# ' ' KART AR SINGH v. STATE OF PUNJAB AND K.IRP A SHANKAR RAJ

- **Citation:** [1994] 2 S.C.R. 375
- **Court:** Supreme Court of India
- **Decided:** 1994-03-11
- **Bench:** S. Ratnavel Pandian, M.M. Punchhi, K. Ramaswamy, S.C. Agrawal, R.M. Saha!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kart-ar-singh-v-state-of-punjab-and-k-irp-a-shankar-raj-12595
- **Pages:** 254

## Headnote

17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Act 28
of 1987-Constitutional validity of
A
B
c
17ie Terrorist Affected Areas (Special Courts) Act, 1984 : Act 61 of D
1984-Constitutional validity of
17ie Terrorist and Dismptive Activities (Prevention) Act, 1985 (Act 31
of 1985)-Constitutional validity of
Central Legislature-Legislative competence of-Held Acts fall within
the competence of Parliament-Acts held covered by Entry 1 of List I oj
Seventh Schedule to Constitution.
Terrorism is not mere 'Public Order'-It contemplates grave emergent
situation affecting sovereignty and integrity of country.
Substantive Offences under the Acts require intention on the part of
persons committing terrorist acts-Principle of speedy trial is contemplated
and manifested under TADA Acts.
E
F
'Public Order'--Scope of-!t is confined to disorders of lesser gravity G
having impact within boundaries of State-Activities of serious nature
threatening security and integrity of the country are related to defence of India.
17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Section
2( J)(a)(i}-'Abetment'-What iS-Clause held impermissibly vague-lntention is necessary to prove abetment
375
H
376
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A
Section 2(l)(f)-'Notified area'-Declaration as to- Government
should make pen·odic review.
Section 3 (as amended by TADA (Prevention) Amendment Act, 1993)
and Section 4-Te"orist Acts-Dismptive Activities-Offences also covered
by ordinary laws-Provision for harsh punishment under TADA Act-In view
B · of the object and purpose of Act Sections held not violative for absence of
guiding principle whether to proceed under ordinary law or TADA.
c
D
E
F
G
Section 5-Mere possession of arms and ammunition-Whether sufficient to prove offence.
Section 8-Provision for foifeiture of property-Held not violative of
Articles 14 and 21.
Section 9-Designated Courts-Validity of-Held not violative of Entry
65-List II and Articles 233, 234 and 235 of Constitution.
Section 9(7}-Designated Court-Judge-Superannuation-Provision
for continuance after superannuation-Held not violative of Article
21-Provision does not affect independence of judiciary-However at the time
of appointment it should be ensured that Judge has sufficient tenure.
Section 11(2)(3)-Held not violative of Article 14-Designated
Courts-Order of transfer of cases-Concurrence of Chief Justice of India is
sine qua non-According of concurrence by GI is a statutory function and
not a Judicial function-According of concu"ence though imperative but
passing of transfer order by Government is not imperative-Concurrence by
GI is not open to Judicial Review but final order of transfer passed by
Government is subject to Judicial Review.
Section 15(As amended by TADA (Amedment) Act, 1993)-Confession-What is-Confession to Police Officer not below in rank of Superintendent of Police-Admissibility of-Fairness in recording the confessionSection 15 held not violative of Articles 14 and 21--Duty of Court deciding
admissibility of confession-What is-Oppressive and bmtal behaviour in
obtaining confession deprecated-Guidelines for ensuring fairness in obtainI
l'
ing confession laid down-Amendments in Act & Rules suggested
l'
~
H
Section 16(1) (As it stood prior to its amendemnt in 1993).
_,
KARTAR v. STATE OF PUNJAB
377
Designated Court-Conduct of proceeding m Camera-Legality A
of-Right to open trial is not absolute.
Section 16(2) (3}-Designated Court-Withholding the identity rf witnesses by-Legality of-Held there is no constitutional or statutory constraint
against keeping the identity of witnesses secret in extraordinary circumstances.
Section 19-f'rovision for direct appeal to Supreme Courf-Held
valid-In view of the abnonnal procedure-Necessary amendment of Section
._
suggested.
Section 20(3}-Executive Magistrate-Power to record confession-SecB
tion :1e/d not violative of Articles 14 and 21 empowering Executive Magistrate C
to record confession is not contrary to criminal j

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KART AR SINGH
v.
STATE OF PUNJAB
AND
K.IRP A SHANKAR RAJ
v.
STATE OF U.P.
MARCH 11, 1994
[S. RATNAVEL PANDIAN, M.M. PUNCHHI, K. RAMASWAMY,
S.C. AGRAWAL AND R.M. SAHA!, JJ.]
17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Act 28
of 1987-Constitutional validity of
A
B
c
17ie Terrorist Affected Areas (Special Courts) Act, 1984 : Act 61 of D
1984-Constitutional validity of
17ie Terrorist and Dismptive Activities (Prevention) Act, 1985 (Act 31
of 1985)-Constitutional validity of
Central Legislature-Legislative competence of-Held Acts fall within
the competence of Parliament-Acts held covered by Entry 1 of List I oj
Seventh Schedule to Constitution.
