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Justice & Fairness in Terror
Some Observations on TADA
K T S Tulsi *

The expression "just and fair procedure" for trial of offences, which is deemed to be an inherent part of Article 20 and 21 of the Constitution of India, requires, in my view, a procedure to be fair not only to the accused but also to the prosecution, the people, the victims, the witnesses and society at large, whom the prosecution represents. A procedure can be said to be fair only if it is able to strike a just balance between the rights of the accused on the one hand and the rights of society on the other.

In an atmosphere of terror or of extreme fear in the minds of the people, they would be unwilling to assist the State in the administration of criminal justice, or even to approach the police agencies regarding the commission of offences, to assist or co-operate with the investigation, or to depose in open courts. The reasonableness of the procedure and mechanism for preventing and coping with terrorist offences must, therefore, be judged keeping in view the evil with which the law has to contend, the circumstances under which the evil is to be dealt with, the kind of parties before the court, and the mental condition of the witnesses. The law, therefore, has to balance the liberty of an individual with that of other, and with the requirements of the security of State, and the sovereignty and integrity of the nation.

One of the foremost requirements of the mechanism dealing with terrorist activities is that, in such a mechanism, the freedom of the individual or that of the accused facing the trial must be tempered by the requirements of the safety of the citizens, and of the security of victims, witnesses and personnel dealing with the trial. The requirements of natural justice must adapt themselves to these harsh realities and the concept of fair trial cannot remain static or immune to the practical realities in which such trial has to be conducted.

One Indian law that provided a mechanism for dealing with the menace of terrorism was the Terrorist and Disruptive Activities (Prevention) Act, 1987.1 (TADA). TADA was criticised on the grounds that it restricted the scope of natural justice and curtailed it to the extent of erecting a procedure unfair to the accused. In my opinion, however, the Indian Parliament had shown greater concern for the rights of the accused even in respect of trial of terrorist offences than the procedure prescribed in many western democracies which some of our friends go on eulogising tirelessly.

Much of the criticism was born out of ignorance of the State of affairs prevailing in the West, and out of state of mind in which everything western was regarded as superior. The reality is, however, that under the Northern Ireland (Emergency Provision) Act, 1978, an admission made by the accused in custody was relevant under section 8, the onus of proof was on the accused under section 9, the right to interfere in the property of the accused without notice was conferred under section 19 and the right of bail was curtailed in section 2 in exactly the same words as in the Indian statute. Under UK’s Prevention of Terrorism (Temporary Provision) Act, 1984, the power to exclude persons from Great Britain has been given exclusively to the Secretary of State without there being any right of even confronting the witnesses, leave alone a right to cross-examine them.

The right of detention on suspicion or on the basis of intelligence reports has been upheld by the English Courts. Lord Denning upheld this provision, observing:

It (the information) could not be disclosed to the suspect, lest he or his associate use it to identify sources and destroy them. We did, however, give the individual as much information as we could - so that he could dispel any suspicion that rested on him. In short, we acted as fairly as we possibly could.... investigation statements from the police and intelligence sources about him, but he did not see these or have any opportunity of cross-examining.2

Lord Denning also notes:

It has been held, right upto the present day, that the freedom of individual must take second place to the security of the State.....Once his terrorist involvement is established and the danger the person poses to the public at large, neither the Courts nor the Tribunal could property be expected to carry out an examination.3

Referring to the report of Lord Gardiner’s Committee with regard to the procedure for internment in Northern Ireland, Lord Denning commented, "the final decision should not rest with any body or Tribunal, but solely with the Secretary of State."4 In support of the same procedure, Lord Denning further states:

A number of people are alive today who otherwise would have been dead..... if it (their identity) had been known to some of the people who had brought these matters to the attention of the se-curity authorities then them is no doubt that those people would have been murdered.5

Reiterating his faith in this procedure, Lord Denning defends an order of exclusion without trial:

It can be made on the evidence of intelligence officers of whom the suspect knows nothing and whom he has no opportunity of cross-examining. It can be made without even telling him the nature of the information. All this is contrary to the fundamental principle of natural justice. But natural justice most take second place in extreme cases to the national security.6

Compare this with the Indian mechanism under TADA which was subjected to so much criticism. Sub-section (2) of section 16 only permitted the identity of the witness to be kept secret on an application being made in this regard by the witness or the public prosecutor. The section left the discretion to the Court with regard to the manner and extent to which the identity was to be kept secret. The precaution was in conformity with safeguards for witnesses and much more liberal than the total confidentiality permitted in England and in America.

The statute again only prescribed a partial and rebuttable presumption to be raised on the basis of a confession of the co-accused before a senior police officer. While admissibility of confession before a police officer was in total conformity with the Law prevailing in the Western countries, the degree of presumption was much less under the Indian Law.

