From the SelectedWorks of Aditya Swarup

September, 2007

Terrorism and the Rule of Law: A Case comment

on Kartar Singh v. State of Punjab
Aditya Swarup

Available at: https://works.bepress.com/adityaswarup/3/

 TERRORISM AND THE RULE OF LAW
A Case Comment on
Kartar Singh v. State of Punjab, (1994) 4 SCC 569
..
By, Aditya Swarup, NALSAR University of Law, Hyderabad

INTRODUCTION

He that would make his own liberty secure must guard even his enemy from repression
and the violation of human rights.

- Thomas Paine

In 1977, Ronald Dworkin wrote Taking Rights Seriously1, a book that argued that that
rights must be understood as extremely important moral concerns, and cannot be
outweighed merely because a majority would be better off by violating the rights of an
individual. Rights need extremely strong protection because they are necessary for the
dignity and equal respect of individuals, especially when those individuals form a
minority within a society. Dworkin believes that the right to free speech and due process
is a paradigm example of a right that should be given extremely strong weight-what he
elsewhere has called treating rights as trump cards2. Dworkin finally says that only when
governments respect rights will respect for the law be generally reestablished3.

The issue of terrorism has taken its toll on most of the world today. World over
governments and people are devising ways to tackle it. September 11 in Newyork, the
train bombings in Madrid and the London bomb explosions have raised serious concerns
on this issue. India too, is not left in the dark. We have been experiencing such acts ever

1
Ronald Dworkin, TAKING RIGHTS SERIOUSLY, 1st ed. 1977, 3rd rep. 1984, p. 16.
2
Ibid. at p. 114.
3
Ibid. at p. 115.
since we gained independence. This applies to the situations of Kashmir, Punjab in the
1980s, Assam and other North- Eastern parts of the country.

The aspect of terrorism has raised a lot of issues. Firstly, it is highly unclear as to what
actually constitutes terrorism. There is till date no concrete definition of terrorism.
Secondly, how does a Government deal with this problem? The second issue is important
when we look at it in light of human rights concerns. To tackle terrorism, most
governments have passed stringent laws that violate norms of due process and human
rights. This then becomes a battle of terrorism vis--vis human rights. In the interests of a
majority can we choose to abrogate the very principles of natural justice and democracy
that we have maintained for the past many years? To what extent then can the State
restrict a fundamental right in the name of security and interests of a majority? We saw
the invocation of the Terrorists and Disruptive Activities (Prevention) Acts (TADA),
Prevention of terrorism Act (POTA) and more recently the Unlawful Activities
Prevention Act (Amendment), 1967. All these legislations have violated due process
mechanisms and prescribed strict procedure and penalties to tackle the menace of
terrorism.

This problem however, is not India specific. The detention of people in the United
Kingdom, the terrorist laws in Spain and of course the measures of the United States are
examples where developed legal systems are compromising civil liberties and rights in
interests of national security. There is an unequivocal settlement that national interests
are of primary importance. But what about rights and fundamental freedoms? Alan
Dershowitz once emphasized that the Government loses credibility when it cannot tackle
issues along due process concerns and resort to other means of prosecuting people4. This
then has today become the topic of a heated debate. In a legal perspective, the debate
ends with the Supreme Court decision in Kartar Singh v. State of Punjab5 where it upheld
the validity of anti- terrorist laws describing them as the need of the State. Such laws
were held to be the need of the hour in light of the social situation prevalent in the
country and thus held valid by a five judge bench headed by J. Pandian in the case.