Terrorism is not mere 'Public Order'-It contemplates grave emergent
situation affecting sovereignty and integrity of country.
Substantive Offences under the Acts require intention on the part of
persons committing terrorist acts-Principle of speedy trial is contemplated
and manifested under TADA Acts.
E
F
'Public Order'--Scope of-!t is confined to disorders of lesser gravity G
having impact within boundaries of State-Activities of serious nature
threatening security and integrity of the country are related to defence of India.
17ie Terrorist and Dismptive Activities (Prevention) Act, 1987: Section
2( J)(a)(i}-'Abetment'-What iS-Clause held impermissibly vague-lntention is necessary to prove abetment
375
H
376
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A
Section 2(l)(f)-'Notified area'-Declaration as to- Government
should make pen·odic review.
Section 3 (as amended by TADA (Prevention) Amendment Act, 1993)
and Section 4-Te"orist Acts-Dismptive Activities-Offences also covered
by ordinary laws-Provision for harsh punishment under TADA Act-In view
B · of the object and purpose of Act Sections held not violative for absence of
guiding principle whether to proceed under ordinary law or TADA.
c
D
E
F
G
Section 5-Mere possession of arms and ammunition-Whether sufficient to prove offence.
Section 8-Provision for foifeiture of property-Held not violative of
Articles 14 and 21.
Section 9-Designated Courts-Validity of-Held not violative of Entry
65-List II and Articles 233, 234 and 235 of Constitution.
Section 9(7}-Designated Court-Judge-Superannuation-Provision
for continuance after superannuation-Held not violative of Article
21-Provision does not affect independence of judiciary-However at the time
of appointment it should be ensured that Judge has sufficient tenure.
Section 11(2)(3)-Held not violative of Article 14-Designated
Courts-Order of transfer of cases-Concurrence of Chief Justice of India is
sine qua non-According of concurrence by GI is a statutory function and
not a Judicial function-According of concu"ence though imperative but
passing of transfer order by Government is not imperative-Concurrence by
GI is not open to Judicial Review but final order of transfer passed by
Government is subject to Judicial Review.
Section 15(As amended by TADA (Amedment) Act, 1993)-Confession-What is-Confession to Police Officer not below in rank of Superintendent of Police-Admissibility of-Fairness in recording the confessionSection 15 held not violative of Articles 14 and 21--Duty of Court deciding
admissibility of confession-What is-Oppressive and bmtal behaviour in
obtaining confession deprecated-Guidelines for ensuring fairness in obtainI
l'
ing confession laid down-Amendments in Act & Rules suggested
l'
~
H
Section 16(1) (As it stood prior to its amendemnt in 1993).
_,
KARTAR v. STATE OF PUNJAB
377
Designated Court-Conduct of proceeding m Camera-Legality A
of-Right to open trial is not absolute.
Section 16(2) (3}-Designated Court-Withholding the identity rf witnesses by-Legality of-Held there is no constitutional or statutory constraint
against keeping the identity of witnesses secret in extraordinary circumstances.
Section 19-f'rovision for direct appeal to Supreme Courf-Held
valid-In view of the abnonnal procedure-Necessary amendment of Section
._
suggested.
Section 20(3}-Executive Magistrate-Power to record confession-SecB
tion :1e/d not violative of Articles 14 and 21 empowering Executive Magistrate C
to record confession is not contrary to criminal jurispmdence.
Section 20(4) (As amended by Act 43 of I993}-Provision for transmission of accused to Executive Magistrate and extendi11g the pe1iod of
detention-Held not ultra vires.
Section 20(7}-0ffences punisltable under TADA-Exclusion of an-
..
ticipatory bail in respect of-Held not violative of personal liberty.
Section 20(8}-Bail in respect of TADA offences-imposition of conditions for grant of bail in addition to existing conditions under the Code of
D
Criminal Procedur,,_Held not unreasonable.
E
Section 22-Provision that identification of proclaimed offenders on the
basis of photograph shall have same evidentiary value as evidence of test
identification parade held invalid.
The Terrorist Affected Area< (Special Courts) Act, 1984 :
Section 2( 1)(i}-'Terrorist affected areas'-Declaration of-State
Govenunent should niake periodic review as to.
F
Section 3-Central Government-Power to declare 'terrorist affected'
area-constitution of Judicial Zone-Section held not vague and without G
guidelines-Declaration of terrorist affected areas-Essential prequisites
for--What are.
Constitution of India, 1950 :
Articles 245, 246 and 248-Sevemh Schedul,,_List I--Ent1ies I, 2, 2A H
378
SUPREME COURT REPORTS
[1994) 2 S.C.R.
A
and 97-List II--Ent1ies I, 2 and 97-List III-Entries I and 2-Scope of
B
c
Seventh Schedule-Legislative Entires-Principles of constructionEntries should not be constmed in a ntllToW and pedantic mannel'-Widest
amplitude should be given to entries-Duty of court-Examination with refererice to doctrine of 'Pith and substance'.
Doctrine of 'Pith and substance'-What is.