The provision with regard to holding of trial in camera had also become the subject matter of substantial criticism. A few examples reflecting the actual situation that prevailed in terrorist affected areas, however, demonstrate the clear necessity of such procedure. For instance, place yourself in the position of Dalip Singh whose son Avtar Singh was shot dead in his presence by M.S. Ajnala, Sukhdev Singh Gorenangal, G.S. Tohra and Geja Singh at 1.00 p.m. on the February, 6, 1988. The accused came armed with AK-47 rifles and knocked at the door of Dalip Singh’s house and took him and his son near the village church. There Malkiat Singh Ajnala shot Avtar Singh dead with his rifle in front of his father. Dalip Singh lodged the FIR. M.S. Ajnala was arrested, after his surrender at the Golden Temple during Operation Black Thunder (in June 1988). The confession of M.S. Ajnala was recorded by the Superintendent Of Police on a video tape. I, in my capacity as Public Prosecutor, met Dalip Singh who very bluntly told me, with tears in his eyes, that he would not give evidence in court because he had been told that if he did so, his two other sons would meet the same fate as Avtar Singh. I tried to assure him that his name would not be mentioned in the records. Dalip Singh, however, understood the reality better than I did. The FIR was already on record and so were a host of other documents. Ajnala belonged to the same village. The witness’ identity would never be kept secret. Dalip Singh refused to identify his own son’s murderer.

Can we really say that the statute was unfair to the accused or was it too fair to him and perhaps unfair to the witnesses and the victim ? I can multiply without end the examples of trembling witnesses and policemen who were too afraid to depose, or whose shifty eyes and nervous movements reflected fear in the presence of accused terrorists, or of policemen who had challenged the evil in the open fields in a rain of bullets, but stood crestfallen on the doorsteps of Indian Courts.

The story of Daya Singh, whose brother Nirrnal Singh, Sarpanch, was killed in the fields near the main road leading to his village in Beas on April, 21, 1988, is similar. As is Swaran Kaur’s experience, who saw her husband Gurdial Singh shot dead by five youths who forced their way into her house after breaking open the door. She recognised Santokh Singh and Charan Singh, but it was impossible to give her the courage and the will to depose. The plight of Rakesh Kumar, whose father Bhagwan Das and seven other relatives were shot dead by Amar Singh and Satnam Singh Satte, was the same. Rakesh Kumar had left the village after the incident. The prosecution managed to trace him. When I asked him to take courage and speak the truth in Court, he mocked at me. "Satnam Singh Satta," he said, "is still at large, he will not leave me or the remaining members of my family." I also remember the case of Chanchal Singh and others who were alleged to have killed Rajinder Singh and eleven other members of his family on June, 14, 1987. The local police officials informed us that they had failed to persuade the only surviving member of the family, Joginder Singh, to depose even though he had lost every member of his family in the carnage.

Even in cases where documentary evidence was available in the form of the report of the Forensic Science Laboratory, the recovery of guns, the recovery of empty shells, the medical evidence and confessions on video tapes, we were unable to prove equal to the task of securing convictions as a reslut of the stark fear that was writ large on many faces of those who were charged with the responsibility of providing justice to victims of terrorism, and with upholding the majesty of the law.

The mechanism of mild presumption against the accused in TADA cases was not evidence of the trial being unfair to the accused. Indeed, it was too weak a remedy for a problem of this kind. I am not advocating a tyranny of the law, but the need for laws which will be efficacious in a situation of widespread terrori – mechanisms which has been accepted as fair in the United Kingdom or in Ireland. Such a mechanism may even provide for the grant of total protection to the witnesses by the State, as in USA’s witness protection programme under Title 18 of the US Code section 3521. But the State must undertake to grant greater protection to Judges, prosecutors, witnesses and other personnel connected with the onerous task of trial of terrorist offences. What is at stake is not an extra financial burden but the majesty and the authority of law and the very possibility of justice.

Notes & References

1. TADA was allowed to lapse without discussion in Parliament in 1998.

2. Denning, Alfred Lord, Landmarks in the Law, Butterworths, 1984, p. 229.

3. Ibid., pp. 234-35, quoting Lord Jellicoe at para 191, Cmnd 8803.

4. Ibid., p. 235, quoting Lord Jellicoe at para 159. Cmnd 5847.

5. Ibid., quoting Lord Harris of Greenwich in Hansard, 23 February, 1984, Col. 899.

6. Ibid., p. 236

*Mr. K T S Tulsi is a Senior Advocate, Supreme Court of India. He has served as the Additional Solicitor General of India, and was Special Public Prosecutor appointed by the Government of Punjab to prosecute 'A' Category Terrorists in the state.





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