Due Process and Special Legislation

Presumptions raise article 21 and, indirectly, article 20(3). The objection is that the presumption of innocence is part of a fair procedure. The answer given is that a presumption operating only after foundational facts are proved beyond reasonable doubt does not offend, because the accused is not asked to disprove a bare accusation.

Confessions to police officers raise article 20(3) and article 21. The objection is that the rule excluding such confessions exists because of the risk of coercion, and that removing it makes conviction on a coerced statement possible. The answer given is that safeguards attached to the recording can make the departure fair, and Kartar Singh upheld section 15 of TADA on that footing while laying down requirements for its exercise.

Bail restrictions raise article 21 alone, and they raise it most sharply. The objection is that a person may spend years in custody without conviction. The answer developed by the courts is not that the restriction is void but that it yields where the trial has been unreasonably delayed, which is the reasoning in Union of India v. K.A. Najeeb.

In-camera trial raises articles 14 and 21. The objection is that an open trial is part of a fair one. The answer given in Kartar Singh draws on A.K. Roy v. Union of India, AIR 1982 SC 710, which had observed that the right to a public trial is not among the rights guaranteed by the Indian Constitution as it is under the Sixth Amendment to the American Constitution.

Extended custody raises article 21 and article 22(2) by analogy. The objection is that the ordinary limits on custody exist for a reason. The answer is that the extension is judicially supervised and is granted only on the Public Prosecutor's report showing progress.

The pattern of the Indian answer

Four features, and stating them is a complete answer to MU's note.

Provisions are upheld and read down rather than struck down. No Indian anti terror statute has been struck down in its entirety.

Safeguards are read in. Where the statute is silent, the Court supplies requirements: the Screening or Review Committees directed in Kartar Singh, the interception safeguards in People's Union for Civil Liberties v. Union of India (Telephone Tapping), AIR 1997 SC 568.

The constitutional check moves to the application. Having upheld the statute, the courts scrutinise the individual case: whether the offence is made out on the material, whether the confession was properly recorded, whether the delay justifies bail.

Time does the work the text does not. The most effective modern constraint on special statutes is not a doctrine about their validity but the proposition that prolonged incarceration without trial engages article 21 whatever the statute says.

A worked example

An accused is charged under a special statute. The prosecution relies on a confession recorded by a Deputy Superintendent of Police, and on the recovery of explosives from a house he shares with three others. He has been in custody for four years and the trial has not begun. The statute contains a presumption on recovery, a bail bar where the accusation is prima facie true, and a provision for in-camera trial.

The confession. Admissible if the statute so provides, but its recording must satisfy whatever safeguards the statute and the case law require, and the court will scrutinise voluntariness.

The presumption. It arises only if the foundational fact, possession by him, is proved beyond reasonable doubt. Recovery from a shared house is not possession by him without more, so the presumption may never be reached.

The bail bar. Engaged on its face. But four years of custody without a trial beginning is the point at which article 21 asserts itself, and the modern authority allows release notwithstanding the bar.

The in-camera trial. Not by itself a ground, on the reasoning that the right to a public trial is not separately guaranteed, though the withholding of a witness's identity from the accused is a different and stronger objection.

The answer. The statute stands; the confession is scrutinised; the presumption may not arise; and bail is likely on delay. That combination is what "due process and special legislation" means in Indian practice.

What it does NOT mean

It does not mean the departures are unconstitutional. The Indian answer has been to uphold them with limits.

It does not mean they are harmless. The empirical record, especially the NHRC's assessment of TADA, is the counterweight.

It does not mean every special statute is the same. POTA added safeguards TADA lacked; the UAPA dropped the police confession provision altogether.

It is not only about terrorism. The same five departures appear in economic offence, narcotics and organised crime statutes, and in statutes protecting children and Scheduled Castes and Scheduled Tribes.

Quick revision

• Five departures: the burden of proof; confessions to police officers; bail; openness of the trial; and pre-trial custody.
• Five objections: presumption of innocence; the reason for excluding police confessions; prolonged custody without conviction; the value of an open trial; and the reason for the ordinary custody limits.
• The Indian pattern: uphold and read down; read in safeguards; move the check to the application; and let unreasonable delay do the work.
• A.K. Roy, AIR 1982 SC 710, observed that the right to a public trial is not a guaranteed right under the Indian Constitution as it is under the Sixth Amendment of the American Constitution.

Test yourself

1. Name the five departures. The burden of proof by statutory presumption; the admissibility of confessions to police officers; restrictions on bail; in-camera trial and protected witnesses; and extended periods of pre-trial custody.

2. What is the standard answer to the objection to a statutory presumption? That a presumption which arises only after the prosecution has proved foundational facts beyond reasonable doubt does not offend a fair procedure, because the accused is not asked to disprove a bare accusation.

3. What did A.K. Roy observe about public trials? That the right to a public trial is not one of the guaranteed rights under the Indian Constitution as it is under the Sixth Amendment of the American Constitution.

4. What is the most effective modern constraint on special statutes? Not a doctrine about their validity but the proposition that prolonged incarceration without trial engages article 21 whatever the statute says, so that bail follows unreasonable delay.

5. Has any Indian anti terror statute been struck down in its entirety? No. The pattern has been to uphold such statutes while reading provisions down and reading safeguards in.