Introduction

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.Footnote 1

The Terrorist and Disruptive Activities Act (TADA) and Prevention of Terrorism Act (POTA) were predecessors of UAPA. These were enacted as exceptional legislations to deal with national security concerns, thus justifying ‘enhanced legal powers of coercion’Footnote 2 over investigation and prosecution. Human rights organisations have consistently sought the repeal of anti-terror laws due to their targeted use against minorities and dissenters, abuse of due process, and arbitrary denial of liberty.Footnote 3 Due to these democratic pressures, the Parliament allowed TADA to lapse in 1995, followed by enactment of POTA in 2002 and repeal in 2004. Singh calls this a symbolic repeal, as many stringent provisions were transposed to UAPA through amendments in 2004 and 2008.Footnote 4 Fresh amendments in 2019 empowered the central government to also declare individuals as terrorists.Footnote 5 These provisions encode ‘dual and parallel systems of justice’,Footnote 6 where similar offences may be investigated and tried under radically different procedural regimes.

The source of these extraordinary powers is not the Emergency Provisions under Part XVIII of the Constitution, but reasonable restrictions under Articles 19(2) and (4). Proclamations of Emergency under Article 352 empower the President to suspend Article 19 and Article 32 (except for violations of Articles 20 and 21),Footnote 7 subject to a series of safeguards. These include periodic reconfirmations by both Houses of Parliament through special majorities to extend the Proclamation (in the first instance, after one month, and thereafter every six months). Any law or action curtailing fundamental rights must carry a recital that it is pursuant to emergency powers, and must cease to have effect as soon as the Proclamation ends.Footnote 8

Instead, anti-terror laws have been enacted pursuant to ordinary legislative procedures. The wide definitions of offences, combined with the reversal of presumption of innocence in the pre-trial stages, imitate preventive detention, but without the accompanying safeguards of Article 22. Under Section 1(4), TADA was enacted with a sunset clause of two years, which was periodically renewed for eight years after that. For POTA, the Supreme Court instituted Review Committees to periodically monitor its application.Footnote 9 The UAPA, on the other hand, permanently entrenches coercive State power, unless expressly repealed by Parliament or struck down by judicial review.

Without these constitutional and legislative safeguards, Article 21 and democratic opposition remain as the best defence of liberty under UAPA. Regardless of whether these powers originate under Part XVIII or Article 19, Article 21 is a non-derogable right and cannot be suspended.Footnote 10 While the Parliament may be competent to derogate from statute and common law, special procedures must nevertheless comply with due process.

As established constitutional and statutory principles of fair trial stand abrogated in anti-terror laws, how may judges protect due process under special procedures? How may the accused effectively defend their liberty? And as members of the democratic republic, how may we evaluate whether the criminal justice system is fairly administering justice in practice?

To answer these questions, I turn to Ramaswamy J’s dissent in Kartar Singh v State of PunjabFootnote 11 to uncover a theory of fair trial to identify what process may be ‘due’ in anti-terror laws. Kartar Singh was one of the first Supreme Court decisions to consider the constitutional compliance of anti-terror laws with fair trial under Article 21 and ordinary procedural rights. The five-judge bench upheld the validity of TADA through a majority opinion signed by all judges, and two partial dissents by Ramaswamy J and Sahai J. Here, Ramaswamy J anchors the right to fair trial in separation of powers of the executive from the judiciary to strike down extra-judicial confessions and extended tenure of judges in Special Courts. I propose that this conceptualisation offers a useful alternative to general principles of fair trial to reinstate safeguards over investigations and prosecutions under UAPA.