Article 14-Classification-Test of-What is-£.xistence of two procedures-One procedure harsh and oppressive against othel'-Reasonableness
and validity of
Legislantre-Power to make classification of 'offences and offenders'-·
Classification of offences and offenders under TADA held not discriminatory.
Article 20(3/-Testimonial compulsio1t-Protection against-Scope of
D
Article 21-l'ersonal libertr-Scope and object of-Exclusion of
E
F
provision of anticipatory bail in respect of TADA offences-Held not violative
of Article 21.
Imposition of conditions for grant of bail in respect of TADA offences-Held not violative of Article 21.
Procedure established by law-Procedure as well as substantive
law-Need for just and fairness in.
Human Rights-Police-Extorting of confession-Use of third degree
methods fo,....../Jeprecation of
Speedy trial-Need fo1'-Speedy trial is contemplated by TADA Acts.
Article 5!>-Separation of Powers-Judiciary-Executive conferment of
judicial functions on Executive Magistrates-Held not contrary to Article 50.
G
Article 226-Power to entertain bail applications in respect of TADA
offences-Held High Court has jurisdiction to entertain such an application--But such power should be exercised most sparingly in rare cases-Judicial discipline and comity requires that High Courts should refrain from
:.J'
exercising jurisdiction in bail applications under special Acts.
H
Doctrine of ComifrApplicability of
KART AR v. STATE OF PUNJA!l
379
Article 254-Central Law Amendment to-State legislature has power A
to amend Central Law.
Indian Evidence Act, 1872: Sections 24 to 3()-Scope of
Code of Criminal Procedure, 1973: Section 164-Confession-Recording of-Nature and object of the Provision-Explained.
B
Section 438-Anticipatory bail-Exclusion in respect of TADA Offen-
-ll
ces-Held valid.
Code of Criminal Procedure (UP Amendment Act 16 of 1976} :
c
Section 9-Deletion of provision of anticipatory bail-Held Section is
not ultra vires for lack of competence of State legislature-Act is not violative
of Articles 14, 19 and 21.
Interpretation of Statutes :
Statute-Legislative intentiolt-Mode of ascertainment-What is.
Statut,,.....Presumption of Constitutionality-Judges can take notice of
matters of common knowledge and authenticated report.
Criminal Law-Offence-Mens Rea-Must be read into status unless
expressly or impliedly excluded.
Maxim-'Actus Non Facit Ream Nisi Mens sitrea'-Meaning of and
exceptions to.
Words and Phrases-'Abet', 'Offence' and 'Compelled'-Meaning of
'Legislative power' and 'Judicial power'-Meaning of
D
E
F
These writ petitions, Criminal appeals and Special Leave Petitions
have been filed challenging the vires of the Terrorist Affected Areas
(Special Courts) Act, 1984, the Terrorists and Disruptive Activities G
(Prevention) Act, 1985 and the Terrorist and Disruptive Activities (Prevention) Act, 1987-commonly known as TADA Act. Further, Constitutional
validity of various provisions of the Terrorist and Disruptive Activties
(Prevention) Act, 1987 and the Terrorist Affected Areas (Special Courts)
Act, 1984 as well as Section 9 of the Code of Criminal Procedure (U.I'.
Amendment) Act, 1976 was also challenged.
380
SUPREME COURT REPORTS
[1994J 2S.C.R.
A
Disposing the matters, this Court
HELD : By the court
1. The Terrorist Affected Areas (Special Courts) Act, 1984, the
Terrorist and Disruptive Activities (Prevention) Act, 1985, and The Ter·
B rorist and Disruptive Activities (Prevention) Act, 1987 fall within the
legislative competence of Parliament in view of Article 248 read with Entry
97 of List I and could fall within the ambit of Entry I of List I, namely,
'Defence of India'. (559 H, 560 AJ
C
2. As the meaning of the word "abet" as defined under Section
2(1)(i)(a) of1987 Act is vague and imprecise, 'actual knowledge or reason
to believe' on the part of a 11erson to be brought within the definition,
should be read into that provision instead of reading that jlrovision down.
(560 BJ
D
3. The power vested on the Central Government to declare any area
as 'terrorist affected area' within the terms of Section 3(1) of the 1984 Act
does not suffer from any invalidity. (560 CJ
4. Sections 3 and 4 of the 1987 Act are liable to be struck down on
the grounds that both the Sections cover the acts which constitute offences
E nuder ordinary laws and that there is no guiding principle as to when a
person is to be prosecuted under these Sections. [560 DJ
5. Section 8 of the 198'1 Act is not violative of Articles 14 and 21 of
tbe Constitution. (560 DJ
F
6. The challenge to the validity of Section 9 of 1987 Act on the ground
of lack of legislative competence has no merit. It is not violative of Entiy
65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the
Constitution; (560 EJ
G
7. Sub-secHon (7) of Section 9 of the 1987 Act does not offend any
constitutional provision. However, the Central Govenmcnt and the State
Governments at the time of appointing a Judge or an Additional Judge to
the Designated Court should keep in mind that the Judge designate has
sufiicient tenure of service even at the initial stage of appointment so that
no one may entertain any grieVance for continuance of service of a Judge
H of the Designated Court after attainment of superannuation. [560 F]
J.
J .
:
j
' ...
