INDIAN PENAL CODE

ASSIGNMENT CA – 3

A Case Comment on

Kartar Singh v. State of Punjab, (1994) 4 SCC 569

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 TABLE OF CONTENTS

CASE DETAILS …………………………………………………………Pg. 3

INTRODUCTION ………………………………………………………..Pg.4

STATEMENT OF FACTS………………………………………………..Pg.4

CASE ANALYSIS ……………………………………………………….Pg.5

CONTROVERSIAL PROVISIONS OF TADA ACT -

CHALLENGED…………………………………………………………..Pg.5

CONCLUSION…………………………………………………………...Pg.7

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 CASE DETAILS

Petitioner:
Kartar Singh

V.

Respondent
State of Punjab

Case name: Kartar Singh v. State Of Punjab

Equivalent citations: 1994 SCC (3) 569, JT 1994 (2) 423

BENCH:
SAHAI, R.M. (J)
SAHAI, R.M. (J)
PANDIAN, S.R. (J)
PANDIAN, S.R. (J)
PUNCHHI, M.M.
RAMASWAMY, K.
AGRAWAL, S.C. (J)

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 INTRODUCTION

STATEMENT OF FACTS

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 stated 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
was disrupted. To deal with the situation at hand, the Central government enacted the
Terrorist Affected Areas (Special Courts) Act, 198461 and the Terrorist and Disruptive
Activities (Prevention) Act, 198572.
Both these Acts provided for harsh measures to prevent terrorist activities in 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 requires to be taken serious note of and must be dealt with effectively and
expeditiously.
The alarming increase in disruptive activities is also a matter of serious concern3.
The T.A.D.A, 1985 was meant to last only for a period of two years. On the expiry of
the said period, the Centre enacted legislation, Terrorist and Disruptive Activities
(Prevention) Act, 19879. Most of the provisions of the Act were similar to its
predecessor. The validity of the Act was at first two years and there after extended to
four, later six and finally eight years. It thus remained valid till 1995.

1
Terrorist Affected Areas (Special Courts) Act, (61 of 1984).
2
Terrorist and Disruptive Activities (Prevention) Act, (31 of 1985).
3
Statement of Objects and Reasons, Terrorist and Disruptive Activities (Prevention) Act, 1985.
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The Supreme Court in the case of 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.

CASE ANALYSIS

CONTROVERSIAL PROVISIONS OF TADA ACT - CHALLENGED

The TADA Act in a gist laid down the following controversial provisions that were
challenged in the case by the petitioners;

 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.
 Section 2(1) (a) of the TADA, 1987- any person, whether innocent or not,
communicates or associates with a terrorist or such group of persons would be
said to ‘Abet’ with them. The requirement of mens rea had been done away with.
 Denial of the traditional right of appeal and providing for a direct appeal to the
Supreme Court in the interests of a fair and speedy trial. The Supreme Court,
could then be both a Court of law and facts.
 Exclusion of the benefit 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.
 The Central Government is entitled to make any rules under this Act to provide
for the security of the state and people and tackle the menace of terrorism.
 Shifting of the burden of proof in such cases. An accused shall be presumed
guilty until proved innocent.
 Provided for in- camera trials and hiding the names of witnesses.
 Confiscation of the property of the accused and freezing of accounts.
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 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

a) Legislative Competency of the State

The Petitioners challenged the legislative competency of the Centre to enact the
legislations on the ground that they are neither mentioned in list I nor list III read with
Article 246 of the Indian Constitution4. They argued that it came under entry 1 of list II
namely, ‘Public order’ and cannot come under the scope of entry 1 of list III which
reads;
“Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offences against laws with respect to
any of the matters specified in List I or List II and excluding the use of naval, military
or air forces or any other armed forces of the Union in aid of the civil power.”

To deal with this issue, the Court first stated the use of the pith and substance doctrine
in this case. According to the Court, the provisions or sections of the Act must not be
looked in isolation to ascertain the competency of the legislature but the pith and
substance. This doctrine of pith and substance is applied when the legislative
competence of a legislature with regard to a particular enactment is challenged with

4
Article 246, Constitution of India; 246. Subject-matter of laws made by Parliament and by the
Legislatures of States.— (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any
State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such
State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in
this Constitution referred to as the “State List”').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not
included in a State notwithstanding that such matter is a matter enumerated in the State List.
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reference to the entries in various lists. When a particular enactment has provisions that
fall within the many entries provided for in the Constitution, the pith and substance
doctrine must be applied5.

b) Violative of the principles of natural justice

The second part of the case dealt with whether the impugned Acts are Violative of the
rights mentioned in part III of the Indian Constitution. One of the main contentions was
that the provisions are against the principles of natural justice as enshrined in Article 21
of the Constitution. These included, the right to a fair and speedy trial, presumption of
innocence, the right to a fair hearing and acts according to the ‘procedure established
by law’.

The Court answered this in light of the distinction between a special law and a general
law. Stating that the impugned Acts are special in the sense that they are made to deal
with only particular instances, the Court said that deviances from the procedure in
ordinary laws is permissible. Then for instance, the Court can remove the burden of
proof and presume the person guilty until innocent.

5
Maurice Gwyer, C.J.,Subrahmanyam Chettiar v. Muttuswami Goundan, 1940 FCR 188 : Prafulla Kumar
Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60
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CONCLUSION

The judgment given by the Supreme Court in case of Kartar Singh v. state of Punjab
then is erroneous. In the name of the security of the State, a legislation cannot
compromise the rights of the individuals.
All along 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. Terrorisms greatest victory would be the shackling
of the very foundations that we have stood for the past many years.
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 India 6where the Court upheld the validity of the
Prevention of Terrorism Act (POTA). Contrasting this with the time of Earl Warren in
the 1960s and 70s in the United States, we see that individual’s rights were always
sought to be preserved. Somewhere in there we see Justice Krishna Iyer seeking to do
the same but not being given due regard. If terrorism must be stopped, proper measures
that do not violate due process must be used. This was also emphasized in the UN
Resolutions with regard to terrorism, where it was stated that in the prevention of
terrorism the fundamental human rights of the individual must not be compromised7.
If democracy needs to survive, rights of the individual must never be compromised. I
would like to stress upon once again that terrorism’s greatest victory is shackling the
very foundations of our democracy that is built upon rights and principles of natural
justice. Our compromise is their victory.

6
People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.
7
GA Resolution 1373/2001, Adopted during the 4385 th meeting of the United Nations on 28th September
2001.
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