Law Commission of India Report

Prevention of Terrorism Bill 2000- Law Commission of India Report-13/04/2020

LAW COMMISSION OF INDIA 173RD REPORT ON PREVENTION OF TERRORISM BILL, 2000

APRIL, 2000

D.O. No.6(3)(53)/98-LC(LS)

April 13, 2000

Dear Shri Jethmalaniji,

I am forwarding herewith the 173rd Report on “Prevention of Terrorism Bill, 2000”.

2- The Ministry of Home Affairs, Government of India requested the Commission to undertake a fresh examination of the issue of a suitable legislation for combating terrorism and other anti-national activities in view of the fact that security environment has changed drastically since 1972 when the Law Commission had sent its 43rd Report on offences against the national security. The Government emphasised that the subject was of utmost urgency because the erstwhile Terrorist and Disruptive Activities (Prevention)

Act, 1987 had lapsed and no other law had been enacted to fill the vaccum arising therefrom. The Commission was asked to take a holistic view on the need for a comprehensive anti-terrorism law in the country. The Commission circulated a working paper to all the concerned authorities, organisations and individuals for eliciting their views with respect to the proposals contained therein. Two seminars were also held for this purpose.

3. The Commission took note of several points addressed by the speakers and after taking into consideration the several opinions expressed in these two seminars and the responses received, the present Report has been prepared.

4. The Commission has taken into consideration the original Criminal Law Amendment Bill, 1995 introduced in Rajya Sabha, as also the Official Amendments proposed by the Ministry of Home Affairs which are set out in the working paper (Annexure –I) annexed with this Report. The Report brings out that a legislation to fight terrorism is today a necessity in India. It is not as if the enactment of such a legislation would by itself subdue terrorism. It may, however, arm the State to fight terrorism more effectively. Besides recommending for various measures to combat terrorism, the Commission has at the same time provided adequate safeguards designed to advance the human rights aspects and to prevent abuse of power. We have thoroughly revised the Criminal Law Amendment Bill and have suggested a new Bill “Prevention of Terrorism Bill” for it.

5. For the sake of convenience, the Bill entitled “Prevention of Terrorism Bill, 2000” as modified by the Law Commission is annexed with the Report.

With warm regards,

Yours sincerely,

(B.P. Jeevan Reddy)

Shri Ram Jethmalani,

Minister for Law, Justice & Co. Affairs,

Shastri Bhavan,

New Delhi


TABLE OF CONTENTS

Sl.No. Contents

1. CHAPTER I
INTRODUCTORY

2. CHAPTER II
SECURITY SITUATION IN THE COUNTRY

3. CHAPTER III
WHETHER THE PRESENT LEGISLATION IS AT ALL NECESSARY?

4. CHAPTER IV
PARTs I-III OF THE CRIMINAL LAW AMENDMENT BILL

5. CHAPTER V
PART IV OF THE CRIMINAL LAW
AMENDMENT BILL

6. CHAPTER VI
SUGGESTIONS FOR INCLUSION OF
CERTAIN ADDITIONAL PROVISIONS
IN THE BILL

7. ANNEXURE I
WORKING PAPER ON LEGISLATION
TO COMBAT TERRORISM

8. ANNEXURE II –


THE PREVENTION OF TERRORISM BILL, 2000

CHAPTER I
INTRODUCTORY

The Government of India in the Ministry of Home
Affairs requested the Law Commission to undertake a fresh
examination of the issue of a suitable legislation for
combating terrorism and other anti-national activities in
view of the fact that security environment has changed
drastically since 1972 when the Law Commission had sent
its 43rd Report on Offences against the National
Security. The government emphasised that the subject was
of utmost urgency in view of the fact that while the
erstwhile Terrorists and Disruptive Activities
(Prevention) Act, 1987 had lapsed, no other law had been
enacted to fill the vacuum arising therefrom. The result
is that today there is no law to combat terrorism in
India. The Commission was asked to take a holistic view
on the need for a comprehensive anti-terrorism law in
India after taking into consideration similar
legislations enacted in other countries faced with the
problem of terrorism. Accordingly, the Commission had
taken up the study of the subject and prepared a Working
Paper (Annexure I) which was circulated to all the
concerned authorities, organisations and individuals for
eliciting their views with respect to the proposals
contained therein. Two seminars were also held for this
purpose. The first seminar was held on December 20, 1999
at the India International Centre, New Delhi. It was
inaugurated by Shri Justice J.S. Verma, former Chief
Justice of India and presently the Chairperson of the
National Human Rights Commission. The following persons
spoke at the said seminar: Shri P.P. Rao, Senior
Advocate, Supreme Court and former President of the
Supreme Court Bar Association, Brig. Satbir Singh,
Senior Fellow and OSD in Institute for Defence Studies
and Analysis, Prof. V.S. Mani, Jawarharlal Nehru
University and Secretary-General, the Indian Society of
International Law, Shri K.T.S. Tulsi, Senior Advocate,
Supreme Court and former Additional Solicitor General,
Shri D.R. Karthikeyan, former Director, CBI and
presently holding the post of DG(Investigations),
National Human Rights Commission, Shri Prashant Bhushan,
Advocate, Supreme Court and an activist in human rights
field, Prof. B.B. Pandey of Delhi University, Shri P.S.
Rao, Legal Adviser, Legal and Treaties Division, Ministry
of External Affairs, Shri K.P.S. Gill, former DGP,
Punjab, Shri Ravi Nair from South Asia Human Rights
Documentation Centre, Ms. Kamini Jaiswal, Senior
Advocate, Supreme Court and an activist in the human
rights field, Shri Shiv Basant and Dr. P.K. Agarwal,
Joint Secretaries in the Ministry of Home Affairs, Shri
B.A. Agrawal, Joint Secretary and Legal Adviser,
Ministry of Law, Justice & Co. Affairs, Shri S.V.
Singh, Additional DGP Crime, Punjab, Shri S.S. Puri,
Additional DGP(L&O), Maharashtra, Shri M.L. Sharma,
Joint Director, CBI, Shri N. Kumar, Senior Advocate,
Supreme Court, Shri Justice Rajinder Sachhar, Senior
Advocate and former Chief Justice, Delhi High Court.

The Commission made a note of the points made by
all the above speakers. Shri Tulsi has also sent his
comments in writing. The Addl. DGP, CID, Assam has sent
his comments in writing. Amnesty International has also
sent a communication in this behalf dated December 18,
1999. Though the said organisation said in this letter
that they would be sending a detailed response later, the
Commission has not so far received any such detailed
comments.

A second seminar was held on January 29, 2000 in
association with the India International Centre in the
auditorium of India International Centre. The following
persons spoke at this seminar: Shri N.N. Vohra, former
Home Secretary and Director of the India International
Centre (who co-chaired the seminar), Shri R.K.
Khandelwal, former Chairman, Joint Intelligence
Committee, Shri Prashant Bhushan, Advocate, Supreme
Court, Shri P.K. Dave, former Lt. Governor of Delhi,
Shri S.K. Singh, former Foreign Secretary, Ms. Maja
Daruwalla, Director, Commonwealth Human Rights
Initiative, Air Chief Marshal N.C. Suri, Lt.Gen.
Raghavan, Shri P.N. Lekhi, Senior Advocate, Delhi High
Court, Shri D.R. Karthikeyan, DG(Investigations), NHRC,
Shri U.R. Lalit, Senior Advocate, Supreme Court, Shri
Ashok Bhan, Advocate (Kashmiri Pandit – migrant), Shri
K.P.S. Gill, former DGP, Punjab, Shri P.P. Rao, Senior
Advocate, Supreme Court, Dr. Ajit Muzoomdar, IAS(Retd.),
Shri Sushil Kumar, Senior Advocate, Supreme Court, Shri
P.S. Rao, Joint Secretary, Legal and Treaties Division,
Ministry of External Affairs, Brig. Satbir Singh, Senior
Fellow and OSD in the Institute for Defence Studies and
Analysis and Shri Ravi Nair from the South Asia Human
Rights Documentation Centre. (On account of paucity of
time, several other participants could not speak on this
occasion.) Shri H.D. Shourie, Director, “Common Cause”,
sent his written comments since he could not attend the
seminar personally. Other persons who sent written
comments include the following: Dr. M.L. Chibber,
General(Retd.), Shri L. David, IPS, Assam, Shri K.T.S.
Tulsi, Senior Advocate, Shri Rakesh Shukla, Secretary,
Peoples’ Union for Democratic Rights, Shri K.G.
Kannibaran, President, PUCL, Shri Tapan Bose, Secretary
General, South-East Forum for Human Rights, Shri D.R.
Karthikeyan, Director General, NHRC and Shri A.K.
Srivastava, Judge Advocate General’s Branch. Later,
South Asia Human Rights Documentation Centre also sent a
written representation.

The Commission has taken note of several points
made by the above speakers. After taking into
consideration the several opinions expressed in these two
seminars and the responses received, the present report
has been prepared.

CHAPTER II
SECURITY SITUATION IN THE COUNTRY

In its Working Paper the Law Commission had set
out the following facts and figures in paragraphs 1.2 to
1.15 in chapter I. They read as follows:

“1.2 The law and order situation for some
years has continued to remain disturbed in
several parts of India. Militant and
secessionist activities in Jammu and Kashmir and
the insurgency-related terrorism in the
North-East have been major areas of concern.
Bomb blasts in different parts of the country,
including those in Tamil Nadu, constituted
another disquieting feature. There has been
extensive smuggling in of arms and explosives by
various terrorists groups. The seizures of these
items, which represent but a small percentage of
the total quantities brought in indicate the kind
of sophisticated arms and explosives being
brought into the country illegally.

The security situation in some
states/regions of the country is indicated below.

1.3 Jammu and Kashmir
There have been 45,182 incidents of
terrorist violence in J&K since 1988 and upto
March 1999. In this violence, 20,506 persons
have lost their lives. 3421 incidents of
violence took place in Jammu and Kashmir which
included 2198 cases of killing in 1997 alone.
5523 incidents and 2858 killings took place in
1996. In 1998, there were 2213 killings. There
were numerous cases of abductions, robberies,
extortions, explosions, incidents of arson and
killings. Civilians remained the major victims
of violence (1333 killed in 1996, 864 in 1997 and
416 in the year 1998 upto June). Security forces
personnel, `friendly militants’ and political
activists were the priority targets of the
militants. There has been an increase in the
number of casualties among security forces.

1.3.1 The militants are found to be well
trained. Most of them are of foreign origin.
Mercenaries and fanatic fundamentalist terrorists
from Afghanistan, Sudan, Pakistan and other
countries are being inducted increasingly into
this movement. According to several reports, one
of the prime targets of international terrorist
leaders, like Osama Bin Laden, is Kashmir. The
terrorism in India has thus become a part of
international terrorism and India one of its
prime targets. Their targets are security forces
personnel, political activists, `friendly
militants’, suspected informers and their
families, as also Hindus residing in isolated
pockets. They indulge in acts of demonstrative
violence, mainly with the help of explosives;
induction of more and more sophisticated
weaponry, including anti-aircraft guns and RDX.
They have extended the arc of terrorism to the
Jammu region, particularly Rajouri, Poonch and
Doda districts.

1.3.2 The militancy in Jammu and Kashmir has
left a large number of Hindu families homeless
and they had to migrate to other places outside
the State.

1.4 Punjab
The State remains vulnerable to sporadic
terrorist actions by the remnants of the
militants, numbering about 300, who appear to be
under pressure to revive the separatist movement.
The militant bodies are funded and equipped
mainly by overseas activists.

1.4.1 The need for high level of vigil in order
to checkmate any attempts at revival of terrorism
in the State, hardly need be overemphasised.

1.5 North-Eastern Region
Militant activities of various insurgent
and extremist groups and ethnic tensions have
kept the conditions disturbed in large areas of
the North East.

1.5.1 In Assam, ULFA, Bodo and Naga militancy
shows an upward trend in 1998, accounting for 735
incidents (603 killings) as against 427 incidents
(370 killings) in 1997. This trend has continued
in the first eight months of 1999, which has
witnessed 298 incidents (208 killings). Nalbari,
Nagaon and Kamrup districts remain the worst
affected and Lakhimpur, Dibrugarh, Goalpara and
Jorhat districts moderately affected by ULFA
violence.

1.5.2 The Bodo militants were responsible for
178 incidents (215 killings) in 1997, as against
213 incidents (260 killings) in 1996. Bodo
militants were also responsible for 10 explosions
(22 deaths) in 1997. During 1998, an upward
trend has been evident.

1.5.3 The NSCN(I) and its satellite, the Dima
Halam Deogah (DHD) in NC Hills and Karbi Anglong
districts and the NSCN(K) in Golaghat, Jorhat and
Sibsagar districts also indulged in violent
activities. There was a `ceasefire’ agreement
(July 25, 1997) between the NSCN(I) and the
Government of India.

1.5.4 Overall militancy in Assam showed an
upswing in 1998, accounting for 735 incidents as
against 427 in 1997. The upward trend has
continued in the first eight months of 1999.
Police, security forces personnel and
uncooperative businessmen have been the main
targets of the outfits.

1.6 In Manipur, despite large scale security
forces operations, there has been a sharp rise in
the overall violence, involving Naga, Kuki and
Valley extremists, as also ethnic groups
resulting in several deaths.

1.6.1 The State witnessed a particularly high
rate of security forces casualties – 111
personnel lost their lives in 92 ambushes in 1997
as against 65 killed in 105 ambushes in 1996. As
against total 417 incidents and 241 killings in
1996, these groups were responsible for 742
incidents in which 575 persons were killed in
1997. In 1998, 250 persons were killed in 345
incidents. During 1999 (upto August), there have
been 153 incidents claiming 100 lives.

1.7 In Nagaland, there was no let up by NSCN
and its factions in its violent activities such
as extortions, abductions and attacks on
civilians, etc. In 1998, there were 202
incidents which claimed 40 lives. Upto August
1999, 10 persons have been killed in 126 violent
incidents.

1.8 In Tripura, violent activities of the
various tribal organisations like the ATTF and
the NLFT, and assorted groups of lawless
elements, continued. During 1997, there were 303
violent incidents, involving 270 deaths, as
against 391 incidents (178 deaths) in 1996. In
1998, 251 persons were killed in 568 violent
incidents. During 1999 (till August), 417
incidents of violence have been reported,
resulting in 152 deaths.

1.8.1 The violence in all above cases mostly
took the form of ambushes, looting, extortion,
kidnapping for ransom, highway robberies and
attacks on trucks/vehicles as well as attacks on
the security forces personnel, government
officials and suspected informers.

1.9 In Meghalaya, on the militancy front, the
level of violence and killings by the HNLC and
Achik National Volunteer Council remained almost
unchanged. It is feared that in the North-East,
certain development funds allocated by the
Central Government have been siphoned off to fund
insurgent groups. The insurgent groups in the
North-East are also being helped across the
country’s borders with illegal arms. They were
responsible for three deaths in 14 incidents in
1997 and 14 killings in 16 incidents in 1998 and
22 killings in 28 incidents in 1999 (till August
1999).

1.10 Religious Fundamentalist Militancy
Religious militancy, which had first
raised its head in 1993 with bomb explosions in
Mumbai, continue to make its presence felt. In
1997, there were 23 blasts in Delhi and three
each in Haryana and Uttar Pradesh. In the year
1998, Mumbai witnessed three explosions just
before the Parliamentary elections. Al-Ummah,
the Principal fundamentalist militant outfit of
Southern India, was responsible for 17 blasts in
different areas of Coimbatore (Tamil Nadu
February 1998).

1.10.1 A number of miscreants, including a few
Pakistan nationals and Bangladeshis, who were
responsible for the blasts in North India in
1997, were arrested. Investigations have
provided ample evidence of a sinister game plan
to undermine the internal security and integrity
of the country. Efforts are being made to forge
an alliance between Muslim militants and
terrorists of Punjab and J&K. Bases in Nepal and
Bangladesh, in addition to those in Pakistan, are
being utilised for launching disruptive
operations in India. Recruits are being picked
up from amongst fundamentalist youth for
undergoing training in Pakistan as a prelude to
being inducted into Pakistan’s proxy war against
India. Weapons and explosives are being pumped
into the country in large quantities, in
pursuance of the above game plan.”

Indeed, over the last few months since the
Working Paper was released, the security situation has
worsened. The hijacking of Indian Airlines flight,
IC-814, the release of three notorious terrorists by the
Government of India to save the lives of the innocent
civilians and the crew of the said flight, the subsequent
declarations of the released terrorists and their
activities both in Pakistan and the Pakistan-occupied
Kashmir, have raised the level of terrorism both in
quality and extent. The repeated attacks upon security
forces and their camps by terrorists including suicide
squads is a new phenomenon adding a dangerous dimension
to the terrorist activity in India. Even in the last two
months, substantial quantities of RDX and arms and
ammunition have been recovered from various parts of the
country. Indeed, it is now believed that the plan for
hijacking of the Indian Airlines flight was hatched and
directed from within the country.