The goal of this exercise is not to legitimise permanent and coercive police powers over liberty by providing an escape route to the legal system. Instead, it is to uncover the manner in which contestations over due process enact themselves within procedural law. Lower and appellate courts are repeatedly called upon to determine the manner and extent to which ordinary procedural law is modified by TADA, POTA, and UAPA.Footnote 12 UAPA special procedures have not been challenged per se. Those under POTA were upheld in the interest of national security,Footnote 13 and under TADA while expressing serious reservations on the right to fair trial.Footnote 14 As such, they continue to have the force of law, and prosecutions consistently testify to the tension between the right to fair trial and the legislative object of national security.Footnote 15

The first section describes the right to fair trial, its relationship with ordinary procedural law, and derogation under special procedures. The second section turns to an analysis of Ramaswamy J’s dissent under Kartar Singh to identify how fair trial may be theorised and located within anti-terror laws. The final section follows the ramifications of this theory for contemporary bail jurisprudence under UAPA.

What is fair trial?

“Ordinary” guarantees of fair trial

Any law depriving a person of liberty must be pursuant to a just, fair, and reasonable procedure under Article 21. The right to fair trial has been recognised as a part of procedural due process.Footnote 16 As there is an inherent inequality between the State as the prosecutor and the accused in any criminal proceedings,Footnote 17 the right to fair trial guarantees a reasonable opportunity to the accused to defend themselves before an impartial judge.Footnote 18

Despite its constitutional significance and wide application in the criminal legal regime, the right to fair trial escapes precise definition. Common law, Indian and American courts have hesitated to accord the right a technical and fixed meaning.Footnote 19 It is recognised as a malleable right of wide ambit, with the twin goal of protecting liberty from arbitrary state action, and securing rational and scientific procedures of truth-determination.Footnote 20 Here, the role of the judiciary is two-fold: constitutional courts exercise writ jurisdiction to review statutes and specific rights violations under Articles 32 and 226; trial courts oversee investigations (to a limited extent) and prosecutions to protect liberty and rights of accused under procedural law.

The right to fair trial is reflected in Part III of the Constitution, through Article 20 (protection in respect of conviction for offences), Article 21 (right to life and personal liberty), and Article 22 (protection against arrest and detention in certain cases). However, these merely accord constitutional status to pre-existing principles of fair trial, which originate under common law and are encoded in colonial (and subsequent) procedural codes. Procedural law under the Code of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA) apply by default to all offences.

In the absence of an overarching theory of fair trial, constitutional courts in India have enunciated a series of principles anchored in fundamental rights, centuries of common law jurisprudence, and statute. Judgments and treatises commonly reproduce permutations of the following inexhaustive principles of fair trial:Footnote 21

  1. 1.

    Presumption of innocence, casting the onus of proof on the prosecution to establish guilt of the accused beyond reasonable doubt.

  2. 2.

    Right of the accused to be informed of allegations against them, which includes information on grounds of arrest, charges, and evidence.

  3. 3.

    Right to be heard, such that no person may be condemned without an opportunity to defend themselves. This includes legal representation of choice, and also procedural rights to confront the evidence against them: cross-examine, produce witnesses, counsel of choice, etc.

  4. 4.

    Trial before an independent, impartial, and unbiased tribunal, which is free from governmental control, without conflicts of interest or prejudice against the accused.

  5. 5.

    Judgment by reasoned order, based on material evidence.

  6. 6.

    Non-retroactivity, or that a person may only be convicted of an offence which was declared as such at the time of commission.

  7. 7.

    Protection against double jeopardy, such that no person shall be prosecuted for the same offence more than once.

  8. 8.

    Right against self-incrimination, that no person shall be compelled to provide evidence against themselves.

  9. 9.

    Public trial.

To further protect liberty, Part III of the Constitution and modern jurisprudence on fair trial also provide that custody may only be subject to a judicial order,Footnote 22 speedy trial,Footnote 23 and the right to not be punished disproportionately.Footnote 24 The expectation of fairness extends to all stages of the criminal process including investigations, pre-trial, trial, appeal, and review.Footnote 25

These principles are considered cardinal principles of criminal jurisprudence, which also undergird the criminal justice machinery under the CrPC and IEA.Footnote 26 Not only are the above principles guaranteed through specific provisions, but they are enforced through a sophisticated architecture of independent judicial tribunals exercising wide powers of review for a host of remedies at various stages of the criminal process. On the one hand, these recognise coercive powers of police and judiciary over life, liberty, privacy, and other rights. On the other, these powers are circumscribed through limitations, independent judicial scrutiny, democratic oversight, and procedural rights of the accused.

