Holding

The TADA Acts are constitutionally valid as they fall within Parliament's legislative competence, and most provisions are upheld, but Section 22 is struck down and the definition of 'abet' is read down to require actual knowledge.

Summary

The Supreme Court considered a batch of writ petitions and appeals challenging the constitutional validity of 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 (TADA), along with a challenge to Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976. The Court held that all three TADA Acts were within Parliament's legislative competence, falling under Entry 1 of List I (Defence of India) and the residuary power under Article 248 read with Entry 97 of List I. It upheld most provisions, including Sections 3, 4, 8, 9, 11, 15, 16, 19, and 20, but struck down Section 22 (identification by photograph) as violative of Article 21. The Court also read down the definition of 'abet' in Section 2(1)(a)(i) to require actual knowledge or reason to believe. It issued guidelines for recording confessions under Section 15 and recommended the creation of screening committees. The matters were disposed of with no costs, leaving individual cases to be decided separately.

Issues considered

Whether the TADA Acts (1984, 1985, 1987) are unconstitutional for lack of legislative competence?
Whether Section 2(1)(a)(i) of the 1987 Act defining 'abet' is vague and imprecise, and whether mens rea is an essential element?
Whether Sections 3 and 4 of the 1987 Act are invalid for want of guidelines and for covering offences under ordinary laws?
Whether mere possession of arms under Section 5 of the 1987 Act is sufficient to prove an offence?
Whether Section 8 of the 1987 Act providing for forfeiture of property is violative of Articles 14 and 21?
Whether Section 9 of the 1987 Act constituting Designated Courts is constitutionally valid?
Whether Section 9(7) allowing continuance of a Judge after superannuation is valid?
Whether Section 11(2) and (3) regarding transfer of cases is violative of Article 14?
Whether Section 15 of the 1987 Act making confessions to police officers admissible is valid?
Whether Section 16(1) providing for in camera proceedings is valid?
Whether Sections 16(2) and (3) allowing withholding of witness identity are valid?
Whether Section 19 providing for direct appeal to the Supreme Court is valid?
Whether Section 20(3) empowering Executive Magistrates to record confessions is valid?
Whether Section 20(4) providing for transmission of accused to Executive Magistrate is valid?
Whether Section 20(7) excluding anticipatory bail is violative of Article 21?
Whether Section 9 of the U.P. Amendment Act, 1976 deleting Section 438 CrPC is valid?
Whether Section 20(8) imposing conditions for grant of bail is valid?
Whether High Courts have jurisdiction under Article 226 to entertain bail applications in TADA cases?
Whether Section 22 of the 1987 Act regarding identification by photograph is unconstitutional?
Whether the Government should make periodic review of 'terrorist affected areas' and 'notified areas'?
Whether Section 3 of the 1984 Act is vague and without guidance?

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 167, s. 437, s. 438, s. 439, s. 482
Code of Criminal Procedure (U.P. Amendment) Act, 1976s. 9
Constitution of Indias. 139A, s. 14, s. 20(3), s. 21, s. 226, s. 227, s. 233, s. 234, s. 235, s. 236, s. 237, s. 245, s. 246, s. 248, s. 254, s. 359, s. 50
Indian Evidence Act, 1872s. 114, s. 24, s. 25, s. 26, s. 27, s. 30
Terrorist Affected Areas (Special Courts) Act, 1984s. 15, s. 2(1)(i), s. 3
Terrorist and Disruptive Activities (Prevention) Act, 1985s. 1, s. 13, s. 16, s. 17, s. 2, s. 3, s. 4, s. 7, s. 8, s. 9
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 1, s. 11, s. 12, s. 14, s. 15, s. 16, s. 17, s. 19, s. 20, s. 21, s. 2(1)(a), s. 2(1)(d), s. 2(1)(h), s. 2(1)(i), s. 22, s. 25, s. 3, s. 4, s. 5, s. 6, s. 8, s. 9

Subjects

constitutional lawlegislative competenceterrorismTADApublic orderdefence of Indiafundamental rightsArticle 21speedy trialconfessionbailanticipatory baildesignated courtjudicial independenceseparation of powerspreventive detentioncriminal procedureevidence

Judgment

'

KART AR SINGH A
v.
'\ STATE OF PUNJAB
AND
K.IRP A SHANKAR RAJ
v. B
STATE OF U.P.

MARCH 11, 1994

..... [S. RATNAVEL PANDIAN, M.M. PUNCHHI, K. RAMASWAMY,
S.C. AGRAWAL AND R.M. SAHA!, JJ.] c
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 E
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.
F
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-lnten-
tion is necessary to prove abetment H
375
I
376 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Section 2(l)(f)-'Notified area'-Declaration as to- Government
should make pen·odic review.
l'
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 suffi-
cient to prove offence.
c 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.
D
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.
E
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
F 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)-Confes-
sion-What is-Confession to Police Officer not below in rank of Superinten-
dent of Police-Admissibility of-Fairness in recording the confession-
G 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 obtain-
ing 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 wit-
nesses by-Legality of-Held there is no constitutional or statutory constraint
against keeping the identity of witnesses secret in extraordinary circumstances.
B
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-Sec-
tion :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 trans-
mission of accused to Executive Magistrate and extendi11g the pe1iod of
detention-Held not ultra vires.
D
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 con-
ditions for grant of bail in addition to existing conditions under the Code of
Criminal Procedur,,_Held not unreasonable. E
Section 22-Provision that identification ofproclaimed 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 : F
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
378 SUPREME COURT REPORTS [1994) 2 S.C.R.

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 refer-
erice to doctrine of 'Pith and substance'.
B
Doctrine of 'Pith and substance'-What is.

Article 14-Classification-Test of-What is-£.xistence of two proce-
dures-One procedure harsh and oppressive against othel'-Reasonableness
and validity of
c
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 offen-
ces-Held not violative of Article 21.
E
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
F
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 applica-
tion--But such power should be exercised most sparingly in rare cases-Judi-
cial discipline and comity requires that High Courts should refrain from :.J'
exercising jurisdiction in bail applications under special Acts.

H Doctrine of ComifrApplicability of
KARTAR 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-Record-
ing of-Nature and object of the Provision-Explained. B

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

Code of Criminal Procedure (UP Amendment Act 16 of 1976} :

Section 9-Deletion of provision of anticipatory bail-Held Section is
c
not ultra vires for lack of competence of State legislature-Act is not violative
of Articles 14, 19 and 21.

Interpretation of Statutes :
D
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.
E

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

Words and Phrases-'Abet', 'Offence' and 'Compelled'-Meaning of
F
'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 (Preven-
tion) 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.
J .
J.
:

380 SUPREME COURT REPORTS [1994J 2S.C.R.
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,
j
'Defence of India'. (559 H, 560 AJ

C 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
D 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

F 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

G 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]
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
B
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 poten-
tial witnesses, whose life may be in danger. (561 D, E]
F
'... 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)
G
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
382 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B 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 Constitu-
tion. [562 B-C)

D 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 exer-
cising 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 Constitu-
tion. [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-
~I
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
B
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)
c
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 Ter-
rorist 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
384 SUPREME COURT REPORTS [1994] 2 S.C.R.
•
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
B 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]
c
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 Superilllen-
>
dent, 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 legisla-
tive 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
r
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
B
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
E
competence of a legislature with regard to a particular enactment is chal-
lenged 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 F
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]
G
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
386 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B 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 Desig-
nated 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 im-
pairing 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 nation-
ally 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 con-
templated 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
I

388 SUPREME COURT REPORTS [1994] 2 S.C.R.

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

Role of Police in implementation of TADA Acts.

B 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
E
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]
F
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.

F
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 in-
dustrial 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
I

390 SUPREME COURT REPORTS [1994] 2 S.C.R.

A It further empowers the legislature to make laws not only in respect of y
I .

matters covered by the IPC but any other matter which could reasonably
and justifiably be considered to be criminal in nature. Terrorist or disrup-
tive 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 concur-
rent 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
controversy, narrows dmm to if the offences under the TADA are such in
c 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
philosophy but also in cause or the mens rea, the manner of its commission
F 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
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
B
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 estab-
lished 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 per-
mitted 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 estab-
lished 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
!

