Kartar Singh vs. State of Punjab
Authored By- Anjali Rawat
Keywords- Terrorism, Rule of Law, India
Citation: 1994 (4) SCC 569
Petitioner – Kartar Singh
Respondent – State of Punjab
Court: The Supreme Court of India
Date of Judgment: 26/04/1961
Bench: Dayal, Raghubar, Subbarao, K. Mudholkar, J.R
The issue of Terrorism concerns countries the planet over. In response thereto many states and nations have incorporated harsh legislations that violate due process of rules and law to tackle its menace. The detention of individuals within the United Kingdom, the terrorist laws within Spain, and in fact the measures of the United States are examples where developed legal systems are adjusting civil freedom and rights in interests of national security. There seems to be an unequivocal settlement that national interests are of primary importance and therefore the main concern for human rights takes the rear seat.
This paper’s main effort to place forth the Indian position on this issue has been clearly set by the ruling of the Supreme Court in Kartar Singh v. State of Punjab, 1994 (4) SCC 569. The researcher would present a critique of this case and address a number of the main issues that have arisen out of it.
Rights need extremely strong protection because they’re necessary for the dignity and equal respect of people, especially when those individuals form a minority within society. The difficulty of terrorism has taken its toll on most of the countries today. World over governments and other people are devising ways to tackle it. 9/11 in New York, the train bombings in Madrid, and therefore the London bomb explosions has raised serious concerns on this issue. India too isn’t left in the dark. We’ve been experiencing such acts ever since we gained independence. This is applicable to the situations of Kashmir, Punjab within the 1980s, Assam, and other North-Eastern parts of the country. The aspect of terrorism has shown a lot of problems. Firstly, it’s highly unclear or unsolved on what actually constitutes terrorism. There’s still date no concrete definition of terrorism. Secondly, how does a Government affect this problem? The second issue is vital once we check it in light of human rights concerns. To tackle terrorism, most governments have passed stringent laws that violate rules of due process of law and human rights. This then becomes a battle or war of terrorism vis-à-vis human rights.
Background of case
In the 1980s, the Country was riddled with many instances of disruptive activities and major law and order situations. Within the state of Punjab, it had been noted that terrorists had been indulging in wanton killings and arson and had expanded their activities to several other states including Delhi, Haryana, Uttar Pradesh and Rajasthan. Many innocent lives had been lost and explosions had led to the destruction of private and public property. Fear was created within the minds of the general public and communal peace and harmony were disrupted. To affect things at hand, the Central Government enacted the Terrorist Affected Areas (Special Courts) Act, 1984 and therefore the Terrorist and Disruptive Activities (Prevention) Act, 1985. Both these Acts provided for harsh measures to stop terrorist activities within the Country. New offences; “terrorist act” and “disruptive activities” were created. The objects and reasons of the Act stated that the new and overt phase of terrorism which needs to be taken serious note of and must be addressed effectively and expeditiously. The alarming increase in disruptive activities is additionally a matter of great concern.
In this case it was held that unless the crime alleged against an accused could be classified as a “terrorist act” in letter and spirit he shouldn’t be charged under the Act and will be tried under ordinary penal laws by the regular courts. The Court held that Section 3 of the Act operates when an individual not only intends to overawe the govt or create a terror in people etc. but also when he sues the arms and ammunition which ends up in death or likely causing deaths and damages the property. In other words, the court held that “a person becomes a terrorist or is guilty of terrorist activity when his intention, action and consequence all the three ingredients are found to exist together.”
Another safeguard laid down by the court against the misuse of the Act was that of speedy trial of accused which is an important part of the elemental right to life and liberty under Art. 21 of the constitution. The court also struck down Section 22 of the act as violative of Art. 21 of the Constitution. Section 22 permitted identification of an accused on the idea of his photograph.
Referring to violation of human rights by the state law enforcing agencies the court said that these acts were in utter disregard and altogether breaches of humanitarian law and universal human rights also in total negation of the constitutional guarantee and human decency.
The Court held that the Act didn’t provide a blanket power of unlimited detention without trial and a citizen should be entitled to bail just in case the police fail to finish the investigations within 6 months, extendable to maximum of one year with the permission of designated court.
The following issues are mentioned below;
1. The Union Government could also declare any area as a ‘terrorist affected area’ and form it a single judicial zone. Activities within the area falling under the TADA would be tried by a Special Court under this Act.
2. Consistent with Section 2(1) (a) of the TADA, 1987, a person, whether innocent or not, communicates or associates with a terrorist or such group of persons would be said to ‘abet’ with them. The need of malice aforethought had been done away with.
3. Sections 3 and 4 of TADA, 1987 prescribed and applied to acts that already constitute offences under ordinary laws. There was no understanding on which law would be applied when.
