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CHAPTER-VI

PRE-TRIAL DETENTION IN THE ACCUSATORIAL AND


INQUISTORIAL SYSTEM AND THE INDIAN CRIMINAL
JUSTICE SYSTEM

6.1 ACCUSATORIAL SYSTEM:

In accusatorial system, the State through its police force, on a complaint

being registered about the commission of a crime registers F.I.R and conducts

investigation as to trace the offender. The offender is then taken into police custody

as to further investigate. Then within 24 hours from the time of arrest, the accused

is produced before the concerned judicial magistrate and the latter remands the

accused to judicial custody that is sending the accused to prison. This period of

judicial custody is within 15 days. This judicial custody is extendable by 15 days

every time. Sec.167 (2) (a) of Criminal Procedure Code asserts that no magistrate

shall authorise the detention of the accused person for a period exceeding (i) 90

days where the offence is punishable with death, imprisonment for life or

imprisonment for a term not less than 10 years (ii) 60 days for other offences.

Further details are discussed in chapter- IV. Investigation includes collection of

materials near the scene of crime, locating the weapon used, sending materials for

chemical examination, conducting Post Mortem in case of death, medical attention

and examination of the injured persons; recording statement from the victims and

witnesses. In short Investigation means collection of material facts which when

presented before the Court becomes evidence. On the conclusion of the

investigation the police files a final report alleging the offences committed by the

accused person. Then magistrate or the sessions judge frames the charges listing

out the offence alleged to have been committed by the accused person. When the

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accused denies the charge or charges, the trial commences and the Public

Prosecutor or the Assistant Public Prosecutor representing the State conducts the

trial. Since the State takes up the case and accuses the accused person of having

committed offence or offences, this system is called accusatorial system. The

main aspect is that the burden of proving the accusation lies on the State through

the prosecutors and the police. The accused is defended by a lawyer of his choice.

Our Indian criminal justice system is based on the accusatorial system.

6.2 INQUISITORIAL SYSTEM

An inquisitorial system is the legal system where the investigation of an

offence is done by the court as opposed to the accusatorial system where

investigation is done by the police and the role of the court is that of an impartial

umpire between the prosecution and the defence. In inquisitorial system the

investigating function vests with the Public Procurator (Procurat General).The

Public Procurator is aided by the judicial police. The Public Procurator refers the

cases to the investigating magistrate and latter investigates the case with the help

of the judicial police.

The main feature of the inquisitorial system that is applied in France and

other countries is the functioning of the investigating judge. This judge

investigates serious crimes and conducts complex inquiries. Being member of the

judiciary this judge is independent and not controlled by the executive wing.

The judge questions witnesses, interrogates, suspects, and orders searches

and investigates. His role is not to prosecute the accused, but to gather facts, and

as such his duty is to look for any and all evidence (àchargé à dechargé),

incriminating or exculpatory. Both the prosecution and the defense may request

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the judge to act and may appeal the judge’s decisions before an appellate court.

The scope of the inquiry is limited by the mandate given by the prosecutor’s office:

the examining judge cannot open a criminal investigation on his own accord.

In the past examining judge could order committal of the accused, this

power being subject to appeal. However, this is no longer the case, and other

judges have to approve a committal order.

If the examining judge decides there is a valid case against a suspect, the

accused is sent for adversarial trial by jury. The examining judge does not sit on

the trial court which tries the case and is in fact prohibited from sitting for future

cases involving the same defendant. The case is tried before the court in a manner

similar to that of adversarial courts: the prosecution (and on occasion a plaintiff)

seeks the conviction of accused, the defense attempts to rebut the prosecution

claims, and the judge and jury draw their conclusions from the evidence presented

at trial.

Examining judges are used for serious crimes, e.g., murder and rape, and

for less serious but complex crimes, such as embezzlement, misuse of public

funds, and corruption.

6.3 JURISDICTION OF COURTS IN FRANCE

Juge des Libertéset de la Détention (JLD):

The judge of the liberties and freedom is vested with the power of

remanding the accused, and extending the remand period. When any serious crime

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has been committed it is referred by the public procurator to the examining

magistrate who will investigate the case and send it to the trial court.

Chambre de l'Instruction:

Any decision taken by the examining Magistrate and by the judge of

liberties and detention is challenged before this court.

Tribunal de Police:

This court is vested with the power of judging minor offences and impose

certain restriction.

Tribunal Correctionnel:

This court has the power of judging persons who have committed crime

for which the maximum punishment is 10 years imprisonment.

Courd’Assises:

This court has the power to judge most serious crime as murder or rape

where the minimum punishment is 10 years.

Courd'Appel:

The decision made by Courd’Assises are challenged before this court by

way of an appeal.

Cour de Cassation:

The decision by the cour d’ Appeal is challenged before this court by way

of second appeal. This court is known as Supreme Court of appeal. This court will

examine only the law applied.

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6.4 LAW OF REMAND AND LAW OF BAIL IN THE FRENCH JUSTICE

ADMINISTRATION

The French police have the power to arrest the accused persons and report

the same to the Public Prosecutor and the latter will decide the future course of

action. Under the French Law a person is presumed innocent till proved guilty and

usually they remain free. However judges have the power to remand a person to

custody only when he faces a crime having a minimum of 3 years sentences or if

the accused has violated the condition imposed in bail. For delits the maximum

period of remand is 4 months under certain conditions. This period of remand can

be renewed for another 4 months. In drug trafficking offences the maximum period

of remand is 2 years which can also be extended by another 4 months. For other

crimes the maximum period of remand is 1 year and extendable by another six

months. When the crime carries with it a punishment of 20 years the remand period

is for 2 years and if the punishment is more than 20 years the remand is for 3 years

and 4 years. The JLD has the power to remand the accused and he has to record

reason for refusing the bail. Before passing orders the JLD has to hear the Public

Prosecutor and the defence lawyer. The order of remand by JLD can be appealed

before the chamber de l' Instruction within 10 days and the appellate court must

pass orders within 10 days. The accused has to remain in custody till the remand

order is cancelled.

6.5 BAIL IN FRANCE

Bail is granted by EM or JLD, the accused remains free till trial. He has to

pay surety sum demanded by the court and he should not violate the conditions

imposed by the court or else he will be put in custody. The foreign nationals

detained in France are not generally granted bail fearing that the accused would

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abscond if bail is granted. When a large amount of cash is deposited as a security

and the accused should remain in France still the close of trial then bail is granted.