392 SUPREME COURT REPORTS [1994] 2 S.C.R.

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

c 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 ter-
rorist act or the disruptive act . [478 H, 479 A, 477 G]
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
I
'
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 D·F]

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.
E
Sarju Prasad v. State of U.P., [1961] 3 S.C.R. 324; Pukhraj v. D.R.
Kohli, [1962] Supp. 3 S.C.R. 866; Nathulal v. State of M.P., A.l.R. (1966)
SC 43; Dr. T.S. Pannar v. Shri Hira Singh Paul, [1959] Supp. 1 SCR 213;
State of Maharashtra v. Mayar Hans George, [1965] 1 S.C.R. 123; Jagdish
Prasad v. State of West Bengal, [1972] 2 SCR 845 and Collector of Customs
v. Chetty [1962] 3 SCR 786, distinguished. F
·•
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
I

394 SUPREME COURT REPORTS [1994] 2 S.C.R.
)
''
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
essential element for bringing any person under the definition of 'abet'.
B
[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 contradic-
D tory, 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
F
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 imper-
G missibly 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 un-
defined 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) A
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 proce-
dures prescribed under the ordinary procedural law are evidently for the
reasons that the prevalent ordinary procedural law was found to be
E
inadequate and not sufficiently effective to deal with the offenders indulg-
ing 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 ter-
ritorial 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
!

396 SUPREME COURT REPORTS [1994] 2 S.C.R.

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] y

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

Per Sahai, J. (Concurring)
c-1
Sections 3 and 4 of the 1987 Act not liable to be struck down for
vaguencess. [616 G]
c
Quaere (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.

D 1. The provisions of Section 5 can be invoked only when the prosecu-
lion 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 r
used for any terrorist or disruptive activity or that they had been used as
such. [627 B]
E 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 associa-
.
tion or connection with terrorist or terrorist activity. A comparison of this
Section with Seetions 3 and 4 demonstrates the arbitrariness inherent in
F 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
G 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-sec-
lion (3) of Section 3 a person is liable to be prosecuted for abetting the
,
x
offence if he assists or communicates with a terrorist. Sub-sections (5) and
H (6) inserted by Act 43 of 1993 to Section 3 also require that a person can

'
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 B
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 proce-
dural 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? F

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

Ramaswamy and Sahai, JJ. (Concurring):
G
The discretionary power given to the Designated Court nnder Sec-
tion 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
I

398 SUPREME COURT REPORTS (1994] 2 S.C.R.

A uuder; (3) the property should be specified in the order; (4) even though I

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 Desig-
nated Court must give reasons for such an order even though the Section
does not specifically require the Designated Court to record its reasons
B
for so doing, because the word 'order' even according to the lexcon mean-
ing 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 ? A
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 con-
cerned 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 Spe-
cial Courts Bi//. In Re : Special courts Bill [1979] 2 SCR 476, held inap-
plicable.

Per Sahai, J. (Co11curri11g)
D

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 ap-
plicable 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
400 SUPREME COURT REPORTS (1994]2 S.C.R.

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. r '
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. [593 C-E]
B
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 nega-
tion 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 inde-
pendence and impertiality of justice which the Constitution of India con-
sciously 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
E are intermediary between the people and the other organs of the state in
order to keep the latter within the parameters delienated by the Constitu-
tion. There can be no liberty if the power of judging be not separate from
the legislative and executive powers. Article 50 of the Constitution, there-
fore, enjoins the State and in fact separated the Judiciary from the execu-
tive in the public service of the state. [589 G]
F
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-
~I

KARTAR 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-
ministration of justice. The officer exercising judicial power vested in him
B
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
perfor·mance 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 provid-
ing security of tenure and other conditions of service. Judicial inde-
• pendence means to_!;ll liberty of the presiding judge to try, hear and decide
the cases that have come before him according to the set procedure and
F
'
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
Pipeline Col!struction Co. v. Marathon Pipe Line Co. and United States, (73) G
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
402 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 Con-
stitution and the Code but a cr<ature of the Act. Though the appointment
of the District or Additional Sessions Judge to the designated court by the
B 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]
~I
KARTAR v. STATE OF PUNJAB 403

A.K Kmipak & Ors. etc. v. Union of India & Or.>., [1970] 1 S.C.R. 457; A
In re-HK (An infant), (1967) 2 Q.B. 617; State of Orissa v. Dr. (Miss)
Binapani Devi & Ors., [1967) 2 SCR 635; Tulsi Ram Patel v. Union of India,
[1985) 3 SCC 398; Satyavir Singh v. Union of India, [1985] 4 SCC 252; CB.
Gautam v. Union of India, [1993) 1 SCC 78 and Bimal Kaur v. Union of
India, AIR (1988) P&H 95, referred to.
B
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-requi-
site essential conditions. [495 F-G)

D
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
~
404 SUPREME COURT REPORTS [1994) 2 S.C.R.

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 adjudica-
ti 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
the transfer order by the Central Government. [497 E, G, H, 498 A)
B
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
Constitution and in Section 406 of the Code of Criminal Procedure to the
c 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 Proce-
dure, 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
of Police admissible, is valid ?
E
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-
rorists and disruptionists endangering not only the sovereignty and in-
G tegrity 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 Ekam-
baram v. State of Tamil Nadu, (1972) Mad. Law Weekly Cr. 261, referred
to.

3. Since the recording of evidence on mechanical device can be
c
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

1. 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]

2. 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
3. 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
406 SUPREME COURT REPORTS [1994] 2 S.C.R.

A recorded on mechanical device without unreasonable delay;
[521 BJ
4. 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
B 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

5. Notwithstanding anything contained in the Code of Criminal
c procedure, 1973, no police officer below the rank of an Assis-
tant 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
D 6. 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
E
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 com-
F pulsion to give a statement of disclosure; [521 G-HJ

8. The Central Government may take note of these guidelines
and incorporate them by appropriate amendments in the Act
and the Rules. [522 AJ
G 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]
B
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.
E
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
'
408 SUPREME COURT REPORTS (1994] 2 S.C.R.

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 be-
haviour and the most degrading and despicable practice adopted by some
of the police officers even though no general aud sweeping condemnation
can be made. [516 D, B, 522 B, 517 Fl
B
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 clas-
sified into groups and such groups may differently be treated if there is a
C reasonable basis for such difference or distinction. The rule of differentia-
tion 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.
E
8. In order to consider the question as to the reasonableness of the
distinction and classification, it is necessry to take into account the objec-
tive 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.

H State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284, distin-
KARTAR v. STATE OF PUNJAB 409

guished. A
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 ordi-
nary criminals and procedure. This distinction and classification of group-
ing 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]
c
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]
E
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, F
[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 con-
fidence. 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
410 SUPREME COURT REPORTS [1994] 2 S.C.R.

A and a clear negation of Article 50 of the Constitution and the Constitu- ;·
tional creases. It is, therefore, unfair, unjust and unconscienahle, oft'end-
ing 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
B compl~ing 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 emplo~ng non-obstante clause in
section 15(1) ? Whether mere incantation by emplo~ngnon-obstanti clause
cures the vice of fore enumeration and becomes valid under Articles 14 and
21 ? The answer is "No", "absolute no no". (582 G-H, 583 A)
D
3. The constitutional human rights perspectives, the history in work-
ing 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
KARTAR 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) F

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
!

412 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
c 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 induce-
ment 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
Officer is inherently suspect of employing coercion to obntain confession.
E 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 cus-
tody, 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 confes-
sion 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.
B

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. c
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. Inter-
rogation 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 self- incrimination 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 op-
portunity 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
(

414 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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 fundamen-
tal principles of fair justice rooted in the traditions and conscience of our
people, it would be classified or characterised or ranked as unjust and
B 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]

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
E 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 ad-
•
justed 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
G 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
B
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 co~exist 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
(

416 SUPREME COURT REPORTS (1994) 2 S.C.R.

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
B 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 aforemen-
tioned, 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 ofA1izona, 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)
F
1. Section 15 of the 1987 Act which provides for recording of confes-
sion 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
G 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 guaran-
tee. [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 B
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 Constitu-
tion 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. H
I

418 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B
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 con-
fession 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
D
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
E the procedure by which a person is sent behind the bars should be fair,
honest and just. A conviction obtained unfairly has never been coun-
tenanced 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 hierar-
chy 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-
lenge of Section 16(1) is required. (523 E-F] E

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
• Act empowering the Designated Court to keep the identity and addresses of F
witnesses secret is valid ?

Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C. Agrawal,
JJ.)-
G
Ramaswamy am\ Sahai, JJ. (Concurring) :

1. Notwithstanding the provisions of the Evidence Act and the proce-
~).
dure 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
}

420 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B 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]

E 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,
!!.)

B
1. The existing appeal provisions are not constitutionally invalid.
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
preferring an appeal before the next appellate court as provided under the G
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
).

422 SUPREME COURT REPORTS [1994] 2 S.C.R.
-
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 oppres-
sive 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
suitably amend the Act, keeping in view Article 39-A which itself is a fun-
c damental 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 desig-
nated court to the Supreme Court both on facts and law. Such provision
existed in 1984 and 1985 AC! as well. Wheri 1984 Act was passed by the
E 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
expenses involved in approaching this Court. [624 C-E]
G
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 Con-
stitutioin. 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 con-
stitutional invalidity. Merely because the Executive Magistrates and Spe-
cial 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
)

424 SUPREME COURT REPORTS (1994] 2 S.C.R.

A 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 Execu-
tive or Special Executive Magistrates. [539 E-F)

B 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 Prin-
ciples, for the separation of the judiciary from the executive. The Executive >-"
Magistrates while exercising their judicial or quasi-judicial functions
c though in a limited way within the frame of the Code of Criminal Proce-
dure, 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 fun-
damental principle of governance contained in Article 50 of the Constitu-
D tion 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.,
E [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 trans-
F mission 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 sub- B
mission 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 uncon-
stitutional. [561 G, 540 Fl
c
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? D
'· 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
E
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,
F
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 Forty- first 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
426 SUPREME COURT REPORTS [1994] 2 S.C.R.
'
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,
the Parliament has thought it fit not to extend the benefit of Section 438
B 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 Constitu-

E
tion 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
of discrimination in the application of this provision in the State of Uttar
I
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?
G
Per S. Ratnavel Pandian, J. (For himself, M.M. Punchhi and S.C.
Agrawal, JJ)-
>

Ramaswamy and Sahai, JJ. (Concurring) :

H 1. Sub-section (8) of Section 20 of 1987 Act which imposes a complete
KARTAR 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
B
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 respec-
tive 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
F
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. G

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
j
I
428 SUPREME COURT REPORTS [1994) 2 S.C.R.

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

C 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 func-
tions 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]

State of Maharashtra v. Anand Chintman Dighe, [1990] 1 S.C.C. 397,
referred to.

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]

State of Maharashtra v. Abdul Hamid Haji Mohammed, [1994] 2
S.C.C. 664, reiterated. F
Waryam Singh andAnr. v.Amamath andAnr., [1954] S.C.R. 565; State
of Gujarat etc. v. Vakhtsinghji Veghela and Ors. etc., [1968] 3 S.C.R. 592;
Ahmedabad Mfg. Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand and Ors.,
[1972] 1 S.C.R. 898; Mohd. Yunus v. Mohd. Mustaqim and Ors., [1983] 4 G
S.C.C. 566; Mani Nariman Daruwala v. Phiroz N. Bhatena & Ors., [1991] 3
S.C.C. 141; Rafiq Abid Patel v. Inspector of Police, Thane, 1992 Crl. L.J. 394
and Narcotic Control Bureau v. Kishan Lal, [1991] 1 S.C.C. 705, referred to.

Usmanbhai Dawoodbhai Menon v. State of Gujarat, [1988] 2 S.C.C.
271, explained and distinguished. H
'

430 SUPREME COURT REPORTS [1994) 2 S.C.R.

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
B 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 ob-
serve 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 cir-
cumstances 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 jurisdic-
tion 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, Commis-
sioner 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 neces-
sary 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 E
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 jurisdic-
tion under Article 227. [600 F, H, 601 A-Bl
F
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
G
Per Sahai, J. (Concuning) :

1. As regards jurisdiction of the High Court to entertain an applica-
tion for bail under Article 226 of the Constitution, the High Courts being
constitutionally obliged to ensure that any authority which exercise judi-
cial and quasi-judicial powers in its jurisdiction functions within the H
432 SUPREME COURT REPORTS [1994] 2 S.C.R.
'
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 legisla-
tion 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. [627 H, 628 A-BJ
B
2. The power given to High Court under Article 226 is an extraor-
dinary 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.Amar-
nath, 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 uncon-
stitutional ? B
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 ?
E
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
434 SUPREMECOURTREPORTS [1994] 2 S.C.R.

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
B 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,
!!.)-

c Ramaswami and Sahai, JJ. (Concurring):

1. Unless all the three conditions, which are sine quo non for declar-
ing 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

E 2. There is some force in the contention that the Legislature con-
sidered 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
F
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.
G
(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 Moolchan-
dani, Harjinder Singh, Ms. Anjana Sharma, R.N. Joshi, Sudarsh Menon,
Dr. B.L. Wadhera, K.V. Venkataraman, I. Subramaniam, K.V. Viswanad-
han, 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. C
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 challeng-
ing 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 conclusive-
ly 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
436 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 notifica-
tion 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-
'
I

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
438 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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."
B
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 disrup-
tive activities;
c
(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
D
speedy and expeditious trial of offences under the proposed legis-
lation.

In Section 2, clauses (c) and(!) the expressions 'disruptive activity'
and 'terrorist act' are defined. This Act in all contains 24 Sections which
E 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, produc-
tion of witnesses, appointment of Public Prosecutors and the provision for
F 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 Dis-
ruptive 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
440 SUPREME COURT REPORTS (1994] 2 S.C.R.

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 applica-
tion of certain provisions of the Code, presumption as to offences under
Section 3, identification of accused, power of the Supreme Court to made
B
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
c Disruptive Activities Disruptive Activities
(Prevention) Act, 1985 (Prevention) Act, 1987

Section 7 Section 9

D
Section 8 = Section 10

Section 9(2) Section 11(2) '
Section 13 Section 16

Section 16 = Section 19
E
Section 17(2) = Section 20(4)

Section 17(4) = Section 20(7)

Section 17(5) = Section 20(8)
F
A galaxy of senior lawyers, namely, M/s. V.M. Tarkunde, Ram Jeth-
malani, 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/ap-
G pe!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
H 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.
B
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
conl~nding 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 Addi-
tional Solicitor General, Mr. K.T.S. Tulsi assisted by Mr. R.S. Suri appear- E
ing 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 as-
si~ted 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. F
Ghatate for the State of U.P. contending the all the veiled attacks challeng-
mg 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
I
•

A
442 SUPREME COURT REPORTS [1994] 2 S.C.R.

that the ordinary criminal laws - both penal and procedural - are quite
-
r-
1"
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
B
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 unmis-
takably 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
c of legislative competence.

Supplementing the above submission, it has been very seriously con-
tended 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
designed to get maximum media coverage of their demands including
F
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 Addi-
tional Solicitors General using their formidable legal skill, extensive
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-
'
KARTAR 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 can-
vassed which are manifestly and pristinely legal, with regard to the im-
B
pugned 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 legisla-
ture 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 ideol-
ogy of terrorism are indulging in committing serious crimes against the
humanity. In spite of the drastic action taken and intense vigilance ac-
tivised, 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
soci~ty either on being stimulated or instigated by the national, trans-
national or international hard-core criminals or secessionists etc. Resul-
tantly, 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. G

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
I

444 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
and wide almost bringing the major part of the country under the extreme
B
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, mad- killing even without spring
women and children and reducing those areas into a graveyard, which
brutal atrocities have rocked and shocked the whole nation.
D 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
E truth by adopting an ostrich like attitude completely ignoring the impend-
ing 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
F 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 infor-
H mation received, it appears that its master mind is somewhere else
'
KARTAR v. STATE OF PUNJAB [PANDJAN,J.] 445

and it is also inside." A
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) express-
ing his view during the discussion on the Bill on the Terrorists and
Disruptive Activities (Prevention) Act, 1987 stated:
c
"........ Punjab is burning. The legend goes that in the rivers of punjab
milk used to flow but they are now drenched with blood. There is
hatred all over. What is a democratic solution for Punjab ........ .
How many women are beating their breasts every night? We feel
the pinch only when our near and dear ones get killed." D
Yet another Member of Parliament (Shri Anoopchand Shah) speak-
ing 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:
F
" ....................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
446 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
B 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.

c 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 sur-
D charged with the terrorism and disruption posing a serious threat
to the sovereignty and integrity of India as well as creating p~nic
and sense of insecurity in the minds of the people. Added to that
the brutality of terrorism let-loose, by the secessionists and anti-
nationals in the highly vulnerable area of Indian territory, (prejudi-
E cial 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,
F 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.
B

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 con-
dign punishments etc., leave apart the question with regard to the validity
of these provisions to be tested on tested on the touchstone of the Con-
stitution. H
448 SUPREME COURT REPORTS [1994] 2 S.C.R.