After setting out the facts in paragraphs 1.2 to
1.15 in chapter I of the Working Paper, the Commission
summed up the position in the following words:

“Some time back, the Union Home Minister
declared his intention to release a white paper
dealing with subversive activities of the ISI.
The ISI-sponsored terrorism and proxy war has
resulted in deaths of 29,151 civilians, 5,101
security personnel and 2,730 explosions.
Property worth Rs.2,000 crores is reported to
have been damaged. Almost 43,700 kg. of
explosives, mostly RDX, had been inducted and
61,900 sophisticated weapons had been smuggled
into India. It is estimated that security
related costs in countering ISI’s activities have
totalled an amount of Rs.64,000 crores (Vide
Economic Times, New Delhi, 21 December, 1998,
p.2) – which could alternatively have been spent
on better purposes like education, health and
housing.

1.16.1 A perception has developed among the
terrorist groups that the Indian State is
inherently incapable of meeting their challenge
that it has become soft and indolent. As a
matter of fact, quite a few parties and groups
appear to have developed a vested interest in a
soft State, a weak government and an ineffective
implementation of the laws. Even certain foreign
powers are interested in destablising our
country. Foreign funds are flowing substantially
to various organisations and groups which serve,
whether wittingly or unwittingly, the long-term
objectives of the foreign powers.”

We do not see any reason to depart from the said
analysis.

In Chapter II of the Working Paper, the
Commission had set out the provisions of The Terrorist
and Disruptive Activities (Prevention) Act, 1987 (TADA)
and the decisions of the Supreme Court thereon. We do
not think it necessary to reproduce the same in this
report over again since we are enclosing a copy of the
Working Paper to this report. It must, however, be added
that it has since been brought to our notice that the
State of Maharashtra has enacted a law to deal with
organised crime, namely, The Maharashtra Control of
Organised Crime Act, 1999. The Commission has taken note
of the provisions of the Maharashtra Act and would be
referred to at the appropriate stage.

In Chapter III of the Working Paper, the
Commission had set out in extenso the provisions of the
U.S.A. Anti-terrorism and Effective Death Penalty Act of
1996 and the following U.K. Acts as well as a
Consultation Paper:

1. The Prevention of Terrorism (Temporary
Provisions) Act, 1989.

2. Northern Ireland (Emergency Provisions) Act, 1996
as amended in 1998.

3. The Criminal Justice (Terrorism and Conspiracy)
Act, 1998 and

4. The provisions of a Consultation Paper issued by
the Government of U.K. in December 1998 on
“Legislation Against Terrorism (Cm 4178)”.

We do not think it necessary to reproduce the
contents of Chapter III of the Working Paper here again,
as a copy of the Working Paper is enclosed herewith as
Annexure I. It is, however, necessary to point out that
the British Parliament has since introduced an
anti-terrorism Bill in the House of Commons, on December
2, 1999. The Act is a comprehensive piece of legislation
containing as many as 99 sections and 14 Schedules. The
Law Commission has perused the said Bill. It would be
appropriate to mention briefly the contents of the said
Bill. Section 1 defines “terrorism” and the associated
expression “action” in the following words:

“Terrorism: interpretation.

1.(1) In this Act “terrorism” means the use or
threat, for the purpose of advancing a political,
religious or ideological cause, of action which-

(a) involves serious violence against any person
or property,

(b) endangers the life of any person, or

(c) creates a serious risk to the health or
safety of the public or a section of the public.

(2) In subsection (1)-

(a) “action” includes action outside the United
Kingdom,

(b) a reference to any person or to property is a
reference to any person, or to property, wherever
situated, and

(c) a reference to the public includes a
reference to the public of a country other than
the United Kingdom.

(3) In this Act a reference to action taken for
the purposes of terrorism includes a reference to
action taken for the benefit of a proscribed
organisation.”

Part two containing sections 3 to 12 deals with
proscribed organisations mentioned in Schedule two. This
Part provides for notifying the proscribed organisations,
appeals against such orders and the effect of declaring
an organisation as a proscribed organisation followed by
forfeiture of its properties. Any person who belongs to
such organisation or supports the activities of such
organisation, is liable to be prosecuted and punished.
Part three containing sections 13 to 30 deals with
`terrorist property’ including proceeds of terrorism.
The provisions in this Chapter prohibit raising of funds
for terrorist activity including money laundering and
provide for seizure, detention and forfeiture of property
of terrorists as well as cash belonging to them. The
Chapter also places an obligation upon the citizens to
disclose information relating to terrorist activity and
to cooperate with the police in that behalf. Part four
containing sections 31 to 37 include provisions
concerning terrorist investigations. These provisions
empower the police to cordon areas, to search and to take
other actions in the cordoned areas as detailed in
Schedule five and other allied provisions. Part five
contains sections 38 to 51 dealing with counter-terrorist
powers of the police. Section 38 defines the expression
“terrorist” in the following words:

“38. (1) In this part “terrorist” means a person
who-

(a) has committed an offence under any of
sections 10, 11, 14 to 17, 52 and 54 to 56, or

(b) is or has been concerned in the commission,
preparation or instigation of acts of terrorism.

(2) The reference in subsection (1)(b) to a
person who has been concerned in the commission,
preparation or instigation of acts of terrorism
includes a reference to a person who has been,
whether before or after the passing of this Act,
concerned in the commission, preparation or
instigation of acts of terrorism within the
meaning given by section 1.”

The provisions in this Part empower the police to
arrest without warrant, search premises and persons, stop
and search vehicles and the provisions incidental
thereto. The police is also empowered to place
restrictions on and to regulate parking, to impose ports
and border controls and to search, seize and detain
terrorists and their properties. Part six containing
sections 52 to 61 deals with “miscellaneous” matters.
The provisions in this Part deal with terrorist offences
including possession of arms and explosives (which is
made an offence), with training in weapons including
biological, chemical and nuclear weapons and with
collecting information, etc. useful to terrorists. The
British Parliament has assumed extra-territorial
jurisdiction in this behalf in the sense that
preparations for carrying out terrorist offences in any
other country (other than the U.K.) are also made
punishable in U.K., which is a good development from our
country’s point of view. Part seven containing sections
62 to 109 deals with Northern Ireland. The provisions in
this Chapter are far more stringent in all respects.
Part eight containing sections 110 to 124 carries the
heading “general”. This part specifies the additional
powers of the police conferred by the Bill over and above
the common law powers and the extent of such powers and
certain other matters.

Chapter five of the Working Paper sets out the
proposals put forward by the Law Commission for public
debate and discussion.

As stated hereinbefore, the Law Commission has
considered the responses received and the various views
expressed at the two seminars. So far as the structure
of our report is concerned, we must reiterate that we
have taken the Criminal Law Amendment Bill, 1995, as
proposed to be amended by the Official Amendments as the
basis. The reasons for this approach are not far to
seek. The TADA – whose improved version is the present
Bill – was in force for more than ten years; indeed it
continues to be available for the pending cases. The
constitutionality of the Act and the meaning and scope of
its provisions have been the subject-matter of several
decisions of the Supreme Court and the High Courts. In
this view, we thought that instead of drafting a new law
altogether, it would be more appropriate – and convenient
– to take the Criminal Law Amendment Bill along with
official amendments as the basis and suggest appropriate
modifications and additions, wherever found necessary.

In the interest of convenience and clarity, we
shall deal with the sections in the Criminal Law
Amendment Bill, as introduced in Rajya Sabha on 18th May,
1995 (together with the proposed “official” amendments),
chapter-wise, and suggest modifications and additions in
the light of the responses received pursuant to the
circulation of the Working Paper and the views expressed
in the seminars.

CHAPTER III
WHETHER THE PRESENT LEGISLATION
IS AT ALL NECESSARY?

The representatives of the human rights
organisations and other activists in that field, namely,
S/Shri Prashant Bhushan, Advocate, Supreme Court, Ravi
Nair from the South Asia Human Rights Documentation
Centre, V.S. Mani from Jawaharlal Nehru University,
Kamini Jaiswal, Advocate, Supreme Court, Justice Rajinder
Sachar, former Chief Justice of Delhi High Court, Prof.
B.B. Pande of Delhi University and Maja Daruwalla,
Director, Commonwealth Human Rights Initiative,
questioned the very necessity of such a legislation at
the present juncture. Similar stand was taken by The
Peoples Union for Civil Liberties (PUCL) (who while
declining to participate in the seminars, chose to send
the comments of Shri K.G. Kannabiran on each of the
features of the Bill), The Peoples Union for Democratic
Rights (PUDR) (letter from Shri Rakesh Shukla) and by
another organisation “South Asia Forum for Human Rights”.
They submitted that the proposed legislation was indeed
the very same TADA, in a new garb. Indeed, some of them
contended that the provisions of the proposed legislation
are harsher than the provisions of TADA. They submitted
that TADA was widely abused and misused by the police
authorities while it was in force and that it had not
succeeded in checking terrorism. They submitted that a
number of accused who were arrested and were being
prosecuted under the TADA, were still languishing in
jails and their cases were still pending trial before the
designated courts notwithstanding the fact that TADA
itself had lapsed in the year 1995. If TADA could not
successfully counter terrorism, they asked, how could the
present legislation succeed. They submitted that the
police in this country is notorious for its third degree
methods and illegal methods of investigation which is
indeed the byproduct of their inefficiency. They
submitted further that the Law Commission should not look
to U.K. and U.S. or to the anti-terrorism laws in force
there, because the standards of behaviour of the police
in those countries were far more civilised and consistent
with the norms of law. Introducing provisions similar to
the provisions existing in those enactments would not be
appropriate, they submitted, inasmuch as the social and
political standards and the level of consciousness of the
citizens of this country are not the same as that of U.K.
or U.S.A. The policeman is held in awe in this country
and this legislation would clothe him with more arbitrary
powers which cannot but result in harassment of innocent
persons besides being unable to achieve its objective.
They further raised the point that before enacting such a
legislation there must be a far wider debate throughout
the country and that the Commission must also look into
and verify several abuses which had occurred under the
TADA. They submitted that human rights of the citizens
of this country would be in great peril if such a law was
enforced. Another submission put forward by Shri K.G.
Kannabiran is that terrorism is a consequence of
socio-economic injustice and is thus really a political
problem and not a `law and order’ or `public order’
problem.

On the other hand, Brig. Satbir Singh, Senior
Fellow and OSD in the Institute of Defence Studies and
Analysis, Shri K.T.S. Tulsi, Senior Advocate, Supreme
Court, Shri K.P.S. Gill, former DGP, Punjab, Shri Shiv
Basant, Joint Secretary, Ministry of Home Affairs, Shri
S.V. Singh, Addl. DGP, Punjab, Shri S.S. Puri, Addl.
DGP, Maharashtra, Shri M.L. Sharma, Joint Director, CBI,
Dr. P.K. Agarwal, Joint Secretary, Ministry of Home
Affairs, Shri P.K. Dave, former Lt. Governor of Delhi,
Shri S.K. Singh, former Foreign Secretary, Shri U.R.
Lalit, Senior Advocate, Supreme Court, Shri A.K.
Shrivastava, Judge-Advocate-General, Army, Lt.Gen.(Retd.)
Dr. M.L. Chibber, Shri L. David, Addl. DGP, Assam,
Shri H.N. Ray, former Finance Secretary, Government of
India and Shri Ashok Bhan, Advocate and a Kashmiri
migrant Pandit, called for a more stringent law than the
one proposed. They submitted that some of the proposals
put forward by Law Commission with a view to provide
protection to the accused were unworkable and
impractical. They pointed out the serious situation in
which India was placed now with terrorism threatening its
security from all sides. They pointed out that today
India was threatened not only with external terrorism but
also with internal terrorism. They submitted that Indian
Penal Code was not conceived and was not meant for
fighting organised crime; that it was designed only to
check individual crimes and occasional riots at local
level. Organised crime perpetrated by highly trained and
armed fanatical elements or mercenaries who are trained,
financed, armed and supported by hostile foreign
countries and agencies had to be fought at a different
level than as an ordinary law and order crime. They
pointed out that the anti-terrorism laws of the U.K. and
U.S.A. were far more stringent than the provisions of
the proposed legislation. They submitted that the plea
that police was likely to misuse or abuse the provisions
of the new legislation could not be a ground for opposing
the very legislation to fight terrorism. It is one thing
to say, they submitted, that the provisions of the
legislation must be so designed as to prevent or minimise
its abuse and misuse and quite another thing to say that
because of the possibility of abuse, no such law should
be enacted at all. For that matter, they submitted,
there was no Act on the statute book either in this
country or anywhere else which was not open to abuse or
misuse. Even provisions of the Code of Criminal
Procedure or the Indian Penal code were liable to misuse
but that could not be a ground for asking for the repeal
of those enactments. They submitted that one must
realise the extraordinary, alarming and dangerous
situation in which the country was placed today because
of the activities of the hostile neighbour and the
fundamentalist Islamic terrorism which have made India
their prime target. They pointed out that foreign
terrorists now far outnumbered the local terrorists in
Jammu and Kashmir and that thousands more were waiting to
enter J&K with a view to carrying on the so-called
`Jehad’. In such a situation, any delay or inaction on
the part of the country to take measures to fight these
terrorist elements would be a grave dereliction of duty
on the part of the State. The present enactment was but
one of the means of fighting terrorism and therefore its
enactment could not validly be opposed.

Shri Justice J.S. Verma, Chairperson, National
Human Rights Commission, while inaugurating the first
seminar, opined that having regard to the extraordinary
situation obtaining in the country and in view of the
steadily worsening situation in certain parts of the
country, a special law was necessary to fight terrorist
activities. At the same time, he suggested that the Act
must contain necessary safeguards and it must be a
legislation with a human face. He stressed the
importance of maintaining a balance between individual
rights and the rights of the society and opined that in
case of conflict between the two, the interest of society
must prevail. Justice Verma referred to several
decisions of the Supreme Court rendered under TADA
including the decisions in Kartar Singh, Sanjay Dutt and
Shaheen Welfare Society and suggested that the several
guidelines available in those decisions might be kept in
mind while enacting the new legislation. The learned
judge also referred to the Armed Forces Special Powers
Act and stated that its constitutionality had been upheld
by a Constitution Bench of the Supreme Court while
reading certain constitutional safeguards into the Act.
He pointed out the long pendency of cases under TADA and
the adverse image of India it was creating in the
international arena. He suggested that the Preamble to
the Constitution and the guarantees contained therein
should be kept in mind and that in the matter of bail, a
classification of cases may be provided for on the lines
indicated in the of decision in Shaheen Welfare. The
learned judge also stressed the importance of speedy
trial. If bail was not granted and the trial was also
not proceeded with reasonable promptitude, it becomes
oppressive, the learned judge stated. Six months should
be the time limit for a trial to conclude. The learned
judge also affirmed the correctness of the argument that
the mere possibility of abuse could not be a ground for
the very enactment of such a legislation. On the other
hand, the learned judge pointed out that effort should be
made to try to find out how best to prevent the misuse
and abuse of the provisions of such a legislation. The
learned judge then referred to the experience under TADA
and suggested that investing powers under the Act in
higher authorities was an effective means of preventing
its misuse. He also referred to the experiment of the
Review Committees and to the desirability of plurality in
the composition of the reviewing authorities. He
concluded his inaugural speech by observing that while
the legislation was necessary, it was equally important
to incorporate provisions to prevent its misuse. He also
suggested that the authorities found misusing the
provisions of the Act, should be sternly dealt with.

Shri P.P. Rao, Senior Advocate, Supreme Court
and a former President of the Supreme Court Bar
Association spoke in the same terms as Justice J.S.
Verma. He welcomed the provisions relating to presence
of counsel during the interrogation of the accused and
suggested that the power to arrest or the approval of
decision to arrest should be by an authority higher than
the Superintendent of Police. In the matter of bail, the
learned counsel suggested that the basic premise being
liberty, the provisions with respect to bail should not
be made too stringent. He also emphasised the
desirability of speedy trial.