When the accused is on remand he can move bail with details of his status, his

character, his employment, financial status, residence and family accommodation,

the court will take it into consideration the period of incarceration, the nature of

offence, the risk of absconding. Bail is filed before the EM and in case EM rejects

the application he has to forward it to the JLD who has to decide within 3 days. If

the accused is to be tried, by Courd’Assises and the person is remaining in custody

till trial and he has to be tried within 12 months. The person can remain in custody

for a maximum period of 2 years. If after the enquiry by EM if there is no evidence

the accused can ask for compensation for his emotional distress and loss of

earnings. Bail is the integral part of rights to defence granting bail the court

considers the following:

1. Innocent people should not suffer.

2. Detention without trial is in violation of law.

3. It is expensive to keep under trials in prison

4. The dependent will not be able to work and his family will suffer

financially

5. People in custody do not have proper opportunity to prepare for defence.

While granting bail, it is done on personal bond, third party surety, cash bond,

personal bond, and property bond or surety bond the purpose of the bail is that one

should not be denied liberty before being found guilty. In most circumstances bail

is granted pending trial only when a person is danger to the society or he will flee

justice, bail is denied.

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6.6 CRIMINAL JUSTICE ADMINISTRATION IN INDIA:

Man is a social animal and the animal or the cruel instinct is inborn and

inherent in all human beings. This animal instinct has to be curbed, restricted and

controlled by man himself. Three institutions namely the family, the school and

religion that shape man should lead the man on the right path. But of late these

three institutions have failed miserably in their primary duty of shaping man to be

a polite member of the society in which he lives. In a-mad rush for materialistic

wealth, families have disintegrated into small units and even the divided family is

further fragmented where husband and wife live apart due to several reasons. The

child is deprived of the due love and affection and is exposed to the world of viles

where hatred, intolerance prevail. The educational institutions that took up as their

primary duty to impart, moral education and physical education have deviated

from their path, thanks to the modern society which demands education that would

produce an engineer, a doctor, a business administrator and what not. The religion

preaches but never practices. The religious leaders are sowing seeds of intolerance

and the concept of secular state may soon get buried. Under the name of religion

several wars were fought in the past and one fears history has to repeat. In such

an environment the animal, in man is let out and the crime rate is bound to escalate.

To maintain social order, crime control, demands wide and extensive powers to

be conferred on state to administer the criminal justice system.

The criminal justice Administration is all about striking balance between

maintaining law and order (social order) and the interest of individual liberty. The

state is vested with coercive powers to curb crimes, to bring the criminals before

law and the judiciary, to impose punishment if found guilty, at the same time ways

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and means are provided to prevent the arbitrary and capricious use of these

powers.

Article 14(2) of the International Covenant on Civil and Political rights

provides: Everyone alleged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to law. Article 14 of the

constitution of India would read. Equality before law The State shall not deny to

person equality before the law or .the equal protections of the laws within the

territory of India. Article 21 of the Constitution of India states: Protection of life

and personal liberty. No person shall be deprived of his life or personal liberty

except according to procedure established by law. The apex court of India held

that the procedure contemplated by Article 21 must answer to the test of

reasonableness in order to be in conformity with Article 14. The procedure

established by law must be right and just and fair and not arbitrary, fanciful or

oppressive Manaka Gandhi v. Union of India 75

The study of Criminal justice Administration reveals that the concept of

human rights is related to the period one lives. In ancient times the social and

judicial functions were carried out by Village Panchayat or by the ruler himself.

According to Hindu Philosophy the accused were believed to be unwanted social

elements and to be eliminated, the then criminal justice administration laid no

emphasis on the rights of the accused. The Muslim concept of criminal justice

administration is based on the scriptures and tenets of the Quran. It believed in the

deterrent punishment, the .accused is a sinner and deserves social deprivation.

Then came the social change-, with advent of British common law which saw

several legislation made to curb the abuse of law. The Criminal Procedure Code

prescribed the rights of the accused also. The Universal Declaration of Human

Rights 1948 and the International Covenants that followed ushered in the new era
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75. Manaka Gandhi v. Union of India AIR 1978
S.C.597 166
of Criminal Justice Administration in which the rights of the accused played the

pivotal role. The guiding principle of the Universal Declaration of Human Rights

to which the municipal laws of all countries are bound to follow, provides for a

fair and just trial to the accused. The very preamble of the United Nations Charter

of 1945 states: to affirm faith in fundamental Human Rights and the equal rights

of men and women. The Geneva Convention of 1985 highlighted the mass

violations of the human rights of the under trials and convicted persons in about

85 countries. Detention without charge or trial was prevalent in most countries.

India which plays a leading role in voicing Human Rights on the international

floor is also one of the offenders. Recent survey exposed that most of under - trials

were in custody for a period more than the maximum punishment they could get

if proved guilty.

The apex Court D.K. Basu v. State of West Bengal76, was forced to issue 11

commandments. They are:

1. The officer making an arrest should bear accurate, visible and clear

identification and name tag with the designations and his name

should be recorded in a register.

2. He shall prepare an arrest memo, which should be attested by at- least

one witness, who may either be a member of the family of the arrested

or a respectable person of the locality and countersigned by the arrestee.

3. The person detained or held in the lock-up for interrogation shall be

entitled to have access to one friend or relative or any other person

known to him as fast as possible after his detention.

4.––––––––––––––
76. D.K. Basu v. State of West Bengal 1997 SCC (Cr.) 92

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5. If the arrestee lives outside the district or town, police should notify the

time and place of arrest and the venue of his custody to the next friend

or relative through the legal aid organisation and the police station of

the area concerned telegraphically within eight to 12 hours after the

arrest.

6. The arrestee must be made aware of the right to have someone informed

of his arrest.

7. An entry must be made in the diary at the place of detention which

should also disclose the name of the friend who was informed of the

arrest and the names of police officials in whose custody the arrestee is.

8. The arrestee should be examined for major and minor injuries on his/her

body and this must be recorded and signed both by the arrestee and the

police officer effecting the arrest.

8. The arrestee should be subjected to a medical examination every 4 8

hours during his detention by a doctor on the panel approved by the

Director of Health Services of the State or Union Territory.

9. Copies of all documents, including the memo or arrest, should be sent to

the local Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout.

11. A police control room should be provided at all district and State
Headquarters, where information regarding the arrest and place of custody of

the arrestee shall be communicated by the officer within 12 hours of affecting

the arrest and it should be displayed conspicuously in the control room"

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The Apex Court of India, while delivering this Judgment, has insisted that

the demands of Art.21 and Art.22 (1) of the Constitution need to be strictly

followed and these would be equally applicable to other Government agencies

also. Failure to comply with these directions will render the official concerned

liable for department action and further render him liable to be punished for

contempt of court and that such contempt proceedings may be instituted in any

high court of the country having territorial jurisdiction.

6.7 EVOLUTION OF CRIMINAL JUSTICE SYSTEM

People have surrendered their rights to the sovereignty in order that their

life and personal liberty are protected. The ancient man with zeal to protect his

person, family, his clan, their possession, was forced to use violence. Might

became right and weaker ones were unprotected. The State emerged as the

protector out of the social contract. To ensure peace and social order, laws were

enacted to prescribe the specific parameters of behaviour. Certain acts were named

as crime or offences by the State. The offences against individuals were deemed

as offences against the State. The State launched the prosecution to bring the

offender before law to be tried and if found guilty to be sentenced. The convicts

were sent to custody by the Court of Law.

