What Exceptional Legislation Is
Chapter Forty-Six
Syllabus topic 3, "Exceptional Legislation"
Pages 207 to 210 of 657
In one line
Exceptional legislation is a statute that changes the ordinary rules of criminal justice for a class of case the State says the ordinary rules cannot handle.
In the wording a student can write in an exam: exceptional legislation, sometimes called special or extraordinary legislation, describes a statute which departs from the ordinary criminal law and procedure in respect of a defined class of offence or offender, on the footing that the ordinary law is inadequate to the danger. Its characteristic features are a specially defined offence, a special court, a relaxation of the ordinary rules of evidence, a restriction on bail, an enlargement of police powers, and an immunity or a sanction requirement protecting those who administer it.
The six features
A statute need not have all six to be exceptional, and the more it has the more exceptional it is. Reading a statute against this list is a usable exam technique.
1. A specially defined offence. Terrorist act, disruptive activity, organised crime, unlawful activity. The definition is usually wider than an existing offence and is drawn to catch preparation and association as well as the act.
2. A special court. A Designated Court under TADA, a Special Court under POTA and under the National Investigation Agency Act 2008, and courts constituted under many other statutes. Worked in [Special Courts].
3. A relaxation of the rules of evidence. The two classic devices are the reverse burden and the admissibility of a confession to a police officer. Both are worked in [The Reverse Burden and the Presumption of Innocence] and [Confessions to Police Officers Under Special Statutes].
4. A restriction on bail. Ordinarily by twin conditions requiring the court to be satisfied of the accused's innocence before releasing him, or by a bar on release where the accusation is prima facie true. Worked in [Bail Under Special Statutes: The Twin Conditions].
5. Enlarged powers of investigation and custody. Longer periods of remand, longer periods for filing a charge sheet, wider powers of interception and search.
6. Protection for the administrators. A sanction requirement or an immunity, of which section 6 of the Armed Forces (Special Powers) Act 1958 is the strongest example.
The two arguments for it, which are different from each other
MU's questions ask why such legislation is thought necessary, and the honest answer is that two distinct arguments are made and they should not be run together.
The emergency argument. Ordinary criminal procedure assumes that the harm has happened and that the object is to punish it. Where the harm would be catastrophic and irreversible, the State says it must act earlier and on less. This is the argument for the anti terror statutes.
The intractability argument. Ordinary criminal procedure assumes a witness who will testify, an investigator who is not intimidated, and a trial that concludes in reasonable time. Where the class of offender routinely defeats those assumptions, by killing witnesses, by corrupting investigation, or by using resources the State cannot match, the State says the ordinary process cannot function. This is the argument for the organised crime and economic offence statutes, and the preamble to COFEPOSA 1974 makes it in terms when it recites the manner in which such activities are organised and carried on.
What Exceptional Legislation Is
The two arguments have different answers. The emergency argument is answered by pointing to the ordinary preventive powers in [Keeping Public Order: The Executive's Ordinary Powers] and asking why they will not do. The intractability argument is answered by pointing out that the remedy for a broken investigative and trial system is to fix it, and that changing the rules of proof does not make the evidence better.
The three answers against it
1. It inverts the burden of the criticism. A statute enacted because ordinary procedure fails is a statute that responds to State failure by reducing the citizen's protection.
2. It travels. A special procedure enacted for terrorism is applied to cases that are not terrorism, because the definitions are wide and the machinery is convenient. That is the standing empirical criticism, and the NHRC's assessment of TADA in [TADA in Practice, and the NHRC's Comments] is the strongest Indian evidence of it.
3. It is hard to withdraw. A power once conferred is defended when its removal is proposed. TADA was allowed to lapse in 1995, POTA was repealed in 2004, and the substance of both was then re-enacted into the Unlawful Activities (Prevention) Act 1967 by amendment, so the machinery survived the statutes.
Exceptional legislation compared with preventive detention
They are both departures from the ordinary law, and students blur them. The difference is fundamental.
| Preventive detention | Exceptional legislation | |
|---|---|---|
| Is there an offence? | no | yes, and usually a new one |
| Is there a trial? | no | yes, before a special court |
| Who decides? | an executive authority | a judge |
| Standard | subjective satisfaction | proof, though the rules of proof are altered |
| Outcome | custody for a period | conviction and sentence, or acquittal |
| Constitutional basis | article 22(3) to (7) | none specific; tested against articles 14, 19, 20 and 21 |
That last row is the one that matters. Preventive detention is authorised by the Constitution in terms. Exceptional legislation is not: it is ordinary legislation which must justify itself against Part III like any other. Which is why the due process argument in the next four chapters is the whole of Module II's first half.