KARTAR v.STATEOFPUNJAB
381
8. The order granting 'concurrence' by the Chief Justice of India on A
a motion moved in that behalf by the Attorney General to transfer any case
pending before a Designated Court in that State to any other Designated
Court within that State or in other State, is only a statutory order and not
a judicial order since there is no adjudication of any 'tis' and determina·
tion of any issue. Therefore, sub-sections (2) and (3) of Section 11 of 1987
Act are not violative of Article 14 of the Constitution. (560 G-H, 561 A]
9. Section 15 of the 1987 Act is neither violative of Article 14 nor of
21. But the Central Government may take note of guidelines laid down for
ensuring that the confession obtained in the pre-indictment interrogation
B
is not tainted with any vice and is in strict conformity with well recognised C
principles and fundamental fairness and incorporate them by appropriate
amendments in the Act and the Rules made therunder. (561 B]
10. The challenge made to Section 16(1) of 1987 Act does not require
any consideration in view of the substitution of the newly introduced
sub-section by Amendment Act 43 of 1994 giving discretion to the Desig· D
nated Court either to hold or not to hold the proceedings in camera;
(561 C)
11. Sub-sections (2) and (3) of Section 16 of the 1987 Act are not
liable to be struck down. However, in order to ensure the purpose and E
object of cross-examination, the identity, names and addresses of the
witnesses may be disclosed before the trial commences but subject to an
exception that the Court for weighty reasons in its wisdom may decide not
to disclose the identity and addresses of the witnesses especially of potential witnesses, whose life may be in danger. (561 D, E]
12. The appeal provisions provided under Section 19 are not con·
stitutionally invalid. But having regard to the practical difficulties to be
faced by the aggrieved person under the appeal provisions, the Parliament
may devise a suitable mode of redress by making the necessary amend·
ments in the appeal provisions. (561 F)
13. Sub-sections (3) and (4)(a) of Section 20 of1987 Act do not suffer
from any infirmity on account of the inclusion of the Executive Magistrate
and Special Executive Magistrate within the purview of Sections 164 and
F
G
167 of the Code of Criminal Procedure in respect of their application in '
relation to a case involving an offence punishable under the TADA Act or H
382
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A any rule made thereunder. Likewise, clause (a) of Section 15 of the Special
Courts Act, 1984 does not suffer from any infirmity. [561 G-H)
B
14. Sections 20(7) of the 1987 Act excluding the application of
Section 438 of the Code of Criminal Procedure in relation to any case
under the Act and the Rules made thereunder, cannot be said to have
deprived the personal liberty of a person as enshrined in Article 21 of the
Constitution. [562 A)
15. The deletion of the application of section 438 in the State of Uttar
J/..
Pradesh by Section 9 of the Code of Criminal Procedure (U.P.) AmendC ment, 1976 does not offend either Article 14 or 19 or 21 of the Constitution
and the State Legislature is competent to delete that Section, which is one
of the matters enumerated in the Concurrent List (List III) of the Seventh
Schedule and such deletion is valid under Article 254(2) of the Constitution. [ 562 B-C)
D
16. Sub-Section (8) of Section 20 of 1987 Act imposing the ban on
release of bail of a person acmsed of any offence punishable under the Act
or any rule made thereunder, but diluting the ban only on the fulfilment
of the two conditions mentioned in clauses (a) and (b) of that sub-section
cannot be said to be infringing the principle adumbrated in Article 21 of
E the Constitution. (562 DJ
17. Though it cannot be said that the High Court has no jurisdiction
to entertain an application for bail under Article 226 of the Constitution
and pass orders either way, relating to the cases under the Act of 1987,
that power should be exercised sparingly, that too only in rare and apF
propriate cases in extreme circumstances. But the judicial discipline and
comity of Courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters. (562 E-F)
18. Section 22 of the 1987 Act is struck down as being opposed to
G the fair and reasonable procedure enshrined in Article 21 of the Constitution. [562 F)
19. In order to ensure higher level of scrutiny and applicability of
TADA Act, there must be a Screening Committee or a Review Committee
constituted by the Central Government consisting of the Home Secretary,
H Law Secretary and other concerned Secretaries of the various Depart-
~I
KARTAR v.STATEOFPUNJAB
383
ments to review all the TADA cases instituted by the Central Government A
as well as to have a quarterly administrative review, reviewing the States'
action in the application of the TADA provisions in the respective States,
and the incidental questions arising in relation thereto. Similarly, there
must be a Screening or Review Committee at the State level constituted by
the respective States consisting of the Chief Secretary, Home Secretary,
Law Secretary, Director-General of Police (Law and Order) and other
officials as the respective Government may think it fit, to review the action
B
.\..
of the enforcing authorities under the Act and screen the cases registered
under the provisions of the Act and decide the further course of action in
every matter and so on. [522 D-E)
Quaere (i) :- Whether the three TADA Acts are unconstitutional for lack
of Legislative Competence ?
Per S. Ratnaval Pandian, J. (For himself), M.M. Punchhi and S.C. Agrawal,
fl.
c
D
...