The main objectives of the Criminal Justice System are:

1. To prevent and prohibit deviant behaviour;

2. To detect deviant behaviour;

3. To assess the extent of the deviancy;

4. To adjudicate the damages;

5.To prescribe punishment;

6. To employ correctional process.

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Thus, the aim of the Criminal Justice System is to reform the deviant

member of the society.

The main wings of the Criminal Justice System are:

1. The law makers;

2. The law enforcers;

3. The adjudicators of guilt (The judiciary)

4. The Correctional administration.

To prevent arbitrariness and to provide equal justice to all, the Criminal

Justice System has adopted the concept of due process which demands that the

accused be given fair and reasonable opportunities to defend the accusation and to

prove the innocence.

There are several safeguards in the Criminal Justice System to protect the Human

Right

1. All laws have to be in tune with the demands of the Constitution.

2. Enforcement of the law should be within the parameters of the law.

3. Adjudication of guilt is only by the judiciary.

4. All wings of Criminal Justice System should adhere to the principle of

due process and the principles of natural justice.

The following are the areas in which the Human Rights are violated in the

Criminal Justice System:

1. Non-registration of cases;

2. Arbitrary arrest and inhuman treatment of the arrested person;

3. Custodial violence;

4. No Compensation to victims of crime;

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5. The appalling conditions of Indian Jails;

6. Delay of courts;

7. Abuse of power by the executives who are at the helm of affairs in the

different wings of the Criminal Justice System;

Our criminal law and the criminal justice system was given to us by the British

but it is self-sufficient to safeguard the rights of the accused. But our police and

the judiciary still adopt the colonial rule and refuse to exercise democratic rule.

6.8 FUNCTIONING OF LOWER COURT IN INDIA

The trial courts have the hierarchy of Munsif Courts, Sub-courts and

District courts on the civil side and Judicial Magistrate courts, Chief judicial

Magistrate Court, Assistant Session judge and Session Judge on the criminal side.

These trial courts are flooded with civil suits and Criminal cases and the number

of judges is less to cope up with the number of cases. Nepotism, favoritism and

corruption are rampant in the trial courts and this has tarnished the image of the

judiciary. The former chief justice of India Justice Barucha while retiring stated

that 20% of the Indian judges are corrupt. He was probably modest in his comment

and further he has not deliberated what steps he has done to curb and weed out

corruption when he adorned the chair of Chief Justice of India.

The trial litigant and the accused are treated with scant respect. Most of the

courts do not have places for litigants to sit and they are made to stand outside the

courts for hours together. The accused are directed to sit on the floors. The litigants

huddle together anxiously waiting for the call of their cases only to be adjourned

to another date. People are fed up with the delays in the conduct of the cases.

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In Criminal cases the accused are mostly brought on Fridays to the

Magistrate courts to be automatically remanded to judicial custody. The

intervening Saturday and Sunday being holidays, the accused has to wait until

Monday to move bail.

The accused are lodged in the prison along with the hardened criminals.

The under trials are ill-treated by the convicts. Alarming reports have come out

that some under trials are getting sodomised.

Of late the Government and some private law colleges are producing legal

illiterates and that results in poor standard of advocates. This also reflects on some

of the judges who lack the proper knowledge of law. The police do not procure

and produce witnesses and the trial lasts for several years. Many cases end in

acquittal because of police foisting cases or of faulty investigation by the police.

Some under trials languish in prison for several years sometime they complete

maximum punishment meant for that offence.

6.9 THE FUNCTIONING OF THE CONSTITUTIONAL COURTS

Indian Judiciary has an impressive record in the past. Last two decades the

performance of the judiciary is callous. The chronic delays paralyse the justice

delivery system. The nexus between the criminals, politicians and the police

cripples the administration of justice. The criminal justice system has undergone

the increasing erosion of credibility due to corruption, lack of

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transparency and accountability in judicial appointments, deprives able,

upright, well equipped and men of integrity getting appointed as judges. “The

fatal combination of incompetence and corruption among police, prosecutors,

witnesses and judges has frustrated the justice”.

The accountability of the justice system has to be dealt in two different

angles that are judicial accountability and the accountability of the justice delivery

system. The accountability of justice system means fair, impartial and independent

and people expect justice to be at reasonable cost and of easy access to everyone.

The government has to take all steps since judiciary is dependent on government

for its infrastructure, support, services and funds. The delay, inequalities in process

and treatment, heavy litigation cost requires to be set right. Judicial accountability

is concerned with the judges in terms of the professional duties and oath of office.

We currently find judges with lack of honesty and integrity, lack of judicial

competence, doing acts that is not expected from the post they hold. The judge

who has no humanity feeling is unfit to be a judge. Law is not an abstract thing; it

is a living organism because it is applied on human beings. The judges should

understand the human sufferings because of injustice unleashed on them.

In the conference of Chief Justices in 1996 a code of conduct was adopted

by a full code meeting of Supreme Court under the caption re-statement of values

of judicial life. The sixteen points are as follows

1. The behaviour and conduct of members of the higher judiciary must

reaffirm the people’s faith in the impartiality of the judiciary. Accordingly

any act of a judge whether in official or personal capacity, which erodes

the credibility of this perception has to be avoided.

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2. A judge should not contest the election to any office of a club or society

and he shall not hold such elective office except in a society connected

with the law.

3. Close association with individual members of the Bar, particularly those

who practice in the same court shall be eschewed.

4. A judge should not permit any member of his immediate family, such as

spouse, son, daughter, son-in-law or daughter-in-law or any other close

relative, if a member of the Bar, to appear before him or even be associated

in any manner with a cause to be dealt with by him.

5. No member of his family, who is a member of the Bar, shall be permitted

to use the residence in which the judge actually resides or other facilities

for professional work.

6. A judge should practice a degree of aloofness consistent with the dignity

of his office.

7. A judge shall not hear and decide a matter in which a member of his family,

a close relation or a friend is concerned.

8. A judge shall not enter into public debate or express his views in public on

political matters or on matters that are pending or likely to arise for judicial

determination.

9. A judge is expected to let his judgments speak for themselves; he shall not

give interviews to the media.

10. A judge shall not accept gifts or hospitality except from his family, close

relations and friends.

11. A judge shall not hear and decide a matter in which a company in which

holds shares is concerned unless he has disclosed his interest and no

objection to his hearing and deciding the matter is raised.

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12. A judge shall not speculate in shares, stocks or the like.

13. A judge should not engage directly or indirectly in trade or business, either

by himself or in association with any other person.

