“The Rowlatt Act is far fairer and whatever the situation in Punjab, a pan Indian criminal procedure prescribed by this special legislation, TADA, must shock the conscience of those who hold humanist values of justicing inalienable.”
…….. Justice V.R.Krishana Iyer
Draconian law enacted by the legislature hits at the very root of a democratic, welfare state. Most of the security legislations enacted in India so far aims at giving excessive power to the police to curb constitutional freedoms of the people in the name of national security. TADA (Terrorist and Disruptive Activities Act,1987) is one of many security legislations, enacted with the object of fighting terrorism with toughest means. Soon, it began to show result and became notorious more for its abuse than for its legal use. The long list of instances of its misuse have become legendary. The Act also served as an inspiration for the enactment of a similar legislation, Prevention of Terrorism Act,(POTA), 2000.
Under TADA after an area is declared as a “disturbed area”, stringent provisions of law could be used against any person. With its draconian provisions, it
defeated the purpose of a fair trial, including denial of right to anticipatory bail, extention of period of remand, admissibility of confessions to a police officer as evidence, onus shifting upon the accused to prove innocence (contrary to the usual presumption of innocence drawn in favour of accused) and awarding of death sentence to an accused under the Act. When TADA was in force, it was an open secret that the law was grossly misused by the police in various parts of the country. The minorities were often targetted. It was for these reasons that Parliament allowed it to lapse in 1995 before that it had caused irreparable loss to the criminal justice system of the country where thousands of persons suffered long incarceration and even convictions.
The validity of TADA was challenged in the Supreme Court on many occasions but upheld in various judgments. In Kartar Singh Vs State of Punjab, the apex court upheld the validity of the Act except for Section 22 which provides for identification on the basis of photographs. Two judges in their dissenting judgment held that Section 15 which provides for admissibility of confession made before a police officer as violative of Articles 20 and 21 of the Constitution, while the majority judges laid down certain guidelines for the same.
18,686 persons were arrested under TADA in Gujarat, followed by Punjab where 15,314 persons were arrested since 1984 and all of them were from minority community. In Punjab, all the arrested persons under this act were Sikhs. During the same period, 15,225 muslims were arrested in Jammu & Kashmir and 12,715 in Assam.
The statistics of arrests and convictions made under TADA in different parts of the country made a valid point for its condemnation. In actual practise, anybody raising a voice of dissent against the policies of the government was booked under this act. The true picture of its abuse by the police can be gauged from the fact that ninety seven percent of arrests made under this act were of people belonging to minority communities. According to a status paper prepared by the Union Home Ministry in April, 1995, a total number of 18,686 persons were arrested under TADA in Gujarat, followed by Punjab where 15,314 persons were arrested since 1984 and all of them were from minority community. In Punjab, all the arrested persons under this act were Sikhs. During the same period, 15,225 muslims were arrested in Jammu & Kashmir and 12,715 in Assam. Interestingly, the Act was applied only against members of minority community and even people who committed petty offences were booked under TADA, like raising Khalistan slogans in a sikh religious temple. A startling case which could clearly describe the extent of mis-use of TADA by the police was of Baljit Singh of Chandigarh. He was booked under Section 3 and 5 of TADA, for entering into a piece of land where a stone was placed and he picked up that stone and threw it out of that land and raised pro-khalistan slogans. It was alleged that with a view to create terror among hindu community, he entered a place of worship and demolished the ‘Shivling” and threatened to create a separate sikh nation. After sufferring imprisonment for more than six months, he was ultimately released on bail and discharged after the court held the gross abuse of the law by the police. In all, Chandigarh police booked 249 persons under TADA till 1995, out of which 248 persons were acquitted by the ‘designated court’ for lack of evidence. Similarly in Punjab, more than 98% cases failed in the acid test of judicial scrutiny, which casted a blow in the face of Punjab police. But the irony is that before the decision of the case, the accused had already suffered long incarceration and the fundamental right to liberty had become the biggest casualty for the poor victims of police excesses.
The judicial attitude in cases under TADA was no good. It needs pointed notice that the courts blindly trusted the police story and tried the accused under TADA even if the ingridient of the offence under the Act were not available in the F.I.R. The courts diverted from usual procedure and the onus to prove innocene shifts upon the accused. While the accused persons who killed thousands of innocent and unarmed sikhs by burning them alive and butchered even women and children in broad day light on the roads of Delhi were not booked under TADA and awarded life sentence, but recently a sikh, Devender Pal Singh, who had allegedly attempted to kill a politician was booked under TADA and awarded death sentence by the court simply on the basis of an alleged confession made by the accused to a police officer.
From the above discussion, we wish to make out a point that draconian law like TADA or POTA can do more harm than any good to our society and such laws have no place in a civilised country. Now it is upon us to decide, whether we want to make India a civilised country or not ?