The Unlawful Activities Prevention Act (UAPA) is India’s primary anti-terror law criminalising ‘unlawful activities’, ‘terrorist acts’, and a range of associated offences, all of which carry enhanced penalties as compared to the Indian Penal Code (IPC). The UAPA also empowers governments to ban ‘unlawful’ or ‘terrorist’ organisations, and encodes special procedures deviating from recognised fair trial principles under statute and common law.1 The Terrorist and Disruptive Activities Act (TADA) and Prevention of Terrorism Act (POTA) were predecessors of UAPA.
In Kartar Singh, the petitioners challenged TADA on both prongs of legislative
competence, and violation of fair trial under Article 21. On fair trial, petitioners
argued the following:
- Act vests unguided discretion in the executive in the definition of offences (Sec-
tions2[1][a], 3, and 4), designation of affected areas (Section3[1]), and forfeiture
of property (Section8), increasing arbitrariness in depriving liberty.
- Act empowers central government to constitute special courts (Section9), and to
appoint judges beyond their superannuation (Section9[7]), undermining inde-
pendence of the judicial process.
- Power of central government to transfer cases contravenes the CrPC by denying
the accused’s right to be heard (Section11[2]).
- Admissibility of extra-judicial confessions is contrary to the mandate of CrPC
and IEA due to the possibility of torture and coercion on accused (Section15).
- Exclusion of public trials deviates from CrPC by removing public oversight on
the administration of justice (Section16).
- Direct appeals to Supreme Court limits avenues for accused to access intermedi-
ary levels of appeals under the CrPC, and the Supreme Court is effectively inac-
cessible to most accused (Section19).
- Statutory conditions for bail and remand effectively bar the right to bail and
ensure prolonged periods of pre-trial detention violating the presumption of inno-
cence (Section20).
- Photographic identification of suspects is weak evidence with scarce probative
value and high margin of error contrary to IEA (Section22).
The majority opinion upheld the constitutionality of TADA under both prongs
of legislative competence and compliance with Part III (except Section22), on the
grounds that Parliament is competent to deviate from cardinal principles of criminal
jurisprudence for a distinct class of offences to meet the object of the law.
39
While
Sections3(1) and 11 were upheld entirely, the majority opinion took note of poten-
tial fair trial violations and introduced additional safeguards to other provisions:
heightened judicial scrutiny (Sections3, 4, 15, 20[8], and 20[9]); recommendations
to the executive (Sections9, 15, 20) and legislature (Section19); reading in certain
natural justice rights of accused (Sections 2[1][a], 8, 16). On the other hand, the
court upheld denial of hearing to accused for transfer of cases under Section11.
Ramaswamy J’s dissent struck down the validity of extra-judicial confessions,
and the appointment of judges to special courts beyond their superannuation for fair
trial violations. While the Parliament can regulate procedure for a special class of
offences, these too are subject to ‘fundamental principles of fair justice rooted in
39
While the professed object of the law, as specified in the preamble of TADA, argued by the Additional
Solicitor-General, and acknowledged up front by the majority opinion, was to provide speedy trials, the
‘golden triangle’ scrutiny was conducted with national security as the object.
110
Jindal Global Law Review (2022) 13(1):103–116
1 3
3 Revisiting Kartar Singh: Atheory offair trial?
In Kartar Singh, the petitioners challenged TADA on both prongs of legislative
competence, and violation of fair trial under Article 21. On fair trial, petitioners
argued the following:
- Act vests unguided discretion in the executive in the definition of offences (Sec-
tions2[1][a], 3, and 4), designation of affected areas (Section3[1]), and forfeiture
of property (Section8), increasing arbitrariness in depriving liberty.
- Act empowers central government to constitute special courts (Section9), and to
appoint judges beyond their superannuation (Section9[7]), undermining inde-
pendence of the judicial process.
- Power of central government to transfer cases contravenes the CrPC by denying
the accused’s right to be heard (Section11[2]).
- Admissibility of extra-judicial confessions is contrary to the mandate of CrPC
and IEA due to the possibility of torture and coercion on accused (Section15).
- Exclusion of public trials deviates from CrPC by removing public oversight on
the administration of justice (Section16).
- Direct appeals to Supreme Court limits avenues for accused to access intermedi-
ary levels of appeals under the CrPC, and the Supreme Court is effectively inac-
cessible to most accused (Section19).
- Statutory conditions for bail and remand effectively bar the right to bail and
ensure prolonged periods of pre-trial detention violating the presumption of inno-
cence (Section20).
- Photographic identification of suspects is weak evidence with scarce probative
value and high margin of error contrary to IEA (Section22).
The majority opinion upheld the constitutionality of TADA under both prongs
of legislative competence and compliance with Part III (except Section22), on the
grounds that Parliament is competent to deviate from cardinal principles of criminal
jurisprudence for a distinct class of offences to meet the object of the law.
39
While
Sections3(1) and 11 were upheld entirely, the majority opinion took note of poten-
tial fair trial violations and introduced additional safeguards to other provisions:
heightened judicial scrutiny (Sections3, 4, 15, 20[8], and 20[9]); recommendations
to the executive (Sections9, 15, 20) and legislature (Section19); reading in certain
natural justice rights of accused (Sections 2[1][a], 8, 16). On the other hand, the
court upheld denial of hearing to accused for transfer of cases under Section11.
Ramaswamy J’s dissent struck down the validity of extra-judicial confessions,
and the appointment of judges to special courts beyond their superannuation for fair
trial violations. While the Parliament can regulate procedure for a special class of
offences, these too are subject to ‘fundamental principles of fair justice rooted in
39
While the professed object of the law, as specified in the preamble of TADA, argued by the Additional
Solicitor-General, and acknowledged up front by the majority opinion, was to provide speedy trials, the
‘golden triangle’ scrutiny was conducted with national security as the object.