On a consideration of the various viewpoints, the
Law Commission is of the opinion that a legislation to
fight terrorism is today a necessity in India. It is not
as if the enactment of such a legislation would by itself
subdue terrorism. It may, however, arm the State to
fight terrorism more effectively. There is a good amount
of substance in the submission that the Indian Penal Code
(IPC) was not designed to fight or to check organised
crime of the nature we are faced with now. Here is a
case of organised groups or gangs trained, inspired and
supported by fundamentalists and anti-Indian elements
trying to destablise the country who make no secret of
their intentions. The act of terrorism by its very
nature generates terror and a psychosis of fear among the
populace. Because of the terror and the fear, people are
rendered sullen. They become helpless spectators of the
atrocities committed before their eyes. They are afraid
of contacting the Police authorities about any
information they may have about terrorist activities much
less to cooperate with the Police in dealing with
terrorists. It is difficult to get any witnesses because
people are afraid of their own safety and safety of their
families. It is well known that during the worst days in
Punjab, even the judges and prosecutors were gripped with
such fear and terror that they were not prepared to try
or prosecute the cases against the terrorists. That is
also stated to be the position today in J&K and this is
one reason which is contributing to the enormous delay in
going on with the trials against the terrorists. In such
a situation, insisting upon independent evidence or
applying the normal peace-time standards of criminal
prosecution, may be impracticable. It is necessary to
have a special law to deal with a special situation. An
extraordinary situation calls for an extraordinary law,
designed to meet and check such extraordinary situation.
It is one thing to say that we must create and provide
internal structures and safeguards against possible abuse
and misuse of the Act and altogether a different thing to
say that because the law is liable to be misused, we
should not have such an Act at all. The Supreme Court
has repeatedly held that mere possibility of abuse
cannnot be a ground for denying the vesting of powers or
for declaring a statute unconstitutional. In State of
Rajasthan v. Union of India (1978 1 SCR p.1), the
Supreme Court observed “it must be remembered that merely
because power may sometimes be abused, it is no ground
for denying the existence of power. The wisdom of man
has not yet been able to conceive of a government with
power sufficient to answer all its legitimate needs and
at the same time incapable of mischief” (at page 77).
Similarly, in Collector of Customs v. Nathella Sampathu
Chetty (AIR 1962 SC 316), the Court observed, “The
possibility of abuse of a statute otherwise valid does
not impart to it any element of invalidity”. In
Kesavananda Bharati v. State of Kerala (1973 Supp SCR
p.1), Khanna J. observed as follows at page 755: “In
exercising the power of judicial review, the Courts
cannot be oblivious of the practical needs of the
government. The door has to be left open for trial and
error. Constitutional law like other mortal contrivances
has to take some chances. Opportunity must be allowed
for vindicating reasonable belief by experience.” To the
same effect are observations of Krishna Iyer J. in T.N.
Education Department v. State of Tamilnadu (1980 1 SCR
1026 at 1031) and Commissioner H.R.E. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954
SC 282). All these decisions were referred to and
followed by a recent nine-Judge Constitution Bench in
Mafatlal Industries v. Union of India [1997 (5) SCC
536].

With respect to the plea that even if an
anti-terrorism law is made, it should not be a permanent
enactment, we must say that this objection is academic
since the Bill, as drafted by the Government read with
the Official Amendments, speaks of only a five year
duration for the proposed legislation, which feature
remains unchanged.

CHAPTER IV
PART I OF THE CRIMINAL LAW AMENDMENT BILL

Part I contains only two clauses. Clause 1
provides for the title and the extent of the Act. In our
opinion the short title of the Bill should be the
Prevention of Terrorism Bill, 2000.

Sub-clause (2) and sub-clause (3) as proposed by
the Official Amendments, in our opinion, requires no
change.

Clause 2 defines certain expressions occurring in
the Bill. In the original Bill, there were only five
definitions with the residuary clause saying that words
and expressions used but not defined in this Act and
defined in the Code of Criminal Procedure (Cr.P.C.) shall
have the meanings respectively assigned to them in the
Code. We propose to define under clause (b) the term
`proceeds of terrorism’ as explained under paragraph
5.13.3 of the Working Paper (Annexure I). By Official
Amendments, however, two new definitions are sought to be
introduced, namely, the definition of “High Court” and
“Public Prosecutor” by way of paragraphs (ba) and (ca).
With respect to the definition of the expression “High
Court”, it was pointed out in our Working Paper that the
purpose behind this definition was not clear. It was
pointed out that if the intention behind the said
definition was to empower a judge of a special court to
continue to try a matter which he may have been trying as
a special judge, even after his elevation to High Court,
then it would be appropriate to provide expressly for
such a situation. If that is not the intention, the
definition is unnecessary inasmuch as the said expression
is already defined by clause (e) of section 2 of the Code
of Criminal Procedure. We have been unable to find any
provision in the Bill which says that a special judge
trying a particular case shall continue to try it till
its conclusion even if he is elevated to the High Court
in the midst of a trial. According to us, therefore,
either the said definition be dropped or may be
appropriately defined to achieve the intention underlying
it.
So far as the new definition of public prosecutor
is concerned, we have nothing to add.

PART II OF THE CRIMINAL LAW AMENDMENT BILL
Part two of the Bill contains clauses 3 to 7.
Clause 3 defines the expression “terrorist act” and also
provides for punishment therefor and other allied
provisions. It contains six sub-clauses. While
sub-clause (1) defines terrorism, sub-clause (2)
prescribes the punishment for terrorist activities.
Sub-clause (3) punishes those conspiring, attempting,
advocating, abetting, advising, inciting or knowingly
facilitating the commission of a terrorist act.
Sub-clause (4) deals with those who knowingly harbour
terrorists while sub-clause (5) punishes the members of
terrorist gangs and organisations. Sub-clause (6)
declares the holding of proceeds of terrorism illegal.

Clause 3: The Official Amendments propose to
substitute the opening words in sub-clause (1) of clause
3. In place of the words “whoever with intent to overawe
the government as by law established or to strike terror
in the people or any section of the people or to alienate
any section of the people or to adversely affect the
harmony amongst different sections of the people, does”,
the following words “whoever with intent to threaten the
unity, integrity, security or sovereignty of India or to
strike terror in the people or any section of the people,
does” are proposed to be substituted. A criticism
levelled against the substituted definition was that any
person questioning the unity and integrity of the country
was sought to be branded as a terrorist. It was pointed
out that if a person honestly believed and said that a
particular part of the country should be made
independent, he would come within the mischief of
sub-clause (1) of clause 3. We do not think that this
criticism or apprehension is well founded. A reading of
sub-clause (1) makes it clear that merely threatening the
unity or integrity of India is not by itself sufficient
to attract the offence in that sub-clause. What is
necessary is that the person who threatens the unity,
integrity, security or sovereignty of India also does an
act or thing by using bombs, dynamite, etc. in a manner
which causes or is likely to cause death of or injuries
to any person or persons or loss of or damage to or
destruction of property or disruption of any supplies or
services essential to the life of the community or
detains any person and threatens to kill and injure such
person in order to compel the government or any other
person to do or abstain from doing any act. These are
serious matters and the apprehension of those opposed to
this provision is unfounded.

In paras 5.3 and 5.4 of the Working Paper, the
Law Commission had suggested the retention of the words
“to overawe the government as by law established”. The
said suggestion was made in view of the fact that no good
reason can be found for deleting the said words as
proposed in the official amendments. These words were
there in the original draft of the Bill and also in the
TADA. On a consideration of the entire material placed
before us, we are inclined to drop this proposal since
the element of “overawing the government” can be said to
be implicit in the sub-clause as modified/amended by the
official amendments.

So far as the Law Commission’s proposal to retain
the words “or to alienate any section of the people or to
adversely affect the harmony amongst different sections
of the people” in sub-clause (1) of clause 3 is
concerned, we are dropping it also for the reason that
the said words do not appear to fit into the sub-section
once its direction is oriented towards threatening the
unity, integrity, security or sovereignty of India.

The Law Commission has observed in para 5.6 that
crimes in the field of electronics/computers are
increasingly being used for international terrorism.
Reference was made to section 805 of the U.S.
Anti-terrorism and Effective Death Penalty Act of 1996,
which provides deterrent sentence for any terrorist
activity damaging a federal interest computer. In
chapter three, the Commission had also referred to
section 701 of the U.S. Act which defines the federal
crime of terrorism, which is of very wide application
taking in all violations of enactments dealing with
aircraft, airports, biological weapons, nuclear material,
destruction of government properties including
communication lines, stations and systems and so on and
so forth. The Law Commission is of the opinion that any
damage to equipment installed or utilised for or in
connection with defence or for any other purposes of the
government is equally an act of terrorism if it is done
with intent to threaten the unity, integrity, security,
sovereignty of India. We are, therefore, of the opinion
that after the words “supplies or services essential to
the life of the community”, the following words may be
added “or causes damage to or destruction of any property
or equipment used or intended to be used for the defence
of India or in connection with any other purposes of
Government of India or any of its agencies”. Sub-clause
(1), may therefore be recast incorporating the above
additions.

It would be seen that the definition of terrorist
act in our Bill is put into one sub-clause viz.,
sub-clause (1) of clause 3, whereas the U.K. legislation
defines “terrorism” in section 1 and “terrorist” in
section 38 in more extensive terms. The definition of
“terrorist” in the U.K. Act speaks of a person who has
committed an offence under any of the sections 10, 11, 14
to 17, 52 and 54 to 56 of that Act. Sections 10 to 17 of
U.K. Act deal with helping, raising funds or otherwise
having connections with proscribed organisations, while
section 52 and 54 to 56 speak of weapons training,
directing terrorist organisations and possession of an
article for the purpose connected with terrorist
activities. It would be appropriate that our Act too
contains provisions which make the membership of a banned
organisation and/or raising funds for or otherwise
furthering the activities of banned organisation, a
terrorist act. Similarly, possession of unlicensed
firearms and explosives and other weapons of mass
destruction (in the notified areas) may also be treated
as an act of terrorism. Indeed, section 5 of TADA did
make possession of arms and ammunition in the notified
areas punishable offence. We, therefore, recommend that
existing sub-clause (1) may be numbered as paragraph (a)
of sub-clause (1) and a new paragraph (b) be inserted
therein. Sub-clause (1) will read as follows:-

“3. (1) Whoever,
(a) with intent to threaten the unity, integrity,
security or sovereignty of India or to strike
terror in the people or any section of the people
does any act or thing by using bombs, dynamite or
other explosive substances or inflammable
substances or fire-arms or other lethal weapons
or poisons or noxious gases or other chemicals or
by any other substances (whether biological or
otherwise) of a hazardous nature in such a manner
as to cause, or as is likely to cause, death of,
or injuries to, any person or persons or loss of,
or damage to, or destruction of, property or
disruption of any supplies or services essential
to the life of the community or causes damage to
or destruction of any property or equipment used
or intended to be used for the defence of India
or in connection with any other purposes of the
Government of India, any State Government or any
of their agencies, or detains any person and
threatens to kill or injure such person in order
to compel the Government or any other person to
do or abstain from doing any act,

(b) is or continues to be a member of an
association declared unlawful under the Unlawful
Activities (Prevention) Act, 1967 or voluntarily
does an act aiding or promoting in any manner the
objects of such an association and is either in
possession of any unlicenced firearm, ammunition,
explosive or other instrument or substance
capable of causing mass destruction and commits
any act resulting in loss of human life or
grievous injury to any person or causes
significant damage to any property,

commits a terrorist act.”

Sub-clause (2) of clause 3 which speaks of
punishment, in its present language, is comprehensive
enough to cover both the paragraphs of sub-clause (1) and
needs no change consequent upon the change in sub-clause
(1).

The Government may also consider the desirability
of introducing a new clause – which may be numbered as
clause 4 – in terms of section 5 of TADA. The expression
“notified area” may also be defined in the very clause.

We may also mention at this stage that we have
examined the Maharashtra Control of Organised Crime Act,
1999 but find that its focus and objective is different
from the present Act. It is meant to fight organised
crime which may not necessarily amount to `terrorist
activity’ as defined in sub-clause (1) of clause 3 of
this Bill, though in some cases they may overlap. We do
not, therefore, think it necessary to deal with the
definitions of “continuing unlawful activity”, “organised
crime” and “organised crime syndicate” occurring in the
Maharashtra Act. So far as certain procedural provisions
contained in the Maharashtra Act are concerned, they are
referred to hereinafter at relevant places.

Sub-clauses (2) and (3) do not require any
change.

Sub-clause (4) seeks to punish a person who
“harbours or conceals or attempts to harbour or conceal
any person knowingly that such person is a terrorist” (as
proposed to be amended by “official” amendments). It was
pointed out by certain participants at the seminar that
this sub-section, as it stood now, would also take in the
mother, father, sister or brother of a terrorist who came
home to hide himself and that it would be wholly unjust
to punish such relative of the terrorist merely because
he was allowed to stay in the house by such a relative.
It was also pointed out by some other participants that
such harbouring or concealing might be out of fear or
under the threat of violence by the terrorists. It was
pointed out that in such a situation, the person supposed
to be harbouring or concealing a terrorist was himself a
victim. On the other hand, certain other participants
pointed out that the terrorists should not be provided
any sanctuary and that any person who harboured or
concealed a terrorist knowing that he was a terrorist,
should be held guilty of the offence under sub-section
(4). On a consideration of the rival submissions, we are
of the opinion that it would be appropriate to add the
word “voluntarily” after the word “whoever” and before
the words “harbours or conceals”. This would exclude a
situation where a person harbours a terrorist under
threat or coercion even though he may be knowing that
that person is a terrorist. So far as the wife/husband
harbouring the terrorist is concerned, we recommend
addition of an Exception in terms of Exception to section
212 of I.P.C. to read:

“Exception.- This sub-section shall not apply to
any case in which the harbour or concealment is by the
husband or wife of the offender”.

We are also of the opinion that there should be a
slight change in the minimum punishment provided by the
sub-clause. Keeping in view of the provisions of
sub-clause (2) as well as sub-clause (3) of clause 3, it
would be appropriate to reduce the minimum punishment to
three years from five years.

Sub-clause (5) requires no change. So far as
sub-clause (6) is concerned, it is dealt with at a later
stage.
In para 5.9 of its Working Paper, the Law
Commission had recommended addition of sub-clause (7) in
clause 3 in the following terms:
“(7) Whoever threatens any person who is a
witness or any other person in whom such witness
may be interested, with violence, or wrongfully
restrains or confines the witness, or any other
person in whom the witness may be interested, or
does any other unlawful act with the said intent,
shall be punishable with imprisonment which may
extend to three years and fine.”

During the seminars or in the responses received
by us pursuant to the Working Paper, no objection was
taken to this proposal except in the written
representation from the South Asia Human Right
Documentation Centre (SAHRDC). We however see no reason
to drop this proposal which is considered to be in the
interest of a free and fair trial. Sub-clause (7) as
recommended above, should therefore be incorporated in
clause 3.
In para 5.10 of the Working Paper, the Law
Commission had also proposed addition of sub-clause (8)
placing an obligation upon the persons receiving or in
possession of information as to any terrorist activity to
inform the Police as soon as practicable. It may be that
when terror prevails, people may be afraid of speaking
out. As a matter of fact, one of the prime objects of
creating terror is to silence the people by instilling a
psychosis of fear in them. At the same time it cannot
also be forgotten that such an obligation has to be
placed upon the citizens of this country for effectively
fighting the terrorism. The incorporation of such a
sub-clause does not mean that any or every person not
giving information would necessarily be punished. If and
when a person is prosecuted under the proposed sub-clause
(8), the court will take into consideration all the
relevant facts and circumstances and even where he is
punished, the quantum of punishment to be awarded would
be within the discretion of the court. It may even be a
mere fine and that too of a small amount.
At the two seminars and in the responses
received, an objection was raised that this would take in
even a journalist/media person who interviews a terrorist
and he would be obliged to disclose the information
relating to the terrorist interviewed by him and that
therefore this provision is not consistent with the
freedom of Press and media. It may, however, be noted
that in India, freedom of Press flows from sub-clause (a)
of clause (1) of Article 19 of the Constitution of India
and it has been repeatedly held by our Supreme Court that
rights and privileges of the Press are no greater than
that of any of the citizens of India. Even in UK and
USA, no immunity in favour of journalists/Press is
recognised which would be evident from the following
statement of Law at page 203 of D.D. Basu’s commentary
“Law of the Press” (Third Edition).

“The same view, as in UK, has been arrived at by
the American Supreme Court, recently, holding that the
guarantee of freedom of the Press does not immunise the
Press to render assistance to the investigation of crimes
which obligation lies on every citizen. They are,
accordingly, bound to disclose the information gathered
by journalists, with their sources, even though such
information may have been obtained under an agreement not
to disclose, provided such information is relevant to the
investigation, in a particular case, and they are not
compelled to disclose more than is necessary for such
purpose.”

We are accordingly of the opinion that a new
sub-clause (8) should be added in clause 3 to the
following effect:

“(8) A person receiving or in possession of
information which he knows or believes might be
of material assistance –

(i) in preventing the commission by any other
person of a terrorist act; or

(ii) in securing the apprehension, prosecution
or conviction of any other person for an offence
involving the commission, preparation or
instigation of such an act,
and fails, without reasonable cause, to disclose
that information as soon as reasonably
practicable to the police, shall be punished with
imprisonment for a term which may extend to one
year or fine or both.”

Clause 4: Clause 4 provides for punishment for
disruptive activities. The clause occurring in Criminal
Law Amendment Bill is proposed to be substituted in its
entirety by the Official Amendments. We shall,
therefore, deal with clause 4 as contained in the
official amendments.

Sub-clause (1) of that clause says that “whoever
questions, disrupts, whether directly or indirectly, the
sovereignty or territorial integrity of India or supports
any claim whether directly or indirectly for the cession
of any other part of India or secession of any part of
India from the Union, commits a disruptive act”. The
Explanation appended to sub-clause (1) defines the
expressions “cession” and “secession”. Paragraph (c) of
the Explanation, however, excludes “trade union activity
or other mass movement without the use of violence or
questioning the sovereignty or territorial integrity of
India or supporting any claim for cession of any part of
India or secession of any part of India” from the purview
of sub-clause (1). Sub-clause (2) seeks to punish those
who commit, conspire or attempt to commit or abet,
advocate, advise or knowingly facilitate the commission
of any disruptive act or any act preparatory thereto.
Sub-clause (3) seeks to expand the scope of disruptive
activity. According to this sub-clause, “any action
taken whether by act or by speech or through any other
media or in any other manner whatsoever, which (a)
advocates, advises, suggests or incites or (b) predicts,
prophesies or pronounces or otherwise expresses, in such
manner as to incite, advise, suggest or prompt the
killing or the destruction of any person bound by or
under the Constitution to uphold the sovereignty and
integrity of India or any public servant” amounts to
disruptive activity. Sub-clause (4) provides punishment
for persons who knowingly harbour a disruptionist. A
reading of clause 4 shows that it seeks to punish speech.
Though sub-clause (3) uses the expression “act”, it again
appears to be confined to an act of speech. Shri K.G.
Kannabiran, Shri H.D. Shourie and some others have
suggested segregation of offences relating to disruptive
activities from the provisions of the anti-terrorism
legislation.