Principles of fair trial under special procedures

This survey of norms and principles demonstrates that ‘ordinary’ criminal regime threads together Part III, common law, and statute to protect and further the right to fair trial. Special procedures, on the other hand, derogate from these principles under common law and statute.Footnote 27

The UAPA, for instance, permits prolonged detention without charge, effective bar on bail, and a reversal of burden of proof in limited cases, all of which undermine the presumption of innocence. Some forms of evidence may be withheld from the accused in the interest of witness protection or national security. For the same reasons, proceedings may also be held in camera with prohibition on publication in any form.Footnote 28 For some proceedings, the accused may not have a right to representation.Footnote 29 UAPA offences are scheduled under the National Investigative Agency Act 2008, permitting their prosecution through special National Investigative Agency (NIA) courts over which the government and the NIA exercise a higher degree of control.Footnote 30

Previously, POTA also made radical departures on issues of evidence, such as the collection of physical and biological evidence (Section 27), admissibility of extra-judicial confessions of accused and co-accused (Section 30), admissibility of intercepted wire, oral, and electronic communication (Chapter V). Extra-judicial confessions of accused and co-accused were also admissible under TADA.Footnote 31 UAPA renders intercepted communications admissible but without the institutional machinery for authorisation under POTA. For this, and for collection of physical evidence, UAPA relies on ordinary law, that is, CrPC, Telegraph Act, Information Technology Act, etc. UAPA does not make extra-judicial confessions admissible.Footnote 32

The provisions relating to bail reflect the most unevenness among the three laws, on both the burden and standard of proof. All three laws introduce a bar on bail, subject to certain conditions. Under TADA, the court cannot grant bail unless it has reasonable grounds to believe that the accused is not guilty of the offence.Footnote 33 This is followed in POTA for the first year of detention only, but the standard of proof is reduced from ‘reasonable grounds’ to simply ‘grounds’.Footnote 34 Under UAPA, the court cannot grant bail if it has reasonable grounds to believe that the allegations are prima facie true.Footnote 35 Under TADA and POTA, therefore, the burden fell on the accused to establish their innocence at such a preliminary stage of the proceedings without relying on evidence. Under UAPA, the burden of proof is on the prosecution to establish a prima facie case, which is a reduced standard of proof.Footnote 36 Accused cannot challenge admissibility of materials or adduce additional materials at this stage to rebut the prima facie standard.Footnote 37

Anti-terror laws thus undermine fair trial by statutorily derogating from principles of presumption of innocence, self-incrimination, and independence and impartiality of tribunals. They also provide wide latitude for departure from the rights of the accused to be informed of allegations against them, to be heard, and the principle of public trial. Judicial scrutiny on investigations and prosecutions is also circumscribed.Footnote 38

As derogations from this inventory of principles have been upheld, the following section revisits Ramaswamy J’s dissent in Kartar Singh to move towards a theory of fair trial to uncover ways in which the right may be reinscribed in anti-terror laws.

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:

  1. 1.

    Act vests unguided discretion in the executive in the definition of offences (Sections 2[1][a], 3, and 4), designation of affected areas (Section 3[1]), and forfeiture of property (Section 8), increasing arbitrariness in depriving liberty.

  2. 2.

    Act empowers central government to constitute special courts (Section 9), and to appoint judges beyond their superannuation (Section 9[7]), undermining independence of the judicial process.

  3. 3.

    Power of central government to transfer cases contravenes the CrPC by denying the accused’s right to be heard (Section 11[2]).

  4. 4.

    Admissibility of extra-judicial confessions is contrary to the mandate of CrPC and IEA due to the possibility of torture and coercion on accused (Section 15).

  5. 5.

    Exclusion of public trials deviates from CrPC by removing public oversight on the administration of justice (Section 16).

  6. 6.

    Direct appeals to Supreme Court limits avenues for accused to access intermediary levels of appeals under the CrPC, and the Supreme Court is effectively inaccessible to most accused (Section 19).