4
Alan M Dershowitz, RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGIN OF
RIGHTS, 1st ed. 2004, p. 14.
5
1994 SCC (3) 569.
NATURE OF THE DISPUTE

Background

In the 1980s, the Country was riddled with many instances of disruptive activities
and serious law and order situations. In the state of Punjab, it was noted that terrorists had
been indulging in wanton killings and arson and had expanded their activities to many
other stated including Delhi, Haryana, Uttar Pradesh and Rajasthan. Many innocent lives
had been lost and explosions had led to the destruction of public property. Fear was
created in the minds of the public and communal peace and harmony was disrupted. To
deal with the situation at hand, the Central government enacted the Terrorist Affected
Areas (Special Courts) Act, 19846 and the Terrorist and Disruptive Activities (Prevention)
Act, 19857. Both these Acts provided for harsh measures to prevent terrorist activities in
the Country. New offences; terrorist act and disruptive activities were created. The
objects and reasons of the Act stated that the new and overt phase of terrorism which
requires to be taken serious note of and must be dealt with effectively and expeditiously.
The alarming increase in disruptive activities is also a matter of serious concern8.

The T.A.D.A, 1985 was meant to last only for a period of two years. On the
expiry of the said period, the Centre enacted legislation, Terrorist and Disruptive
Activities (Prevention) Act, 19879. Most of the provisions of the Act were similar to its
predecessor. The validity of the Act was at first two years and there after extended to four,
later six and finally eight years. It thus remained valid till 1995.

The above Acts in a gist laid down the following controversial provisions that
were challenged in the case by the petitioners;

The Central Government could declare any area as a terrorist affected area and make
it a single judicial zone. Activities in the area falling under the TADA would be tried by a
Special Court under this Act.

6
Terrorist Affected Areas (Special Courts) Act, (61 of 1984).
7
Terrorist and Disruptive Activities (Prevention) Act, (31 of 1985).
8
Statement of Objects and Reasons, Terrorist and Disruptive Activities (Prevention) Act, 1985.
9
Terrorist and Disruptive Activities (Prevention) Act, (28 of 1987).
 According to Section 2(1)(a) of the TADA, 1987, any person, whether innocent or not,
communicates or associates with a terrorist or such group of persons would be said to
abet with them. The requirement of mens rea had been done away with.

Sections 3 and 4 of TADA, 1987 prescribed and applied to acts that already constitute
offences under ordinary laws. There was no understanding as to which law would be
applied when.

Under Section 11 of the TADA, the concurrence of the Chief Justice is sought for the
transfer of cases if the atmosphere is not conducive for the trial in that State. In doing so,
the accused was not given a chance or hearing to conduct his case.

A confession made by a police officer was made admissible as substantive evidence in

a Court of law under Section 15 of the TADA.

Denial of the traditional right of appeal and providing for a direct appeal to the
Supreme Court in the interests of a fair and speedy trial. The Supreme Court, could then
be both a Court of law and facts.

Exclusion of the benefit of anticipatory bail under Section 438 Cr. P.C. and
empowering an executive magistrate to grant bail under Section 167 and 164 of the Cr.
P.C.

The Central Government is entitled to make any rules under this Act to provide for the
security of the state and people and tackle the menace of terrorism.

Shifting of the burden of proof in such cases. An accused shall be presumed guilty until
proved innocent.

Provided for in- camera trials and hiding the names of witnesses.

Confiscation of the property of the accused and freezing of accounts.

The Petitioners in the present case challenged the constitutional validity of the
below mentioned Acts on the grounds that; a) the Legislature was not competent to make
them and b) they violate the rights mentioned in part III of the Indian Constitution. An
analysis of the Court decision on the basis of the issues in presented ahead.
ANALYSIS OF THE DECISION

In giving its decision, the Court emphasized that the legislation must be seen in
light of the context in which it is made. It was noted that terrorism is a world wide
phenomenon and India is not an exception.10 In the words of the Court, in recent times
the country has fallen in the firm grip of spiraling terrorists violence and is caught
between the deadly pangs of disruptive activities. In such a situations measure must be
taken to solve the issue. 11 Reliance was placed on the judgment in Sukhdev Singh12
where MM Punchi, J. stated,

I know that in order to sustain the presumption of constitutionality of a

legislative measure, the Court can take into consideration matters of common knowledge,
matters of common report, the history of the times and also assume every state of facts
which can be conceived existing at the time of the legislation.

The Court stressed on the fact that desperate times require desperate measures.
The societal life would be a continuing disaster if not regulated. It went on further to state
that regulations must then suit the need of the society and be capable of dealing with the
issue at hand13. But then are there to be any checks on the regulations that the State can
make?