14. A judge should not ask for, accept contributions or otherwise actively

associate himself with the raising of any fund for any purpose.

15. A judge should not seek any financial benefit in the form of a perquisite or

privilege attached to his office unless it is clearly available.

16. Every judge must at all times be conscious that he is under the public gaze

and there should be no act or omission by him which is unbecoming of the

high office he occupies and the public esteem in which that office is held.

The revocation of emergency made the Supreme Court rebound with full

vigor and vitality. Judicial Activism was spear headed by activists like Justice

Krishna Iyer, Justice Bhagawati and Justice Chinnappa Reddy. Article 21 saw the

new light and came to be interpreted in an expansive and liberal manner and

expounded to humanize the law relating to arrest, to define the rights of the

accused and the prisoners and the legitimacy and legality of death sentences.

Article 21 was interpreted to encompass education, health, hygiene, conditions at

work places. Socio-economic rights of weak and the deprived section of the

society were taken care by the judiciary.

In Golaknath case the Supreme Court held that the Fundamental rights are

beyond the ken of amending power. The Indian Administration brought in new

amendments to counter this dictum. The matter came before the 13 Judge Bench

in Kesavanandha Bharathi case where the Bench propounded doctrine of

“unamendable basic features of the constitution”, while overruling Golaknath. The

same Supreme Court during emergency in preventive detention cases ruled that

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the right of life is the gift of the constitution and the said right can be suspended

or taken away by the declaration under the emergency provision contained in the

constitution.

“A written Constitution is to maintain real democracy and ensure a delicate

balance between its elements- a formal Constitution is preferable. To operate

effectively Constitution should enjoy normative supremacy, should not be as

easily amendable as a normal statute and should give Judges the power to review

the Constitutionality of legislation. Without a formal Constitution, there is no

legal limitation of legislative supremacy, and the supremacy of human rights can

exist only by the grace of the majority’s self-restraint. A Constitution, however,

imposes legal limitations on the legislature and guarantees that human rights are

protected not only by the self-restraint of the majority but also by Constitutional

control over the majority”77.

The founding fathers of our constitution took the lead from the words of the

great statesman the most remembered President of USA Abraham Lincoln. The

rule of the people, by the people, for the people, where human rights and rule of

law became sacrosanct instruments of Nation building. The very Preamble of our

constitution spells the Equality of Status and of opportunity and Fraternity among

the people, ensuring the dignity of the individual and the unity and the integrity of

the nation.

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77. In the words of Justice Aahron Barak, formerly of the Supreme Court of Israel, from National Seminar
on Higher Judiciary – Constitutional perspectives Justice A. Seetha Ram Reddi page XVIII.

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The rule of law, procedure established by law, the Fundamental Rights,

separation of powers judicial scrutiny and judicial review are the paramount

concern of our constitution. Cardozo opines

“the social philosophy of a judge influences his decisions, he was exploding a myth-

the myth of judicial neutrality78.”.

Cardozo further highlighted the role of subjective elements and subconscious

forces in shaping a judicial decision. Cardozo’s lectures, which were later

published under the title the Nature of the judicial process, ignited a jurisprudential

debate on the nature of judicial function, viz.., whether judges merely declare the

law of whether they in fact make law.

Once we accept the role of the judges as lawmaker, the question that

assumes relevance and significance are: (i) on what consideration and based on

what principles do judges make law? (ii) To what extent does the social philosophy

of a judge influence his decisions: and (iii) in a democracy, when people’s will

must prevail, where do we draw the limits of judicial legislation?

EMS Namboodiripad tells

“Marx and Engels considered the judiciary as an instrument of oppression.

Judges are dominated by class hatred, class interest and class prejudices. When

evidence is balanced between a well-dressed pot-bellied rich man and a poor ill-

dressed and ill-literate person, judge instinctively favours the former. The

judiciary is weighted against the workers, peasants and other sections of the

working classes and the law and the system of the judiciary essentially serve the

exploiting classes79”.
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78. When Caradozo, a renowned jurist and judge of the American Supreme Court, told a gathering of
legal scholars and law students at the Yale University in 1921

79. In 1967, EMS Namboodiripad, the then Chief Minister of Kerala, while speaking at a press
conference, attempted to analyze the role of the judiciary from a Marxian perspective. Explaining the
class bias of the Indian judiciary has observed:

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Justice H.R Khanna who had undaunted faith in human rights and rule of

law in his dissenting judgment described the attitude of the brother judges as

“more executive minded than the executive80”.

A significant area, where the courts have been consistently pursuing a

pro-privatization philosophy for nearly a decade is that of higher education.

From Mohini v. State of Karnataka81 which emphatically asserted that the right

to education, including higher education and professional education, is a

fundamental right, the court has moved to the other extreme in Pai Foundation

v. State of Karnataka82. These two decisions provide good material to a student

of the Indian Judicial process to make a study in contrast. They reveal how the

same constitutional provisions and the same social situations could be read and

interpreted quite differently by judges subscribing to opposing social

philosophies.

In Pai foundation, the Supreme Court not only denied any fundamental

rights to education after the age of 14 years, but also extended a fundamental right

under Art.19 (1)(g) to those who wish to establish educational institutions. The

concern of the court has shifted from the right to education to the right to establish

educational institutions. It is also important to remember that on several earlier

occasions, when the argument that the right to establish educational institutions

must be recognized as a Fundamental right under Art. 19(1) (g) was canvassed

before the Supreme Court; the Court had refused to do so. In Pai Foundation it was

accepted without much argumentation or convincing legal reasoning.

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80. Justice H.R Khanna Radhakrishnan Agarwal and others . State of Bihar AIR 1976
SC 1207
81. Mohini v. State of Karnataka 1992 (3 ) SCC 666
82. Pai Foundation V. State of Karnataka AIR 2003 SC 355

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What is perplexing is the fact that the Solicitor General, who ought to have

opposed the argument, readily conceded the right thereby making the task of the

court very easy. It is well accepted by one and all that the Indian Judiciary is the

most powerful and the least accountable judiciary in the world. This organ

wielding enormous powers may not be kept free from accountability. Judges feel

that any attempt to ensure judicial accountability will result in crippling the

judicial administration of justice.

The constitution represents the highest level of positive law. Former Chief

Justice V.N. Khare observes

“The beauty of the Indian Constitution is that the entire structure of the country is based

thereupon. It is the very pillar upon which the democracy of India stands 83”.

The power of judicial review in our Constitution is through Articles 13, 32

and 226. The power of judicial review ensures smooth functioning of the state.

Though the three wings of the government namely the legislature, executive and

judiciary are to uphold the Constitution, the judiciary alone is entrusted with the

task of interpreting and enforcing the Constitution. Under the banner of judicial

review the higher courts have started to legislate laws which power is exclusively

with the legislature, since it holds the popular mandate. We often find the judiciary

interpreting the laws in an innovative manner thereby destroying the intention of

the legislature who make laws for the welfare and the control of the people.

