The expression "just and fair procedure"
for trial of offences, which is deemed to be an inherent part of Article
20 and 21 of the Constitution of India, requires, in my view, a procedure
to be fair not only to the accused but also to the prosecution, the
people, the victims, the witnesses and society at large, whom the prosecution
represents. A procedure can be said to be fair only if it is able to
strike a just balance between the rights of the accused on the one hand
and the rights of society on the other.
In an atmosphere of terror or of extreme fear in the
minds of the people, they would be unwilling to assist the State in
the administration of criminal justice, or even to approach the police
agencies regarding the commission of offences, to assist or co-operate
with the investigation, or to depose in open courts. The reasonableness
of the procedure and mechanism for preventing and coping with terrorist
offences must, therefore, be judged keeping in view the evil with which
the law has to contend, the circumstances under which the evil is to
be dealt with, the kind of parties before the court, and the mental
condition of the witnesses. The law, therefore, has to balance the liberty
of an individual with that of other, and with the requirements of the
security of State, and the sovereignty and integrity of the nation.
One of the foremost requirements of the mechanism dealing
with terrorist activities is that, in such a mechanism, the freedom
of the individual or that of the accused facing the trial must be tempered
by the requirements of the safety of the citizens, and of the security
of victims, witnesses and personnel dealing with the trial. The requirements
of natural justice must adapt themselves to these harsh realities and
the concept of fair trial cannot remain static or immune to the practical
realities in which such trial has to be conducted.
One Indian law that provided a mechanism for dealing
with the menace of terrorism was the Terrorist and Disruptive Activities
(Prevention) Act, 1987.1 (TADA). TADA was
criticised on the grounds that it restricted the scope of natural justice
and curtailed it to the extent of erecting a procedure unfair to the
accused. In my opinion, however, the Indian Parliament had shown greater
concern for the rights of the accused even in respect of trial of terrorist
offences than the procedure prescribed in many western democracies which
some of our friends go on eulogising tirelessly.
Much of the criticism was born out of ignorance of
the State of affairs prevailing in the West, and out of state of mind
in which everything western was regarded as superior. The reality is,
however, that under the Northern Ireland (Emergency Provision) Act,
1978, an admission made by the accused in custody was relevant under
section 8, the onus of proof was on the accused under section 9, the
right to interfere in the property of the accused without notice was
conferred under section 19 and the right of bail was curtailed in section
2 in exactly the same words as in the Indian statute. Under UKs
Prevention of Terrorism (Temporary Provision) Act, 1984, the power to
exclude persons from Great Britain has been given exclusively to the
Secretary of State without there being any right of even confronting
the witnesses, leave alone a right to cross-examine them.
The right of detention on suspicion or on the basis
of intelligence reports has been upheld by the English Courts. Lord
Denning upheld this provision, observing:
It (the information) could not be disclosed to the suspect,
lest he or his associate use it to identify sources and destroy them.
We did, however, give the individual as much information as we could
- so that he could dispel any suspicion that rested on him. In short,
we acted as fairly as we possibly could.... investigation statements
from the police and intelligence sources about him, but he did not see
these or have any opportunity of cross-examining.2
Lord Denning also notes:
It has been held, right upto the present day, that the freedom
of individual must take second place to the security of the State.....Once
his terrorist involvement is established and the danger the person poses
to the public at large, neither the Courts nor the Tribunal could property
be expected to carry out an examination.3
Referring to the report of Lord Gardiners Committee
with regard to the procedure for internment in Northern Ireland, Lord
Denning commented, "the final decision should not rest with any
body or Tribunal, but solely with the Secretary of State."4
In support of the same procedure, Lord Denning further states:
A number of people are alive today who otherwise would have
been dead..... if it (their identity) had been known to some of the
people who had brought these matters to the attention of the se-curity
authorities then them is no doubt that those people would have been
Reiterating his faith in this procedure, Lord Denning
defends an order of exclusion without trial:
It can be made on the evidence of intelligence officers of
whom the suspect knows nothing and whom he has no opportunity of cross-examining.
It can be made without even telling him the nature of the information.
All this is contrary to the fundamental principle of natural justice.
But natural justice most take second place in extreme cases to the national
Compare this with the Indian mechanism under TADA which
was subjected to so much criticism. Sub-section (2) of section 16 only
permitted the identity of the witness to be kept secret on an application
being made in this regard by the witness or the public prosecutor. The
section left the discretion to the Court with regard to the manner and
extent to which the identity was to be kept secret. The precaution was
in conformity with safeguards for witnesses and much more liberal than
the total confidentiality permitted in England and in America.
