Why Such Laws Are Called Draconian

5. The special court. TADA's Designated Court sat in camera under section 16 and its judgments were appealable only to the Supreme Court under section 19. POTA repaired the appeal but kept the special court. What is removed is the ordinary open trial before the ordinary court, with an appeal to the High Court.

6. Protection for the officer. Section 6 of AFSPA bars the institution of proceedings without the Central Government's sanction; section 45 of the Unlawful Activities (Prevention) Act requires sanction for prosecution of the accused, and section 49 of that Act protects officers acting in good faith. What is removed, in the AFSPA case, is the citizen's ordinary right to set the criminal law in motion against a person who has injured him.

An answer that lists those six with a statutory provision against each has given the whole criticism, and it is worth memorising in that form.

The seventh objection, which is about time

Each of these statutes is justified by an emergency and each then outlasts it.

TADA was enacted for two years and extended repeatedly until 1995, and the Karnataka figures in [TADA in Practice, and the NHRC's Comments] show people still in jail under it in 1999. POTA had a three year life and was repealed in two, but its substance was re-enacted in a permanent statute in 2004. The Unlawful Activities (Prevention) Act, which now carries all of it, has no sunset clause at all.

That is the strongest form of the objection, because it does not depend on any particular provision. A power granted for an emergency and never given back is a change in the permanent constitution of the State, made without anybody deciding to make it.

The eighth objection, which is about who is caught

The statutes are drafted against organisers and applied to whoever is available. The Commission's Special Rapporteur found villagers and tribals in Karnataka held under TADA in the course of an operation against a forest brigand. The evaluation in [COFEPOSA: Nature, Scope and Salient Features] makes the same point about the carrier and the organiser.

This objection is empirical and an answer should say so. It is not a claim about the text of the statute; it is a claim about its application, and it has to be supported by evidence of application.

The State's answer, limb by limb

An LL.M. answer that gives only the criticism will lose marks. Each limb has a reply.

On vague definitions. The reply is that terrorism cannot be defined more tightly without leaving gaps, that no anti-terrorism statute in the world defines terrorism itself rather than terrorist acts, and that the courts supply the missing elements, as Kartar Singh v. State of Punjab, (1994) 3 SCC 569, did by reading knowledge into abetment and as People's Union for Civil Liberties v. Union of India (POTA), (2004) 9 SCC 580, did by reading an intent requirement into the support offences.

On confessions. The reply is that the ordinary rule was made for ordinary crime, that in these cases the witnesses will not testify, and that the statutes hedge the confession with safeguards. POTA's section 32 is the answer in its strongest form, since it enacts the Kartar Singh guidelines in terms.

On presumptions. The reply is that reverse burdens exist across the statute book, in the narcotics, prevention of corruption and food adulteration laws, and are not by themselves unconstitutional, as the reasoning in [The Reverse Burden and the Presumption of Innocence] shows.

On bail. The reply is that bail is not a determination of guilt, that the restriction is interim, and that Union of India v. K.A. Najeeb, AIR 2021 SC 712, has now supplied a constitutional exit where the trial is delayed.

On special courts. The reply is that they were created because ordinary courts could not try these cases quickly, that the presiding officer is a judge appointed with the concurrence of the Chief Justice, and that after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the High Court's jurisdiction cannot be ousted in any event.

On protection for officers. The reply is that section 6 of AFSPA is a requirement of sanction and not an immunity, that Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, requires a reasoned and reviewable order, and that a complaint found correct is to result in compensation and sanction.

On permanence. This is the limb with the weakest reply, and an honest answer should say so. The reply offered is that terrorism has not ended, so the law cannot. The rejoinder is that the same was said of the emergency powers of every State that has kept them.

The strongest form of each side

It helps to be able to state the whole disagreement in two sentences.

For the critic. The statutes take the safeguards of the criminal law, which exist precisely because the State is powerful and the accused is not, and remove them in the cases where the State is most powerful and the accused least able to resist.

For the State. The safeguards of the criminal law were designed for a system in which the offence is committed by an individual against an individual and proved by witnesses who will come to court, and none of those assumptions holds where an organised group is at war with the State itself.

