

Since I am agreeing with Brother Pandian, J. except on one or two issues it appears appropriate to record my conclusions in brief :

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KARTAR v.STATEOFPUNJAB (SAHAI, J.] 627

(1) That the three Acts - Act 61 of 1984, Act 31 of 1985, and A Act 28 of 1987 have been validly enacted by the Parliament in exercise of its power under Entry I of List III of the Constitution.

(2) Even though no opinion has been expressed by Brother Pandian, J., on Section 5 I am of the opinion that the provisions B of this Section can be invoked, only when the prosecution is able to establish that there was some material on record to show that the arms and ammunition mentioned in the Section were likely to be used for any terrorist cir disruptive activity or that they had been used as such. c

(3) Although the provisions relating to appointmenfof a person as designated court are clear yet in the wTitten arguments it was pointed out that some of them which were appointed even after retirement. Snch appointments would be in teeth of the express provisions in the Statute. Therefore, no one should be appointed D as designated court who has retired from service.

(4) As regards Section 15 of the Act which provides for recording of confession by Superintendent of Police for the detailed reasons given by me, I am of the opinion that it is violative of Articles 20 and 21 of the Constitution and, therefore, is liable to E be struck down.

(5) As regards provisions of appeal I have suggested that it may be examined by the appropriate authority if a proviso could be added to Section 19 that where convictions are for offences other than Sections 3 and 4 of Act 28 of 1987 the accused may be entitled F to file an appeal in the High Court itself and in case an appeal against conviction is filed by the Government in this Court then the appeal filed by the accused in the High Court should stand automatically transferred. I am further of the opinion that in such cases the accused should be provided a counsel of his choice and G the payment of fee should be either made by the State or if made by the accused it should be reimbursed.

( 6) As regards jurisdiction of the High Cour~ to entertain an application for bail under Article 226 of the Constitution I am of the opinion that the High Courts being constitutionally obliged to H

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ensure that any authority which exercises judicial and quasi-judicial powers in its jurisdiction functions within the framework of law is entitled to entertain the petition to determine if the proceedings were not an abuse of process of court. But while exercising discretion the. court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it and, therefore, should exercise it for the sake of justice in rare and exceptional cases the details of which cannot be fixed by any rigid formula.

Matters disposed of.

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