In our opinion, inclusion of mere offensive
speech in this Bill is liable to be termed a case of
over-reaction and a disproportionate response. We are
not suggesting that such speech is either valid or that
such speech should not be made punishable. All that we
are suggesting is that such speech or its punishment
should not find place in an anti-terrorism law. We,
therefore, recommend that clause 4 be deleted altogether
from the Bill or it may be redrafted so as to take in
physical acts directed towards disturbing the integrity
or sovereignty of India so as to take in acts other than
those mentioned in clause 3. Mere offensive speech may
be dealt with by another enactment – may be by amending
the Indian Penal Code. This is a matter for the
government to decide.

Clause 5: We have no comments to offer with respect
to clause 5.

Clauses 6 & 7: Clauses 6 and 7 of the Bill, as prepared
by the Government, read together, provide for the
following:

(a) If an officer investigating an offence under the
Act has reasons to believe that “any property in relation
to which an investigation is being conducted” is property
derived from terrorist activity and includes proceeds of
terrorism, he shall seize/attach that property after
making an order in that regard so that such property is
not transferred or otherwise dealt with except with his
permission or with the permission of the special court.
The officer seizing/attaching such property has to inform
the special court of the said fact within 48 hours and it
shall be open to the court to either confirm or revoke
the order.

(b) It is equally open to the special court trying an
offence under this Act to attach properties belonging to
the accused and where such trial ends in conviction, the
property shall stand forfeited to the government free
from all encumbrances.

(c) Where a person is convicted under the Act, the
special court may, in addition to awarding any
punishment, direct forfeiture of the properties belonging
to him.

(d) If the property forfeited represents shares in a
company, the company shall forthwith register the
government as the transferee of such shares.

The Law Commission had suggested in its Working
Paper that in addition to the provisions contained in
clauses 6 and 7, there should be a parallel procedure
providing for forfeiture/confiscation of proceeds of
terrorism. The expression “proceeds of terrorism” was
defined to mean “all kinds of properties which have been
derived or obtained from commission of any terrorist act
or disruptive activity or has been acquired through funds
traceable to terrorist act or disruptive activity”. It
was also proposed in the Working Paper that there should
be a specific section declaring the holding of proceeds
of terrorism itself as illegal and providing for their
confiscation. It was suggested that there should be
provisions prescribing the procedure following which
proceeds of terrorism can be seized/attached and
forfeited to the government. It was clarified that for
this purpose it is not necessary that the person holding
such proceeds or owning such proceeds or in possession of
such proceeds should have been prosecuted under the Act.
The object behind the provision has been to reach
the properties of the terrorists, who, for some reason or
other cannot be arrested or prosecuted including for the
reason that they are safely ensconced abroad. Reference
was made to the fact that certain persons are said to be
directing, controlling and carrying on terrorist
activities within India while stationed outside the
country. It was pointed out that attaching and
forfeiting the properties belonging to such persons,
irrespective of the fact in whose name and in whose
possession they were held, would be an effective way of
fighting terrorism. It was suggested that such
attachment could be made only by an officer not below the
rank of Superintendent of Police and that he should
inform the special court of such seizure/attachment
within 48 hours.
It was further provided that it shall be open to
the officer seizing/attaching the properties to either
produce them before the court where the person owning
such properties is prosecuted under the Act or to produce
the same before the designated authority (who shall be
distinct from a designated court). If the property
seized/attached is produced before the designated
authority, he shall issue a notice to the person in whose
name it is standing or in whose possession they are
found, to show cause as to why the said properties should
not be declared to be the proceeds of terrorism and
forfeited/confiscated in favour of the government. It
was further provided that in such a proceeding, the
burden shall lie upon the person to whom a notice is
issued to establish that the properties mentioned in the
show cause notice do not represent the “proceeds of
terrorism” or that they were earned by legitimate and
lawful means. After making appropriate inquiry (which
would naturally involve an inquiry into facts in case
there is a dispute as to facts), the Designated Authority
shall pass final orders either forfeiting such property
in favour of the government or releasing it as the case
may be. Detailed procedure on the lines of the procedure
contained in SAFEMA (whose constitutionality has been
upheld by a nine-judge Constitution Bench of the Supreme
Court) was provided. The only objection which has been
put forward in the course of seminars to these provisions
is that the power to forfeit the properties should not be
vested in administrative authority like the Designated
Authority but that it should vest in a court or a special
court, as the case may be. Though it cannot be said that
the said objection is totally without any substance, it
is necessary to mention at the same time that even under
SAFEMA, the power to forfeit is vested in an
administrative officer and not in a court. More
important – though the Designated Authority may be an
administrative officer, once he is designated as a

Designated Authority, he becomes a tribunal for all
purposes and would be obliged to observe the principles
of natural justice while making the inquiry and while
passing the final orders. In fact, an appeal is provided
from the orders of the Designated Authority to the High
Court directly. In such a situation, there can be no
room for any valid apprehension that the proceedings
under this parallel procedure would result in miscarriage
of justice. Accordingly, we reiterate our proposals and
recommend that provisions and modifications suggested in
para 5.13.3 should be incorporated in the Bill. They
read as follows:

“6. Holding of proceeds of terrorism illegal:
(1) No person shall hold or be in possession of
any proceeds of terrorism. (2) Proceeds of
terrorism, whether they are held by a terrorist
or by any other person and whether or not such
person is prosecuted or convicted under this Act
shall be liable to be forfeited to the Central
Government in the manner hereinafter provided.

6A. Powers of investigating officers: (1) If
an officer (not below the rank of Superintendent
of Police) investigating an offence committed
under this Act has reason to believe that any
property in relation to which an investigation is
being conducted is a property derived or obtained
from the commission of any terrorist act or
represents proceeds of terrorism, he shall, with
the prior approval in writing of the Director
General of the Police of the State in which such
property is situated, make an order seizing such
property and where it is not practicable to seize
such property, make an order of attachment
directing that such property shall not be
transferred or otherwise dealt with except with
the prior permission of the officer making such
order, or of the Designated Authority, or the
Special Court, as the case may be, before whom
the properties seized or attached are produced.
A copy of such order shall be served on the
person concerned.

(2) The investigating officer shall duly
inform the Designated Authority or, as the case
may be, the Special Court, within forty-eight
hours of the attachment of such property.

(3) It shall be open to the Designated
Authority or the Special Court before whom the
seized or attached properties are produced either
to confirm or revoke the order of attachment so
issued.

(4) In the case of immovable property
attached by the investigating officer, it shall
be deemed to have been produced before the
Designated Authority or the Special Court, as the
case may be, when the Investigating Officer so
notifies in his report and places it at the
disposal of the Designated Authority or the
Special Court, as the case may be.

6B Forfeiture of proceeds of terrorism:
Where any property is seized or attached in the
belief that it constitutes proceeds of terrorism
and is produced before the Designated Authority,
it shall, on being satisfied that the said
property constitutes proceeds of terrorism, order
forfeiture of such property, whether or not the
person from whose possession it is seized or
attached, is prosecuted in a Special Court for an
offence under this Act.

6C Issue of show-cause notice before
forfeiture of proceeds of terrorism:
(1) No order forfeiting any proceeds of
terrorism shall be made under section 6B,
unless the person holding or in
possession of such proceeds is given a
notice in writing informing him of the
grounds on which it is proposed to
forfeit the proceeds of terrorism and
such person is given an opportunity of
making a representation in writing within
such reasonable time as may be specified
in the notice against the grounds of
forfeiture and is also given a reasonable
opportunity of being heard in the matter.

(2) No order of forfeiture shall be made
under sub-section (1), if such person
establishes that he is a bona fide
transferee of such proceeds for value
without knowing that they represent
proceeds of terrorism.

(3) It shall be competent to the
Designated Authority to make an order, in
respect of property seized or attached,
(a) in the case of a perishable property
directing it to be sold: and the
provisions of section 459 of the Code
shall, as nearly as may be practicable,
apply to the net proceeds of such sale;

(b) in the case of other property,
nominating any officer of the Central
Government to perform the function of the
Administrator of such property subject to
such conditions as may be specified by
the Designated Authority.

6D Appeal: (1) Any person aggrieved by an
order of forfeiture under section 6B may,
within one month from the date of the
communication to him of such order,
appeal to the High Court within whose
jurisdiction the Designated Authority,
who passed the order to be appealed
against, is situated.

(2) Where an order under section 6B is
modified or annulled by the High Court or
where in a prosecution instituted for the
violation of the provisions of this Act,
the person against whom an order of
forfeiture has been made under section
6B, is acquitted and in either case it is
not possible for any reason to return the
proceeds of terrorism forfeited, such
person shall be paid the price therefor
as if the proceeds of terrorism had been
sold to the Central Government with
reasonable interest calculated from the
day of seizure of the proceeds of
terrorism and such price shall be
determined in the manner prescribed.

6E Order of forfeiture not to interfere with
other punishments: The order of forfeiture made
under this Act by the Designated Authority, shall
not prevent the infliction of any other
punishment to which the person affected thereby
is liable under this Act.

6F Claims by third parties: (1) Where any
claim is preferred, or any objection is made to
the forfeiture of any property under section 6C
on the ground that such property is not liable to
such forfeiture, the Designated Authority or the
Special Court, as the case may be, before whom
such property is produced, shall proceed to
investigate the claim or objection.

Provided that no such investigation shall
be made where the Designated Authority or the
Special Court considers that the claim or
objection was designed to cause unnecessary
delay.

(2) In case claimant or objector establishes
that the property specified in the notice issued
under section 6C is not liable to be attached or
confiscated under the Act, the notice under
section 6C shall be withdrawn or modified
accordingly.

6G Powers of the Designated Authority: The
Designated Authority, acting under the provisions
of this Act, shall have all the powers of a Civil
Court required for making a full and fair enquiry
into the matter before it.

6H Obligation to furnish information: (1)
Notwithstanding anything contained in any other
law, the officer investigating any offence under
this Act, shall have power to require any officer
or authority of the Central Government or a State
Government or a local authority or a Bank, a
company, a firm or any other institution,
establishment, organisation or any individual to
furnish information in their possession in
relation to such persons, on points or matters as
in the opinion of such officer, will be useful
for, or relevant to, the purposes of this Act.

(2) Failure to furnish the information called for
under sub-section (1), or furnishing false
information shall be punishable with imprisonment
for a term which may extend to three years or a
fine or with both.

(3) Notwithstanding anything contained in the
Code, the offence under sub-section (1) shall be
tried as a summary case and the procedure
prescribed in Chapter XXI of the said Code
[except sub-section (2) of section 262] shall be
applicable thereto.

(4) Any officer in possession of any
information may furnish the same suo motu to the
officer investigating an offence under this Act,
if in the opinion of such officer such
information will be useful to the investigating
officer for the purposes of this Act.

6I Certain transfers to be null and void:
Where after the issue of an order under section
6A or issue of a notice under section 6B(1), any
property referred to in the said notice is
transferred by any mode whatsoever, such transfer
shall, for the purpose of the proceedings under
this Act, be ignored and if such property is
subsequently confiscated, the transfer of such
property shall be deemed to be null and void.”

The above provisions suggested by the Law
Commission are consistent with sub-clause (6) of clause
3; indeed these suggested provisions advance the
objective underlying the said sub-clause.

PART III OF THE CRIMINAL LAW AMENDMENT BILL

Part III of the Bill under consideration
comprises clauses 8 to 17. Clause 8 deals with
constitution of Special Courts and the qualifications of
the persons to be appointed as Judges/Addl. Judges of
the special courts. We have nothing to add or comment
upon this clause. In the Working Paper also, no change
was suggested in this clause. Similarly, the Law
Commission has nothing to add to or comment upon clause 9
(which deals with the place of sitting of special
courts). Clause 10 of the Bill provides for jurisdiction
of Special Court and transfer of cases from one Special
Court to any other Special Court in another State, on
motion being moved by the Attorney-General of India
before the Supreme Court. We are of the opinion that the
right of applying for transfer should also be given to
the interested party as fair play. We therefore
recommend that this clause be recast on the lines of
sections 406 and 407 of Cr.P.C. Clause 11 again is an
incidental provision of procedural nature to which no
exception can be taken by any one. It provides that when
trying an offence, a Special Court may also try any other
offence with which the accused may, under the Code of
Criminal Procedure, be charged at the same trial if the
offence is connected with such other offence.

By Amendment 6 of the Official Amendments, a new
clause, namely, clause 11A is sought to be introduced.
It contains two sub-clauses. Sub-clause (1) says that
“when a Police officer investigating a case requests the
court of a Chief Judicial Magistrate or the court of a
Chief Metropolitan Magistrate in writing for obtaining
samples of handwriting, finger prints, foot prints,
photographs, blood, saliva, semen, hair of any accused
person reasonably suspected to be involved in the
commission of an offence under this Act, it shall be
lawful for the court of a Chief Judicial Magistrate or
the court of a Chief Metropolitan Magistrate to direct
that such samples be given by the accused person to the
Police officer either through a medical practitioner or
otherwise, as the case may be”. Sub-clause (2) then says
that “if any accused person refuses to give samples as
provided in sub-clause (1) in a trial under this Act, the
court shall presume until the contrary is proved that the
accused person had committed such offence”. In the
Working Paper, the Law Commission had observed that in
view of the decision of the eleven-Judge Constitution
Bench of the Supreme Court in State of Bombay v.
Kathikalu, AIR 1961 SC 1808, a direction of the kind
contemplated by sub-clause (1) of clause 11A cannot be
held to contravene clause (3) of article 20 which
declares that “no person accused of any offence shall be
compelled to be a witness against himself”. It cannot be
denied that such a provision is necessary in an enactment
designed to check terrorist activities. One must keep in
mind the difficulty of procuring witnesses and the
difficulty in the way of collecting independent evidence
against the terrorists. [In this connection, reference
may be made to a letter dated February 12, 2000 from Sri
Veeranna Aivalli, Commissioner of Security(Civil
Aviation), Bureau of Civil Aviation Security, addressed
to Law Commission. He has stated that he has spent more
than three decades in Jammu and Kashmir and on the basis
of his experience, he has, inter alia, made the following
comments: “Our experience of TADA in J&K has not been
good. There has not been a single case, which has been
decided by the Court of Law. The difficulties
encountered have been with regard to the non-availability
of witnesses to testify in the Courts of Law on account
of fear of reprisal. There is another difficulty and
that is the collection of evidence in cases where the
search, seizure and arrest in areas where there is no
habitation and many a time these have been by security
forces. In such a case, the arrested persons’ confession
to the security forces leading to the recovery of arms
and ammunition and explosives is the only thing, which
can be brought on record. Even the security force
personnel do not come forward for tendering evidence
because they keep on moving from place to place for
performance of their duties not only within J&K but even
outside J&K and sometimes outside India. The security
force personnel are reluctant to depose in any case as
they feel that they are not attuned for this kind of
exercise. In the last 15 years of militancy in J&K,
thousands of people have been arrested, lakhs of weapons
seized and millions of rounds collected and quintals of
explosive material seized. These figures are real eye
openers and the fact that not a single case has ended in
conviction nor has there been any recording of evidence
and even this itself is very disturbing. TADA had a
provision that no arrested person could be released on
bail without giving an opportunity to the State to
present its viewpoints. In thousands of cases, the bails
were granted in situations far from satisfactory and full
of suspicion. The State High Court did not interfere in
the matter on the ground that the appellate jurisdiction
rested with the Supreme Court. The Supreme Court did not
interfere in the matter nor did they take cognizance on
the ground that no one has filed a petition before it in
this matter… The High Court Bar Association had passed
a resolution that no Member of the Bar should appear for
the State and they wanted the judiciary to pass the
orders ex-parte. Above facts are only indicators of the
malady, which has been prevailing in J&K on account of
terrorism… Expression of honest opinion have become
difficult on account of the damocles sword of contempt of
court hanging on the heads of the people…”] The
proposed clause 11A provides a legally permissible method
of collecting evidence. It is only one method of
collecting evidence and proving the offence. Indeed, if
the accused is not guilty, such a provision would in fact

help him in establishing his innocence. For the above
reasons, the insertion of sub-clause (1) of clause 11A
cannot be legitimately opposed. However, we propose to
add the word “voice” after the word “hair” but before the
words “of any accused” in sub-clause (1) so that sample
of the voice of the accused can be obtained by the police
officer.
Once sub-clause (1) is held to be necessary and
constitutionally valid, no real objection can be taken to
the presumption created by sub-clause (2) but it appears
that the amptitude of presumption provided is
disproportionate and excessive. Instead of presuming
that the accused person had committed such offence, it
would be appropriate and consistent with fair play and
good sense to provide merely that on such failure, the
Court would draw the appropriate adverse inference
against the accused person.
Clause 12 of the said Bill deals with appointment
and qualifications of public prosecutors/additional
public prosecutors/special public prosecutors for the
Special Courts. No comment is called for on this
provision.
Clause 13 sets out the procedure and powers of
Special Courts. Sub-clause (1) empowers the Special
Court to take cognizance of any offence upon receiving a
complaint of facts which constitute such offence or upon
a Police report of such facts without the accused being
committed to it for trial. Chapter XVIII of the Code of

Criminal Procedure provides the procedure to be followed
by the committal court in case of offences triable by a
sessions court. This procedure is dispensed with in the
case of offences under the Act by sub-clause (1) of
clause 13. Sub-clause (2) of clause 13 empowers the
special court to try an offence punishable with
imprisonment for a term not exceeding three years or with
fine or with both to try in a summary way in accordance
with the procedure prescribed by the Code therefor. The
two provisos to sub-clause (2) are enabling provisions.
The minimum punishment that can be imposed in such
summary trial is however restricted to two years. We may
point out that even according to section 260 of the
Cr.P.C., a magistrate of first class is empowered to try
offences punishable for two years or less, which can not
be said to be unreasonable, in view of the fact that the
Special Court is manned by a District Judge. Sub-clause
(3) clarifies that a special court shall have all the
powers of a court of session while sub-clause (4) is a
procedural provision to which no valid objection has been
or can be raised. Sub-clause (5) empowers the special
court to proceed with the trial in the absence of the
accused or his pleader and to record the evidence of any
witness, subject to the right of the accused to recall
the witness for cross-examination. This power is
conferred upon the special court notwithstanding the
provisions contained in the Code of Criminal Procedure.
However, before exercising this power, the Special Court
has to be satisfied that such a course is appropriate and
is also obliged to record the reasons for adopting such a
course. Not only no objection has been taken to this
sub-clause by anyone, the incorporation of such a
provision in an anti-terrorism law, is obviously designed
in the interest of speedy trial and hence cannot be
reasonably objected to. However, it does not appear
necessary to exclude section 299 of the CrPC which
provides for a special situation. Accordingly,
sub-clause needs modification to make it clear that that
section 299 is not excluded.