Ramaswamy, J. (Concurring)
1. The Terrorist Affected Areas (Special Courts) Act, 1984, the
Terrorist and Disruptive Activities (Prevention) Act, 1985 and The Terrorist and Disruptive Activities (Prevention) Act, 1987 are not ultra vires E
on the ground of lack of legislative competence and as such these Acts are
not liable to be struck down. [ 462 D-E)
2. Having regard to the limitation placed by Article 245(1) on the
legislative power of the legislature of the State in the matter of enactment
'>
of laws having application within the territorial limits of the State only; F
the ambit of the field of legislation with respect to "public order" under
Entry I in the State List has to be confined to disorders of lesser gravity
having an impact within the boundaries of the State. Activities or a 1nore
serious nature which theaten the security and integrity of the country as a
whole would not be within the legislative field assigned to the States under G
Entry I of the State List but would fall within the ambit of Entry I of the
Union List relating to defence of India and in any event under the
\ "·
residuary power conferred on Parliament under Article 248 read with
Entry 97 of the Union List. [ 458 C-E)
3. The terrorism, the TADA Act contemplates, cannot be classified H
384
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A as mere disturbance of 'Public Order' disturbing the "even tempo of the
life community of any specified locality" but it is much more, rather a grave
emergent situation created either by external forces particularly at the
frontiers of this country or by anti-nationals throwing a challenge to the
very existence and sovereignty of the country in its democratic policy. This
B
c
view gets strengthened from the very definition of the expression 'terrorist
act' as defined in Section 2(1)(h) and the expression 'disruptive activity'
as defined under Section 2(1)(d), of the 1987 Act. Thus the submission that
the preamble of the Act gives a clue that the terrorist and disruptive
activities only mean a virulenl form of the disruption of public order is
inconceivable and unacceptable. (459 D, E, H, 460 G]
Lakhi Narayan Dass v. Province of Bihar, A.l.R. (1950) F.C. 59;
Romes/; Tl1appar v. State oj Madras, (1950] S.C.R. 594; Rev. Stainslaus v.
State of Madhya Pradesh, (1977] 2 S.C.R. 611; As/wk Kumar Di.xit v. State
of U.P., A.LR. (1987) All. 235 (F.B.); Prafulla Kumar Mukherjee and Ors. v.
Bank of Commerce, A.J.R. (1947) P.C. 60; Ram [(Jishana Ramnath Aganval
D v. Secretwy Municipal Committee, (1950] S.C.R. 15; Kera/a Stale Electricity
Board v. lndian Aluminium Co., (1976] 1 S.C.R. 552 and The Superilllendent, Celltral Prison v. Dr. Lohia, (1960] 2 S.C.R. 821, referred to.
Observations of Hidayalullah, CJ in Arnn Ghosh v. State of West
E Bengal, (1970] 3 S.C.R. 288, relied on.
4. The impugned legislation does not fall under Entry 1 of List II,
namely, 'public order'. The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of
List I and it is not necessary to consider whether it falls under any of the
•
).,
>
F
Entries in List 1 of List III. However, the impugned Act could fall within the
•
ambit of Entry 1 of List I, nami,fy 'Defence of India'. [ 460 H, 461 A]
5. The definition of the expressions 'terrorist act' and 'disruptive
activity' under Section 2(1)(h) and (d) of 1987 Act respectively are conG jointly brought under the definition of the word 'terrorist act' in Act 61 of
1984. Therefore, the Act of 1984 also cannot be said to have contemplated
only 'Public Order' but envisages a more grave situation threatening the
sovereignity and Integrity of India. (462 C-D]
6. \~11ile examining the question of legislative competence of ParliaH ment to make a law, the proper approach is to determine whether the
r
•
KARTAR v. STATE OF PUNJAB
385
subject matter of the legislation falls in the State List which Parliament A
cannot enter. Ir the law does not fall in the State List, the Parliament would
have the legislative competence to pass the law by virtue of the residuary
powers under Article 248 read with Entry 97 of the Union List and it would
not be necessary to go into the question whether it falls under any entry
in the Union List or Concurrent List. [ 454 Fl
Union of India v. H.S. Dillon, [1972) 2 S.C.R. 33; S.P. Mittal v. Union
o,' India, [1983) 1 S.C.R. 729 andKhandelwal Metal Works v. Union of India,
[1985] Supp. 1 S.C.R. 750, referred to.
B
7. The entries in the legislative lists mnst not be construed in a narrow C
and pedantic sense and that widest amplitude must be given to the language
of these entries. Sometimes the entires in different lists or the same list may
be found to overlap or to be in direct conflict with each other. In that event
it is the duty of !he Court to find out its true intent and purpose and to
examine the particular legislation in its 'pith and substance' to determine
whether it fits in one or other of the lists. [ 455 B-C]
D
Synthetics & Chemicals Ltd. v. State of U.P., [1989] Supp. 1 S.C.R.
623 and India Cemellt Ltd. v. State of Tamil Nadu, [1989] Supp. 1 S.C.R.
692, referred to.
8. The doctrine of 'pith and substance' is applied when the legislative
competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with
the subject in one list is also touching on a subject in another list. In such a
case, what has to be ascertained is the pith and substance of the enactment.