110
Jindal Global Law Review (2022) 13(1):103–116
1 3
3 Revisiting Kartar Singh: Atheory offair trial?
In Kartar Singh, the petitioners challenged TADA on both prongs of legislative
competence, and violation of fair trial under Article 21. On fair trial, petitioners
argued the following:
- Act vests unguided discretion in the executive in the definition of offences (Sec-
tions2[1][a], 3, and 4), designation of affected areas (Section3[1]), and forfeiture
of property (Section8), increasing arbitrariness in depriving liberty.
- Act empowers central government to constitute special courts (Section9), and to
appoint judges beyond their superannuation (Section9[7]), undermining inde-
pendence of the judicial process.
- Power of central government to transfer cases contravenes the CrPC by denying
the accused’s right to be heard (Section11[2]).
- Admissibility of extra-judicial confessions is contrary to the mandate of CrPC
and IEA due to the possibility of torture and coercion on accused (Section15).
- Exclusion of public trials deviates from CrPC by removing public oversight on
the administration of justice (Section16).
- Direct appeals to Supreme Court limits avenues for accused to access intermedi-
ary levels of appeals under the CrPC, and the Supreme Court is effectively inac-
cessible to most accused (Section19).
- Statutory conditions for bail and remand effectively bar the right to bail and
ensure prolonged periods of pre-trial detention violating the presumption of inno-
cence (Section20).
- Photographic identification of suspects is weak evidence with scarce probative
value and high margin of error contrary to IEA (Section22).
The majority opinion upheld the constitutionality of TADA under both prongs
of legislative competence and compliance with Part III (except Section22), on the
grounds that Parliament is competent to deviate from cardinal principles of criminal
jurisprudence for a distinct class of offences to meet the object of the law.
39
While
Sections3(1) and 11 were upheld entirely, the majority opinion took note of poten-
tial fair trial violations and introduced additional safeguards to other provisions:
heightened judicial scrutiny (Sections3, 4, 15, 20[8], and 20[9]); recommendations
to the executive (Sections9, 15, 20) and legislature (Section19); reading in certain
natural justice rights of accused (Sections 2[1][a], 8, 16). On the other hand, the
court upheld denial of hearing to accused for transfer of cases under Section11.
Ramaswamy J’s dissent struck down the validity of extra-judicial confessions,
and the appointment of judges to special courts beyond their superannuation for fair
trial violations. While the Parliament can regulate procedure for a special class of
offences, these too are subject to ‘fundamental principles of fair justice rooted in
39
While the professed object of the law, as specified in the preamble of TADA, argued by the Additional
Solicitor-General, and acknowledged up front by the majority opinion, was to provide speedy trials, the
‘golden triangle’ scrutiny was conducted with national security as the object.
110 Jindal Global Law Review (2022) 13(1):103–1161 33 Revisiting Kartar Singh: A theory of fair trial.In Kartar Singh, the petitioners challenged TADA on both prongs of legislative competence, and violation of fair trial under Article 21.
On fair trial, petitioners argued the following:
- Act vests unguided discretion in the executive in the definition of offences (Sec-tions2[1][a], 3, and 4), designation of affected areas (Section3[1]), and forfeiture of property (Section8), increasing arbitrariness in depriving liberty.
- Act empowers central government to constitute special courts (Section9), and to appoint judges beyond their superannuation (Section9[7]), undermining inde-pendence of the judicial process.
- Power of central government to transfer cases contravenes the CrPC by denying the accused’s right to be heard (Section11[2]).
- Admissibility of extra-judicial confessions is contrary to the mandate of CrPC and IEA due to the possibility of torture and coercion on accused (Section15).
- Exclusion of public trials deviates from CrPC by removing public oversight on the administration of justice (Section16).
- Direct appeals to Supreme Court limits avenues for accused to access intermedi-ary levels of appeals under the CrPC, and the Supreme Court is effectively inac-cessible to most accused (Section19).
- Statutory conditions for bail and remand effectively bar the right to bail and ensure prolonged periods of pre-trial detention violating the presumption of inno-cence (Section20).
- Photographic identification of suspects is weak evidence with scarce probative value and high margin of error contrary to IEA (Section22).The majority opinion upheld the constitutionality of TADA under both prongs of legislative competence and compliance with Part III (except Section22), on the grounds that Parliament is competent to deviate from cardinal principles of criminal jurisprudence for a distinct class of offences to meet the object of the law.
- While Sections3(1) and 11 were upheld entirely, the majority opinion took note of poten-tial fair trial violations and introduced additional safeguards to other provisions: heightened judicial scrutiny (Sections3, 4, 15, 20[8], and 20[9]); recommendations to the executive (Sections9, 15, 20) and legislature (Section19); reading in certain natural justice rights of accused (Sections 2[1][a], 8, 16). On the other hand, the court upheld denial of hearing to accused for transfer of cases under 10.Ramaswamy J’s dissent struck down the validity of extra-judicial confessions, and the appointment of judges to special courts beyond their superannuation for fair trial violations. While the Parliament can regulate procedure for a special class of offences, these too are subject to ‘fundamental principles of fair justice rooted in
11.While the professed object of the law, as specified in the preamble of TADA, argued by the Additional Solicitor-General, and acknowledged up front by the majority opinion, was to provide speedy trials, the ‘golden triangle’ scrutiny was conducted with national security as the object.
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