Clause 14 of the Bill contains provisions for
protection of witnesses. Sub-clause (1) says that
notwithstanding anything contained in the Code of
Criminal Procedure, the proceedings under the Act may be
held in camera if the Special Court so desires. It may
not be fair to leave this discretion totally unregulated
or unguided. It would be fair and proper to provide that
the Special Court shall record its reasons for holding
the trial in camera. Sub-clause has accordingly been
modified. Sub-clause (2) empowers the special court to
take appropriate measures for keeping the identity and
address of a witness secret if it is satisfied that the
life of a witness in any proceedings before it is in
danger. Of course, the court has to record the reasons
for taking such measures. This power can be exercised
either on the application made by the witness or by the
public prosecutor or suo motu. Sub-clause (3) of clause
14 specifies some of the measures contemplated by
sub-clause (2). The measures specified in sub-section
(3) are (a) holding of the proceedings at a place to be
decided by the special court; (b) avoiding of the mention
of the names and addresses of the witnesses in its orders
or judgments or in any records of the case accessible to
public; (c) issuing of any direction for securing that
the identity and addresses of the witnesses are not
disclosed and (d) passing orders to the effect that it is
in the public interest that all or any of the proceedings
pending before such a court shall not be published in any
manner. In para 5.15 of its Working Paper, the Law
Commission had opined that while it may be necessay to
protect the witness by keeping his identity and address
secret, the right of the accused to cross-examine such
witness must also be protected at the same time. It was
observed that there may be several methods by which
effective cross-examination could yet be undertaken
without disclosing the identity and address of the
witness. Accordingly, it was suggested that paragraph
(c) of sub-clause (3) of clause 14 may be substituted by
the following:

“(c) The making of necessary arrangements for
securing that the identity and address of the
witness is not disclosed even during his
cross-examination”.

At the seminars, two conflicting view points were
projected. One set of participants submitted that no
effective cross-examination was possible unless the
identity of the witness was known to the accused and his
counsel and that therefore concealing the identity of the
witness would really mean denying to the accused an
effective opportunity to cross-examine the witness. The
proponents of this view emphasised the absolute necessity
of affording to the accused a reasonable opportunity to
cross-examine the witness. On the other hand, certain
other participants stressed the necessity of concealing
the identity of the witness from the accused and his
counsel in cases where such a course was necessary for
protecting the life or safety of the witness and his
relatives. They also emphasised the practical difficulty
in procuring witnesses in such matters and submitted that
if a person yet came forward as a witness but apprehended
danger to his life on that account, it was the duty of
the court and the State to provide him protection.

We have considered both the points of view.
Sub-clause (3) is indeed illustrative of the provision
contained in sub-clause (2). In other words, sub-clause
(3) is not an independent provision but a continuation
and elaboration of sub-clause (2). This means that
before taking any of the steps elaborated in sub-clause
(3), the special court has to be satisfied that the life
of a particular witness is in danger and must also record
reasons for formation of such satisfaction. The
requirement of law that the court must be satisfied that
the life of the witness was in danger and the further
requirement that the special court is bound to record its
reasons for forming such satisfaction are adequate
safeguards against abuse of the power conferred by
sub-clause (2) upon the special court. Sub-clause (2) is
based upon the doctrine of necessity, a cruel necessity.
It obviously takes note of the fact that the life of
witnesses deposing against terrorists may be in danger in
many cases and provides for such cases. Sub-clause (2)
which in reality includes sub-clause (3) within its fold,
is an exception rather than the rule. Since the power is
given to the court, apprehension of its misuse cannot be
lightly presumed. Indeed, so far as the right of
cross-examination of the accused is concerned, it is
undoubtedly a very valuable and effective instrument
enabling the accused to defend himself appropriately and
effectively, but this right of the accused has to be
balanced against the interest of the society and may have
to be modified where the interest of society does call
for such modification. All this discussion only means
that if the court is satisfied that for the reasons
mentioned in the sub-clause, it is necessary to keep the
identity and address of the witness secret, it may have
to take appropriate measures and make necessary
arrangements for ensuring both the right of
cross-examination and the protection of the witness. In
this behalf, it may be relevant to notice the judgment of
the Supreme Court in Kartar Singh, (1994) 3 SCC 569, at
pages 688-689 sub-para 11 of the summary in para 368. We
are also of the opinion that the power of the court to
take appropriate measures to permit cross-examination
even while protecting the identity of the witness must be
deemed to be implicit in sub-clauses (2) and (3) as they
are found in the Bill. It is not really necessary to
amend any of the paragraphs in sub-clause (3) as proposed
in para 5.15 of our Working Paper inasmuch as the Bill
does not propose to take away the right of
cross-examination. The suggestion for substitution of
paragraph (c) in sub-section (3) made by the Law
Commission in the said para is accordingly withdrawn
keeping in view the opinions expressed in the seminars.

Sub-clause (4) is merely consequential to
sub-clause (3) in the sense that it provides for
punishing the person violating a direction issued under
sub-clause (3).

Clause 15 provides that the trial by special
courts shall have precedence over the trial of any other
case against the accused in any other court (not being a
special court). It also provides that the trial of such
other case shall remain in abeyance pending disposal of
the trial before the special court. This provision
cannot again be reasonably objected to, particularly in
view of the fact that we are suggesting elsewhere a time
limit within which the special court should conclude the
trial. It is hoped that in course of time, the special
courts will develop expertise in dealing with
terrorism-related offences, thus enabling speedy disposal
of the cases.

By way of official amendments a new clause 15A is
sought to be introduced. Sub-clause (1) of this clause
makes the confession made by a person before a police
officer not lower in rank than a Superintendent of Police
admissible in evidence provided it is recorded in
accordance with the provisions of the said clause. The
proviso to sub-clause (1) further provides that a
confession made by a co-accused shall be admissible in
evidence against other co-accused. This provision
overrides the provisions to the contrary in the Code of
Criminal Procedure and the Indian Evidence Act.
Sub-clause (2) provides that a police officer shall,
before recording any confession, explain to such person
in writing that he is not bound to make confession and
that if he makes any confession, it could be used against
him. The provisio to sub-clause (2) says that if such
person prefers to remain silent, the police officer shall
not compel him or induce him to make any confession.
Sub-clause (3) says that the confession shall be recorded
in an atmosphere free from threat or inducement and shall
be recorded in the same language in which it is made.
Sub-clause (4) creates an obligation upon the police
officer, who has recorded a confession under sub-clause
(1), to produce the person along with the confessional
statement, without unreasonable delay, before the court
of a Chief Metropolitan Magistrate or the court of a
Chief Judicial Magistrate. Sub-clause (5) is a
continuation of sub-clause (4). Sub-clause (5) provides
that the Magistrate before whom the person is so
produced, shall record the statement, if any, made by the
person so produced and get his signature thereon. It
provides further that if there is any complaint of
torture by such person, he shall be directed to be
produced for medical examination before a medical officer
not lower in rank than an Assistant Civil Surgeon. In
our opinion, clause 15A, hedged in as it is by several
safeguards, is a necessary provision in such a law. It
is not as if the confession made before a police officer
is made admissible without anything more. Not only is
the police officer under a duty to record a confession in
the same language in which it is made and if possible by
employing mechanical devices like cassettes, tapes or
sound tracks, he is also under an obligation to explain
in writing to the person that any confession made by him
will be used against him. But the more important and
truly effective safeguard is the one contained in
sub-clauses (4) and (5) which sub-clauses, it is evident
have been inserted in the light of and in pursuance of
the observations made by the Supreme Court in Kartar
Singh’s case while dealing with section 15 of TADA.
Sub-clauses (4) and (5) read with sub-clause (1) do mean
that unless a confession is recorded in accordance with
the several provisions contained in clause 15A, including
sub-clauses (4) and (5), such confession will not be
valid and admissible. As already stated, sub-clauses (4)
and (5) require that soon after recording of confession
by the police officer, the person shall be produced
before a Chief Metropolitan Magistrate or a Chief
Judicial Magistrate along with the recorded confession
and such magistrate is required again to record the
statement of the person and take his signature thereon
and further, if the person complains of any torture, it
is obligatory upon the Magistrate to send him to medical
officer not lower in rank than a Assistant Civil Surgeon
for medical examination. It is difficult to find any
legitimate objection to such a provision in an
anti-terrorism law. As has been repeatedly pointed out
during the course of seminars and the responses received,
in an extraordinary situation (such as the India is
facing on account of external and internal threats of
terrorism), an extraordinary law is called for. In fact,
during the seminars, no serious objection was taken to
this provision except the general objection that
confessions made before the police officers should not be
made admissible because in that event they will resort to
third degree methods to obtain confessions and as an
excuse for their inability to investigate the crime
effectively. In the light of the safeguards contained in
clause 15A and, in particular, the safeguards contained
in sub-clauses (4) and (5) read with sub-clause (1)
thereof, the said criticism must be held to be untenable.

So far as the proviso to sub-clause (1) of clause
15A is concerned, a little explanation would be in order.
In the TADA (Act 28 of 1987), clause (c) of sub-section
(1) of section 21 provided that the confession of a
co-accused was admissible. However, by virtue of the
1993 amendment to TADA, clause (c) in sub-section (1) of
section 21 was omitted and at the same time clause 15(1)
was amended by introducing the words “are co-accused,
abettor or conspirator” after the words “trial of such
person”. In sub-clause (1), a proviso was also
introduced which read: “provided that co-accused or
conspirator is charged and tried in the same case
together with the accused”. The effect of the 1993
amendment was that unless the co-accused was charged and
tried in the same case together with the accused, his
confession was not admissible or relevant against the
accused. Though this aspect was not considered in Kartar
Singh’s case, it was considered in Kalpnath Rai v.
State, 1997(8) SCC 732 by a two-Judge Bench and later by
a three-Judge Bench in State v. Nalini, 1993 SCC (Cri.)
691. In Nalini’s case, the majority (Wadhwa and Quadri
JJ.) held that because of the clear and unambiguous
language employed in section 15 and, in particular,
having regard to the non-obstante clause with which the
sub-section opens, there is no reason to read any
limitation upon the admissibility of confession of
co-accused as indicated in Kalpnath Rai’s case. They
opined that overall decision in Kalpnath Rai’s case and
rationale thereof practically brings back section 30 of
the Evidence Act into TADA by a back door. The majority
held that the confession of the co-accused is substantive
evidence and though it may not be substantial evidence in
the sense that the value to be attached to such evidence
is a matter of appreciation of evidence in a given case,
it is wrong to say that it requires to be re-corroborated
before it is made admissible. At the same time, the
majority cautioned that as a matter of prudence, the
Court may look for some corroboration if the confession
is to be used against the co-accused.

It is evident that the proviso to sub-clause (1)
of clause 15A (sought to be introduced by Official
Amendment in the Criminal Law Amendment Bill) is in
effect a reproduction of the provision obtaining in TADA
as amended by the 1993 Amendment Act. The question,
however, still remains whether such a provision is
desirable. It is one thing for the Court to uphold its
validity because the Court looks at the provision from
the point of view of its constitutional validity and it
is altogether a different thing when the question arises
about its desirability. We are here concerned with the
desirability of such a provision. In our opinion, if
this provision is retained, the very concept and
necessity of the provision regarding approver’s evidence
may become unnecessary. Since the evidence of a
co-accused is ordinarily not admissible, necessity arises
for giving pardon to one of the accused and make him an
approver so that his evidence may be relevant and
admissible against the other co-accused. Section 30 of
the Evidence Act which merely says that the evidence of a
co-accused can be taken into consideration against the
other accused is based upon good reason. It does not
appear necessary to enlarge upon the principle of section
30 of the Evidence Act. We are, therefore, of the
opinion that proviso to sub-clause 15A(1) as suggested in
the Official Amendment should be dropped.

Clause 16 provides for transfer by the special
court of an offence to an ordinary court where the
special court finds it is not an offence triable by it.
This is a necessary procedural provision and no objection
has also been taken thereto. Clause 17 which is the last
clause in Part III provides for an appeal against the
orders of the special court. As originally provided, the
appeal was provided to a High Court both on facts and law
and it was further directed that such an appeal shall be
heard by a Bench of two Judges. An appeal against an
interlocutory order was, of course, barred. The period
of limitation for filing an appeal was prescribed as 30
days but the High Court was given the power to condone
the delay on proof of sufficient cause. By way of
Official Amendments, the forum of appeal is sought to be
substituted. Instead of a High Court, the appeal is
sought to be provided to the Supreme Court. The proviso
to sub-clause (1) which is sought to be inserted by
Official Amendments, however, says that if the person
tried by special court for an offence under this Act is
convicted for any other offence (and is acquitted for any
offence under this Act), he can file an appeal before the
High Court. The second proviso to sub-clause (1) sought
to be introduced by the Official Amendment provides that
if in such a case, an appeal is preferred by the State
against the order of acquittal in respect of an offence
under this Act, the State can apply to the Supreme Court
to withdraw the appeal, if any, filed by the accused in
the High Court for being heard along with the State’s
appeal in the Supreme Court. As a consequence of this
amendment, sub-clause (2) of clause 17 as originally
drafted is sought to be deleted. Several participants in
the seminars and others have expressed the opinion that
provision of an appeal to the Supreme Court as suggested
by the Official Amendments makes the said remedy almost
unavailable inasmuch as many accused may not be in a
position to approach the Supreme Court having regard to
the cost involved and, in many cases, the distance and
other inhibiting factors. We are of the opinion that the
amendment proposed by Official Amendments ought to be
dropped and that clause 17 as originally drafted in the
Bill should remain unchanged.

CHAPTER V
PART IV OF THE CRIMINAL LAW AMENDMENT BILL

Part IV of the Bill contains clauses 18 to 24.
The Official Amendments not only propose to amend several
provisions in this part but also propose to add one more
clause, namely, clause 25. Clause 18 provides for
certain modifications in the Code of Criminal Procedure
in its application to the offences under the Act.
Sub-clause (1) provides that every offence punishable
under this section shall be deemed to be a “cognizable
offence” and a “cognizable case”. Sub-clause (2) while
providing that section 167 of the Code of Criminal
Procedure shall apply in relation to a case involving an
offence punishable under this Act, provides for extension
of several periods mentioned in sub-section (2) of
section 167. A proviso is also sought to be added by
which the special court is given the power to extend the
period further in case it is not possible to conclude
investigation within such extended period. The second
proviso sought to be added enables the police officer to
ask for police custody of a person who may be in judicial
custody if such a course is found necessary. Sub-clause
(3) of clause 18 of the Bill provides that while section
268 of the Code shall apply in relation to a case
involving an offence punishable under the Act, such
application shall be subject to the modifications
provided in the said sub-section. The modifications are
more or less formal in nature. Sub-clause (4), as
originally drafted, provided that sections 366, 367, 368
and 371 of the Code shall apply to a case involving an
offence triable by special court subject to the
modification that for the expression “Court of Session”,
it shall be read as “Special Court”. By way of official
amendments, sub-clause (4) is sought to be substituted.
The said substitution was probably thought of as a
consequence of changing the forum of appeal in clause 17.
(We have already expressed our opposition to the proposal
to change the forum of appeal). Sub-clauses (5), (6),
(6A) (proposed to be inserted by Official Amendments) and
sub-clause (7), constitute and represent a single scheme
dealing with the grant of bail. Sub-clause (5) says that
section 438 of the Code of Criminal Procedure shall not
apply to a person accused of having committed an offence
punishable under this Act. Sub-clause (6) says that no
person accused of an offence under this Act shall be
released on bail or on his own bond unless the public
prosecutor has been given an opportunity of opposing the
application for bail. Sub-clause (6A) sought to be
inserted by Official Amendments provides that “where the
public prosecutor opposes the application of the accused
for release on bail, no person accused of an offence
punishable under this Act or any rule made therein shall
be released on bail until the court is satisfied that
there are grounds for believing that he is not guilty of
committing such offence”. Sub-clause (7) provides that
the limitations of granting a bail specified in
sub-clause (6) and sub-clause (6A) are in addition to the
limitations under the Code or any other law for the time
being in force on granting of bail.