  7. 7.

    Statutory conditions for bail and remand effectively bar the right to bail and ensure prolonged periods of pre-trial detention violating the presumption of innocence (Section 20).

  8. 8.

    Photographic identification of suspects is weak evidence with scarce probative value and high margin of error contrary to IEA (Section 22).

The majority opinion upheld the constitutionality of TADA under both prongs of legislative competence and compliance with Part III (except Section 22), 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.Footnote 39 While Sections 3(1) and 11 were upheld entirely, the majority opinion took note of potential fair trial violations and introduced additional safeguards to other provisions: heightened judicial scrutiny (Sections 3, 4, 15, 20[8], and 20[9]); recommendations to the executive (Sections 9, 15, 20) and legislature (Section 19); 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 Section 11.

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 traditions and conscience of our people’.Footnote 40 Fair trial is variously described as ‘established judicial ethos’, ‘fundamental fairness’, procedure which does not ‘shock the conscience or universal sense of justice’, where ‘built in procedural safeguards assure a feeling of fairness’.Footnote 41

To uncover this ethos, the dissent relies on constitutional and common law jurisprudence emerging from ordinary criminal law. These include Section 164 CrPC and Nazir AhmedFootnote 42 on procedure for recording confessions, Kathi Kalu OghadFootnote 43 and Nandini SatpathyFootnote 44 on the right against self-incrimination, and Sunil BatraFootnote 45 and Sheela BarseFootnote 46 on protection against torture. In doing so, it returns the scrutiny of special procedures to ordinary constitutional, common law, and statutory guarantees. By relying on CrPC, IEA, and established jurisprudence, it finds that ordinary tenets of law continue to apply to special procedures, and are not displaced. In other words, these exceptional provisions continue to be subject to ordinary rule of law guarantees. The majority opinion in Kartar Singh, and later the Supreme Court in the PUCL challenge to POTA procedures,Footnote 47 holds that the Parliament can lawfully abrogate ordinary tenets of criminal law for specific objects. The dissent reminds that while national security may provide the object of the law under Articles 19(2) and (4), its form must still comply with Articles 20, 21, and 22.

Significantly, the dissent further links fair trial in Part III with the directive principle of separating the executive from the judiciary under Article 50. It reasons that CrPC vests the authority to record confessions in magistrates and insists on strict compliance with Section 164 procedure to ensure that the accused is rendering the confession voluntarily, without coercion by the police. Section 15 TADA is unconstitutional not only due to the ever-present spectre of torture, but because the recording of confessions is a judicial function which cannot be transferred to executive authorities. Even superior police officers and executive magistrates cannot exhibit the ‘even equanimity and objectivity’ of a trained judicial magistrate.Footnote 48 As sources for its invalidity, the dissent cites Articles 14 and 21, human rights, the history of the IEA, and the wisdom of Section 164 CrPC.

The majority opinion, on the other hand, overrules the tenets under CrPC on the argument of legislative competence; relegates torture to the realm of exception; and holds internal oversight by the police as sufficient check against self-incrimination as India does not follow strict separation of powers.

Likewise, the dissent invalidates Section 9(7) as judges serving beyond superannuation would be under the supervisory control not of the High Court, but of the executive. Here too, the dissent cites other legislations under which special courts have been created, and In Re Special Courts BillFootnote 49 to distinguish the present case. The administrative and judicial control of the High Court over these special courts had been retained under their respective statutes. The majority opinion recognises the threat to judicial independence under Section 9(7) but upholds it with a recommendation to the central government and the Chief Justice High Courts to appoint judges with sufficient tenure.