What Exceptional Legislation Is
The Indian statutes on the spectrum
Ranked by how many of the six features they carry.
Most exceptional. TADA 1987: special offence, Designated Court, confession to a police officer admissible, presumption, restricted bail, and protection for action taken. AFSPA 1958: not a criminal statute at all but a grant of power to fire causing death, with a sanction requirement.
Substantially exceptional. POTA 2002: the TADA features with added safeguards including a Review Committee. UAPA 1967 as amended: special offences, Special Courts under the NIA Act, presumption, a bail bar in section 43D(5), and no anticipatory bail by section 43D(4).
Moderately exceptional. MCOCA 1999, the NDPS Act 1985 in respect of section 37 bail, and the Prevention of Money-Laundering Act 2002.
Exceptional in a different direction. POCSO 2012 and the SC and ST (Prevention of Atrocities) Act 1989 carry special courts, presumptions and bail restrictions, but for the protection of a vulnerable complainant rather than for the security of the State. Noticing that is worth marks, because it shows that the technique is neutral and that the objection is to its use rather than to its existence.
A worked example
Parliament proposes an Act to deal with cyber fraud syndicates, providing for a new offence of organised cyber fraud, trial by a Special Court, a presumption that a person found in possession of stolen data committed the offence, a bar on bail where the accusation is prima facie true, ninety days for the charge sheet extendable to one hundred and eighty, and a sanction requirement for prosecuting officers.
Is it exceptional legislation? Yes, on all six features.
Which argument supports it? Intractability rather than emergency: the harm is not catastrophic, but the offenders are said to defeat ordinary investigation.
What are the constitutional questions? The presumption against article 20(3) and article 21; the bail bar against article 21; the Special Court against article 14 if the classification is arbitrary; and the whole against the requirement that the procedure be right, just and fair after Maneka Gandhi v. Union of India, AIR 1978 SC 597.
What is the strongest answer to it? That the remedy for investigators who cannot prove a case is better investigation, and that the Act's real effect will be long pre-trial custody in cases that are not syndicated at all.
What it does NOT mean
Exceptional does not mean unconstitutional. Kartar Singh v. State of Punjab, decided in 1994, upheld TADA, and People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, upheld POTA. The question is always which provisions survive and on what construction.
It does not mean temporary. TADA had a sunset clause and POTA had one; the UAPA does not.
It is not the same as emergency legislation. Nothing in this module requires a proclamation. That is Module II's second half.
What Exceptional Legislation Is
It is not confined to national security. Economic offences, narcotics, organised crime and offences against children all have exceptional statutes.
Quick revision
- Working definition: a statute departing from the ordinary criminal law and procedure for a defined class of case, on the footing that the ordinary law is inadequate.
- Six features: special offence, special court, relaxed evidence, restricted bail, enlarged investigative powers, protection for the administrators.
- Two arguments for: emergency, where the harm would be irreversible; and intractability, where the ordinary process cannot function.
- Three answers against: it responds to State failure by reducing the citizen's protection; it travels beyond its class; and it is hard to withdraw.
- Distinguished from preventive detention: an offence, a trial and a judge, and no specific constitutional authorisation.
Test yourself
1. Give the six features. A specially defined offence; a special court; relaxed rules of evidence; restricted bail; enlarged powers of investigation and custody; and protection for those who administer it.
2. What are the two arguments for such legislation, and how do they differ? The emergency argument, that catastrophic and irreversible harm requires acting earlier and on less; and the intractability argument, that for a class of offender the ordinary process cannot function because witnesses, investigators and trials are defeated.
3. What is the fundamental difference from preventive detention? Exceptional legislation creates offences tried by a judge; preventive detention creates no offence and involves no trial. And preventive detention is expressly authorised by article 22, while exceptional legislation must justify itself against Part III like any other statute.
4. Name a statute that carries these features for the protection of a complainant rather than for State security. The Protection of Children from Sexual Offences Act 2012, or the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.
5. Why is it said that such legislation is hard to withdraw? Because when TADA lapsed in 1995 and POTA was repealed in 2004, the substance of both was re-enacted into the Unlawful Activities (Prevention) Act 1967 by amendment, so the machinery outlived the statutes that carried it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.