There was a good amount of debate and discussion
on these provisions in both the seminars. In the
responses received by the Law Commission also, these
provisions have either been defended or opposed. One set
of objections was that the provison in sub-clause (6A) to
the effect that no bail shall be granted unless the court
is satisfied that “there are grounds for believing that
he is not guilty of committing such offence” makes it
almost impossible for any accused to get bail. In our
opinion, there is no substance in this objection inasmuch
as this is the very language which was used in
sub-section (8) of section 20 of TADA and which has been
the subject-matter of elaborate discussion and decision
by the Supreme Court in Kartar Singh’s case. The Supreme
Court has pointed out that the language of sub-section
(8) of section 20 of TADA is in substance no different
from the language employed in section 437(1) of the Code,
section 35 of the Foreign Exchange Regulation Act, 1976
and section 104 of the Customs Act, 1962. The Supreme
Court accordingly upheld the validity of sub-section (8)
of section 20 of TADA holding that the respective
provisions contained therein are not violative of Article
21 of the Constitution. Be that as it may, having regard
to the purpose and object underlying the Act and the
context in which the Act has become necessary, these
restrictive provisions may not be likely to be assailed
on any reasonable basis. The objection, therefore, is
unacceptable.

However, certain other useful suggestions were
made to which a reference is necessary.

Justice J.S. Verma, Chairperson, National Human
Rights Commission suggested that for the purpose of bail,
the offences in the Act should be classified on the lines
indicated by the Supreme Court in its decision in Shaheen
Welfare Society’s case [1996 (2) JT 719 (SC)]. This view
was supported by Shri P.P. Rao, Senior Advocate, who
emphasised that a routine refusal of bail was
unacceptable. He added that since the normal rule was
bail, any restriction placed thereon in an anti-terrorism
law should not be disproportionate, making the very
provision for bail meaningless. Several other
participants also supported this line of reasoning which
we find eminently reasonable and acceptable.

In Shaheen Welfare Society’s case (supra), the
Supreme Court has suggested categorisation of offences
under TADA into four categories for the purpose of bail.
The following observations are relevant:

“For the purpose of grant of bail to TADA
detenus, we divide the undertrials into four
classes, namely, (a) hardcore undertrials whose
release would prejudice the prosecution case and
whose liberty may prove to be a menace to society
in general and to the complainant and prosecution
witnesses in particular; (b) other undertrials
whose overt acts or involvement directly attract
sections 3 and/or 4 of the TADA Act; (c)
undertrials who are roped in, not because of any
activity directly attracting sections 3 and 4,
but by virtue of sections 120B or 147, IPC and;
(d) those undertrials who were found possessing
incriminating articles in notified areas and are
booked under section 5 of TADA.

Ordinarily, it is true that the provisions of
sections 20(8) and 20(9) of TADA would apply to
all the aforesaid classes. But while adopting a
pragmatic and just approach, no one can dispute
the fact that all of them cannot be dealt with by
the same yardstick. Different approaches would
be justified on the basis of the gravity of the
charges. Adopting this approach we are of the
opinion that undertrials falling within group (a)
cannot receive liberal treatment. Cases of
undertrials falling in group (b) would have to be
differently dealt with, in that, if they have
been in prison for five years or more and their
trial is not likely to be completed within the
next six months, they can be released on bail
unless the court comes to the conclusion that
their antecedents are such that releasing them
may be harmful to the lives of the complaints,
the family members of the complainant, or
witnesses. Cases of undertrials falling in
groups (c) and (d) can be dealt with leniently
and they can be released if they have been in
jail for three years and two years respectively.
Those falling in group (b), when released on
bail, may be released on bail of not less than
Rs.50,000/- with one surety for like amount and
those falling in groups (c) and (d) may be
released on bail on their executing a bond for
Rs.30,000/- with one surety for like amount,
subject to the following terms:

(1) the accused shall report to the concerned
police station once a week;
(2) the accused shall remain within the area of
jurisdiction of the Designated Court pending
trial and shall not leave the area without the
permission of the Designated Court;
(3) the accused shall deposit his passport, if
any, with the Designated Court. If he does not
hold a passport, he shall file an affidavit to
that effect before the Designated Court. The
Designated Court may ascertain the correct
position from the passport authorities, if it
deems it necessary;
(4) The Designated Court will be at liberty to
cancel the bail if any of those conditions is
violated or a case for cancellation of bail is
otherwise made out.
(5) Before granting bail, a notice shall be given
to the public prosecutor and an opportunity shall
be given to him to oppose the application for
such release. The Designated Court may refuse
bail in very special circumstances for reasons to
be recorded in writing.

These conditions may be relaxed in cases of those
under groups (c) and (d) and, for special reasons
to be recorded in the case of group (b)
prisoners. Also these directions may not be
applied by the Designated Court in exceptionally
grave cases such as the Bombay Bomb Blast Case
where a lengthy trial is inevitable looking to
the number of accused, the number of witnesses
and the nature of charges unless the court feels
that the trial is being unduly delayed. However,
even in such cases it is essential that the
Review Committee examines the case against each
accused bearing the above directions in mind, to
ensure that TADA provisions are not unnecessarily
invoked.”

Although the Court observed in the said judgment
that the aforesaid directions were “a one-time measure
meant only to alleviate the current situation”, the
spirit and principle behind the said observations should
serve as guidelines to the Special Courts while dealing
applications of bail of persons accused of offences under
the Act, for the purposes of bail.

Though we would like very much to incorporate the
said classification in sub-clauses (5) to (7) of clause
18, we find it difficult to do so in view of the
difficulty in incorporating the various ideas contained
in the above judgment. For example, the Court has said
that their classification is not applicable to
“exceptionally grave cases such as Bombay Bomb Blast Case
…” What is an exceptionally grave case has to be left
to be determined by the special court in a given case.
In view of this drafting difficulty, we have not chosen
to suggest an amendment to the said provisions. It may
be noted that the decision of the Supreme Court is
binding on all courts by virtue of Article 141 of the
Constitution and hence it can be presumed that even in
the absence of specific provisions in the Act on the
lines indicated in the judgment, the ratio and the spirit
of the said judgment shall be followed by the special
courts. However, a new sub-clause may be added in clause
18 providing that in case of foreign terrorists, bail
should not be granted except in exceptional
circumstances. The sub-clause may read as follows :

“(8) Notwithstanding anything in sub-section (7),
no bail shall be granted to a person accused of
an offence punishable under this Act, if he is
not an Indian citizen, except in very exceptional
circumstances and for reasons recorded therefor.”

Clause 19 deals with cognizance of offences under
the Act. As originally drafted, the Bill provided that
notwithstanding anything contained in the Code of
Criminal Procedure, no information about the commission
of an offence under this Act shall be recorded by the
Police without the prior approval of the District
Superintendent of Police. By way of Official Amendments,
for the expression “District Superintendent of Police”,
the words “Inspector General of Police or, as the case
may be, the Commissioner of Police” are sought to be
substituted. Sub-clause (2) of section 19 as originally
drafted in the Bill provided that “No court shall take
cognizance of any offence under this Act without the
previous sanction of the Inspector General of Police, or
as the case may be the Commissioner of Police”. By way
of Official Amendments, the words “Inspector General of
Police or as the case may be the Commissioner of Police”
are sought to be substituted by the words “State
Government or as the case may be the Central Government”.
It was pointed out by several participants at the
seminars that the requirement of “prior aproval” for
recording an information about the commission of an
offence under the Act was an impractical provision and
that therefore the requirement of prior approval may be
removed and in its place a subsequent approval or
ratification may be provided for. Indeed, the Law
Commission has recommended in its Working Paper the
insertion of clause 7A in Part II of the Bill providing
that the police officer recording information in respect
of an offence under this Act shall promptly forward
copies of all the material including the FIR and its
accompaniments to the DGP and the Review Committee. It
was further provided that it shall be open to the DGP or
the Review Committee to call for such further information
as they may deem necessary from the Police or any other
person before approving or disapproving the action taken
by the subordinate authority. It was further recommended
to be provided that if the DGP did not approve the
recording of aforesaid information within ten days or if
the Review Committee did not approve of the same within
30 days, the recording of information shall become null
and void and no further action shall be taken on that
behalf and the accused, if in custody, shall be released
forthwith.

Certain participants in the Seminar submitted
that the requirement of the approval of the DGP and the
Review Committee is not an effective one. So far as
taking of approval of court is concerned, the suggestion
is misconceived and unacceptable. It is not part of the
functions of the court to approve FIRs, either before or
after they are registered. So far as approval of any
other independent authority is concerned, we have not
been able to find any such authority, now in existence,
whose approval can be provided for at this stage. This
is a stage where the investigation too has not yet begun;
it beings with and after registration of FIRs. The
suggestion is, therefore, impracticable and
inappropriate. We are of the opinion that the provision
suggested by us is more appropriate and at the same time
more effective than the one contained in sub-clause (1)
of section 19. Accordingly, we recommend that sub-clause
(1) of section 19 be substituted by the following
sub-section:

“(1) The police officer recording information in
respect of an offence under this Act shall
promptly forward copies of all the material
including the FIR and its accompaniments to the
Director General of Police and the Review
Committee.

(2) It shall be open to the Director General of
Police or the Review Committee to call for such
further information, as they may deem necessary,
from the police or any other person before
approving or disapproving, as the case may be,
the action taken by the subordinate authorities.

(3) If the Director General of Police does not
approve the recording of the aforesaid
information within 10 days or if the Review
Committee does not approve the same within 30
days, the recording of the said information shall
become null and void with effect from the tenth
day or the thirtieth day, as the case may be, and
all proceedings in that behalf shall stand
withdrawn and if the accused is in custody, he
shall be released forthwith unless required in
connection with some other offence.

(4) Any action taken or any order passed under
forgoing sub-sections shall be in addition to and
independent of the review of pending cases by the
Review Committee under section 27 of this Act.

Sub-clause (2) of section 19 provides that no
court shall take cognizance of an offence under the Act
without the previous sanction of the State Government or,
as the case may be, of the Central Government (as amended
by Official Amendments). In our opinion, this is a very
salutory provision and an effective safeguard against
frivolous or unfounded prosecutions.

By way of Official Amendments, a new clause,
namely, clause 19A is sought to be inserted dealing with
arrest. Sub-clause (1) of the proposed new section
provides that “whenever a person is arrested, information
of his arrest shall be immediately communicated by the
police officer to a family member or to a relative of
such person by telegram, telephone or by any other means
which shall be recorded by the police officer under the
signature of the person arrested”. Sub-clause (2)
directs that where a police officer arrests a person, he
shall provide a custody memo of the person arrested,
while sub-clause (3) provides that “during the
interrogation the legal practitioner of the person
arrested shall be allowed to remain present and the
person arrested shall be informed of his right as soon as
he is brought to the police station”. In its Working
Paper, the Law Commission had supported the provisions in
all the three sub-clauses of clause 19A. In particular,
we were appreciative of the provision contained in
sub-clause (3) which was evidently put in, in the light
of the decision of the Supreme Court in Nandini
Satpathy’s case. However, certain participants in the
seminar including Mr. K.T.S. Tulsi, former Additional
Solicitor General, opposed the provision contained in
sub-section (3). They submitted that it is an
impractical provision and is likely to hinder the proper
interrogation of the accused. Mr. Tulsi also submitted
that subsequent decisions of the Supreme Court had
explained the observations in Nandini Satpathy’s case.
Be that as it may, we do not think it appropriate to
recommend the deletion of this provision which has been
designedly introduced by the Government of India.

A suggestion was put forward by Mr. U.R. Lalit,
Senior Advocate, Supreme Court that this protection
should be confined only to Indian citizens and should not
be made available to non-citizens. He pointed out that
today, the foreign mercenaries and the foreign terrorists
outnumber local terrorists, particularly, in Jammu and
Kashmir and that on account of their activities, a
situation of proxy war is prevailing in Jammu and
Kashmir. Learned counsel suggested that classifying the
foreign terrorists for the purpose of sub-clause (3) of
clause 19A as a separate group and denying them the said
protection would be a case of reasonable and valid
classification. The suggestion is not only very
attractive and appealing, there is good amount of
justification in Mr. Lalit’s contention that the entry
in large numbers (according to certain estimates there
are already 5000 foreign terrorists in Jammu and Kashmir
and another 15000 to 30000 terrorists are waiting to
enter the State with a view to creating conditions of
total anarchy and chaos) is certainly creating a
situation which is unparalleled anywhere in the world.
The more disturbing factor is that the neighbouring
country whose hostile intentions towards India are not a
secret, is actively training, arming, directing and
helping the foreign terrorists in all possible ways. In
such a situation, classifying the foreign terrorists as a
distinct category from the local terrorists and
restricting the protection in sub-clause (3) of clause
19A only to local terrorists i.e., who are citizens of

India, may not be either unreasonable or
unconstitutional. In this connection, it is highly
relevant to notice that the Constitution itself makes
such a distinction which would be evident from the
following position: Clause (1) of article 22 says that
“No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds
for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of
his choice”. Clause (2) of the said article says that
“Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest
to court of the magistrate and no such person shall be
detained in custody beyond the said period without the
authority of a magistrate”. But clause (3) of the very
same article says that “Nothing in clauses (1) and (2)
shall apply- (a) to any person who for the time being is
an enemy alien”. In other words, the very significant
constitutional safeguards contained in clauses (1) and

(2) of article 22 are not available to enemy aliens.
Indeed, the requirement in clause (1) of article 22 and
more particularly the one in sub-clause (1) of clause 19A
is not possible of compliance in the case of a foreign
terrorist, inasmsuch as “a family member” or “a relative”
of such foreign terrorist may not be in India and may
also be difficult to locate. We, therefore, suggest that
the requirement of informing the family member or
relative shall be confined only to the person arrested if
he is an Indian citizen.

Clause 20 specifies the officers who alone shall
be competent to investigate an offence under this Act.
Fairly high ranking officers are specified under this
section which is again an assurance against abuse or
misuse of the powers under the Act.

Clause 21 of the Bill creates certain
presumptions in respect of the offences under the Act.
Sub-clause (1) reads as follows:

“(1) In a prosecution for an offence under
sub-section (1) of section 3, if it is proved-

(a) that the arms or explosives or any other
substances specified in section 3 were recovered
from the possession of the accused and there is
reason to believe that such arms or explosives or
other substances of a similar nature, were used
in the commission of such offence; or
(b) that by the evidence of an expert the
finger-prints of the accused were found at the
site of the offence or on anything including arms
and vehicles used in connection with the
commission of such offence,
the Special Court shall presume, unless the
contrary is proved, that the accused had
committed such offence.”

In our opinion, such a presumption cannot be said
to be uncalled for in an anti-terrorism law. However, on
the analogy of disproportionate and excessive amplitude
of presumption as drawn in respect of sub-clause (2) of
clause 11A (introduced by Amendment 6 of the Official
Amendment) discussed above, we recommend the similar
modification here also. Sub-clause (2) creates yet
another presumption. It says that “in a prosecution for
an offence under sub-section (3) of section 3, if it is
proved that the accused rendered any financial assistance
to a person, having knowledge that such person is accused
of or reasonably suspected of an offence under that
section, the special court shall presume, unless the
contrary is proved, that such person has committed an
offence under that sub-section” (as modified by the
Official Amendments). No objection has been taken to
these proposals by any of the participants in the
seminars. However, as stated above, the disproportionate
and excessive amplitude of presumption should not be
allowed to be drawn. We, therefore, recommend to
substitute the words “shall presume… under that
sub-section” in the sub-clause (2) by the words “shall
draw the adverse inference against the accused.”
Clause 22 clarifies that the jurisdiction of the
courts or authorities under the laws relating to naval,
military, air force or other armed forces of the Union
are not affected by this Act. It also clarifies that a
special court under the Act shall be deemed to be a court
of ordinary criminal jurisdiction.
Clause 23 gives overriding effect to the Act
which again is unobjectionable. Sub-clause (1) of clause
24 provides for indemnity in favour of Central
Government, State Government or any of their officers or
authorities on whom powers have been conferred by the Act
in respect of acts done or purported to be done by them
in good faith. This is a usual provision in such
enactments and no objection can be taken thereto.
However, with a view to make the indemnity
effective and complete, the following proviso be added to
sub-clause (1) of clause 24 of the Bill:-
“Provided further that no suit, prosecution or
other legal proceedings shall lie against any serving
member or retired member of the Armed Forces or other
para military forces in respect of any action taken or
purported to be taken by him in good faith, in the course
of any operation directed towards combating terrorism”.