Judicial activism in the hands of Justice Krishna Iyer, Justice Bhagawati, and

Justice Chinnappa Reddy was very useful to the people. Later, judicial activism
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83. Former Chief Justice of India V.N. Khare in Union of India v. Naveen Jindal. ( 2004) 2 SCC 510

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The interpretation made by the judges are self-styled and bearing their own whims

and fancies. Now the tendency of the court is to issue direction to the legislature

as to how a law is to be made.

6.10 INDEPENDENCE OF JUDICIARY

Under the banner of independence of judiciary, the courts of law are trying

to believe that they are superior wings of the government. Montesque the great

French philosopher has given to the world the separation of powers as legislative,

executive and judiciary. He has made boundaries for each one of the organs and

one cannot overlap the other, the legislative is given the job of legislating laws,

the executive to execute the law and the judiciary can step in when the legislated

laws are against the fundamental rights and when the executives exceed the power

and put people into difficulties.

The contempt of courts act has been wrongly under stood by most of the

courts. The contempt of courts act provide for the proper functioning of the court

where the judge should not be insulted, the advocates should not be insulted and

most importantly the litigant should not be insulted . It is said that the judgment

can be criticized but the judge should not be criticized.

“The basic principle in a democracy is that the people are supreme… the people

of India are the masters and all authorities (including the courts) are their

servants. Surely, the master has the right to criticize the servant if the servant

does not act or behave properly and that “in a democracy there is no need for

judges to vindicate their authority or display majesty or pomp. Their authority

will come from the public confidence, and this, in turn, will be an outcome of

their own conduct, their integrity, impartiality, learning and simplicity”. 84

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84. Justice Markandey Katza at the Indian society of International Law at New Delhi on Jan. 17, 2000

180
“In a democracy, the ultimate political sovereignty vests in the people of the

country. The people in the mass obviously can’t exercise monitoring,

controlling, disciplining and like functions. Therefore, there is a need for checks

and balances so that power vested anywhere may not be haywire and may

become amendable to the constitutional fundamentals and answerable to those

who are the ultimate masters of sources of the power ”.85

The people have an unfettered right to a pure justice system and the

judiciary would have to realize that it is this right of the customers of justice that

cannot be subservient to any misplaced concept of blanket immunities to judges.

The Supreme Court of India has been conferred with powers exceeding that of any

other Apex court in this world. The republic of India had Judges of great learning

and impeccable integrity in its first few decades. The initial years produced

judgments like Gopalan (1950) and ChampakanDurairajan (1951).

In Gopalan case the court refused to read clause (4) to (7) of Article 22 relating to

preventive detention in the lights of Article 19 and 21 holding the set clauses of

Article 22 Constitute a complete Code by themselves. In Champakan Durairajan

case the court refused to treat the directive principles of the state policy on the

same footing as the Fundamental rights. These approaches have been later

decanted by the court. In Golaknath case the court declared that the Fundamental

rights are beyond the ken of amending power. In KesavanandhaBharathi the

Supreme Court propounded the Doctrine of un amendable features of the

Constitution while overruling Golaknath. The declaration of emergency witnessed

the low point of the judicial approach.

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85. Justice V.R. KrishnaIyer in Economic and Political weekly July 27, 1991 in page 1808 has observed

181
The court held that the right to life of an Indian citizen can be suspended

and taken away during emergency. When the emergency was revoked Justices like

KrishanaIyer, Justice Bhagawatiand JusticeChinnappa Reddy played an activist

role. Article 21 was interpreted in an expensive manner which humanized the laws

relating to arrest, the right of the accused, and the rights of the prisoners and the

legality of death sentence. Article 21 was interpreted to take in right to education,

health, hygiene conditions at work place and so on. Socio –economic rights of the

week and the deprived sections of the society received the attention of the court.

Of late all eyes are two main issues. The first issue is about the appointment of

Judges to the Supreme Court and the High Court. Confrontation is taking place

between the Chief justice of Supreme Court and the President of India over the

appointment of judges over the recommendation of Chief justice of India on the

consideration other than merit and integrity. The appointment of judges is to be

questioned along with the removal of judges of Supreme Court and High Courts.

We find defects, inadequacies, indiscipline among various levels of the judiciary.

Favoritisms, nepotism and corruption is deep rooted at all levels of judiciary.

People are losing faith in the judiciary. The current system of impeachment seems

to be impracticable and a new system is on the anvil to discipline the judges. The

last two decades has seen the deterioration in moral and ethical standards of society

which is reflected in the higher judiciary. The indiscipline among the bar also

requires to be corrected to restore the faith in the judiciary by people.

The other issue is that people have begun to suspect the very credibility of

the judiciary. Corruption, lack of transparency and accountability, judiciary

encroaching upon legislative and executive powers, public interest litigation filed

by vested interest. The functioning of the police, prosecutors, prison authorities,

182
correctional services and advocates, the inordinate delays, the high cost of court

litigation have spelt the dooms day for the judiciary. The active judicial activism

was initially accepted as it catered to the welfare of the people and struck down

the abuse of power. The legislators have surrendered the rights of the people to the

courts of law by referring all issues like Cauvery, Mullaperiyar and other issues of

national importance. It is no more rule of law it has become the rule of court under

the banner of Independence of Judiciary. The courts of law are making excessive

use of powers thereby abusing their power and laying not Ten Commandments but

hundreds of commandments. The Supreme Court should remember that it has no

legislative power to legislate laws that are totally away from the intent of

legislators and to interpret laws, thereby changing the color of the legislated laws.

The Supreme Court can only recommend modifications in the statutes and it has

no right to border line how a statute is to be enacted.

6.11Preventive Detention Laws

This research will be incomplete if the abuse of preventive detention laws

are not spelt. Some of such laws are presented here

(i) The National Security Act 1980

This is an Act to provide preventive detention in certain cases and

for matters connected therewith.

Sec 3 of the Act: Power to make orders detaining certain persons.-(1) The

Central Government or the State Government may.-

(a) if satisfied with respect to any person that with a view to preventing

him from acting in any manner prejudicial to the defence of India, the relations

of India with foreign powers, or the security of India, or

(b) If satisfied with respect to any foreigner that with a view to regulating

his continued presence in India or with a view to making arrangements for his

183
expulsion from India. It is necessary so to do, make an order directing that such

person be detained.

(2) The Central Government or the State Government may, if satisfied

with respect to any person that with a view to preventing him from acting in any

prejudicial to the security of the State or from acting in any manner prejudicial

to the maintenance of public order or from acting in any manner prejudicial to

the maintenance of supplies and services essential to the community it is

necessary so to do, make an order directing that such person be detained.