It remains unclear whether when looking into the context in which an Act is made,
the Court can choose not to consider the fundamental rights and other provisions in the
Constitution. In other words, does the social context of an Act carry more weight than its
violation of any of the rights mentioned in part III? This question was not answered by
the Court in this particular case. In other cases, however, the Courts have held that no
such power exists and respect for the fundamental rights must be given primacy. The real
situation can be taken into consideration to understand the intention of the legislature in
making the legislation.14 One of the major fallacies in this judgment is then the Courts
assumption that the legislative intent and social context of the Act must be taken into

10
Kartar Singh v. State of Punjab, 1994 SCC (3) 569. para 22.
11
Ibid at para 23.
12
Sukhdev Singh v. Union Territory, Chandigarh, AIR 1987 P&H 5.
13
Supra note 6 at para 39.
14
Keshavananda Bharti v. Union of India, AIR 1973 SC 1461 : RS Nayak v. AR Antulay, AIR 1984 SC
684 : TMA Pai Foundation v. State of Karnataka, AIR 2003 SC 355.
consideration at all times irrespective of its violation of any rights in part III of the
Constitution.

1) Legislative Competency of the State

The Petitioners challenged the legislative competency of the Centre to enact the
legislations on the ground that they are neither mentioned in list I nor list III read with
Article 246 of the Indian Constitution.15 They argued that it came under entry 1 of list II
namely, Public order and cannot come under the scope of entry 1 of list III which reads;

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 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.

To deal with this issue, the Court first stated the use of the pith and substance
doctrine in this case. According to the Court, the provisions or sections of the Act must
not be looked in isolation to ascertain the competency of the legislature but the pith and
substance. This doctrine of pith and substance is applied when the legislative competence
of a legislature with regard to a particular enactment is challenged with reference to the
entries in various lists. When a particular enactment has provisions that fall within the

15
Article 246, Constitution of India; 246. Subject-matter of laws made by Parliament and by the
Legislatures of States. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the Union List).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any
State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the Concurrent List).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such
State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in
this Constitution referred to as the State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not
included in a State notwithstanding that such matter is a matter enumerated in the State List.
many entries provided for in the Constitution, the pith and substance doctrine must be
applied.16

In light of this doctrine, the Honble Court stated that in order to ascertain the pith
and substance of the impugned enactments, the preamble, Statement of objects and
reasons, the legal significance and the intendment of the provisions of the Acts, their
scope and the nexus with the object that these Acts seek to sub-serve must be objectively
examined.17 The Court then held that the impugned legislations fall not within List II or
List III as alleged by the Petitioner but under entry 118 of List I of schedule VII of the
Indian Constitution which states;

1. Defence of India and every part thereof including preparation for defence and all
such acts as may be conducive in times of war to its prosecution and after its termination
of effective demobilization.

The Court also looked at the possibility of fitting the impugned legislation in entries 219
and 2-A of List I.20

On the face of it, the above entry does not in any way seem to accommodate the
impugned legislations. The Court did not seem to explain how exactly such a provision
fits especially when the Defence of India Rules, 196221 mentions that defence of India
includes external sovereignty of the Country. This was interpreted the same way in Ram
Manohar Lohia v. State of Bihar.22 It is my opinion that this was for the first time that
defence of India was also understood in terms of the internal sovereignty of the State.
Terrorism in effect, is a threat to the internal sovereignty of the State and is at a level
today where normal law and order agencies cannot seem to handle it. It then becomes
necessary to have a Central legislation to deal with this menace. This interpretation to