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.

B 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, investiga-
tion, bail, mode of trial, jurisdiction of the Designated Courts, the permis-
sible legal rights of the accused guaranteed under the Constitution etc. etc.
c 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;

D 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 consid-
F erable, 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 suspi-
cious 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 regula-
tion 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, B
liberty and dignity.

Emphasising the importance and potentiality of the law, Lord Chan-
cellor 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
450 SUPREME COURT REPORTS [1994] 2 S.C.R.

- 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
B 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 Con-
stitution, 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
c 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
E 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 Con-
current 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
KARTAR v. STATE OF PUNJAB [PANDIAN,J.] 451

offences against public order. A
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);
B
(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);
c
(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, 1985-

it 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
r provisions have, however, not been relied upon when enacting the TADA) H
I/

452 SUPREME COURT REPORTS [1994]2 S.C.R.

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 con-
B tained 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
c 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
E 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
F 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 char-
acter 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

H
under Entry 1 of List II.

In support of his submission with regard to the doctrine of 'pith and -
l
I

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
B
of England has held that unlawful assemblies, riots, insurrections, rebel-
lions 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.
c
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.
D
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 en-
couraged 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. G

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
454 SUPREME COURT REPORTS (1994] 2 S.C.R.

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.

B We shall now carefully examine the submission made by the respec-
tive 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
c 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 legisla-
tures 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
E 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
F 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 B
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,
c
[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 com- E
petence 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

'
456 SUPREME COURT REPORTS [1994] 2 S.C.R.

A them may appear to have legislated in a forbidden sphere. Hence , r
the rule which has been evolved by the Judicial Committee,
whereby the impugned statute is examined to ascertain its pith and
substance or its true nature and character for the purpose of
determining whether it is legislation with respect to matters in this
list or in that."
B
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
degrees of invasion, but for the purpose of determining what is the
E pith and substance of the impugned Act. Its provisions may ad-
vance 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
AIR (1939) FC l; (2) Governor-Genera/ in Council v. Province of Madras,
G 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, A
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. B

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 11 public ordcr11 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
458 SUPREME COURT REPORTS [1994] 2 S.C.R.

A "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 repre-
B senting 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
conferred on Parliament under Article 248 read with Entry 97 of the Union
E 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 enact-
ments, the preamble, Statement of objects and Reason, the legal sig-
nificance 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, states- A
men, 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
B
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 c
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 expres-
sion '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-sec-
tion (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 .............................. 11

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
460 SUPREME COURT REPORTS [1994] 2 S.C.R.
'
A "4(2) For the purposes of sub-section (1), "disruptive activity"
1'-
· means any action taken, whether by act or by speech or through
any other media or in any other manner whatsoever, -
IJ
(i) which question, disrupts or is intended to disrupt, whether
directly or indirectly, the sovereignty and territorial integrity of
B 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.

c " 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
D whether a part of India will remain within the Union."

The above definitions, would themselves make it clear that the ex-
pression 'Terrorist and Disruptive Activities' deploved in the preamble of
the Act (28 of 1987 - TADA) contemplates the commission of any specified
E 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 in-
tegrity of India or which intended to bring about or supports any claim,
F 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

,.
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
B

•.,,
while examining the various provisions of TADA Act, one of which being
the legislative competence). The learned counsel has questioned the legal
competence of the impugned Act on the same line of arguments as ad-
vanced 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) .......................... .
F
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
'
462 SUPREME COURT REPORTS (1994] 2 S.C.R.

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

(iv) endangering the sovereignty and integrity of India''.
B
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
c '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.
D
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 conten-
tion is rejected as devoid of any merit.
E
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
F 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 inde-
pendence 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
B
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 re-
quirements 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 un-
reasonable. 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 intend-
ment 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
464 SUPREME COURT REPORTS (1994) 2 S.C.R.

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).
B
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 punish-
able 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
KARTAR 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
1
trial. ................. '

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

The right to a speedy trial is not only an important safeguard to
prevent undue and oppressive incarceration, to minimise anxiety and con-
cern 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 d~cisions 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 indict-
ment 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
the Constitution of India has observed thus:
G

"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
(

466 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B
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
F
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
G
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
by the delay of disposal of cases. On the other hand, the Court has to adopt B
a balancing approach by taking note of the possible prejudices and disad-
vantage 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
absence of witness or witnesses, crowded dockets on the file of the Court
D
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. F
Yet another argument qua the just and fair trial read into Article 21
has been submitted firstly contending when there is no proclamation of
emergency in operation and when all the fundamental rights conferred by
Part III of the Constitution are available for enforcement, the right to have
a fair trial cannot be whittled down or militated against and; secondly even G
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 enfor-
cement of such rights, shall remain suspended during the period of emer- H
!

468 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 emer-
gency. To better understand, the legislative history with regard to the
exemption of Articles 20 and 21 from operation even during emergency
may be briefly recapitulated.
B
Prior to the enactment of the Constitution (Forty-fourth Amend-
ment) Act, 1978 ~hich came into force w.e.f. 20th June 1979, the rights .Ji
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
D 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.
E

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

F 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 :: ................................................................................... .
G
"
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 c
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 em-
bodied 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 consid-
erable 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. H
I
•

470 SUPREME COURT REPORTS [1994] 2 S.C.R.

A The learned Additional Solicitor General countering the above argu-
ments 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
B definition is vague, is unfounded as the said definition is merely inclusive
and illustrative and the very nature of things could not have been exhaus-
tive. 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 Repre-
sentation 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, -
F
(a) 'abet', with its grammatical variations and cognate expres- ~.

sions, includes -

(i) the communication or association with any person or class
of persons \Vho is engaged in assisting in any manner
G
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
H distribution of, any document or matter obtained from
'
(,

KARTAR v.STATEOFPUNJAB [PANDIAN,J.] 471

terrorists or disruptionistS; A
(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, co- operation
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.
E
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:
F
"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. H
I

472 SUPREME COURT REPORTS (1994] 2 S.C.R.

A
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 com-
mitting 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
depends upon the intention of the person who abets, and not upon the act
E - 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:

"3(1) - 'abet', with its grammatical variation and cognate expres-
F sions, 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.
I

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:
B
"........................................ 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
c
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 F
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
474 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B (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
c that no absurdity or practical inconvenience may result ................. "

In a criminal action, the general conditions of penal liabilities are
indicated in old maxim 'Actus non facit rea1n nisi mens sitrea" i.e. the act
1

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
B
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 t~at 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:
11
•••••••••• 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
476 SUPREME COURT REPORTS [1994] 2 S.C.R.

A from the ingredients of an offence. Mens rea by necessary implica-
tion 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)
B 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 judg-
ment 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. 11

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.
F
True, the provisions of the TADA Acts are framed with very strin-
gent 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. A
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
c
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. Nonethe-
less 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 inten-
tion 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
478 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 consumma-
tion 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
KARTAR 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 require-
B
ment 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
I

480 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (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
B 2(1)(h), namely, indulging in wanton killing of persons or in
violence or in the disruption of services or means of communica-
tions 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
c '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
D
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
E that the Section 3(1) suffers from vagueness and lacks guidance is un-
merited.

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.
KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 481

Sections 3 and 4 of 1987 Act (TADA) A
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,
'I~
or as is likely to cause, death of, or injuries to, any person or F
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
r

482 SUPREME COURT REPORTS [1994) 2 S.C.R.

A 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.

B (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.
c ,:
( 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".
D
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:
E
"(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.
F
(6) Whoever holds any property derived or obtained from com-
mission 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
G imprisonment for life and shall also be liable to fine.

Section 4 of the Act reads as follows:

4. Punishment for disruptive activities -

H (1) Whoever commits or conspires or attempts to commit or abets,

•
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
c
(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.
D
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
E
whether a part of India will remain within the Union.