By anchoring fair trial within separation of powers, the dissent is able to reiterate its core objective, as one of checks and balances over executive action towards the greater protection of liberty. Separation of powers, as a facet of rule of law, divides authority between independent institutions for the deprivation of fundamental rights.Footnote 50 Chapman and McConnell argue that the nexus between due process and separation of powers is rooted in the Magna Carta and English customary constitution. Even prior to the Fifth Amendment, the Supreme Court of the United States invoked ‘due process’ to invalidate legislations which usurped judicial functions and abrogated common law procedural guarantees to deprive property for violating the separation of powers between institutions.Footnote 51

Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which recognises fair trial as a human right, permits limited derogation to the guarantees of public trial and cross-examination in the interests of witness protection and national security. However, the text and jurisprudence emerging from human rights bodies also offer robust judicial and democratic oversight as checks against executive power.Footnote 52

To a limited extent, this reasoning resonates in the majority opinion even as it holds that Article 50 does not mandate strict separation of powers. It emphasises heightened judicial scrutiny and independent role of prosecutors as officers of the court to act as safeguards against abuse of power on a case-to-case basis.Footnote 53

Ramaswamy J’s reasoning, though limited to a few provisions in TADA, also enable a re-reading of the principles of fair trial functionally, through the lens of checks and balances. Common to all the recognised principles of fair trial described earlier is the ability of three key actors within the criminal justice machinery to exercise oversight on government and police action: the judge, the accused, and the larger public with an interest in the fair administration of justice.

The ICCPR clarifies the judicial role as one ensuring that exceptions are prescribed by law, necessary and proportionate to meet the goals of a democratic society.Footnote 54 Jurists recognise that procedural rights of accused serve both functions of protecting liberty, and efficiently establishing truth in an adversarial system.Footnote 55 With the presumption of innocence, the right to representation and cross-examination, the accused can compel the State to justify deprivation of liberty with objective, rational, and scientific materials. Public trials ensure democratic oversight by providing transparency in the administration of justice. Criminal proceedings are open to public attendance; the freedom of speech and expression enables the media, researchers, and the wider civil society to deliberate on justice delivery; the Right to Information Act enables the public to access information on the administration of institutions, etc.

Anti-terror laws statutorily constrain the ability of all three actors to exercise checks and balances on executive action. While ICCPR and Kartar Singh reinstate judicial scrutiny as a necessary check, the procedural rights of the accused continue to be heavily restricted. Democratic oversight is also limited through in camera trials, gag orders,Footnote 56 and the refusal of information on national security grounds under the Right to Information Act.Footnote 57 Admittedly, these are statutory restrictions, but ones that have been upheld by constitutional courts, including the Ramaswamy dissent in Kartar Singh.

The remedy for these statutory derogations lies with the Parliament through repeal, or with constitutional courts through judicial review. The powers of the lower judiciary do not extend to striking down these provisions. Arguably, it has the most significant role in ensuring fair trial as it is most proximate to investigations and prosecutions of all criminal proceedings. Following the logic of the Ramaswamy dissent, the lower judiciary can exercise checks against the arbitrary deprivation of liberty, albeit in limited ways, by exercising their powers and authorities under ordinary procedural law, reading democratic oversight and procedural rights of accused expansively within the statute, in addition to scrutiny on grounds of proportionality and necessity. For instance, in KA Najeeb,Footnote 58 the Supreme Court returns to the fair trial right of a speedy trial as an additional ground for bail under UAPA. This enables the accused to compel the State to justify prolonged deprivation of liberty and the course of investigations, and thereby exercise checks on police action.

To summarise, the Ramaswamy dissent invites us to orient fair trial through its function of checks and balances over executive action for the protection of liberty. Article 21 recognises the right to liberty as the norm, and its deprivation as the exception. Article 359, following the forty-forth amendment in 1978, declares due process as non-derogable, even under the Emergency Provisions, as a necessary check against arbitrary deprivation. Within the criminal justice process, the guarantee of fair trial entrusts the role of exercising oversight to the judge, accused, and the larger public.

The following section considers the implications of viewing fair trial through this lens for contemporary bail jurisprudence under UAPA.