4. Under Section 11 of the TADA, the concurrence of the Justice is looked for the transfer of cases if the atmosphere isn’t conducive for the trial therein that State. In doing so, the accused wasn’t given an opportunity or hearing to conduct his case.
5. A confession made by a policeman was made admissible as substantive evidence during a Court of law under Section 15 of the TADA.
6. Exclusion of the advantage of anticipatory bail under Section 438 Cr. P.C. and empowering an executive magistrate to grant bail under Section 167 and 164 of the Cr. P.C.
7. The Central Government is entitled to form any rules under this Act to supply for the prevention of the state and other people and tackle the menace of terrorism.
8. Shifting of the burden of proof in such cases. An accused shall be presumed guilty until proven innocent.
a) Provided for in-camera trials and hiding the names of witnesses.
b) Confiscation of the property of the accused and freezing of accounts.
The Petitioners within the present case challenged the constitutional validity of the below-mentioned Acts on the grounds that; a) the Legislature wasn’t competent to form them and b) they violate the rights mentioned in part III of the Constitution of India. An analysis of the Court decision on the idea of the problems presented ahead.
In giving its decision, the Court emphasized that the legislation must be seen in light of the context during which it’s made. It had been noted that terrorism may be a worldwide phenomenon and India isn’t an exception. Within the words of the Court, “in recent times the country has fallen within the firm grip of spiraling terrorists’ violence and is caught between the deadly pangs of disruptive activities. In such a situations measure must be taken to resolve the issue.”Reliance was placed on the judgment in Sukhdev Singh where MM Punchi, J. stated,
“I know that so as to sustain the presumption of constitutionality of a legislative measure, the Court can take into consideration matters of public knowledge, matters of common report, the history of the times and also assume every state of facts which may be conceived existing at the time of the legislation.”
The Court stressed on the very fact that desperate times require desperate measures. Societal life would be an unbroken disaster if not regulated. It went on further to state that regulations must then suit the necessity of the society and be capable of handling the difficulties at hand. On the other hand there to be any checks on the regulations that the State can make?
It remains unclear whether when looking into the context during which an Act is formed, the Court can choose to not consider the elemental rights and other provisions within the Constitution. In other words, does the social context of an Act carry more weight than its violation of any of the rights mentioned in part III? This question wasn’t answered by the Court during this particular case. In other cases, however, the Courts have held that no such power exists and respect for the elemental rights must tend primacy. The important situations are often taken into consideration to know the intention of the legislature in making the legislation. One among the fallacies during this judgment is then the Court's assumption that the legislative intent and social context of the Act must be taken into consideration in the least times regardless of its violation of any rights in part III of the Constitution.
In the case of, Hamdi vs. Rumsfeldwithin the United States, where the Court held that strict procedures and measures like unlawful detention to tackle terrorism violate due process of law and state security can’t be used as an excuse.
The judgment given by the Court in Kartar Singh then is erroneous. Within the name of the safety of the State, legislation cannot compromise the rights of the individuals. Many along with the case, the Court has stressed that the situation within the Country demands the necessity for strict measures and even if they violate the rights in part III, they‘re justified. We must not forget that we are a democracy, in fact, the world’s largest democracy. When a government is formed for the people and by the people, it must protect the rights of everyone and not just a majority. Terrorisms greatest victory would be the shackling of the very foundations that we’ve stood for the past few years.
The judiciary in our country has never been rights-oriented. It’s always sought to guard the interests of the State vis a vis the individuals. This was more recently seen within the case of PUCL v. Union of Indiawhere the Court upheld the validity of the Prevention of Terrorism Act (POTA). Contrasting this with the time of Earl Warren within the 1960s and 70s within the United States, we see that an individual’s rights were always sought to be preserved.
Somewhere in there we see Justice Krishna Iyer seeking to try to an equivalent but not being given due regard. If terrorism must be stopped, proper measures that don’t violate due process of law must be used. This was also emphasized within the UN Resolutions with reference to terrorism, where it had been stated that within the prevention of terrorism the elemental human rights of the individual must not be compromised. If democracy must survive, rights of the individual must not ever be compromised. I might wish to stress upon once more that terrorism’s greatest victory is shackling the very foundations of our democracy that’s built upon rights and principles of natural justice. Our compromise is their victory.
1994 (4) SCC 569 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.
4. Www. Indiankanoon.com
5. Terrorist Affected Areas (Special Courts) Act, (61 of 1984).
6. Terrorist and Disruptive Activities (Prevention) Act, (31 of 1985).
7. Statement of Objects and Reasons, Terrorist and Disruptive Activities (Prevention) Act, 1985.
8. Terrorist and Disruptive Activities (Prevention) Act, (28 of 1987).