(3) Without prejudice to the generality of the provisions of sub-
section (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, a~dvise, suggest or prompt,
G
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

•
484 SUPREME COURT REP.ORTS • 2 S.C.R.
[1994)

A 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.
B 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 punish-
ment and also prescribe minimum sentence for some acts constituting
c 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 any-
thing 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 con-
E
travene 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 'imprison-
F ment 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
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 emerg-
ing 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 respon-
sibility 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
/
486 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B 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 efficacious-
ness 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 forfei-
ture 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

..
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
Court while awarding any punishment on conviction of an offence under B
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 abscond-
ing. 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
under Section 83, the claim or objection shall be inquired into, and may be G
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. H
488 SUPREME COURT REPORTS [1994] 2 S.C.R.

A The discretionary power given to the Designated Court under Sec-
tion 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
B 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:
E 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 Govern-
ment 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
F 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.

G 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 Govern-
ment 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 Govern-
ment 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.
E
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. Sub- sections
• (4) and (5) speak of the appointment of Judges to the Designated Court
while sub-section (6) speaks of the qualification of the Judge to be ap-
pointed. H
490 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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 superan-
nuation 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
B
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,
c 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:

F "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."
G 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
KARTAR v.STATEOFPUNJAB (PANDIAN,J.] 491

1.,.
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.
B
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 superan-
nuation. Hence Section 9(7) does not offend any Constitutional provision.
D
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
492 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
B 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
c 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
D
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. 11 '
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 pre-
vailing 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. B
This right ean also be excluded where the nature of the action to
be taken, its object and purpose and the scheme of the relevant
statutory provisions warrant its exclusion; nor can the audi alteram
partem rule be invoked if importing it would have the effect of
paralysing the 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.
D
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 E
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 F
(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.
G
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
494 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (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
B 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
c the Attorney General), transfer any case pending before a Desig-
nated 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
D 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
E
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
F 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
G
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
H 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; A
(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 opera-
tion 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).
c
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
496 SUPREME COURT REPORTS [1994] 2 S.C.R.

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.
B
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
c 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.
D
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
E another High Court or from a criminal court subordinate to one High
Court to another Criminal court of equal or superior jurisdiction subor-
dinate 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
F 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 concur-
rence 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 im-
perative 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. H
j
(

498 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 condi-
tion to be satisfied before passing the transfer order by the Central Govern-
ment.

In this connection, we may refer to the decision in R. V Cain R v.
B 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
c 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
E
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.

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
KARTAR 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.
B
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 co- accused, abettor
or Conspirator is charged and tried in the same case together with the
accused.') But before recording the confession under sub-section (1), the
E
p~rson 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
inferior to confessions recorded by Magistrates in open Courts with all the G
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
i
(

A
500 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 Con-
;{ -
stitution. 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 com-
milted the offence, if proved a presumption shall be drawn by the Desig-
nated Court that the accused has committed such offence unless the
B contrary is proved. This provision, according to him, totally subverts Sec-
tion 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 obser-
c 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
evidence of a very weak type. It does not indeed come within the definition
D
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
11
other evidence •

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
KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 501

- )'
renders a criminal trial a total farce.

Mr. Harjinder Singh, the learned counsel supplementing the argu-
ments of the other counsel cited the decision, namely, Olga Tellis v.
A

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
forbidden by the Constitution or to compel, in the performance of an Act, B
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
Jammu and Kashmir, [1980] 3 SCR 1338 and (11) Francis Coralie Mullin v. D
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.
G
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
502 SUPREME COURT REPORTS [1994] 2 S.C.R.
'
,,

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 confes-
sion 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
law which contains an extraordinary procedure can be made to meet the
B 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 I
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 circumstan-
ces. 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 Regula-
tion 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 refer-
ence to certain relevant provisions of the Constitution, general procedural
F 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 -
G
(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
•
H 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.
B
(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. E
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 F
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.
G
(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. H
504 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (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
B 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
c 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
D account of the statement made by him.

Sd/-
Police Officer"

(4) Where the confession is recorded GD any mechanical device,
E 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.

F (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
G 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 protec-
B
tion against compulsion of selfincrimination which is one of the fundamen-
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 circumstan-
ces 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
506 SUPREME COURT REPORTS (1994] 2 S.C.R.

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 state-
ment given by an accused can be used in the manner provided by Section
145 of the Evidence Act in case the accused examines himself as a witness
for the defence by availing Section 315 (1) of the Code corresponding to
Section 342-A of the old Code and to give evidence on oath in disproof of
B
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
F 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. A
...
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: B

"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
c
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 Protec-
tion 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
508 SUPREME COURT REPORTS [1994] 2 S.C.R.

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'.
B
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 Constitu-
tion, then section 15 of TADA is to be struck down. Therefore, it has
become inevitably essential to examine the classification of 'offenders' and
c '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
D differently be treated if there is a reasonable basis for such difference or
distinction. The rule of differentiation is that in enacting Jaws differentiat-
ing 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
E
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
F 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 classifica-
tion justifies the different treatment and whether they subserve the object
so:ight to be achieved.
/
B
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. c
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 com-
E
petence 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
510 SUPREME COURT REPORTS [1994] 2 S.C.R.

A made reference to the Prevention of Terrorism (Temporary Provision) A~t,
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
B 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 introduc-
c tion 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.

He on the basis of the above dictum laid down in those cited
F 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. C
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
E
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
512 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 Con-
stitution of India, this Court has rendered several judgments about the
principle and policy of equality enshrined therein.
B
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:
c "l. The presumption is always in favour of the constitutionality of
an enactment since it must be assumed that the legislature under-
stands 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.
D
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.
E
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 treat-
F ment.

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
G 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.
·r
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. B

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
protection of laws by Article 14.
c
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
Article 14 of the Constitution. It was held by a majority of the Court, the F
... > 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 infr-
ingement of the equality principle ............... In my opinion, it will
be dangerous to introduce a subjective test when the Article itself H
t
514 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B 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
c 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 discre-
tionary, it is so in its effect and operation inasmuch as it vests in
the executive Government unregulated official discretion and
D 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
E
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
F 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
G 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.

H 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
'offences' to be tried by the Designated Court under the TADA or by the
A

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 disrup-
tionists in the TADA Act and the terrorists under the Special Courts Act,
1984 as well as the classification of offences under both the Acts.
B

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
Constitution. D
~

The next qnestion is wh~ther the procedure in recording the confes-
sion is just and fair.

The counsel were severly critical of the mode and method of obtain-
ing a confession from an accused person. According to them, the oppres-
E
sive 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 compul-
sory 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
-
516 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B the confession thus obtained from an accused person would become ir-
relevant 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
c 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.
D
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 :

E "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 disad-
vantage as compared to several other enforcement agencies who
also handle investigational work leading to prosecution in Court.
F 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-prac-
tices involving torture and other pressure tactics of an extreme
nature to obtain confessions from accused persons. More than 100
G 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
H 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, bar-
baric, 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) discoun-
tenancing 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
518 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 super-
.
visory ranks to countenance the practice in a bid to achieve quick
results by short-cut methods. Even well meaning officers are some-
time drawn towards third degree methods because of the expec-
B
tation of some complainants in individual cases that the suspects
named by them should be questioned by the police with some kind
of pressure .............."
... •
Though we at the first impression thought of sharing the view of the
c 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 pur-
pose and object of the legislation, the gravity of terrorism unleashed by the
terrorists and disruptionists endagering not only the sovereignty and in-
tegrity 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 - hold that the impugned Section
E 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 Constitu-
tion is infringed.
F
~

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
and the accepted norms of recording the confession which should reflect
G 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, 11 No, Your Lordship. is to hear
H only the evidence. 11 "'"
J
- KARTAR v. STATE OF PUNJAB [PANDIAN,J.]

As the Act now stands after its amendment consequent upon the A
519

• 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
confession. The present position is in conformity with Section 30 of the
B
Evidence Act.