Explanation.- For the purposes of this sub-section, ``acting in any

manner prejudicial to the maintenance of supplies and services essential to the

community’’ does not include ``acting in any manner prejudicial to the

maintenance of supplies of commodities essential to the community’’ as defined

in the Explanation to sub-section (1) of section 3 of the Prevention of Black

marketing and Maintenance of Supplies of essential commodities Act,1980(7 of

1980), and accordingly, no order of detention shall be made under this Act on

any ground on which an order of detention may be made under that Act.

(3) If, having regard to the circumstances prevailing or likely to prevail

in any area within the local limits of the jurisdiction of a District Magistrate or a

Commissioner of Police, the State Government is satisfied that it is necessary so

to do, it may, by order in writing, direct, that during such period as may be

specified in the order, such District Magistrate or Commissioner of Police may

also, if satisfied as provided in sub-section (2), exercise the powers conferred by

the said sub-section:

Provided that the period specified in an order made by the State

Government under this sub-section shall not, in the first instance, exceed three

months, but the State Government may, if satisfied as aforesaid that it is

necessary so to do, amend such order to extend such period from time to time by

any period not exceeding three months at any one time.

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(4)When any order is made under this section by an officer mentioned

in sub-section (3), he shall forthwith report the fact to the State Government to

which he is subordinate together with the grounds on which the order has been

made and such other particulars as, in his opinion, have a bearing on the matter,

and no such order shall remain in force for more than twelve days after the

making thereof unless, in the meantime, it has been approved by the State

Government:

Provided that where under section 8 the grounds of detention are

communicated by the officer making the order after five days but not later than

ten days from the date of detentions, this sub-section shall apply subject to the

modification, that, for the words ``twelve days’’, the words ``fifteen days”, shall

be substituted.

(5) When any order is made or approved by the State Government under

this section, the State Government shall, within seven days, report the fact to the

Central Government together with the grounds on which the order has been made

and such other particulars as, in the opinion of the State Government, have a

bearing on the necessity for the order.

(ii)The Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974:

This is an Act to provide detention in certain cases for the purposes of

conservation and augmentation of foreign exchange and prevention of

smuggling activities and for matters connected therewith.

Sec 3. Power to make orders detaining certain persons.-(1) The Central

Government or the State Government or any officer of the Central Government,

not below the rank of a Joint Secretary to that Government, specially empowered

for the purpose of this section by that Government, or any officer of the State

Government, not below the rank of a Secretary to that government, specially

empowered for this purposes of this section by that Government, may, if satisfied

with respect to any person(including a foreigner), that, with a view to preventing

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him from acting in any manner prejudicial to the conservation or augmentation

of foreign exchange or with a view to preventing him from-

(a) smuggling goods, or

(ii) Abetting the smuggling of goods, or

(iii) Engaging in transporting or concealing or keeping smuggled goods, or

(iv) Dealing in smuggled goods otherwise than by engaging in transporting or

concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the

smuggling of goods,

It is necessary so to do, make an order directing that such person be detained:

[Provided that no order of detention shall be made on any of the grounds

specified in this sub-section on which an order of detention may be made under

section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and psychotropic

Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention

of Illicit Traffic in Narcotic Drugs and psychotropic Substances Ordinance,

1988(J&K Ordinance 1 of 1988).]

(2) When any order of detention is made by a State Government or by an officer

empowered by a State Government, the State Government shall, within ten days,

forward to the Central Government a report in respect of the order.

(3) For the purpose of clause (5) of article 22 of the Constitution, the

communication to a person detained in pursuance of a detention order of the

grounds on which the order has been made shall be made as soon as may be after

the detention, but ordinarily not later than five days, and in exceptional

circumstances and for reasons to be recorded in writing, not later than fifteen

days, from the date of detention.

(iii) The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988:

This is an Act to provide for detention in certain cases for the purpose

of preventing illicit traffic in narcotic drugs and psychotropic substances and

connected therewith.

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Sec3. Power to make orders detaining certain persons.-(1) The Central

Government or a State Government, or any officer of the Central Government,

not below the rank of a Joint Secretary to that Government, specially empowered

for the purposes of this section by that Government, or any officer of a State

Government, not below the rank of a secretary to that Government, specially

empowered for the purposes of this section by that Government, may, if satisfied,

with respect to any person(including a foreigner) that, with a view to preventing

him from engaging in illicit traffic in narcotic drugs and psychotropic substances,

it is necessary so to do, make an order directing that such person be detained.

(1) When any order of detention is made by a State Government or by an officer

empowered by a State Government, the State Government shall, within ten

days, forward to the Central Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the

communication to a person detained in pursuance of a detention order of the

grounds on which the order has been made shall be made as soon as may be after

the detention, but ordinarily not later than five days, and in exceptional

circumstances and for reasons to be recorded in writing, not later than fifteen

days, from the date of detention.

(iv)The Prevention of Black marketing and Maintenance of Supplies of

Essential Commodities Act, 1980:

This is an act to provide for detention in certain cases for the purpose

of prevention of black marketing and maintenance of supplies of commodities

essential to the community and for matters connected therewith.

Sec 3. Power to make orders detaining certain persons.-(1) The Central

Government or the State Government or any officer of the Central Government,

not below the rank of a Joint Secretary to that Government, specially empowered

for the purpose of this section by that Government, or any officer of the State

Government, not below the rank of a Secretary to that government, specially

empowered for this purposes of this section by that Government, may, if satisfied

with respect to any person that, with a view to preventing him from acting in any

manner prejudicial to the maintenance of supplies of the commodities essential

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to the community it is necessary so to do, make an order directing that such

person to be detained.

Explanation.-For the purpose of this sub-section, the expression

‘acting in any manner prejudicial to the maintenance of supplies of commodities

essential to the community’’ means-

(a) committing or instigating any person to commit any offence punishable under

the Essential Commodities Act 1955(10 of 1955) or under any other law for the

time being in force relating to the control of the production, supply or distribution

of, or trade and commerce in, any commodity essential to the community; or

(b) Dealing in any commodity-

(i) which is an essential commodity as defined in the Essential

Commodities Act, 1955(10 of 1955), or

(ii) with respect to which provisions have been made in any such

other law as is referred to in clause(a),

With a view to making gain in any manner which may directly or indirectly

defeat or tend to defeat the provisions of that Act or other law aforesaid.

(2) Any of the following officers, namely:-

(a) District Magistrate;

(b) Commissioners of Police, wherever they have been appointed,

may also if satisfied as provided in sub-section (1), exercise the

powers conferred by the said sub-section.

(3) When any order is made under this section by an officer mentioned

in sub-section (2) he shall forthwith report the fact to the State Government to

which he is subordinate together with the grounds on which the order has been

made and such other particulars as in his opinion have a bearing on the matter,

and no such order shall remain in force for more than twelve days after the

making thereof unless in the meantime it has been approved by the state

Government:

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Provided that where under section 8 the grounds of detention are

communicated by the authority making the order after five days but not later than

ten days from the date of detention, this sub-section shall apply subject to the

modification that for the words’ ‘twelve days’’, the words `fifteen days’’ shall

be substituted.