16
Maurice Gwyer, C.J.,Subrahmanyam Chettiar v. Muttuswami Goundan, 1940 FCR 188 : Prafulla Kumar
Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60.
17
Kartar Singh v. State of Punjab, 1994 SCC (3) 569. para 67.
18
Entry 1, List I, Seventh Schedule, the Constitution of India.
19
Entry 2, List I, Seventh Schedule, Constitution of India; 2. Naval, military and air forces; any other
armed forces of the Union
20
Entry 2-A, List I, Seventh Schedule, Constitution of India; 2-A. Deployment of any armed force of the
Union or any other force subject to the control of the Union or any contingent or unit therefore in any State
in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while
on such deployment.
21
Rule 30(1)(b), Defence of India Rules, 1962.
22
(1966) 1 SCR 709.
understand the judgment then also gives a new understanding to entry 1 of List I to
include acts that threaten the Country both, internally and externally. Thus, the decision
of the Court with regard to this issue is, in my opinion correct and gives a new dimension
to law and order preservation by the agencies in our country. The competency of the
legislature however, is not the only requirement to validate the enactments. Such
enactments must then be in conformity with the provisions in Part III of the Constitution.

2) Violative of the principles of natural justice

The second part of the case dealt with whether the impugned Acts are violative of
the rights mentioned in part III of the Indian Constitution. One of the main contentions
was that the provisions are against the principles of natural justice as enshrined in Article
21 of the Constitution. These included, the right to a fair and speedy trial, presumption of
innocence, the right to a fair hearing and acts according to the procedure established by
law. The Court answered this in light of the distinction between a special law and a
general law. Stating that the impugned Acts are special in the sense that they are made to
deal with only particular instances, the Court said that deviances from the procedure in
ordinary laws is permissible. Then for instance, the Court can remove the burden of proof
and presume the person guilty until innocent.

Now I agree that the presumption of guilt may be reversed by the Court, but at the
same time there must be certain checks as to when they can be done. This attains
significance when the special law and the ordinary law deal with a similar set of offences
and just have different procedure. The procedure in the special law is acting to the
prejudice of the accused and denying him is fundamental right to life. In Maneka Gandhi
v. Union of India, it was held that any procedure must be just and reasonable and not be
ambiguous as to its application.23 When the law prescribes the same set of offences and
the procedure for its application is different, questions are raised as to its fairness24. In the
impugned Acts, discretion is given to the authorities to apply the kind of law that may

23
AIR 1978 SC 597.
24
This principle has been applied in the U.S Courts in the cases of Strunk v. United States and Coffin v.
United States, 156 U.S. 432.
please. The procedure established by law must not in any way be arbitrary and affect the
life and personal liberty of the individual. 25 On the other side, the irony is that even
thought the Courts have all along emphasized on this point, they seem to look at the
arbitrariness in light of the facts and circumstances of the case.26

Another point that has been emphasized in this case is that if a law ensures and
protects the greater social interest, then such a law will be regarded as a wholesome and
beneficial law although it may infringe the liberty of some individuals.27 Such a law will
ensure the liberty of a greater number of the members of the society at the cost of one or
few.28 In my view, this is a false interpretation of the rights guaranteed in Article 21.
Article 21 clearly states No one shall be deprived.established by law.
Such a right is clearly an individual right the responsibility for the protection of which is
in the hands of the State.29 Having acknowledged this, the State is not allowed to deprive
the life and liberty of one individual in light of the interests of a group. Our Constitution
is the paramount parchment and is the sole protector of the rights of an individual. The
word right is a strong one and its correct usage is not in suggesting it, but to assert it and
demand it from the State 30 . No State has the power to abrogate the rights of any
individual and this holds true specially when it comes to the rights of a given set of
individuals with regard to the interests of a majority. While such principles were strongly
upheld in the 1970s31, a line of cases in the 1980s32 show us that the Courts have not
given importance to this concept and applied otherwise.