Under Section 21(l)(d), in a prosecution for an offence under sub-
section (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 com-
mitted 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
officer with regard to the mode of recording the confession and requires G
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
520 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
TADA 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 em-
powered to record any confession under Section 164(1) in view of sub-see-
p 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.
E
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.
F
(5) The Police Officer if he is seeking the custody of any person
for pre-indictment or pre-trial interrogation from the judicial cus-
tody, 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;
G
(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
4
522 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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 con-
stituted 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 A
Constitution as it is under the 6th Amendment of the American Constitu-
' tion 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 B
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. c
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 administra-
tion of criminal trials, but, more important, the "therapeutic value" to the
public of seeing its criminal laws in operation, purging the society of the D
' 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
E
there cannot be any legal ban in having the trial in camera. Though the
criminal justice prevailing in our country recognises and accepts the prac-
tice 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
' F
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
524 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 :

"Notwithstanding anything contained in sub-section (1) the inquiry
B 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
an application made by either of the parties, allow any particular
c 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-sec-
tions 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 continua-
tion, it has been urged that Section 16(2) and (3) of Act 1987 empower the
Designated Court to take measures for keeping the identity and address of
G
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.
B
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. E

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 iden-
tity 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
526 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B 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 truthful-
ness 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
c 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
D
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.
E
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 vic-
timised by any false and invented evidence that may be tendered by the
adversary party.
F
Under the provisions of this Act, the right of cross-examination is
not taken away but the identity, and addresses of the witnesses are per-
mitted 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 docu-
ments 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 B
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 legis-
lature in making the enactment. The law is certainly an extraordi-
nary 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
t
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
'
528 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
Committee recorded the statement of some of the girl students but not in
B 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 cross-
examine 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
D 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
E back of the goonda and the goonda being merely asked to repre-
sent 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 cross-
examine the witnesses. The reason is obvious. No witness will come
F
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.
KARTAR v. STATE OF PUNJAB [PANDIAN, 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 sub- section (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
. t 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 cir-
cumstances has thought it fit that the identity and addresses of the wit-
nesses 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 sub- section (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
,
530 SUPREME COURT REP OR TS [1994] 2 S.C.R.

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
B
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
c witnesses.

T,herefore, in order to ensure the purpose and object of the cross-
examination, 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 con-
ferment 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
•
KARTAR v. STATE OF PUNJAB (PANDJAN, J.] 531

from the situs of the Supreme Court. A
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 conform-
ity 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.
D
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
532 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
l
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.
The statutory compulsion, in such a situation as pointed out by the counsel,
B
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 con-
victed 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.
-'~

KARTAR v. STATE OF PUNJAB [PANDIAN, J.] 533

t' 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
c
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 E
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 F
'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-
534 SUPREME COURT REPORTS (1994] 2 S.C.R.
'
,
A "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) .................................. .

B (ii) ................................. .

(iii) .................... ,........... .

(iv) Executive Magistrale"

c Section 20(1) of the Code empowers the State Government lo ap-
point 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
Magistrates for particular areas or for the performance of particular func-
E tion 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 con- . ' .
fession 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
KARTAR v. STATE OF PUNJAB [PANDIAN,J.] 535

Constitution. A

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
B
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
'
1
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 func- c
tions 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
j
• 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
536 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
Judicial Magistrate is not available, a copy of the entry in the police diary
B and forwards the accused to such Executive Magistrate. The above func-
tions of authorising detention and releasing the arrestee on bail are nor-
mally_ performed by the judicial Magistrates in the discharge of their
judicial functions.
f

C Under Chapter VIII of the Code of Criminal Procedure dealing with
security for keeping the peace and for good behaviour Section 106 em-
powers 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:
11
ln this Section, 11 accused11 includes a person in relation to whom
E
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
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 gover-
nance contained in Articles 50 of the Constitution. B
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.
c
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.
D
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 F
' 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.
G
Recently, this Court in Shri Kumar Padma Prasad v. Union of India
' 2 SCC 428 has observed as follows :
and Others, [1992]

!!The expression judicial office' in generic sense may include wide
1

variety of offices which are connected with the administration of
justice in one way or the other. Under the Criminal Procedure H
538 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B 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.
c 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 :

D "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
E
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
F 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
G 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
H Constitution Ii.as set up. Our Constitution, though federal in its

l
KARTAR v.STATEOFPUNJAB (PANDIAN,J.] 539

structure, is modelled on the British Parliamentary system where A
.,f'
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-Sec-
tion (3) of Section 20 of the TADA does not offend either Article 14 or
21 and hence this sub-section does not suffer from any constitutional in D
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
is recorded by the Judicial magistrate whenever the Magistrate is available F
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
540 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
(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.
c (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
D eightydays, the Designated Court shall extend the said period
up to one year, on the report of the Public Prosecutor indicat-
ing 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

E (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 trans-
mission 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
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 B
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 investiga-
tion 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 c
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
I
' 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 E
doctrine of 'speedy trial'. This criticism is resisted by the learned Addition-
al Solicitor General stating that in view of the activitites of terrorists and
disruptionists covering wide range of area both domestically and intern-
tionally justifiably require the extended period of detention since it is not
possible to complete the investigation within a shorter period.
F
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. G

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 sub- section (1) of Section H
542 SUPREME COURT REPORTS [1994] 2 S.C.R.

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.
B
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
c 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. I
,
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 an-
ticipatory 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
F 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
G 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
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 effec-
tive interrogation. If the real offenders apprehending arrest are
able to secure anticipatory bail then the police shall virtually be
denied the said opportunity."
B
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 Amend-
ment) 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 punish-
able with death, imprisonment for life or imprisonment for a term of not
less than seven years.
F
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
544 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
B 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.
c
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
D
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, \
J
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
E 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
F 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 com-
petence and the State Legislature is empowered to pass this Act in taking
G into consideration the crime infected situation in the State and this amend-
ment was necessary keeping in view the prevailing situation and the in-
creasing 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.
KARTAR v. STATE OF PUNJAB [PANDIAN,J.] 545

... The competence of the State Legislature to amend Central Act has
been recognised in U.P. State Electric Supply Co. v. R.K Suhkla, [1969] 2
A

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
1 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 preroga-
tive 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 -
,;,,I
(a) the Public Prosecutor has been given an opportunity to
oppose the application for such relase, and r
546 SUPREME COURT REPORTS [1994) 2 S.C.R.

A (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)
B 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
c not concerned otherwise). It runs as follows:

"Notwithstanding anything contained in the Code of Criminal Pro-
cedure, 1898 (V of 1898), no person accused or convicted of a
contravention of these Rules or orders made thereunder shall, if
D 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
,
I

(b) Where the prosecution opposes the application and the con-
E travention 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 ad-
vanced 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
j
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 B
Constitution as the manifested intention of this provision makes it impos-
sible 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
v:
principle. Placing reliance on the decision in Gudikanti 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-con-
viction 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
J 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.
F
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-sec-
tion (8) is in consonance with the requirements prescribed under clauses
(i) and (ii) of sub- section (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
B 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
c 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 I
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 commis-
E sion 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
F 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 limita-
tions 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 :
KARTAR v. STATE OF PUNJAB [PANDIAN,.l.J 549

"437 (3) - A

(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 c
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 -
D
1 (a) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature sp~cified in
sub-section (3) of Section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub-sec-
tion; E
(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 punish-
able 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
550 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B grant bail by a Designated Court is not only subject to the limita-
tions 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. , -t
~

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 I,,,
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
F 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
G 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-
j
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
D
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 condi-
tions 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
i
552 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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
B 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
'
c 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
D 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 limita-
tions 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 cir-
cumstances 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 condi-
tions 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
H other enactments - such as Section 35(1) of Foreign Exchange Regulation
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 co~dition that "there are grounds for believing
that he is not guilty of an offence", which condition in different from is
B
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 sub- section (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.
D
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 func-
tions keeping in view the fundamental rights particularly of the personal
right and liberty of every citizen as enshrined in the Constitution to which H
554 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 con-
sonance with the legislative intendment.

Reference may be made to State of Maharashtra v. Anand Chintman
Dighe, [1990] 1 sec 397.
B
The. next nagging question that frequently comes up for our con-
sidcration 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 •
view that the jurisdiction of the High Courts under Article 226 of the
c 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
'
offence after filing of the charge-sheet that the Designated Court r
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
present case, and if no prima facie case is disclosed for applying ~
f
the provision of the TADA Act, the Court can exercise its powers
under Art. 226 of the Constitution to entertain a petition ............. "

In Usmanbhai (supra), one of the questions of substantial importance
G 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 : A
"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 B
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 c
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."
D
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 justifica-
tion 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:
11
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
556 SUPREME COURT REPORTS [1994] 2 S.C.R.