Checks and balances under special procedures

At the same time as Kartar Singh, the Supreme Court was hearing two separate appeals under Section 20(4) TADA. This provided for custody of accused after arrest for a period of 60 days, further extendable to 180 days, for the police to conduct investigations. At the expiry of 180 days, the accused is entitled to statutory bail, unless the police requires a further extension to file a chargesheet, in which case custody may be extended to one year. It is the Public Prosecutor that seeks this extension of time to file the chargesheet from the Court, based on an application by the police. At issue was the extent of applicability of Section 167 CrPC (which limits the period of custody to 15 and 90 days), and the accused’s right of hearing over the report of the Public Prosecutor. Hitendra Vishnu Thakur was decided on 12 July 1994,Footnote 59Sanjay Dutt on 9 September 1994,Footnote 60 where both relied on Kartar Singh and delivered contradictory judgments.

Hitendra Vishnu Thakur held that Section 20(4) TADA needed to be read with Section 167(2) CrPC. In case the Public Prosecutor submits a report seeking extension of time, the accused must be served notice of the report, and be afforded a right to oppose the extension to serve the ends of fair play. Sanjay Dutt, contrarily, holds that written notice of the report to the accused is not necessary, and the accused has a right only to be produced before court in accordance with Section 167. Both these judgments were brought to life again in 2019 while deciding Surendra GadlingFootnote 61 under Section 43D UAPA, which is in pari materia with Section 20 TADA.Footnote 62 In Gadling, the accused argued that the report of the Public Prosecutor seeking extension of time needs to be an independent report, and not simply a rubber-stamp on the application of the investigative agency. The Supreme Court held this to be simply a question of form and not of substance, and thus not a material procedural defect.

Similarly, the 2019 Supreme Court decision in Watali,Footnote 63 and the 2021 Delhi High Court decision in Asif Iqbal Tanha,Footnote 64 may be contrasted in their approaches to the issue of bail. UAPA bars statutory bail in case the court has reasonable grounds to believe that the allegations against the accused are prima facie true. In Watali, the Supreme Court held that in rebutting this prima facie case, the court cannot consider materials produced by the defence, nor can it entertain challenges to the admissibility of prosecutorial material at this stage. The Delhi High Court in Asif Iqbal Tanha, being bound by Watali, reinstates judicial scrutiny by holding that the judge must nevertheless apply their mind to independently determining whether the chargesheet and other materials, in fact, make out a prima facie case under UAPA. The Supreme Court on appeal allowed bail of the accused here, but stayed the High Court judgment as precedent.Footnote 65

At issue in this jurisprudence is the role of judicial officers, and the nature of scrutiny to be exercised over the chargesheet and other materials placed on record by investigative agencies. Whether heightened judicial scrutiny is, in fact, a sufficient safeguard in the operation of special procedures is an empirical question requiring evidence of proceedings before trial courts. Constitutional courts, as per Satish and Chandra, have adopted a minimalist scrutiny over anti-terror laws compared to other rights violations.Footnote 66

Conclusion

While democratic opposition to the legitimacy of special procedures under anti-terror laws persists, they have been upheld by constitutional courts and continue to have the force of law. Statutory derogations from established principles of fair trial imply a vacuum of standards to evaluate the fairness of proceedings under anti-terror laws. To this end, this article has argued for a re-orientation of fair trial around its function of protecting liberty by exercising checks on executive action from three locations within the criminal justice system: the judge, the accused, and the public. This is an extrapolation of Ramaswamy J’s dissent in Kartar Singh, which strikes down certain TADA provisions for violating separation of powers, to establish the common denominator between the recognised principles of fair trial under the Constitution, statute, and common law. The Ramaswamy dissent, on its own, makes the case only for heightened judicial scrutiny.

Anti-terror laws presently enjoy parliamentary and judicial approval. They exist without the constitutional safeguards of Emergency Provisions or Article 22. Statutes themselves constrain the ability of judges, accused, and the public to exercise oversight. Within this matrix, the limited judicial oversight available to the lower judiciary is the only existing space within the legal system to contest arbitrary State action. The history of anti-terror laws testifies to the manner in which arbitrary use is written into their fabric, which may only be remedied by their repeal as with TADA and POTA. The logic of fair trial as checks and balances offers direction to judicial discretion to narrow the scope of exception in the application of UAPA, and also offers a framework within which scholars and the wider public may evaluate the exercise of State power against individuals.