25
In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, The Court held that procedure established by law
gave a final say to the legislature to determine what was going to be the procedure to curtail the personal
liberty of a person in a given situation. As long as there is a law prescribing procedure for restraining the
liberty of person, it is valid. This view received harsh criticism by the Court in Maneka Gandhi v. Union of
India, AIR 1978 SC 597, where it held that the procedure cannot be arbitrary, unfair and unreasonable. An
enactment must not violate articles 14, 19, and 21 which are not mutually exclusive of each other.
26
In Inderjit Baruah v. State , AIR 1983 Del 513, the Court while going into the validity of the Armed
Forces Special Powers Act said that the question as to what is arbitrary has to be understood in light of the
facts and circumstances of the situation.
27
Kartar Singh v. State of Punjab, 1994 SCC (4) 569. See also ibid.
28
M.P. Jain, INDIAN CONSTITUTION LAW, 5th ed. 2003, p. 1277.
29
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.
30
Conor Geaty, Can Human Rights Survive: the Crisis of Authority, 2005 HAMLYN LECTURES, 10th
November 2005.
31
Keshavananda Bharti v. Union of India, AIR 1973 SC 1461 : Maneka Gandhi v. Union of India, AIR
1978 SC 597 : AK Roy v. Union of India, AIR 1982 SC 710 : ADM Jabalpur v. Shivakant Shukla,, AIR
1976 SC 1027.
 On the same lines if we look at the procedure established by law which Krishna
Iyer J. said is synonymous to due process of law in the United States, we see that
individuals rights are not permitted to be compromised in light of a majority or in the
name of security of the State33. Reference may be drawn to Hamdi v. Rumsfeld in the
United States, where the Court held that strict procedures and measures like unlawful
detention to tackle terrorism violate due process and state security cannot be used as an
excuse.34 Due process includes the very foundation of natural justice principles and any
action by the State must not violate them. These principles are sacrosanct in the sense that
no law or authority can over look them in any condition. Thus in my opinion, it is
erroneous on the part of the Court to declare such arbitrary procedures as constitutional.

3) The legality of Confessions to a Police Officer

The impugned Acts made confessions made to a police officer not lower than the
rank of a Superintendent valid and admissible as substantive evidence in Court.35 The
Court declared this to be just and reasonable and not in violation of the rights given in
Article 20 (3) and Article 21 of the Constitution.36 According the their Lordships, the
very fact that only a superior officer can take a confession takes into account the misuse
that might take place with regard to self- incrimination and the same procedures as in
Section 164 and the Indian Evidence Act shall be followed in recording such confessions.
This then is just an extension of the procedure present in the Code of Criminal Procedure.
Even though the Court took into consideration the reasons behind Sections 25 and 26 of
the Indian Evidence Act 37 , it stated that the impugned section does not violate the
constitutional guarantees of self- incrimination. It also quoted Pannalal Binjraj v. Union

32
In re The Special Courts Bill, AIR 1979 SC 478 : Inderjit Baruah v. State, AIR 1983 Del 513 : Kartar
Singh v. State of Punjab, 1994 SCC (4) 569.
33
Rumsfeld v. Padilla, 542 U.S. 426 (2004) : Rasul v. Bush, 542 U.S. 466 (2004).
34
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
35
Section 15, Terrorist and Disruptive Activities (Prevention) Act, 1987.
36
Article 20 (3), Constitution of India;
37
Section 25, 26, Indian Evidence Act, 1872.
of India38, and stated that the mere possibility of abuse of a provision is no ground for
declaring a law unconstitutional.

The provision for protection of an accused against self- incrimination is one of the
dearest principles of criminal justice.39 Guarantees are given for it in Article 20 (3) of the
Indian Constitution and the Fifth Amendment in the Constitution of the United States of
America. Sections 25 and 26 of the Indian Evidence Act and 161, 164 of the Code of
Criminal Procedure seek to secure this provision. Section 25 makes any confession before
a police officer inadmissible in evidence40. Section 26 enjoins that no confession made by
any person whilst in police custody even to a person other than a police officer is
admissible, unless made in the immediate presence of a Magistrate41. The reason that a
police officer in not allowed to record a confession is because of the possibility of abuse
and torture that the accused might suffer. It for this reason then that the Magistrate has to
confirm from the accused that his confession is voluntarily given and he has not suffered
any harm.42 In Olga Tellis v. Bombay Municipal Corporation, the Court observed43,

If a law is found to direct the doing of an act which is forbidden by the

Constitution or to compel, in the performance of an act, the adoption of a procedure
which is impermissible under the Constitution, it would have to be struck down.