A exercisable in cases like the present where it may be debatable
whether the direct accusation made in conjunction with the atten-
dant circumstance, if proved to be true, is likely to resul in con- ...
viction 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 Constitu-
B
tion 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:
c "............... 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
E
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)
F 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-
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 non-
obstante cause in Section 20(7) reading, "Notwithstanding anything con-
tained in the Code ......... " clearly postulate that in granting of bail, the
special provisions alone should be made applicable. If any party is ag-
grieved 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
B
applications invoking their extraordinary jurisdiction under Article 226 and
'
1
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 c~nnot 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 cir-
cumstances. What those rare cases are and what would be the circumstan-
ces 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 enter-
taining 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. E

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. G

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
558 SUPREME COURT REPORTS [1994] 2 S.C.R.
\.
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".

Before formulating our conclusions, we would like to express our
E
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 well- disciplined 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'.

It is heart-rending to note that day and day out we·come across with
G 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 out- raged, 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 B
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 F

The above are to maintain the higher rhythms of pulsation
democratic lifein a constitutional order.

TO SUM UP:
G
(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
560 SUPREME COURT REPORTS (1994] 2 S.C.R.

A 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
B 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 1
area as 'terrorist affected area' within the terms of Section 3(1) of
the Act of 1984 does not suffer from any invalidity;
c
(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
E 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 Goven-
ments at the time of appointing a Judge or an Additional Judge
to the Designated Court should keep in mind that the Judge
F 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
G 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,
H sub-sections (2) and (3) of Section 11 are not violative of Articles
i
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-
under; B

t (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
Magistrate and Special Executive Magistrate within the purview of G
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
t
I

562 SUPREME COURT REPORTS · [1994) 2 S.C.R.

A (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;

B (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
c 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
D 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 jurisdic-
tion tC> entertain an 'appli~ation for ball under Article 226 of the
E
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
F 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.
.
'
G 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 Govern-
t
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.
B
.. In the result, the legal questio~ rai~ed. 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.

Before pa~ting with this judgment, we place on record our unin'.
c
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 scholar- E
ship 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 F
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 en-
visioned 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
.'
'

564 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
personal liberty. Life and personal freedom are the prized jewels under
B
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 anti-
social 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 con-
comitants 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
1
KARTAR 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 in-
.,
..I
dividual. Therefore, liberty of each citizen is borne of and must be subor-
dinated to the liberty of the greatest number, in other words common
happiness as an end of the society, lest lawlessness and anarchy will tamper c
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.
D
The modern social evolution is the growing need to keep the in-
dividual 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
t
i
566 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 respon-
sibility soon become intolerable. Lest the freedoms and fundamental rig! •s
become sacrificial objects at' the alter of expediency. Unrestricted liberty
B 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
c 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 allega-
tions 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 ex-
E cluding 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 as-
sures that everyone has right to life, liberty and security of person. The
constitutional and human rights commitmen~ therefore, is that no one shall
F 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.

H
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-in-
crimination 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 [Inter-
national 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 pres-
sure 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
568 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 sur-
rounding the confession are required to be gone into. Since in custody
interrogations are highly secretive, the Courts have to infer what transpired
from questionable data. Police adopt successful tactics for eliciting con-
B fssions, crucial importance is of self-confidence, which may not remain
intact in interrogation. Barred are physical abuse or threats, mental coer-
cion, 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 manipula-
tive 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 im-
partial 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 theory11 , 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 constitu-
tional 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
conviction of a private criminal would bring terrible retribution. The only
':i_
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
570 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
B
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
c under the hypnosis. Hugo Munsterberg and William James, the renowned
psychologists noted some instances that under conditons normally as-
sociated 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 con-
fessing to something which he did not do. The majority of untrue state-
ments 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. Accord-
ing to an eminent forensic psychologist Armstrong confession falls into
various categories. In the principles of Criminal Evidence by AA.S. Suck-
erman 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
l
(

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 indul-
gence. 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. F

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
572 SUPREMECQU]{TREPORTS [1994] 2 S.C.R.

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
B interest would be subservie~t 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 con-
stitutional mandates.

c In a recent working Paper on "Custodial Crimes", the Law Commis-
sion 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 protec-
,
tion 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 cir-
cumstances such as state of war or threat of war or internal political
instability. Article 5 thereof required comprehensive training of law enfor-
cement officers against torture. Article 7 required system of review of the
interrogation, methods and practices as well as custodial arrangements. It
E obligates the States to ensure that the acts of torture are made offences
under National Criminal Law. The declaration is a part of binding inter-
national 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.
F Article 5 thereof prohibits law enforcement officials from inflicting, in-
stigeting 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
'1
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.
1
,,

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
c
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 :
D
"An admission of a gravely incriminating fact, even a conclusively
incriminat~g 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."
E
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
574 SUPREME COURT REPORTS [1994) 2 S.C.R.

A the accused against becoming the victim of his own delution or the
mechanisation of others to self-incriminate in crime. The confession, there-
fore, 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
B
inducement. Hence threat or promise or inducement held out to an ac-
cused 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.
c 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 i
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
might have been procured by the exercise of coercion or by enticement.
E 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 enfor-
cement 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
1
I

KARTAR 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.
D
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
576 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 conse-
B
quences 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 ill- treatment 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
c 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
E 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
F 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.
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 F
.. .... 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 G
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
rI

578 SUPREME COURT REPORTS [1994) 2 S.C.R.

A should, make a confession. If the circumstances generate any suspection ,,
that the accused was induced or coerced or threatened to make a confes-
sion, 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 Superinten-
dent cif Police to record the confession is constitutionally valid. "

Section 15(1) of the Act reads thus:
c
"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)
D
officer not lower in rank that a Superintendent of Police and
,I
recorded by such police officer either in writing or on any mechani-
cal device like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, shall be admissible in the
E 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
F 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
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
580 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 accord-
ance 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,
means and the form in which the right is enforce'1, or the person is
B
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 Execu-
tive. 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
non-obstante would be just, fair and reasonable? The constitutional courts
D
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 "tes-
11
timonial compulsion" that , ~·e 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
G 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
y
J

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 guaran-
tee was, therefore, held to include not only oral testimony given in a court
B
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
'.l 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 accord-
ance 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
582 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
Art. 21. Though the State is free to regulate the procedure for investigation
B 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 con-
science 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 pro-
cedure 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
reasonable procedure. Articles 14 and 21 from against arbitrary and op-
E pressive 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
1
)

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 non-
obstinate clause in s. 15(1)? Whether mere incantation by employing non-
obstante 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, quasi-
judicial 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
[
584 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
Magistrate, nor the right of revision against his decision is a solace. It not
B 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 detrimen-
tal 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 j
of Criminal Procedure and the confession was inadmissible.

E 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
F
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.
G
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
J
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 c
extend, the superior court, the New Jersey Supreme Court held them guilty
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 self-
incrimination and "inherently compelling pressure" held of custodial inter-
rogation 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". F

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
l
586 SUPREME COURT REPORTS (1994] 2 S.C.R.

A himself initiates further communication, exchanges or makes further con-
versation 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
officer successfully questioned Robertson concerning an offence unrelated
B
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 "eager-
ness to obtain a confession that this situation doses the high risk to self-
incrimination interest.
D ,.
It would, therefore, be clear that any officer not below the rank of
the Superintendent of Police, being the head of the Dist. Police Ad-
ministration 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
E 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
F
would be seemingly suspect and inspire no public confidence. If the exer-
cise 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 Con-
stitution.
~.
The further contention of Sri Tulsi that the Parliament being com-
petent 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 Desig-
nated Court; appointment of a Sessions or Addi. Sessions Judge to that B
Court and his continuance in office beyond superannuation find hospitable
soil in constitutional contours. Section 9(1) empowers the Central Govern-
ment 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 c
notification. Under sub-section (4) thereof the Designated Court shall be
presided over by a Sessions Judge to be appointed by the Central Govern-
ment 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 E
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.
F
(I) Courts of Session;

(II) Judicial Magistrates of the First Class and, in any metropoli-
tan area metropolitan magistrates;
G
(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
t
\.