(4) When any order is made or approved by the State Government under

this section or when any order is made under this section by an officer of the

State Government not below the rank of Secretary to that Government specially

empowered under sub-section(1) the State Government shall, within seven days,

report the fact to the Central Government together with the grounds on which the

order has been made and such other particulars as, in the opinion of the State

Government, have a bearing on the necessity for the order……

In all the above Preventive Detention Laws it is spelt after detention of a

person the order has to be communicated to the Advisory Board who would

scrutinize if the detention is necessary. The period of detention shall be three

months extendable by three months every time. The maximum period of detention

is one year to two years.

Since this detention is on suspicion the detainee can challenge the same

before the court of law. These detention laws provide detention initially for three

months, extendable by three months every time and maximum period detention

may extend to 1 year or 2 years. These laws strike the death knell to the principle,

“presumed innocent till proved guilty”. This is incarceration without trial.

Detention may extend to 60 days even without the approval of the Advisory

committee in certain cases. Under the prevention laws, the State has the power to

detain a person for the security of the state but why for 1 year or 2 years. These

acts require to in-corporate investigation and trial if the detention continues for a

longer period since it is in violation of the Constitution of India and Universal

189
Declaration of Human Rights. Since these laws are harsh, the courts insist on the

strict compliance of the direction given under these laws and in case of any

violation, the detainee is directed to be released.

Learn the law before passing detention orders: HC to officials86

CHENNAI: Teach them the dynamism of law. This was the message the Madras

high court sought to send across to the bureaucracy, which is used to a wasteful

ritual of passing preventive detention orders under the Goondas Act, National

Security Act and Cofeposa. Rapping authorities who continue to pass faulty

detention orders despite repeated reversals they suffer in the high court, the first

bench of Acting Chief Justice Satish K Agnihotri and Justice M MSundresh on

Tuesday said: "They should be informed about the development of law pertaining

to detention orders. Quashing detention orders on the very same grounds by the

court again and again would make the entire system a mockery...Specific

instructions may be given to detaining authorities about their exercising of the

power so that the detention orders would not be passed as a matter of course in a

routine manner."Orders under the Goondas Act, National Security Act and

Cofeposa for the preventive detention of a person for one year are passed either by

commissioners of police or district collectors.

Detenues have to approach the advisory board or file habeas corpus

petitions in the high court for quashing the detention orders, as there is no bail

provision available to them. About 96% of such detention orders are quashed by

courts. But usually on identical grounds, it is a fact that by the time the orders are

quashed, the detenue would have spent six to eight months in jail.

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86. A. Subramani, TNN / June 11, 2014, 02.43 A.M. IST

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Slamming this trend, the first bench said, "A detention order should not be

passed with a mindset that even if it is set aside by the court, the detenue would

have been under custody for a length of time...It is well known that most of the

detention orders did not stand the scrutiny of the court. A detention order cannot

be a substitute for a criminal case."The judges said an "element of sensitivity" was

required at every stage of passing detention orders, and said: "Apart from the

liberty of an individual being curtailed, it results in wastage of time, energy and

money from all sides. As a solution to end both passing of faulty detention orders

and delay in their disposals, the judges said the government could appoint an

officer exclusively to deal with habeas corpus petitions pending in the high court

by keeping track of their progress and collecting necessary documents from the

prosecutors ‘offices. The bench was passing order on a P.I.L filed by Prisoners’

Rights Forum director P. Pugalenthi, who sought judicial inquiry into the March

24 riots inside Puzhal central prison. He also sought action against prison officials

responsible for the riot that left 40 inmates injured. Acceding to advocate General

A.L Somayaji's submission that there were no untoward incidents and only

required amount of force was used to maintain peace behind the walls, the bench

concluded that there was no need for a judicial inquiry into the matter. There are

no eyewitnesses to the alleged riot and courts could not pass orders on the basis of

hearsay accounts, the bench said.

V. Tada And Pota

Global Warming and Terrorism are the main dangers that threaten to

extinguish the life on earth. A new class of criminals called terrorist want to teach

the world something they believe sacrosanct. They involve in mass destruction of

lives and property. In most cases innocent people are the victims, even women and

191
children are not spared. Terrorists have claimed many lives that include our two

Prime Ministers. The need of the anti-terrorism law was felt in India. In 1984 the

Parliament enacted the "Terrorist Affected Areas (Special Courts) Act 1984. In

this Act Terrorist is defined as a person who indulges in wanton killing of persons

or in violence or in the disruption of services or means of communications

essential to the community or in damaging property with the view to (i)putting the

public or any section of the public in fear; or (ii) affecting adversely the harmony

between different religious, racial, language or regional groups or castes or

communities; or (iii) coercing or overawing the Government established by law;

or (iv) endangering the sovereignty and integrity of India." A person indulging in

violence is inherently in view of this definition putting the public, which means

even the minutest section thereof, in fear; thus he would apparently be a terrorist

under the Act.

This Act empowered Central Government to declare Terrorist Areas and

to set up Special Courts for speedy trial. This Act enabled to amend Indian

Evidence Act as to incorporate Sec 111A-Presumption as to certain offences. In

May 1985. The Terrorist and Disruptive Activities (Prevention) Act 1985 was

enacted. This statute provides special or enhanced punishment. The Act was

restricted to a period of two years. The Act was to expire on 23rd May 1987. Since

both the Houses were not in session, the President promulgated the Terrorist and

Disruptive Activities Ordinance 1987 with minor changes. The Terrorist and

Disruptive Activities (Prevention) Act 1987 was introduced with drastic changes

and was in force for another six years.

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Since Terrorism continued unabated The Prevention of Terrorism

Ordinance (POTA) came in the year 2001. The prevention of Terrorism Act 2002

was enacted on March 28, 2002 to replace the above said Ordinance.

(a) TADA

Terrorist and Disruptive Activities (Prevention) Act was enacted in the year

1987. The intention of the Act was to make special provision for the prevention of

and for coping with terrorist and disruptive activities and for the matters connected

therewith or incidental thereto. Originally the Act was to remain in force for 2

years but it was extended up to 8 years. Section 3(1) of the Act defines terrorist

act as follows

Sec 3.Punishment for terrorist acts. — (1) Whoever with intent to overawe

the Government as by law established or to strike terror in the people or any section

of the people or to alienate any section of the people or to adversely affect the

harmony amongst different sections of the people does any act or thing by using

bombs, dynamite or other explosive substances or inflammable substances or

lethal weapons or poisons or noxious gases or other chemicals or by any other

substances (whether biological or otherwise) of a hazardous nature in such a

manner as to cause, or as is likely to cause, death of, or injuries to, any person or

persons or loss of, or damage to, or destruction of, property or disruption of any

supplies or services essential to the life of the community, or detains any person

and threatens to kill or injure such person in order to compel the Government or

any other person to do or abstain from doing any act, commits a terrorist act.