It must further be observed that the impugned acts have not placed any checks and
balances to ensure that the confessions made are voluntary in nature. The very fact that
instances of forced compulsion and torture may occur have not been taken into
consideration. Article 20(3) of our Constitution embodies the principle of protection
against compulsion and self- incrimination which is one of the fundamental canons of
criminal jurisprudence.44 The only recognized exception is when such confession is made
before a magistrate under Section 164 of the Cr.P.C where the magistrate is obliged to
follow certain procedures to prevent the abuse of this principle and protect the right of the

38
AIR 1957 SC 397.
39
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
40
Section 25, Indian Evidence Act, 1872.
41
Section 26, Indian Evidence Act, 1872.
42
Singhara Singh v. State of UP, AIR 1963 SC 368 : State of Bombay v. Kathikalu Oghad, AIR 1961 SC
1808.
43
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
44
Kartar Singh v. Union of India, 1994 SCC (4) 569 at para 206.
accused. Section 15 of the TADA then clearly abrogates this constitutional right and has
not placed any checks to prevent its abuse. No law then can provide for any arbitrary
procedure that violates the guarantees given by the Constitution.

The admissibility of custodial confessions violates the very aspect of due process
and fairness guaranteed in Article 21 of the Indian Constitution. Such allowance is in
total contradiction to the procedure under the Evidence Act and the Code of Criminal
Procedure. It must also be noted that even when there was no Part III, as early as in 1872,
confessions before a police officer were not made admissible. 45 It is then one of the
foundations of our criminal justice procedure that seek to protect the accused against
torture and cruel treatment. In the interests of the security of the state, they cannot be
abrogated.46 The Court on the other hand stated that the gravity of terrorism affects the
sovereignty of the country and in light of the object of the legislation; such a procedure
must be valid.

The stand on this issue taken by the Court then, is erroneous. The law must be in
conformity with the constitutional rights provided for in part III of the Constitution.

While it may also be argued that the provisions of the TADA violate the rights
given in Article 19 of the Constitution, the researcher would not like to deal with them as
they were not discussed in the case itself. In the case, the petitioners did not argue it on
the grounds of violation of Article 19; the reasons for which could be the restriction on
public order that is provided in the Article.47

CONCLUSION

The judgment given by the Court in Kartar Singh then is erroneous. In the name
of the security of the State, a legislation cannot compromise the rights of the individuals.
All along the case, the Court has stressed that the situation in the Country demands the
need for strict measures and even if they violate the rights in part III, they are justified.
We must not forget that we are a democracy, in fact, the worlds largest democracy.
When a government is made for the people and by the people, it must protect the rights of

45
Sahai. J. (minority), Kartar Singh v. Union of India, 1994 SCC (4) 569.
46
Ibid.
47
Article 19(2), Constitution of India.
everyone and not just a majority. Terrorisms greatest victory would be the shackling of
the very foundations that we have stood for the past many years.

The judiciary in our country has never been rights oriented. It has always sought
to protect the interests of the State vis a vis the individuals. This was more recently seen
in the case of PUCL v. Union of India 48 where the Court upheld the validity of the
Prevention of Terrorism Act (POTA). Contrasting this with the time of Earl Warren in
the 1960s and 70s in the United States, we see that individuals rights were always sought
to be preserved. Somewhere in there we see Justice Krishna Iyer seeking to do the same
but not being given due regard. If terrorism must be stopped, proper measures that do not
violate due process must be used. This was also emphasized in the UN Resolutions with
regard to terrorism, where it was stated that in the prevention of terrorism the
fundamental human rights of the individual must not be compromised.49 If democracy
needs to survive, rights of the individual must never be compromised. I would like to
stress upon once again that terrorisms greatest victory is shackling the very foundations
of our democracy that is built upon rights and principles of natural justice. Our
compromise is their victory.

48
Peoples Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.
49
GA Resolution 1373/2001, Adopted during the 4385th meeting of the United Nations on 28th September
2001.