Both are true, which is why the question is hard.

What an examiner is looking for

MU's phrasing is that these legislations "are described as draconian; comment". Four moves make the answer complete.

Say what the word means and that it denotes disproportion, not merely severity.

Give the six departures with the provisions, because the criticism is only as good as the citations.

Give the State's answer to each, because an LL.M. answer is expected to state the case it is arguing against.

Take a position, and support it. The position this book takes is that the objection which survives all the answers is the objection about permanence and about the gap between the class of person the statute is drafted for and the class it reaches; and that the answer to both lies where the National Human Rights Commission put it, in investigation, prosecution and the number of courts, not in the removal of safeguards.

A worked example

A newspaper describes a proposed statute as draconian because it provides for a special court, a presumption on recovery of explosives, and bail only where the court finds the accusation not prima facie true.

Is the description accurate? Partly. The three features are among the six departures, but a special court and a reverse burden are found in ordinary Indian statutes as well, so the word cannot rest on them alone.

What would strengthen the criticism? A confession provision, a wide offence definition, an extended remand, and the absence of a sunset clause.

What would weaken it? An intent requirement written into the offence, an appeal to a Division Bench of the High Court, a statutory review committee chaired by a judge, and a sunset clause.

What is the honest conclusion? That severity is not the same as arbitrariness; that the constitutional question is whether the procedure is fair, just and reasonable within article 21; and that the political question, which is different, is whether Parliament should pass it at all.

What it does NOT mean

Draconian is not a legal test. No statute has been struck down for being draconian, and the constitutional questions are competence, article 14 and article 21.

Not every departure is a vice. Reverse burdens, special courts and sanction requirements exist throughout Indian law.

The criticism is not answered by pointing to acquittals. A high acquittal rate is evidence that the statute is being applied to the wrong people, not that it is working.

Nor is it answered by pointing to convictions. The question is whether the procedure that produced them was fair.

Quick revision

• The six departures: wide offence definitions; confessions to police officers made admissible; presumptions of guilt; restricted bail with extended remand; special courts with restricted appeal and in camera trial; and sanction requirements protecting officers.
• The seventh objection is permanence: TADA two years extended to eight, POTA three years repealed in two, and the Unlawful Activities (Prevention) Act with no sunset clause carrying all of it.
• The eighth is the gap between the class the statute is drafted for and the class it reaches.
• The State's answers: terrorism cannot be tightly defined and the courts read in the missing elements; witnesses will not testify; reverse burdens are common; bail is interim and K.A. Najeeb supplies an exit; special courts are presided over by judges and the High Court cannot be ousted after L. Chandra Kumar; and sanction is not immunity after Naga People's Movement.
• Draconian means disproportionate severity, and it is not a legal test.

Test yourself

1. Give the six departures with a provision for each. Wide definitions, TADA s.4(2) and UAPA s.15; confessions to the police, TADA s.15, POTA s.32 and MCOCA s.18; presumptions, TADA s.21; bail and remand, TADA s.20(8), POTA s.49(7) and UAPA s.43D(5); special courts and restricted appeal, TADA ss.9, 16 and 19; and sanction protecting officers, AFSPA s.6.

2. Which objection survives the State's answers most strongly? That the powers outlast the emergency that justified them, TADA having been extended for eight years, POTA's substance having been re-enacted permanently in 2004, and the Act now in force having no sunset clause.

3. Give two answers the State can make about confessions. That the ordinary exclusionary rule assumes witnesses who will testify, which does not hold in these cases; and that the statutes hedge the confession with safeguards, POTA's section 32 having enacted the Kartar Singh guidelines in terms.

4. Why is a high acquittal rate cited against these statutes? Because it suggests that persons are being kept in custody for long periods under a statute that cannot sustain a conviction against them, so that the punishment precedes and survives the failure to prove guilt.

5. What is the correct meaning of draconian, and why does the distinction matter? Disproportionate severity, from the Athenian code that prescribed death for trivial offences; the distinction matters because severity alone is not a constitutional vice, and the legal questions are competence, article 14 and whether the procedure is fair, just and reasonable under article 21.