On a scrutiny of the Act in question, if found, that the legislation is in
substance one on a matter assigned to the legislature enacting that statute,
then that Act as a whole must be held to be valid notwithstanding any
incidental trenching upon matters beyond its competence i.e. on a matter
included in the List belonging to the other legislature. To say differently,
incidental encroachment is not altogether forbidden. [ 455 D-E]
E
F
G
Prafu/la Kumar Mukherjee and Ors. v. Bank of Commerce, Khulna,
A.I.R. 34 (1947) P.C. 60; Sztbramanyan Chettiar v. Muttuswamy Goundan,
(1940) F.C.R. 188; re. 17ie Central Provinces and Berar Act No. XIV of 1938,
A.LR. (1939) FC 1; Governor-General in Council v. Province of Madras,
A.I.R. (1945) P.C. 98; Union of India v. H.S. Dhillon, [1972] 2 SCR 33 and H
386
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A J&K State v. M.S. Farooqui, (1972) 3 SCR 881, referred to.
B
Speedy Trial is contemplated by TADA Acts.
9. Though there is no explicit manifestation of the expression,
'speedy trial' either in the preamble or in any of the provisions of the TADA
Acts as in 1984 (Special Courts) Act, the scope and intendment of the
various provisions of these TADA Acts perceivably conveys that the TADA
Acts also contemplate speedy trial of cases. In fact, the 'Statement of
Objects and Reasons' of 1985 Act reading, "This is a new and overt phase
of terrorism which requires to be taken serious note of and dealt with
effectively and expeditiously" makes it clear that the Constitution of Designated Courts was for the speedy and expeditious trial of offences under
the impugned legislation. (463 G-H, 464 A)
10. The concept of speedy trial is read into Article 21 as essential
part of the fundamental right to life and liberty guaranteed and preserved
D under our Constitution. The right to speeedy trial begins with the actual
restraint imposed by arrest and consequent incarceration and continues
at all stages, namely, the stage of investigation, inquiry, trial, appeal and
revision so that any possible prejudice that may result from impermissible
and avoidable delay from the time of the commission of the offence till it
E consummates into a finality, can be averted. [ 465 E-F)
11. The right to a speedy trial is not only an important safeguard to
prevent undue and oppressive incarceration, to minimise anxiety and
concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a
F
societal interest in providing a speedy trial. This right has been actuated
in the recent past and the courts have laid down a series of decisions
opeing up new vistas of fundam.,ntal rights. [ 464 H, 465 A)
12. of course, no length of time is per se too long to pass scrutiny
under the principle of Speedy Trial nor the accused is called upon to show
G the actual prejudice by delay of disposal of cases. On the other hand, the
Court has to adopt a balancing approach by taking note of the possible
prejudices and disadvantages to be suffered by the accused by avoidable
delay and to determine whether the accused in a criminal proceeding has
been deprived of his right of having speedy trial with unreasonable delay
H which would be identified by the factors; (1) Length of delay, (2) the
KARTAR v. STATE OF PUNJAB
387
justification for the delay, (3) the accused's assertion of his right to speedy A
trial and (4) prejudice casued to the accused by such delay. However, the
fact of delay is dependent on the circumstances of each case because
reasons for delay will vary, such as delay in investigation on account of the
wide-spread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses,
crowded dockets on the file of the Court etc. [ 467 B-D)
B
13. When the issue under debate is examined in the light of the above
enunciated principle of speedy trial, the said principle, expressly contemplated in the 1984 Act and manifested in the other two TADA Acts
under vaious provisions is evidently incorporated as the essential feature C
of those Acts. There can be no controversy or difference of opinion in
invoking the speedy trial of cases under the impugned Acts. [ 467 El
14. Keeping in view the doctrine of 'speedy trial' which is read into
Article 21 as an essential part of the fundamental right to life and liberty
guaranteed and preserved under our Constitution and which concept is D
'•
manifested in the Special Courts Act, 1984 and TADA Act, 1987, the
Designated Courts should dispose of the cases pending before them
without giving room for any complaint of unreasonable delay. The
Government concerned should ensure that no vacancy of Presiding Officer
of the Designated Court remains vacant and should take necesary steps to E
fill up the vacancy as soon as any vacancy arises and also if necessitated,
should constitute more Designated Courts so that the undertrials charged
with the provisions of TADA do not languish in jail indefinitely and the
cases are disposed of expeditiously. (562 G-H, 563 A)
•
Maneka Gandhi v. Union of India, (1978) 2 S.C.R 621; Hussainara
F
Khatoon and Ors. (I) v. Home Secretary, State of Bihar, (1980) 1 S.C.C. 81;
Sunil Batra v. Delhi Administration, [1979] 1 SCR 392; Hussainara Khatton
and Ors. v. Home Secretary, State of Bihar, (1979) 3 S.C.R 169; Hussainara
Khatoon v. Home Secretary, State of Bihar, Patna,
(1979) 3 SCR 532;
Hussainara Khatoon & Ors. v. Home Secretary State of Bihar, Govt. of Bih01; G
Patna, (1979) 3 SCR 1276; Karda Pahadia v. State of Bihar, (1983) 2 SCC
104; T. V. Vathesswaran v. State of Tamil Nadu, (1983) 2 SCR 348 andAbdul
\.