The statute again only prescribed a partial and rebuttable
presumption to be raised on the basis of a confession of the co-accused
before a senior police officer. While admissibility of confession before
a police officer was in total conformity with the Law prevailing in
the Western countries, the degree of presumption was much less under
the Indian Law.
The provision with regard to holding of trial in camera
had also become the subject matter of substantial criticism. A few examples
reflecting the actual situation that prevailed in terrorist affected
areas, however, demonstrate the clear necessity of such procedure. For
instance, place yourself in the position of Dalip Singh whose son Avtar
Singh was shot dead in his presence by M.S. Ajnala, Sukhdev Singh Gorenangal,
G.S. Tohra and Geja Singh at 1.00 p.m. on the February, 6, 1988. The
accused came armed with AK-47 rifles and knocked at the door of Dalip
Singhs house and took him and his son near the village church.
There Malkiat Singh Ajnala shot Avtar Singh dead with his rifle in front
of his father. Dalip Singh lodged the FIR. M.S. Ajnala was arrested,
after his surrender at the Golden Temple during Operation Black Thunder
(in June 1988). The confession of M.S. Ajnala was recorded by the Superintendent
Of Police on a video tape. I, in my capacity as Public Prosecutor, met
Dalip Singh who very bluntly told me, with tears in his eyes, that he
would not give evidence in court because he had been told that if he
did so, his two other sons would meet the same fate as Avtar Singh.
I tried to assure him that his name would not be mentioned in the records.
Dalip Singh, however, understood the reality better than I did. The
FIR was already on record and so were a host of other documents. Ajnala
belonged to the same village. The witness identity would never
be kept secret. Dalip Singh refused to identify his own sons murderer.
Can we really say that the statute was unfair to the
accused or was it too fair to him and perhaps unfair to the witnesses
and the victim ? I can multiply without end the examples of trembling
witnesses and policemen who were too afraid to depose, or whose shifty
eyes and nervous movements reflected fear in the presence of accused
terrorists, or of policemen who had challenged the evil in the open
fields in a rain of bullets, but stood crestfallen on the doorsteps
of Indian Courts.
The story of Daya Singh, whose brother Nirrnal Singh,
Sarpanch, was killed in the fields near the main road leading to his
village in Beas on April, 21, 1988, is similar. As is Swaran Kaurs
experience, who saw her husband Gurdial Singh shot dead by five youths
who forced their way into her house after breaking open the door. She
recognised Santokh Singh and Charan Singh, but it was impossible to
give her the courage and the will to depose. The plight of Rakesh Kumar,
whose father Bhagwan Das and seven other relatives were shot dead by
Amar Singh and Satnam Singh Satte, was the same. Rakesh Kumar had left
the village after the incident. The prosecution managed to trace him.
When I asked him to take courage and speak the truth in Court, he mocked
at me. "Satnam Singh Satta," he said, "is still at large,
he will not leave me or the remaining members of my family." I
also remember the case of Chanchal Singh and others who were alleged
to have killed Rajinder Singh and eleven other members of his family
on June, 14, 1987. The local police officials informed us that they
had failed to persuade the only surviving member of the family, Joginder
Singh, to depose even though he had lost every member of his family
in the carnage.
Even in cases where documentary evidence was available
in the form of the report of the Forensic Science Laboratory, the recovery
of guns, the recovery of empty shells, the medical evidence and confessions
on video tapes, we were unable to prove equal to the task of securing
convictions as a reslut of the stark fear that was writ large on many
faces of those who were charged with the responsibility of providing
justice to victims of terrorism, and with upholding the majesty of the
The mechanism of mild presumption against the accused
in TADA cases was not evidence of the trial being unfair to the accused.
Indeed, it was too weak a remedy for a problem of this kind. I am not
advocating a tyranny of the law, but the need for laws which will be
efficacious in a situation of widespread terrori mechanisms which
has been accepted as fair in the United Kingdom or in Ireland. Such
a mechanism may even provide for the grant of total protection to the
witnesses by the State, as in USAs witness protection programme
under Title 18 of the US Code section 3521. But the State must undertake
to grant greater protection to Judges, prosecutors, witnesses and other
personnel connected with the onerous task of trial of terrorist offences.
What is at stake is not an extra financial burden but the majesty and
the authority of law and the very possibility of justice.
Notes & References