Sub-clause (2) of section 24 makes it an offence
for a police officer to take proceedings against any
person for any offence under the Act for corrupt or
malicious reasons. It is sought to be modified in
certain minor respects by Official Amendments. This
provision again is a very salutory addition and is to be
welcomed.

In this context, it may be appropriate to provide
a remedy to the person who has been arrested and or
proceeded against for offences under the proposed law for
corrupt, extraneous or malicious reasons by the police
officers. Provision of such a remedy is bound to act as
a check upon the propensity of the police/investigating
officer to misuse their powers and rope in innocents.
The person so dealt with unlawfully should be awarded
monetary compensation appropriate in the circumstances by
the State itself. Indeed, if the exercise of power by
the police or investigating officer is found to be
actuated by corrupt, extraneous or malicious
considerations, the monetary compensation to be awarded
to the person concerned should be levied upon the
concerned police/investigating officers. It is true that
while ratifying the International Covenant on Civil and
Political Rights (1996) (ICCPR), the Government of India
filed a specific reservation against article 9(5) of the
said Covenant on the ground that the Indian legal system
did not recognise a right to compensation for victims of
unlawful arrest or detention, but the Supreme Court held
in D.K. Basu v. State of West Bengal (1997 SCC (Cri) 92
at page 112) that the said reservation “has lost its
relevance in view of the law laid down by this Court in a
number of cases awarding compensation for the
infringement of the fundamental right to life of a
citizen”. Be that as it may, a provision of such a
remedy would be not only fair and just but also
consistent with the democratic and developing concepts of
criminal jurisprudence.

Clause 25 sought to be introduced by Official
Amendments empowers the Supreme Court to make rules, if
any, as it may deem necessary for carrying out the
provisions of this Act relating to special courts. We
are of the opinion that such a power should be conferred
upon the High Courts in the country (and not upon the
Supreme Court) in view of the fact that we are suggesting
that an appeal against the judgment and order of the
special court should lie to the High Court concerned and
not to the Supreme Court.

Clause 26 sought to be inserted by Official
Amendments confers rulemaking power upon the Central
Government to carry out the purposes and provisions of
the Act. Sub-section (2) elucidates the purposes and
provisions mentioned in sub-section (1).

Clause 27 which is also proposed to be inserted
by Official Amendments provides for constitution of
Review Committees. Sub-clause (1) says that the Central
Government shall constitute a Review Committee consisting
of the Home Secretary, Law Secretary and Secretaries of
the other concerned Ministries, if any, to review, at the
end of each quarter in a year the cases instituted by the
Central Government under this Act. The Review Committee
shall be competent to give such directions as it may
think appropriate with respect to the conduct and
continuance of any case or a class of cases, as the case
may be. Sub-clause (2) contemplates constitution of
similar committees by the State Governments. The Review
Committee to be constituted by a State Government shall
consist of the Chief Secretary to the Government, Home
Secretary, Law Secretary and Secretaries of the other
concerned departments.

CHAPTER VI
SUGGESTIONS FOR INCLUSION OF CERTAIN
ADDITIONAL PROVISIONS IN THE BILL

(a) It was suggested by Mr. Prashant
Bhushan, Advocate, Supreme Court that there
should be a provision for appeal against an order
refusing bail. We are inclined to agree with
this plea. But the appeal should be not only
against an order refusing bail but also against
an order granting bail. Accordingly, it is
recommended that the following provision be
inserted as sub-section (5) in section 17 of the
Act:

“(5) Notwithstanding anything contained in the
Code, an appeal shall be to the High
Court, against an order of the Special
Court granting or refusing bail.”

(b) Mr. P.S. Rao, Joint Secretary in the
Ministry of External Affairs, Government of India
mentioned during his presentation that the
foreign governments, especially Western
governments, were objecting to special courts and
special laws to deal with terrorism in India and
that this factor was giving rise to complications
in the matter of extradition requests from India.
So far as the special law is concerned, we do not
see how it can constitute a ground for objection
when western democracies like U.S. and U.K. too
have enacted (and are enacting) anti-terrorism
laws. So far as special courts are concerned,
their creation has become necessary because of
the extraordinary heavy load upon our criminal
courts and the delays endemic to our criminal
judicial system. It may, however, be seen that
there is no qualitative difference between the
general criminal procedure applicable to ordinary
criminal courts and the criminal procedure
applicable to special courts. The principle and
perhaps the sole object behind creation of
special courts is the anxiety to have these cases
disposed of expeditiously. We cannot, therefore,
see any valid ground for objection on this score.
It is of course a matter of policy for the
government to decide whether they wish to
dispense with the special courts, while retaining
the procedural changes provided by this Act and
invest the jurisdiction to try these offences on
ordinary criminal courts with a direction to give
precedence to the trial of offences under this
Act.

Some participants suggested that a new chapter be
included in this Act itself providing for banning of
terrorist organisations. If the Government accepts this
proposal, a new chapter may be introduced providing for
banning of terrorist organisations and making their
membership an offence. It should also be provided that
any person rendering any assistance to such banned
organisations including raising of funds shall be an
offence. In this context, the provision of Unlawful
Activities (Prevention) Act, 1967 may be kept in view,
which Act does provide for declaring an association
unlawful and the consequences flowing therefrom. It is
because of the existence of the said Act that we have not
ourselves suggested a new chapter providing for banning
of terrorist organisations. But inasmuch as certain
participants felt that the said 1967 Act is not adequate,
we are mentioning the said fact here. Sub-section (5) of
Section 3 has also to be kept in view in this behalf as
also Clause (b) of sub-section (1) of Section 3,
suggested by us.

Shri Prashant Bhushan, Advocate was of the view
that special training should be imparted to
investigators, prosecutors and special judges without
which terrorist activities cannot be countered. Further,
for effective implementation of these suggestions
sufficient finance must also be provided. It is for the
government to take a decision in this matter.

Brig. Satbir Singh, Institute of Defence Studies
also projected his experience in North East, J & K and
Punjab. He was of the view that special courts should be
constituted in North-Eastern States to deal with
terrorist activities. Besides, there should be speedy
trial of such cases. He suggested that defence personnel
and para-military forces personnel should also be
empowered to investigate the cases dealing with terrorist
activities. It is for the Government to take a decision
in these matters.

We recommend accordingly. Besides the other
measures recommended, for the sake of convenience, we are
appending the `Prevention of Terrorism Bill, 2000′
(Annexure II) which also incorporates the recommendations
set out above.

(MR.JUSTICE B.P.JEEVAN REDDY) (RETD.)
CHAIRMAN

(MS.JUSTICE LEILA SETH)(RETD)(DR.N.M.GHATATE)(MR.T.K.VISWANATHAN)
MEMBER MEMBER MEMBER-SECRETARY

Dated: 13.04.2000

ANNEXURE II

DRAFT BILL AS RECOMMENDED BY
THE LAW COMMISSION OF INDIA

THE PREVENTION OF TERRORISM BILL, 2000

A BILL to make provisions for the prevention of, and for coping
with, terrorist activities and for matters connected
therewith.

BE it enacted by Parliament in the Fifty-First Year
of the Republic of India as follows:-

PART I
PRELIMINARY

1. Short title and extent.- (1) This Act may be called
the Prevention of Terrorism Act, 2000.

(2) It extends to the whole of lndia, and it applies
also to —

(a) citizens of India outside India;

(b) persons in the service of the Government,
wherever they may be; and

(c) persons on ships and aircrafts, registered in
India, wherever they may be.

(3) It shall remain in force for a period of five
years from the date of its commencement, but its expiry
under the operation of this sub-section shall not affect –

(a) the previous operation of, or anything duly done
or suffered under this Act, or

(b) any right, privilege, obligation or liability
acquired, accrued or incurred under this Act, or

(c) any penalty, forfeiture or punishment incurred
in respect of any offence under this Act, or

(d) any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as
aforesaid,

and, any such investigation, legal proceeding or
remedy may be instituted, continued or enforced and
any such penalty, forfeiture or punishment may be
imposed as if this Act had not expired.

2. Definitions.- (1) In this Act, unless the context
otherwise requires,-

(a) “Code” means the Code of Criminal Procedure,
1973;

(b) `proceeds of terrorism’ shall mean all kinds of
properties which have been derived or obtained from
commission of any terrorist act or have been
acquired through funds traceable to terrorist act
and shall include cash, irrespective of in whose
name such proceeds are standing or in whose
possession they are found;

(c) “property” means property and assets of every
description, whether corporeal or incorporeal,
movable or immovable, tangible or intangible and
deeds and instruments evidencing title to, or
interest in, such property or assets;

(d) “Public Prosecutor” means a Public Prosecutor or
an Additional Public Prosecutor or a Special Public
Prosecutor appointed under section 23 and includes
any person acting under the directions of the Public
Prosecutor;

(e) “Special Court” means a Special Court
constituted under section 18;

(f) “terrorist act” has the meaning assigned to it
in sub-section (1) of section 3, and the expression
“terrorist” shall be construed accordingly;

(g) words and expressions used but not defined in
this Act and defined in the Code shall have the
meanings respectively assigned to them in the Code.

(2) Any reference in this Act to any enactment or
any provision thereof shall, in relation to an area in which
such enactment or such provision is not in force, be
construed as a reference to the corresponding law or the
relevant provision of the corresponding law, if any, in
force in that area.

PART II
PUNISHMENT FOR, AND MEASURES FOR COPING WITH,
TERRORIST ACTIVITIES

3. Punishment for terrorist acts.- (1) Whoever,-

(a) with intent to threaten the unity, integrity,
security or sovereignty of India or to strike terror
in the people or any section of the people does any
act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or
fire-arms or other lethal weapons or poisons or
noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a
hazardous nature, in such a manner as to cause, or
likely to cause, death of, or injuries to any person
or persons or loss of, or damage to, or destruction
of, property or distribution of any supplies or
services essential to the life of the community or
causes damage or destruction of any property or
equipment used or intended to be used for the
defence of India or in connection with any other
purposes of the Government of India, any State
Government or any of their agencies, or detains any
person and threatens to kill or injure such person
in order to compel the Government or any other
person to do or abstain from doing any act;

(b) is or continues to be a member of an association
declared unlawful under the Unlawful Activities
(Prevention) Act, 1967, or voluntarily does an act
aiding or promoting in any manner the objects of
such association and in either case is in possession
of any unlicenced firearms, ammunition, explosive or
other instrument or substance capable of causing
mass destruction and commits any act resulting in
loss of human life or grievous injury to any person
or causes significant damage to any property,

commits a terrorist act.

(2) Whoever commits a terrorist act, shall,-

(i) if such act has resulted in the death of any
person, be punishable with death or imprisonment for
life and shall also be liable to fine;

(ii) in any other case, be punishable with
imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for
life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or
advocates, abets, advises or incites or knowingly
facilitates the commission of, a terrorist act or any act
preparatory to a terrorist act, shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and
shall also be liable to fine.

(4) Whoever voluntarily harbours or conceals, or
attempts to harbour or conceal any person knowing that such
person is a terrorist shall be punishable with imprisonment
for a term which shall not be less than three years but
which may extend to imprisonment for life and shall also be
liable to fine.

Exception.- This sub-section shall not apply to any
case in which the harbour or concealment is by the husband
or wife of the offender.

(5) Any person who is a member of a terrorist gang
or a terrorist organisation, which is involved in terrorist
acts, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.

(6) Whoever holds any property derived or obtained
from commission of any terrorist act or has been acquired
through the terrorist funds shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and
shall also be liable to fine.

(7) Whoever threatens any person who is a witness or
any other person in whom such witness may be interested,
with violence, or wrongfully restrains or confines the
witness, or any other person in whom the witness may be
interested, or does any other unlawful act with the said
intent, shall be punishable with imprisonment which may
extend to three years and fine.

(8) A person receiving or in possession of
information which he knows or believes to be of material
assistance –

(i) in preventing the commission by any other person
of a terrorist act; or

(ii) in securing the apprehension, prosecution or
conviction of any other person for an offence
involving the commission, preparation or instigation
of such an act,

and fails, without reasonable cause, to disclose
that information as soon as reasonably practicable
to the police, shall be punished with imprisonment
for a term which may extend to one year or fine or
with both.

4. Possession of certain unauthorised arms, etc., in
notified areas.- Where any person is in possession of any
arms and ammunition specified in columns 2 and 3 of Category
I or Category III(a) of Schedule I to the Arms Rules, 1962,
or bombs, dynamite or other explosive substances
unauthorisedly in a notified area, he shall, notwithstanding
anything contained in any other law for the time being in
force, be punishable with imprisonment for a term which
shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.

Explanation.- In this section “notified area” means
such area as the State Government may, by notification in
the Official Gazette, specify.

5. Enhanced penalties.- (1) If any person with intent
to aid any terrorist contravenes any provision of, or any
rule made under, the Arms Act, 1959, the Explosives Act,
1884, the Explosive Substances Act, 1908 or the Inflammable
Substances Act, 1952, he shall, notwithstanding anything
contained in any of the aforesaid Acts or the rules made
thereunder, be punishable with imprisonment for a term which
shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.

(2) For the purposes of this section, any person who
attempts to contravene or abets, or does any act preparatory
to the contravention of any provision of any law, rule or
order, shall be deemed to have contravened that provision,
and the provisions of sub-section (1) shall, in relation to
such person, have effect subject to the modification that
the reference to “imprisonment for life” shall be construed
as a reference to “imprisonment for ten years”.

6. Holding of proceeds of terrorism illegal.- (1) No
person shall hold or be in possession of any proceeds of
terrorism.

(2) Proceeds of terrorism, whether held by a
terrorist or by any other person and whether or not such
person is prosecuted or convicted under this Act, shall be
liable to be forfeited to the Central Government in the
manner hereinafter provided.

7. Powers of investigating officers.- (1) If an
officer (not below the rank of Superintendent of Police)
investigating an offence committed under this Act, has
reason to believe that any property in relation to which an
investigation is being conducted, constitutes proceeds of
terrorism, he shall, with the prior approval in writing of
the Director General of the Police of the State in which
such property is situated, make an order seizing such
property and where it is not practicable to seize such
property, make an order of attachment directing that such
property shall not be transferred or otherwise dealt with
except with the prior permission of the officer making such
order, or of the Designated Authority, or the Special Court,
as the case may be, before whom the properties seized or
attached are produced and a copy of such order shall be
served on the person concerned.

(2) The investigating officer shall duly inform the
Designated Authority or, as the case may be, the Special
Court, within forty-eight hours of the seizure or attachment
of such property.

(3) It shall be open to the Designated Authority or
the Special Court before whom the seized or attached
properties are produced either to confirm or revoke the
order of attachment so issued.

(4) In the case of immovable property attached by
the investigating officer, it shall be deemed to have been
produced before the Designated Authority or the Special
Court, as the case may be, when the Investigating Officer so
notifies in his report and places it at the disposal of the
Designated Authority or the Special Court, as the case may
be.

8. Forfeiture of proceeds of terrorism.- Where any
property is seized or attached in the belief that it
constitutes proceeds of terrorism and is produced before the
Designated Authority, it shall, on being satisfied that the
said property constitutes proceeds of terrorism, order
forfeiture of such property, whether or not the person from
whose possession it is seized or attached, is prosecuted in
a Special Court for an offence under this Act.

9. Issue of show-cause notice before forfeiture of
proceeds of terrorism.- (1) No order forfeiting any proceeds
of terrorism shall be made under section 8 unless the person
holding or in possession of such proceeds is given a notice
in writing informing him of the grounds on which it is
proposed to forfeit the proceeds of terrorism and such
person is given an opportunity of making a representation in
writing within such reasonable time as may be specified in
the notice against the grounds of forfeiture and is also
given a reasonable opportunity of being heard in the matter.

(2) No order of forfeiture shall be made under
sub-section (1), if such person establishes that he is a
bona fide transferee of such proceeds for value without
knowing that they represent proceeds of terrorism.

(3) It shall be competent to the Designated
Authority to make an order in respect of property seized or
attached,-

(a) in the case of a perishable property,
directing it to be sold and the provisions of
section 459 of the Code shall, as nearly as may be
practicable, apply to the net proceeds of such sale;

(b) in the case of any other property,
nominating any officer of the Central or State
Government to perform the function of the
Administrator of such property subject to such
conditions as may be specified by the Designated
Authority.

10. Appeal.- (1) Any person aggrieved by an order of
forfeiture under section 8 may, within one month from the
date of the communication to him of such order, appeal to
the High Court within whose jurisdiction the Designated
Authority, who passed the order to be appealed against, is
situated.