Rehman Antulay v. R.S. Nayak, (1992] 1 SCC 225, referred to.
Beavers v. Haubert, 198 US 77, 87 [1905); Strunk v. United States, 412
US 434 (1973) and United States v. Mac Donald, 485 U.S. 850 [1977], H
388
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A
referred to.
Black's Law Dictionary (Sixth Edition) p.1400, referred to.
Role of Police in implementation of TADA Acts.
B
15. It is heart-rending to note that day and day out Courts come
across with the news of blood-curdling incidents of police brutality and
atrocities, alleged to have been committed, in utter disregard and in all
breaches of humanitarian law and universal human rights as well as in
total negation of the constitutional guarantees and human decency. Courts
C are undoubtedly committed to uphold human rights even as a part of
longstanding heritage and as enshrined in out constitutional law. This
perspective needs to be kept in view by every law enforcing authority
because the recognition of the inherent dignity and of the equal and
inalienable rights of the citizens is the foundation of freedom, justice and
peace in the world. If the human rights are outraged, then the Court
D should set its face against such violation of human rights by exercising its
majestic judicial authority. (558 G-H, 559 A]
E
F
16. The protection that the citizens enjoy under the Rule of Law are
the quintessence of two thousand years of human struggling from Adams.
It is not commonly realised how easily this may be lost. There is no known
method of retaining them but by eternal vigilance. There is no institution
to which the duty can be delegated except to the judiciary. If the law
enforcing authority becomes a law breaker, it breeds contempt for law, it
invites every man to become a law unto himself and ultimately it invites
anarchy. (559 B-C]
Per Sahai, J. (Concuning) :
1. The furee TADA Acts-Act 61 of1984, Act 31 of 1985, and Act 28 of
1987 liave been validly enacted by the Parliament in exercise of its power
G under Entry 1 of List III of the Constitution. (627 A]
2. Power to frame or enact law for the governance of the country by
the supreme body exercising the sovereign power is known as legislative
power. In a democrary which has opted for federal structure of governance
with a written constitution the legislative powers either of the Central or
H the State Legislature are derived from the Constitution itself. In our
I
'
KARTAR v. STATE OF PUNJAB
389
Constitution the Legislatures under Articles 246 have plenary powers. A
Both are snpreme in their sphere. But the field of legislative activity of the
two soveign legislatures is regulated and is exercised in consonance with
Entry in List I and II of the VII Schedule. Apart from exclusive field of
activity provision is made empowering both the legislatures to exercise
legislative power in respect of any of the matters enumerated in List III in B
the Seventh Schedule known as concurrent list. [ 610 F ·H; 611 A]
3. From the language used in Entry I of List III it is apparent that the
Entry is couched in very wide terms. The words following the expression
'criminal law' enlarge the scope to any matter which can validly be con·
sidered to be criminal in nature. The exercise of power under this entry, C
therefore, has to be construed liberally so as to give full play to the legisla·
tive activity. The width of the entry, however, is controlled by the latter
expression which takes away the power of either legislature to legislate in
respect of offences against laws with respect to any of the matters specified
in List I or List II. Since this part restricts and narrows the ambit of the D
entry it has to be construed strictly. Since under the Federal structure the
law made by the Parliament has supermacy any enactment made in exercise
of power under Entry in concurrent list shall have over-riding effect subject
to restrictions that may be spelt out from the entry itself. A legislation by .
Union Parliament to be valid under this entry must satisfy two requirments;
one, that it must relate to criminal law and the offence should not be such E
as has been or could be provided against laws with respect to any of the
matters specified in List II. [611G-H,612 A-Bl
Union of India v. H.S. Dhi//011, A.I.R. (1972) S.C. 1061, referred to.
F
4. What is a crime in a given society at a particular time has a wide
connotation as the concept of crime keeps on changing with change in
political, economic and. social set-op of the conntry. Various legislations
dealing with economic offences or offences dealing with violation of industrial activity or breach of taxing provision are ample proof of it. The
Constitution makers foresaw the eventuality; therefore, they conferred G
such powers both on Central and State Legislatures to make laws in this
regard. Such right includes power to define a crime and provide for its
punishment. Use of the expression 'including all matters included in the
Indian Penal Code at the commencement of the Constitution' in Entry I
of List III is unequivocal indication of comprehensive nature of this entry. H
390
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A It further empowers the legislature to make laws not only in respect of
matters covered by the IPC but any other matter which could reasonably
and justifiably be considered to be criminal in nature. Terrorist or disruptive activity is criminai in content, reach and effect. The Central and State
Legislature both, therefore, are empowered to legislate in respect of such
B an activity in exercise of the power conferred under Entry 1 of the concurrent list. But this wide power is otherwise controlled and restricted by the
latter part of the entry. It carves out an exception by precluding either of
the legislatures from exercising the power if it is in respect of offence
against laws with respect to any of the matters specified in List I or II. The
c
controversy, narrows dmm to if the offences under the TADA are such in
respect of which the State Legislature could make a law. In other words if
the legislation relating to TADA c.an fall in Entry 1 of List II then the State
legislature would have competence to make a law under this entry and
create offences for violation of such law under item 64 of List II and the
Central Legislature would be precluded from making any law. But that
D would happen if it is held that law relating to TADA is either in fact or in
pith and substance a law relating to 'public order'. (612 D-H, 613 A-BJ
5. 'Terrorism constitute a direct repudiation of liberal and human
values and principles, and that terrorist ideology is ... and constantly
E deployed in a struggle to defame and discredit democracy'. The terrorism
with which our country is faced is sponsored terrorism. Terrorism whether
it is sponsored or revolutionary or even political by it.• nature cannot be
considered to be public order as explained by this Court. Conceptually
public order and terrorism are ~ifferent not only in ideology and
F
philosophy but also in cause or the mens rea, the manner of its commission
and the effect or result of such activity. Public order is well understood
and fully comprehended as a problem associated with low and order.
