By: B.M. Sinha
It is distressing that though more than 400 writ petitions have been pending in the Supreme Court for years challenging the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act (TADA) the apex court has yet to find time to hear them.
According to a statement made by the government in Parliament during its last session about 30000 persons have been detained all over India under TADA for years some since 1984. Unofficial sources put the figure at 37000.
What makes it more distressing is that the judiciary itself discriminates between one TADA detainee and another. While in the case of some detainees it readily grants bail in the case of others it allows bail applications to gather dust for years. The most recent and glaring example is the way the apex court bent over backwards to release on bail a lady lawyer Shabnam Lone when she was detained under TADA. She got out of detention in less than 24 hours.
There is also the instance of “Justice AS Bains who was detained in Punjab under TADA. He had to stay in detention for months before a designated court condescended to grant him bail. This happened when a habeas corpus Petition about him was being heard by the Supreme Court. The release it is said came because of the Pressure of public opinion. But how many persons can be as lucky as Lone and Justice Bains?
What rankles in the minds of several jurists is that Sukha and Jinda who were arrested tried and sentenced to death under TADA for killing General AS Vaidya were hanged on October 161992 even when hundreds of petitions challenging the constitutional validity of TADA were still awaiting the verdict of the apex court.
Not many people are familiar with the harsh arbitrary and even repressive provisions of the TADA Fewer still realize how these provisions flagrantly violate fundamental rights like freedom of expression and equality before law. They even militate against the right to life.
All these rights have been guaranteed by Constitution. Almost all the pending petitions try to establish that TADA violates Articles 14 19 21 and 22 of the Constitution Still the court has not found time to hear them causing harm to thousands of detainees which even the highest court cannot undo.
Section 3 of TADA has two sub sections-one defines terrorist acts and the other explains what amounts to abetting these acts. It is under the second sub-section that a majority of persons are detained today. Another section authorizes the police to pick up anyone and throw him into jail if he publicly challenges the government. This is denial of freedom of expression to that person. A homeowner or resident in whose house a terrorist has placed arms without the residents knowledge can be taken into custody under TADA. This gives mischief makers and the police open ended scope to frame an innocent person who can be sentenced to a minimum period of five years. The provision under which this is done is thus highly arbitrary.
TADA authorizes the central government to empower it officers to carry out investigation and arrest powers which are normally exercised by a state police officer. This infringes the jurisdiction of the states. The Act also gives powers to the Center to forfeit the property of an accused under TADA even if his offence is yet to be proved in the court. It also does not classify the offences whose commission will result in property confiscation. It is easy to imagine the plight of those dependents of an accused person whose property is unauthorized taken away by the government.
TADA takes away the powers of a state to try a person. This happened in the case of Sukha and Jinda as they were acquitted of all TADA charges but were sentenced to death by a TADA court under section 302 of the IPC. This provision thus creates a distinction between two persons who have committed similar criminal offences. When one is tried by a session’s court under IPC the other is tried under TADA by a designated court against who appeal lies only in the Supreme Court.
TADA goes to the extent of even allowing the recording of evidence against an accused by the court even if his lawyer is not there. Not only that confessions extracted by the police from him while in custody are admissible by the court. By admitting such a confession a TADA court forces a detainee to give evidence against him.
In camera proceedings of a TADA court violate Article 14 of the Constitution Even if the court wants to hold the trial in the open it cannot do so. There are provisions which deny the accused the right to know who the witnesses against him are so that he may prepare his defence Most of the witnesses just “pop up” in the witness box during the trial taking the accused by surprise.
The Act not only denies the TADA accused an opportunity to appeal to a High Court but also gives him just 30 days to file his appeal to the Supreme Court.
The Act goes against the principle of separation of judiciary from the executive by replacing the metropolitan magistrates with executive magistrates and permitting an investigating officer to seek police remand of a TADA accused from the latter. Those involved in offences under IPC can be given police remanded only by a judicial magistrate The Act allows police remand for as long as 60 days No other law permits such a long police custody. It is not difficult to imagine the gross misuse of this provision by the police.
Section 20 (8) of the Act makes it difficult for a TADA detainee to come out on bail. Bail can be considered by the court only if the public prosecutor has been given an opportunity. To oppose the bail request. It is worth nothing here that both Lone and Justice Bains were released on bail by the court on the grounds that there was no prima facie evidence for the charges leveled against them.
The plea given by the government while making the provision for setting up designated courts to try TADA cases was that such cases needed “speedy trial.” But the question being asked is whether this “speedy trial” is meant to take the accused to the gallows? Does a speedy trial mean denial of opportunity to a TADA accused to appeal to the High Court if he thinks he is innocent or is a victim of the States repressive policies? Why is he denied this opportunity when even hardened criminals like Ranga and Billa were not only entitled to it but also availed of it?
No wonder that anyone who familiarizes himself with the provisions of the TADA feels compelled to compare it with the Rowlatt Act enacted by the British in 1919 to suppress freedom movement?
Some find it even worse than the British law.
Article extracted from this publication >> December 4, 1992
