Supreme Court upholds TADA in Kartar Singh v State of Punjab

Who: The Supreme Court of India and the many petitioners whose cases it decided together, in a judgment named Kartar Singh v. State of Punjab. They challenged the “Terrorist and Disruptive Activities (Prevention) Act” (TADA) and the earlier “Terrorist Affected Areas (Special Courts) Act” of 1984. Reduced to Ashes, the 2003 report by Ram Narayan Kumar with Amrik Singh, Ashok Agrwaal and Jaskaran Kaur, devotes pages 87 to 100 to the judgment, which this account follows.

What: One common judgment, given on 11 March 1994 and reported at (1994) 3 SCC 569, disposed of the petitions. The book groups the challenges under three heads. On the burden of proof, they objected to the presumption of guilt in section 21, to a definition of “abetment” that dropped criminal intent, and to confessions recorded by a police officer of superintendent's rank (section 15). On judicial independence, they objected to judges chosen by the executive and to the removal of the High Courts' jurisdiction. On fair trial, they objected to the ban on anticipatory bail (section 20(7)), to long police custody and detention without bail, and to bail only if the court was satisfied the accused was not guilty (section 20(8)).

The Court, the book says, held that the harsh provisions served the speedy trial the Act aimed at, that Parliament was competent to depart from the ordinary rules of trial, and that harshness was a matter of legislative wisdom. It read knowledge or reason to believe into the definition of abetment. It had first been inclined to strike down section 15, the book says, but held it valid and laid down guidelines for confessions. It expressed distress at custodial deaths but held that the possibility of abuse was no ground to strike down a law, and it noted cases where “the prosecution unjustifiably invokes the provisions of TADA with an oblique motive of depriving the accused persons from getting bail”.

Where: The Supreme Court in New Delhi; the law was used across India and in Punjab above all.

Why it mattered: The book's authors say the judgment pushed the doctrine of legislative competence beyond the Emergency-era ruling in ADM Jabalpur, into what they call the “Pleasure Principle”. They report that, on the National Human Rights Commission's figure, the Punjab Police registered 17,529 cases under TADA from 1985 to the end of July 1994, and that the Union home ministry put the conviction rate of cases tried at 0.81 per cent in India and 0.37 per cent in Punjab. Human Rights Watch says over 76,000 people were arrested while TADA was in force from 1987 to 1995, with a conviction rate below one per cent.