588 SUPREME COURT REPORTS [1994] 2 S.C.R.

A thereof, the Court of Session shall be presided ov~r 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
B 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.
c
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 ap-
propriate legislature made by virtue of powers conferred on that legisla-
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. "Subor-
dinate 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 promo-
tion 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
B
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,
•I posts, transfer, grant of leave and disciplinary control, etc. till they attain c
the age of superannuation prescribed under the relevant rules. By opera-
tion 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 inter-
media! 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
590 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 exces-
ses. 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 ad-
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 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 in-
tegrity 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.
A.
The subordinate judiciary is complement to constitutional courts as
H part of the constitutional scheme and plays vital part in dispensation of
~
/

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
B
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 c
authority acts fairly and the order is not vitiated by illegality, unreasonable-
ness, 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 E
said earlier, exercise, in a small measure judicial review of administrative
acts. Subordinate courts are integral part of the judiciary under the Con-
stitution. 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 con- p
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
592 SUPREME COURT REPORTS (1994] 2 S.C.R.

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
B 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
c 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 (Amend-
ment) 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 th~y 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 desig-
nated 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? F

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 offenders 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
t
594 SUPREME COURT REPORTS [1994) 2 S.C.R.

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
a Constitution which intends that judicial power shall be vested only in the
B 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 hence-
c 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
affects, by way of direction or restriction, tl.~ discretion or judgment of the
D
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 and less serious circumstances. And thus judicial power may be e;' ·t
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
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
B
- , -jurisdiction over all civil proceedings arising under title 11 or arising in or
' 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 war-
ranty. 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
' -l 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 estab-
lishment 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 com-
manded 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
596 SUPREME COURT REPORTS [1994) 2 S.C.R.

A judiciary from potential domination by other branches of Govt. The inex-
onable 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
assignment of historically judicial functions to a non-Art. III adjunct must
B be unconstitutional. Accordingly the Court declared the Act to be ultra-
vires 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 desig-
nations other than those expressed in Art. 236, namely those
F covered by the expression district judge, or by any existing desig-
nation 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
G
"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
H State Legislature to ignore or bypass that scheme of the Constitu-
J
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 subor-
dinate 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 •
B

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 F
prosecution and the accused. Thus this is not a mere rights explosion but,
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
1
'

598 SUPREME COURT REPORTS [1994] 2 S.C.R.

A and continuance in office after attaining superannuation are clearly in
negation of and subversive to the independence of the judiciary, carefully
conserv~d and given to the people of India. It would foster the "pleasure
doctrine" laying the seeds to bear fruits of poisoned tree to destroy inde-
pendence and impartiality of justice which the Constitution of India con-
sciously avoided. It is, therefore, unconstitutional.
B
This conclusion does not mean that the offences under the Act
cannot be tried by the regular courts especially assigned by the High Courts
y
•
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
c 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
obt~ed from the accused violating his constitutional right and evidence
H was held to be inadmissible, yet the conviction based thereon was not
)
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 desig-
nated court, trial conducted, judgments renderred, orders passed,
punishments imposed and convictions made are legal and valid. H
600 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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 Amend-
ment Act, 1966. Therefore the trial conducted, judr,ments
pronounced and the orders of punishment imposed under the Act
under the Act remained valid.
B,
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 con-
sidered 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.
B
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 jurisdic-
tion 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'
602 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
conclusive or these findings binc.I only parties on litigated disputes or that
B 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
E Division have Co-ordinate jurisdiction over debenture holder of a company
carrying on business in the County Palatine of Lancaster. When the deben-
ture 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
F 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 jurisdic-
tion, namely the Crown Court. In that context the Court of Appeal through
Ormrod LLfollowing 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 concur-
rent 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
604 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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 proce-
dure, 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
B 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 ques-
tions 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 jurisdic-
tion of superior authority is invoked against an order and that
F 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
G 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
H the Tribunal has already assumed appellate jurisdiction. The sub-
KARTAR v. STATE OF PUNJAB [RAMASWAMY,J.] 605

ordinate status of the Commissioner precludes that." A
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,
B
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 c
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, E
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
F
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. G

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
606 SUPREME COURT REPORTS (1994] 2 S.C.R.

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".
B
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
Court, the latter must observe comity and self imposed limitation, on the
F 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. C

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
F
referred to as 'TADA') enacted to make special provision for the preven-
tion 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
608 SUPREMECOURTREPORTS [1994] 2 S.C.R.

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-dis-
closure 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 over-
A
throwing 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 destruc-
tion 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
F
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 generat~d 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 attack-
ing 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
F
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 distin-
guish between the terrorist and the innocent. If the State adopts indis-
criminate measures of repression resulting in obliterating the distinction
between the offender and the innocent and its measures are repressive to H
610 SUPREME COURT REPORTS (1994) 2 S.C.R.

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, ,,__
r •
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
government be weighed in the scale of rule of law. No further need be said
c 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
and substance was public order, which fell in exclusive domain of State
E 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
have plenary powers. Both are supreme in their sphere. But the field of
G 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
J
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
B
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
11
power.

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."
F
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
)

612 SUPREME COURT REPORTS [1994) 2 S.C.R.

A SC 1061, any enactment made in exercise of power under Entry in concur- ......
rent list shall have over-riding effect subject to restrictions that may be spelt ,,t
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
B
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
c 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 in-
dustrial 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.
E 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
F 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
}

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 sig-
nifies 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."
c
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 repre-
senting 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 F
constitute a direct repudiation of liberal and human values and principles,
and that terrorist ideology is ................ and constantly deployed in a strug-
gle 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
t
614 SUPREME COURT REPORTS [1994] 2 S.C.R.

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
c 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'
E 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 :
F
"21. Protection of life and personal liberty - No person shall be
deprived of his life or personal liberty except according to proce-
dure 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
)
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
B
Mullin v. The Administrator, Union Territory of Delhi, (1981] 2 SCR 516
when it was held,
I
"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."
D
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 E
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. F
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
616 SUPREME COURT REPORTS [1994) 2 S.C.R.

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 Constitu-
tion 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
B
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
c 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 sub-
stantive 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 Con-
stitution 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 Constitu- •
tion can be well appreciated when one looks to the constitutional amend-
ment 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
)

KARTAR 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
explosive substances unauthorisedly in a notified area, he shall,
B
,' 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 imprison-
ment 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
whereas in Section 5 it is founded ouly on possession. Even under sub-sec-
F
tion (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
618 SUPREME COURT REPORTS [1994] 2 S.C.R.

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 interrela-
tion 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
c 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 Addi-
tional 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 disrup-
E tionist 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
F Minister who piloted the Bill while advocating for conferring power on
police officer to record the confession and for makiog it admissible sup-
ported the departure from age old law in Evidence Act by taking illustra-
tion 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
1
I

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 Superin-
tendent 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
F
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
620 SUPREME COURT REPORTS [1994) 2 S.C.R.

A 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
B 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, ruth-
lessly 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 hierar-
chy 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
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 induce- c
ment or by force is rendered inadmissible. By Section 25 a confession made
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 men-
-
,- tioned 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
as the element of inducement, threat, duress or force stands removed. The
inadmissibility attaches to a confession recorded by a police officer not F
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 inad-
missible. 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
622 SUPREME COURT REPORTS {1994] 2 S.C.R.

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 I ,
r
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
B 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
c 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
E
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 require-
ment of informing the person arrested of the reason for his arrest. This
led to constitution of Diplock Committee which resulted in Northern
F 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" opera-
tion 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
H
,
I

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. Sub- section (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 police·officer. 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 guaran-
tee.

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 TADA 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 con-
fession 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 F
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 effe~t 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
624 SUPREME COURT REPORTS
/
[1994] 2 S.C.R.
\
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 desig-
nated 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 ap-
proaching 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
result in arbitrary exerise of power and excesses of the police. A provision
F 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 Constitu-
tion. 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
l
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
B
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. C

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 com-
plaint 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 proceed-
ing 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.
F
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
'
626 SUPREME COURT REPORTS (1994] 2 S.C.R.

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 considera-
tions. 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 : ,
H
l
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
of this Section can be invoked, only when the prosecution is able B
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.

(3) Although the provisions relating to appointmenfof a person
c
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
as designated court who has retired from service. D
-.4 (4) As regards Section 15 of the Act which provides for record-
ing 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
the payment of fee should be either made by the State or if made
G
by the accused it should be reimbursed.

r• (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
I~

628 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 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,
B should exercise it for the sake of justice in rare and exceptional
cases the details of which cannot be fixed by any rigid formula.

T.NA. Matters disposed of. •'

'·,