Terrorism is a new crime far serious in nature, more graver in impact, and
highly dangerous in conseqence. One pertains to law and order problem
whereas the other may be political in nature coupled with unjustifiable use
G of force threatening security and integrity of the State. The submission
thus advanced on legislative com1ietence, more as a matter of form than
with any feeling of conviction and belief in its merit, does not appear to be
sound. [613 F-H, 614 A-Bl
H
Ramesh Thapar v. State of Madras, A.I.R. (1950) S.C. 124; Ram
I
I .
y
-·
KARTAR v. STATE OF PUNJAB
391
Manohar Lohia v. State of Bihar&Anr., [1966J 1 S.C.R. 709=A.I.R. (1966) A
SC 740 and Harakchand Ratanchand Banthia v. Union of India, A.LR.
(1970) SC 1453, referred to.
6. TADA having been enacted under Entry 1 of List III of the Seventh
Schedule, it did not suffer from lack of legislative competence. [614 CJ
7. Any law of punitive or preventive detention has to be tested on the
touchstone of the constitutional assurance to every person that he shall
not be deprived of his liberty except in accordance with procedure established by law. It is declaration of deep faith and belief in human rights. In
B
the pattern of guarantee woven in Chapter III of the Constitution, personal C
liberty of a man is at the root of Article 21. [614 DJ
8. Article 21 is a constitutional command to State to preserve the
basic human rights of every person. Existence of right and its preservation
has, thus to be construed liberally and expansively. As a corollary to it the
exercise of power by the State has to be construed narrowly and restricD
lively. It should be so understood and interpreted as not to nullify the basic
purpose of the gua!""ntee. No legislative or executive action can be permitted to get through unless it passes through the judicial scanning of it
being not violative of the cherished right preserved constitutionally. If the
Article is construed as empowering the State to make a law and deprive a E
person as the Constitution permits it then the entire concept of personal
liberty shall stand frustrated. A political party voted to power may adopt
repressive measures against its political foes by enacting a law and it may
well be said that deprivation being in accordance witl) procedure established by law it is within constitutional frame up. The procedure adopted
by State either legislatively or executively must therefore satisfy the basic F
and fundamental requirement of being fair and just. Procedure established
by law extends both, to the substantive and procedural law. Futher mere
law is not sufficent. It must be fair and just law. (615 G-H, 616 A-CJ
9. Each expression used in Article 21 enhances human dignity and
value. It lays foundation for a society where rule of law bas primacy and G
not arbitrary or capricious exercise of power. 'Life' dictionarily means
'state of functional activity and continual change peculiar to organised
matter, aud especially to the portion of it constituting an animal or plant
before death, animate existence, being alive'. But used in the Constitution
it may not be mere existence. 'Truncate liberty in Article 21 and several H
392
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A other freedom fade out automatically'. (614 G-H, 615 A·D)
Munn v. Illinois, [1877) 94 US 113; Khadak Singh v. State of UP.,
[1964] 1 S.C.R. 332; Sunil Batra v. Delhi Administration, [1979] 1 S.C.R.
392; Maneka Gandhi v. Union of India, [1978) 2 S.C.R. 621; Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi, [1981] 2 SCR 516 and
B Additional District Magistrate, Jabalpur v. Shivakant Shukla, A.l.R. (1976)
S.C. 1207, referred to.
c
Quaere (ii) :- lt'hether Section 2(J)(a)(i)of 1987 Act is vague and
imprecise ? Whether Mens Rea is necessary element of abetment ?
Per S. Ratnavel Pandian, J. (For himself M.M. Punchhi and S.C. Agrawal,
!.)-
Ramaswamy, J, (Concurring):
1. Section 2(1) (a) (i) of 1987 Act is blissfully and impermissibly vague
D and imprecise. Even an innocent person who ingeniously and undefiledly
communicates or associate without any knowledge or having no reason to
believe or suspect that the person or class of persons with whom he has
communicated or associated is engaged in assisting in any manner ter·
rorists or disruptionists, can be arrested and prosecuted by abusing or
E
misusing or misapplying this definition. In ultimate consummation of the
proceedings, perhaps that guiltless and innoxious innocent person may
also be convicted. (478 F-G]
2.