Kartar Singh v. State of Punjab

Sections 3 and 4. The contention that they are liable to be struck down because they cover acts which constitute offences under the ordinary law, and because there is no guiding principle as to when a person is to be prosecuted under them, was rejected.

That is the answer to the commonest argument against special criminal statutes, and it is an answer by classification: overlap with the ordinary law does not by itself make the special law arbitrary.

The court and the procedure

Section 9(7), on the appointment of judges, was upheld, with a suggestion that a judge designate should have sufficient tenure of service at the initial stage of appointment.

Section 11(2) and (3), on transfer of cases with the concurrence of the Chief Justice of India, are not violative of article 14, because the concurrence is a statutory and not a judicial order, there being no adjudication of any dispute.

Section 16(2) and (3), on witness protection, are not liable to be struck down, but the Court upheld the Full Bench of the Punjab and Haryana High Court in holding that the identity, names and addresses of witnesses may be disclosed before the trial commences, subject to an exception where the court for weighty reasons decides not to disclose them, especially of potential witnesses whose life may be in danger.

Section 19, the appeal to the Supreme Court alone, is not constitutionally invalid, though Parliament may devise a suitable mode of redress in view of the practical difficulties an aggrieved person faces.

Section 20(3) and (4)(a), bringing Executive and Special Executive Magistrates within sections 164 and 167 of the Code, suffer from no infirmity.

Section 22, giving identification by photograph of a proclaimed offender the same value as identification evidence, was struck down as opposed to the fair and reasonable procedure enshrined in article 21.

Section 22 is the only casualty. An answer that says the Act was wholly upheld is wrong, and an answer that names section 22 shows it has read the case.

The confession

Section 15 is neither violative of article 14 nor of article 21, but the Central Government may take note of the guidelines the Court suggested and incorporate them by appropriate amendments in the Act and the Rules.

The six guidelines, which are the most quoted passage in the judgment.

1. The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.
2. The person should be produced without unreasonable delay before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the confession is required to be sent, along with the original statement.
3. That Magistrate should scrupulously record any statement made by the accused and obtain his signature, and on any complaint of torture should direct him to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon.
4. No police officer below the rank of Assistant Commissioner of Police in the metropolitan cities, and elsewhere of a Deputy Superintendent of Police or an officer of equivalent rank, should investigate an offence under the Act, this being necessary in view of the drastic provisions of the Act.
5. An officer seeking custody for pre-indictment or pre-trial interrogation must file an affidavit explaining the reason for the custody and for any delay in seeking it.
6. Where the person, on receiving the statutory warning that he is not bound to make a confession, asserts his right to silence, the officer must respect that assertion without any compulsion to give a statement of disclosure.

Guideline 6 is the one to remember. The Court did not have to say it, and in saying it the Court read a right to silence into the section 15 procedure.

Bail

Section 20(7), excluding anticipatory bail under section 438 of the Code, cannot be said to have deprived a person of personal liberty as enshrined in article 21.

Section 20(8), banning bail except on the two conditions in clauses (a) and (b), cannot be said to infringe article 21.

Article 226 is not ousted. Although the High Court has jurisdiction to entertain an application for bail under article 226 and pass orders either way, that power should be exercised sparingly, and only in rare and appropriate cases in extreme circumstances, judicial discipline and the comity of courts requiring the High Courts to refrain from exercising the extraordinary jurisdiction in such matters.

That is a characteristic Indian resolution. The jurisdiction cannot be taken away, but its use is discouraged; the door is left open and the courts are told to use it rarely.

The Review Committees

The Court directed that, in order to ensure a higher level of scrutiny in the application of the Act, there must be a Screening or Review Committee constituted by the Central Government, consisting of the Home Secretary, the Law Secretary and other concerned secretaries, to review all TADA cases instituted by the Central Government and to conduct a quarterly administrative review of the States' application of the provisions; and similarly a Screening or Review Committee at the State level, consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and such other officials as the State may think fit, to review the action of the enforcing authorities, screen the cases registered and decide the further course of action in every matter.

This direction is the Court's own admission of the problem. If the statute were being applied properly, no committee would be needed to screen the cases.

The technique, which is what the case really teaches

Four moves, and every later decision on special legislation uses them.

Uphold on competence. Locate the Act in an entry, here Entry 97 and Entry 1 of List I, and the competence question is closed.