Section 3(2) prescribes punishments of death, life imprisonment and

punishment not less than five years and also liable to pay fines. Section 4(1)

193
prescribes the minimum punishment of five years extending, up to life

imprisonment and also liable to pay fine.

Sec 4(2) defines disruptive activity as follows Sec 4(2) For the purposes of

sub-section (1), "disruptive activity" means any action taken, whether by act or by

speech or through any other media or in any other manner whatsoever

Section 4(3) adds more definition to disruptive activity 4(4) prescribes

punishment of not less than 1year. Section 5, 1. Dynamite or other explosive

substances unauthorisedly used in a notified area. Section 6 imposes enhanced

punishment for such persons mentioned in section 5 with intent to stop the terrorist

or disruptions. Section 7 deals about powers to police officers. Section 7 A

discusses the powers of the investigating officers to seize the property and attach

the same. Section 8 is about forfeiture of the property. Section 9,10,11 and 12 deal

about a Designated Courts, the place of sitting, Jurisdiction, Section 13 is about

appointment of Public Prosecutor, Additional P.P and special P.P Section 14

details the procedure and the power of the Designated Courts.

Section 15 is an alarming provision which totally deviates from the Indian

Evidence Act by stating that confession made to a police officer not below the rank

of Superintendent of Police, is acceptable in evidence. Section 16 Direction to give

protection to witnesses as to keep the identity arid the witnesses secret. Sec 19

provides appeal to Supreme Court.

Part IV from Section 20 to 30 deals modified application of certain

provisions of the code, presumption as to offences, identification of the accused,

saving clauses, saving as to orders, overriding effect, protection of action under

194
this act, the power of the Supreme Court and the Central Government to make

rules, the rules to be laid before the Houses of Parliament and repeal and saving.

(b)POTA: The Prevention of Terrorism Act 2002 was enacted on March 28, 2002

to replace the prevention of terrorism ordinance (POTA) 2001. The intention of

the act is to make provisions for the prevention of and for dealing with terrorist

activities and for matters connected therewith.

Section 3(1) of the act defines what terrorist acts are. Section 3(2) provides

the punishments which include minimum 3 years and five year for life

imprisonment and death penalty and fine extending to Rupees Ten lakhs. Sec 5

and 6 provide punishment and enhanced punishment for unauthorized possession

of arms, ammunitions, bombs, dynamite, explosives, chemical or biological

substance of warfare in any area and the punishment extends to life imprisonment

and a fine extending to Rupees Ten lakhs. Sec 7 gives power to the police officer

of the rank of Superintendent of Police to investigate, to seize, to forfeit, and to

attach properties. Sec 8 and 9 is about forfeiture of the proceeds of the terrorism

by giving notice before forfeiture. Sec 10 is appeal to High Court by any person

aggrieved by the forfeiture. Sec 13 elaborates on the powers of the Designated

Authority. Sec 18 of the Act is about declaration of an organization as a terrorist

organization. Section 19 is about de-notification of a terrorist organization. Sec 20

lists the offences relating to a terrorist organization. Section 22 and 23 terms funds

given to terrorist organization and raising funds for the terrorist organization as

offence. Chapter IV running from Sec 23 to 35 is about the special courts, place

of sitting, jurisdiction, power with respect to other officers, appointment to public

prosecutors, procedure and powers of the special court, transfer of cases and appeal

to High court.

195
What shocks everyone is Sec 32 which permits confession made to police

officer not below the rank of Superintendent of Police, as admissible in evidence.

Chapter V which contains section 36 to 48 elaborates on the interception of

communication in certain cases, appointment of competent authority to grant

interception submission of the order of interception to review committee, duration

of the order, authority competent to carry out interception, protection of

information collected, admissibility of evidence collected through the interception

of communications, prohibition of interception and the annual report of the

interception.

Chapter VI contains the miscellaneous provision from sec 49 to 64. This

chapter touches on the aspects of modified application of certain provisions of the

Code of Criminal Procedure, cognizance of offence only with the section of central

or state government) officers competent to investigate reference, about arrest,

presumptions as to offence, bar of civil courts, saving clause, the overriding effect,

protection taken in good faith, about punishment and compensation for malicious

action, impounding of passport and arms license, review committees, powers of

High Court and Central Government to make rules, orders and rules to be laid

before Houses of Parliament and finally about repeal and saving.

This Act has the schedule listing out 32 organisations as Terrorist

organisation. The area of concern of this research is sec 32 which permits the

confession made to a police officer not below the rank of Superintendent of Police,

as admissible evidence. Evidence Act makes no definition about the police officer.

This act believes that the Superintendent of Police and the officers above this rank

are honest, fair, sincere, and reliable and will not use coercive methods. In reality

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these confessions too are recorded by sub-ordinate officers and higher officers

only affix their signature. This section violates law, not only violates the

provisions of the Indian Evidence Act but crucifies Article 20(3) of the Indian

Constitution which insists —“No person accused of any offence shall be

compelled to be a witness against himself". The judiciary has not applied Article

12 and Article 13 of the Indian Constitution to declare this section as void.

This Act while defining code as Criminal Procedure Code 1973 has to

answer how this Criminal Procedure Code 1973 can be modified as per Sec 49 of

this Act, without effecting such modification in the Criminal Procedure code.

The modifications effected are in Sec 167(2) of the Code that fifteen days,

ninety days and sixty days shall be construed as thirty days and ninety days and

ninety days. The investigation if not completed within 90 days, it is extendable to

180 days by the Special Courts. Sec 268 has been modified to incorporate the

words Central Government or the State Government instead of State Government.

Sections 366,367 and 368 of the code which are about submission of Death

Sentences for confirmation, the words the court of sessions shall be modified as

Special court.

Another agonizing modification is that Section 438 (grant of anticipatory

bail) is not applicable to person to any case under this Act. Sec49 (6), (7), (8)

imposes more restrictions on the grant of bail. Further painful is the modification

under Sec 49(9) -which states that no bail shall be granted to a person accused of

an offence punishable under this Act, if he is not an Indian Citizen but only under

very exceptional circumstances. The Private International Law has declared that

the personal laws of the foreigners are the law of their land and the Criminal law

is the law of the land where the crime is committed. This modification prescribes

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entirely a different procedure to a person who is not an Indian Citizen. This

modification is in total violation of the procedure established by the law of the

land and the Universal Declaration of Human Rights. The only section praise

worthy is section 58 of this Act- Punishment and Compensation for malicious

action.

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