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 (Sections 2[a], 3, and 4), designation of affected areas (Section 3), and forfeiture of property (Section 8), increasing arbitrariness in depriving liberty.
Act empowers central government to constitute special courts (Section 9), and to appoint judges beyond their superannuation (Section 9), undermining independence of the judicial process.
Power of central government to transfer cases contravenes the CrPC by denying the accused’s right to be heard (Section 11).
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).
Exclusion of public trials deviates from CrPC by removing public oversight on the administration of justice (Section 16).
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).
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).
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, and 20); recommendations to the executive (Sections 9, 15, 20) and legislature (Section 19); reading in certain natural justice rights of accused (Sections 2[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.