Read in rather than strike down. Supply the missing mental element in abetment instead of invalidating the definition.

Attach guidelines to a valid provision. Section 15 stands, but is to be operated under six conditions the statute never contained.

Move the check to the individual case. Article 226 survives, the Review Committees screen, and the trial court decides admissibility. The validity of the Act is separated from the legality of its use.

An LL.M. answer should say plainly what follows: the technique preserves the statute and shifts the burden of protecting the citizen onto institutions that have to work case by case. Whether that is enough is the question [TADA in Practice, and the NHRC's Comments] takes up, and the figures there are the evidence.

A worked example

A Superintendent of Police records a confession from an accused in Marathi, translating it into English as he writes. The accused is produced before the Chief Judicial Magistrate eleven days later and complains of beating. The investigation was conducted by a police inspector.

Is section 15 itself bad? No. Kartar Singh holds it violates neither article 14 nor article 21.

Which guidelines were broken? The first, because the confession was not recorded in the language in which the person was examined and as narrated by him; the second, because he was not produced without unreasonable delay; and the fourth, because the investigation was by an officer below the rank prescribed.

What should the Magistrate have done on the complaint of torture? Directed the accused to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon.

Does the breach make the confession inadmissible? The guidelines are directions for the Government to incorporate and for the courts to apply in assessing the confession; the trial court must satisfy itself that there was no trap and no importuning during custodial interrogation and that all the required conditions are fulfilled. The breaches go to whether the confession can be acted on.

Could he approach the High Court for bail? Yes, under article 226, but the power is to be exercised sparingly and only in rare and appropriate cases in extreme circumstances.

What it does NOT mean

It does not hold TADA to be a good statute. It holds it to be a constitutionally permissible one.

It does not uphold the whole Act. Section 22 was struck down.

It does not make the guidelines optional. They were addressed to the Government for incorporation and to the courts for application, and later benches have treated non-compliance as material.

It does not exclude the High Court. Article 226 survives, though its use was discouraged.

Quick revision

• Kartar Singh v. State of Punjab, (1994) 3 SCC 569, Constitution Bench of five judges, 11 March 1994, principal judgment of Ratnavel Pandian J.
• Competence: article 248 with Entry 97 of List I, and possibly Entry 1, Defence of India.
• Abetment: actual knowledge or reason to believe read into section 2(1)(i)(a).
• Sections 3 and 4 upheld; overlap with the ordinary law is not a ground of invalidity.
• Section 15 upheld, with six guidelines: same language and free atmosphere; production before the Chief Metropolitan or Chief Judicial Magistrate without unreasonable delay; recording of the accused's statement and medical examination on a complaint of torture; investigation only by an officer of the rank of Assistant Commissioner or Deputy Superintendent; affidavit for police custody; and respect for an assertion of the right to silence.
• Section 16(2) and (3) upheld, but witness identity ordinarily to be disclosed before the trial commences.
• Section 20(7) and 20(8) upheld; article 226 not ousted but to be used sparingly.
• Section 22 struck down.
• Screening or Review Committees directed at the Centre and in the States.

Test yourself

1. Under which entries was TADA upheld? Article 248 read with Entry 97 of List I, the residuary entry, the Court adding that the Acts could fall within Entry 1 of List I, Defence of India.

2. What was done to the definition of abetment, and why does the technique matter? Actual knowledge or reason to believe was read into it because the definition was vague and imprecise; the technique matters because the Court read a requirement in rather than reading the provision down or striking it out.

3. Give any four of the six guidelines on confessions. Any four of: recording in a free atmosphere in the language of examination and as narrated; production before the Chief Metropolitan or Chief Judicial Magistrate without unreasonable delay with the original statement; scrupulous recording of the accused's statement and medical examination on a complaint of torture; investigation only by an officer not below Assistant Commissioner in the metropolitan cities or Deputy Superintendent elsewhere; an affidavit explaining the need for police custody and any delay; and respect for an assertion of the right to silence.

4. Which provision was struck down, and on what ground? Section 22, which gave identification by photograph of a proclaimed offender the same value as identification evidence, as opposed to the fair and reasonable procedure enshrined in article 21.

5. What is the significance of the Review Committees? They are the Court's own acknowledgment that the danger lay in the application of the Act rather than in its text, and they moved the constitutional check from the validity of the statute to the screening of individual cases.