23rd October, 1992
AIR 1993 SC 341, 1993 Cri LJ 183, 1993 Supp (2) SCC 740
Raghubar Dayal, Raghubar Subbarao and K. Mudholkar, J.R.
Arms Act 1959 – Section 25; Code of Criminal Procedure, 1973 (CrPC) – Section 313; Terrorist and Disruptive Activities Act, 1987 (repealed) – Section 5
In favor of Accused
In the 1980s, the Country was riddled with many instances of disruptive activities and serious law and order situations. In the state of Punjab, it was noted that terrorists had been indulging in wanton killings and arson and had expanded their activities to many other states including Delhi, Haryana, Uttar Pradesh, and Rajasthan. Many innocent lives had been lost and explosions had led to the destruction of public property. Fear was created in the minds of the public and communal peace and harmony were disrupted. To deal with the situation at hand, the Central Government enacted the Terrorist Affected Areas (Special Courts) Act, 1984, and the Terrorist and Disruptive Activities (Prevention) Act, 1985. The objects and reasons of the Act stated that the new and overt phase of terrorism which requires to be taken serious note of and must be dealt with effectively and expeditiously.
The T.A.D.A, 1985 was meant to last only for two years. On the expiry of the said period, the Centre enacted legislation, Terrorist and Disruptive Activities (Prevention) Act, 1987. Most of the provisions of the Act were similar to its predecessor. The validity of the Act was in the first two years and thereafter extended to four, later six, and finally eight years. It thus remained valid till 1995. The above Acts in a gist laid down the following controversial provisions that were challenged in the case by the petitioners;
1. The Central Government could declare any area as a ‘terrorist affected area’ and make it a single judicial zone. Activities in the area falling under the TADA would be tried by a Special Court under this Act.
2. Sections 3 and 4 of TADA, 1987 prescribed and applied to acts that already constitute offenses under ordinary laws. There was no understanding as to which law would be applied when.
3. Under Section 11 of the TADA, the concurrence of the Chief Justice is sought for the transfer of cases if the atmosphere is not conducive for the trial in that State. In doing so, the accused was not given a chance or hearing to conduct his case.
The Petitioners in the present case challenged the constitutional validity of the below mentioned Acts on the grounds that; a) the Legislature was not competent to make them and b) they violate the rights mentioned in part III of the Indian Constitution. An analysis of the Court decision based on the issues presented ahead.
In giving its decision, the Court emphasized that the legislation must be seen in the light of the context in which it is made. It was noted that terrorism is a worldwide phenomenon and India is not an exception. In the words of the Court, “in recent times the country has fallen in 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 solve the issue.”
From a legal perspective, the debate ends with the Supreme Court decision in Kartar Singh v. State of Punjab where it upheld the validity of anti-terrorist laws describing them as the need of the State. Such laws were held to be the need of the hour in light of the social situation prevalent in the country and thus held valid by a five-judge bench headed by J. Pandian in the case.
One of the major fallacies in this judgment is then the Court’s assumption that the legislative intent and social context of the Act must be taken into consideration at all times irrespective of its violation of any rights in part III of the Constitution.
The judgment was given by the Court in Kartar Singh then is erroneous. In the name of the security of the State, legislation cannot compromise the rights of the individuals. All along with the case, the Court has stressed that the situation in the country demands the need for strict measures and even if they violate the rights in part III, they are justified. We must not forget that we are a democracy, in fact, the world’s largest democracy.
When a government is made for the people and by the people, it must protect the rights of everyone and not just a majority. The judiciary in our country has never been rights-oriented. It has always sought to protect the interests of the State vis-a-vis the individuals. This was more recently seen in the case of PUCL v. Union of Indiawhere the Court upheld the validity of the Prevention of Terrorism Act (POTA).
 People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.
 Kartar Singh v. The State of Punjab, 1994 SCC (3) 569. para 22.
 1994 SCC (3) 569.
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