(2) Where an order under section 8 is modified or
annulled by the High Court or where in a prosecution
instituted for the violation of the provisions of this Act,
the person against whom an order of forfeiture has been made
under section 8, is acquitted such property shall be
returned to him and in either case if it is not possible for
any reason to return the proceeds of terrorism forfeited,
such person shall be paid the price therefor as if the
proceeds of terrorism had been sold to the Central
Government with reasonable interest calculated from the day
of seizure of the proceeds of terrorism and such price shall
be determined in the manner prescribed.

11. Order of forfeiture not to interfere with other
punishments.The order of forfeiture made under this Act by
the Designated Authority, shall not prevent the infliction
of any other punishment to which the person affected thereby
is liable under this Act.

12. Claims by third party.- (1) Where any claim is
preferred, or any objection is made to the seizure of any
property under section 7 on the ground that such property is
not liable to such seizure, the Designated Authority, or as
the case may be, the Special Court, before whom such
property is produced, shall proceed to investigate the claim
or objection:

Provided that no such investigation shall be made
where the Designated Authority or the Special Court
considers that the claim or objection was designed to cause
unnecessary delay.

(2) In case claimant or objector establishes that
the property specified in the notice issued under section 9
is not liable to be attached or confiscated under the Act,
the said notice shall be withdrawn or modified accordingly.

13. Powers of the Designated Authority.- The Designated
Authority, acting under the provisions of this Act, shall
have all the powers of a Civil Court required for making a
full and fair enquiry into the matter before it.

14. Obligation to furnish information.- (1)
Notwithstanding anything contained in any other law, the
officer investigating any offence under this Act, shall have
power to require any officer or authority of the Central
Government or a State Government or a local authority or a
Bank, company, or a firm or any other institution,
establishment, organisation or any individual to furnish
information in their possession in relation to such offence,
on points or matters, as in the opinion of such officer,
will be useful for, or relevant to, the purposes of this
Act.

(2) Failure to furnish the information called for
under sub-section(1), or furnishing false information shall
be punishable with imprisonment for a term which may extend
to three years or fine, or with both.

(3) Notwithstanding anything contained in the Code,
the offence under sub-section (1) shall be tried as a
summary case and the procedure prescribed in Chapter XXI of
the said Code (except sub-section (2) of section 262) shall
be applicable thereto.

(4) Any officer in possession of any information
shall furnish the same suo motu to the officer investigating
an offence under this Act, if in the opinion of such officer
such information will be useful to the investigating officer
for the purposes of this Act.

15. Certain transfers to be null and void.- Where, after
the issue of an order under section 7 or issue of a notice
under section 9, any property referred to in the said order
or notice is transferred by any mode whatsoever, such
transfer shall, for the purpose of the proceedings under
this Act, be ignored and if such property is subsequently
forfeited, the transfer of such property shall be deemed to
be null and void.

16. Forfeiture of property of certain persons.- (1)
Where a person has been convicted of any offence punishable
under this Act, the Special Court may, in addition to
awarding any punishment, by order in writing, declare that
any property, movable or immovable or both, produced before
the Courts and belonging to the accused and specified in the
order, shall stand forfeited to the Government free from all
encumbrances.

(2) Where any person is accused of any offence under
this Act, it shall be open to the Special Court trying him
to pass an order that all or any of the properties, movable
or immovable or both belonging to him, shall, during the
period of such trial, be attached, if not already attached
under this Act, and where such trial ends in conviction, the
properties so attached shall stand forfeited to the
Government free from all encumbrances.

17. Company to transfer shares to Government.- Where any
shares in a company stand forfeited to the Government under
this Act, then, the company shall, notwithstanding anything
contained in the Companies Act, 1956, or the articles of
association of the company, forthwith register the
Government as the transferee of such shares.

PART III
SPECIAL COURTS

18. Special Courts.- (1) The Central Government or a
State Government may, by notification in the Official
Gazette, constitute one or more Special Courts for such area
or areas, or for such case or class or group of cases, as
may be specified in the notification.

(2) Where a notification constituting a Special
Court for any area or areas or for any case or class or
group of cases is issued by the Central Government under
sub-section(1), and a notification constituting a Special
court for the same area or areas or for the same case or
class or group of cases has also been issued by the State
Government under that sub-section, the Special Court
constituted by the Central Government, whether the
notification constituting such Court is issued before or
after the issue of the notification constituting the Special
Court by the State Government, shall have, and the Special
Court constituted by the State Government shall not have,
jurisdiction to try any offence committed in that area or
areas or, as the case may be, the case or class or group of
cases, and all cases pending before any Special Court
constituted by the State Government shall stand transferred
to the Special Court constituted by the Central Government.

(3) Where any question arises as to the jurisdiction
of any Special Court, it shall be referred to the Central
Government whose decision thereon shall be final.

(4) A Special Court shall be presided over by a
judge to be appointed by the Central Government or, as the
case may be, the State Government, with the concurrence of
the Chief Justice of the High Court.

(5) The Central Government or, as the case may be,
the State Government may also appoint, with the concurrence
of the Chief Justice of the High Court, additional judges to
exercise jurisdiction of a Special Court.

(6) A person shall not be qualified for appointment
as a judge or an additional judge of a Special Court unless
he is, immediately before such appointment, a sessions judge
or an additional sessions judge in any State.

(7) For the removal of doubts, it is hereby provided
that the attainment by a person appointed as a judge or an
additional judge of a Special Court of the age of
superannuation under the rules applicable to him in the
service to which he belongs, shall not affect his
continuance as such judge or additional judge.

(8) Where any additional judge or additional judges
is or are appointed in a Special Court, the judge of the
Special Court may, from time to time, by general or special
order, in writing, provide for the distribution of business
of the Special Court among himself and the additional judge
or additional judges and also for the disposal of urgent
business in the event of his absence or the absence of any
additional judge.

(9) A Designated Court constituted under sub-section
(1) of section 9 of the Terrorist and Disruptive
Activities(Prevention) Act, 1987 for any area or areas or
any case or class or group of cases shall be deemed to be a
Special Court for the purposes of this Act.

19. Place of sitting.- A Special Court may, on its own
motion or on an application made by the Public Prosecutor,
and if it considers it expedient or desirable so to do, sit
for any of its proceedings at any place, other than its
ordinary place of sitting:

Provided that nothing in this section shall be
construed to change the place of sitting of a Special Court
constituted by a State Government to any place outside that
State.

20. Jurisdiction of Special Courts.- (1) Notwithstanding
anything contained in the Code, every offence punishable
under any provision of this Act shall be triable only by the
Special Court within whose local jurisdiction it was
committed or, as the case may be, by the Special Court
constituted for trying such offence under section 7.

(2) If, having regard to the exigencies of the
situation prevailing in a State,-

(i) it is not possible to have a fair, impartial or
speedy trial; or

(ii) it is not feasible to have the trial without
occasioning the breach of peace or grave risk to the
safety of the accused, the witnesses, the Public
Prosecutor and the judge of the Special Court or any
of them; or

(iii) it is not otherwise in the interests of
justice,

the Supreme Court may transfer any case pending
before a Special Court to any other Special Court within
that State or in any other State.

(3) The Supreme Court may act under this section
either on the application of the Central Government or a
party interested and any such application shall be made by
motion, which shall, except when the applicant is the
Attorney-General of India, be supported by affidavit or
affirmation.

21. Power of Special Courts with respect to other
offences.- (1) When trying any offence, a Special Court may
also try any other offence with which the accused may, under
the Code, be charged at the same trial if the offence is
connected with such other offence.

(2) If, in the course of any trial under this Act of
any offence, it is found that the accused person has
committed any other offence under this Act or under any
other law, the Special Court may convict such person of such
other offence and pass any sentence authorised by this Act
or such rule or, as the case may be, such other law, for the
punishment thereof.

22. Power to direct for samples, etc.- (1) When a police
officer investigating a case requests the Court of a Chief
Judicial Magistrate or the Court of a Chief Metropolitan
Magistrate in writing for obtaining samples of hand writing,
finger prints, foot prints, photographs, blood, saliva,
semen, hair, voice of any accused person, reasonably
suspected to be involved in the commission of an offence
under this Act, it shall be lawful for the Court of a Chief
Judicial Magistrate or the Court of a Chief Metropolitan
Magistrate to direct that such samples be given by the
accused person to the police officer either through a
medical practitioner or otherwise, as the case may be.

(2) If any accused person refuses to give samples as
provided in sub-section (1), in a trial under this Act, the
court shall draw adverse inference against the accused.

23. Public Prosecutors.- (1) For every Special Court,
the Central Government or, as the case may be, the State
Government, shall appoint a person to be the Public
Prosecutor and may appoint one or more persons to be the
Additional Public Prosecutor or Additional Public
Prosecutors:

Provided that the Central Government or, as the case
may be, the State Government, may also appoint for any case
or class or group of cases, a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed
as a Public Prosecutor or an Additional Public Prosecutor or
a Special Public Prosecutor under this section unless he has
been in practice as an Advocate for

not less than seven years or has held any post, for a period
of not less than seven years, under the Union or a State,
requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or
an Additional Public Prosecutor or a Special Public
Prosecutor under this section shall be deemed to be a Public
Prosecutor within the meaning of clause (u) of section 2 of
the Code, and the provisions of the Code shall have effect
accordingly.

24. Procedure and powers of Special Courts.- (1) Subject
to the provisions of sub-section (5) of section 31, a
Special Court may take cognizance of any offence, without
the accused being committed to it for trial, upon receiving
a complaint of facts which constitute such offence or upon a
police report of such facts.

(2) Where an offence triable by a Special Court is
punishable with imprisonment for a term not exceeding three
years or with fine or with both, the Special Court may,
notwithstanding anything contained in sub-section (1) of
section 260 or section 262 of the Code, try the offence in a
summary way in accordance with the procedure prescribed in
the Code and the provisions of sections 263 to 265 of the
Code, shall so far as may be, apply to such trial:

Provided that when, in the course of a summary trial
under this sub-section, it appears to the Special Court that
the nature of the case is such that it is undesirable to try
it in a summary way, the Special Court shall recall any
witnesses who may have been examined and proceed to re-hear
the case in the manner provided by the provisions of the
Code for the trial of such offence and the said provisions
shall apply to and in relation to a Special Court as they
apply to and in relation to a Magistrate:

Provided further that in the case of any conviction
in a summary trial under this section, it shall be lawful
for a Special Court to pass a sentence of imprisonment for a
term not exceeding two years.

(3) Subject to the other provisions of this Act, a
Special Court shall, for the purpose of trial of any
offence, have all the powers of a Court of Session and shall
try such offence as if it were a Court of Session so far as
may be in accordance with the procedure prescribed in the
Code for the trial before a Court of Session.

(4) Subject to the other provisions of this Act,
every case transferred to a Special Court under section 20
shall be dealt with as if such case had been transferred
under section 406 of the Code to such Special Court.

(5) Notwithstanding anything contained in, but
subject to the provisions of section 299, of the Code, a
Special Court may, if it thinks fit and for reasons to be
recorded by it, proceed with the trial in the absence of the
accused or his pleader and record the evidence of any
witness, subject to the right of the accused to recall the
witness for cross-examination.

25. Protection of witnesses.- (1) Notwithstanding
anything contained in the Code, the proceedings under this
Act may, for reasons to be recorded in writing, be held in
camera if the Special Court so desires.

(2) A Special Court, if on an application made by a
witness in any proceeding before it or by the Public
Prosecutor in relation to such witnesses or on its own
motion, is satisfied that the life of such witness is in
danger, it may, for reasons to be recorded in writing, take
such measures as it deems fit for keeping the identity and
address of such witness secret.

(3) In particular, and without prejudice to the
generality of the provisions of sub-section (2), the
measures which a Special Court may take under that
sub-section may include –

(a) the holding of the proceedings at a place to
be decided by the Special Court;

(b) the avoiding of the mention of the names and
addresses of the witnesses in its orders or judgments or in
any records of the case accessible to public;

(c) the issuing of any directions for securing that
the identity and address of the witnesses are not disclosed;

(d) that it is in the public interest to order
that all or any of the proceedings pending before such a
court shall not be published in any manner.

(4) Any person who contravenes any direction issued
under sub-section (3) shall be punishable with imprisonment
for a term which may extend to one year and with fine which
may extend to one thousand rupees.

26. Trial by Special Courts to have precedence.- The
trial under this Act of any offence by a Special Court shall
have precedence over the trial of any other case against the
accused in any other court(not being a Special Court) and
shall be concluded in preference to the trial of such other
case and accordingly the trial of such other case shall
remain in abeyance.

27. Certain confessions made to Police officers to be
taken into consideration.- (1) Notwithstanding anything in
the Code or in the Indian Evidence Act, 1872, but subject to
the provisions of this section, a confession made by a
person before a police officer not lower in rank than a
Superintendent of Police and recorded by such police officer
either in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sound or
images can be reproduced, shall be admissible in the trial
of such person for an offence under this Act or rules made
thereunder.

(2) A police officer shall, before recording any
confession made by a person under sub-section (1) explain to
such person in writing that he is not bound to make a
confession and that if he does so, it may be used against
him:

Provided that where such person prefers to remain
silent the police officer shall not compel or induce him to
make any confession.

(3) The confession shall be recorded in an
atmosphere free from threat or inducement and shall be in
the same language in which the person makes it.

(4) The person from whom a confession has been
recorded under sub-section (1), shall be produced before the
Court of a Chief Metropolitan Magistrate or the court of a
Chief Judicial Magistrate along with the original statement
of confession, written or recorded on mechanical or
electronic device within 48 hours.

(5) The Chief Metropolitan Magistrate or the Chief
Judicial Magistrate, shall, scrupulously record the
statement, if any, made by the person so produced and get
his signature and if there is any complaint of torture, such
person shall be directed to be produced for medical
examination before a Medical Officer not lower in rank than
an Assistant Civil Surgeon and thereafter, he shall be sent
to judicial custody.

28. Power to transfer cases to regular courts.- Where,
after taking cognizance of any offence, a Special Court is
of the opinion that the offence is not triable by it, it
shall, notwithstanding that it has no jurisdiction to try
such offence, transfer the case for the trial of such
offence to any court having jurisdiction under the Code and
the court to which the case is transferred may proceed with
the trial of the offence as if it had taken cognizance of
the offence.

29. Appeal.- (1) Notwithstanding anything contained in
the Code, an appeal shall lie as a matter of right from any
judgment, sentence or order, not being an interlocutory
order, of a Special Court to the High Court both on facts
and on law.

Explanation – For the purposes of this section, High Court
means a High Court within whose jurisdiction, a Special
Court which passed the judgment, sentence or order, is
situated.

(2) Every appeal under sub-section(1) shall be heard
by a bench of two Judges of the High Court.

(3) Except as aforesaid, no appeal or revision shall
lie to any court from any judgment, sentence or order
including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in
sub-section (3) of the Code, an appeal shall lie to the High
Court against an order of the Special Court granting or
refusing bail.

(5) Every appeal under this section shall be
preferred within a period of thirty days from the date of
the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal
after the expiry of the said period of thirty days if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal within the period of thirty days.
PART IV
MISCELLANEOUS

30. Modified application of certain provisions of the
Code.- (1) Notwithstanding anything contained in the Code or
any other law, every offence punishable under this Act shall
be deemed to be a cognizable offence within the meaning of
clause(c) of section 2 of the Code, and “cognizable case” as
defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation
to a case involving an offence punishable under this Act
subject to the modifications that, in sub-section (2),-

(a) the references to “fifteen days”, “ninety
days” and “sixty days”, wherever they occur,
shall be construed as references to “thirty
days”, “ninety days” and “ninety days” ,
respectively; and

(b) after the proviso, the following provisos
shall be inserted, namely:-

“Provided further that if it is not possible to
complete the investigation within the said period of ninety
days,the Special Court shall extend the said period upto one
hundred and eighty days, on the report of the Public
Prosecutor indicating the progress of the investigation and
the specific reasons for the detention of the accused beyond
the said period of ninety days:

Provided also that if the police officer making the
investigation under this Act, requests for police custody
from judicial custody of any person, for the purposes of
investigation, he shall file an affidavit stating the
reasons for doing so and shall also explain the delay, if
any, for requesting such police custody”.

(3) Section 268 of the Code shall apply in relation
to a case involving an offence punishable under this Act
subject to the modifications that-

(a) the reference in sub-section (1) thereof-

(i) to “the State Government” shall be construed as
a reference to “the Central Government or the State
Government”,

(ii) to “order of the State Government” shall be
construed as a reference to “order of the Central Government
or the State Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to
“State Government” shall be construed as a reference to
“Central Government or the State Government, as the case may
be”.

(4) Sections 366, 367 and 371 of the Code shall
apply in relation to a case involving an offence triable by
a Special Court subject to the modifications that the
reference to “Court of Session”, whereever occurring
therein, shall be construed as the reference to “Special
Court”.

(5) Nothing in section 438 of the Code shall apply
in relation to any case involving the arrest of any person
on an accusation of having committed an offence punishable
under this Act.

(6) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under this Act
shall, if in custody, be released on bail or on his own bond
unless the Public Prosecutor has been given an opportunity
to oppose the application for such release.

(7) Where the public prosecutor opposes the
application of the accused to release on bail, no person
accused of an offence punishable under this Act or any rule
made thereunder shall be released on bail until the court is
satisfied that there are grounds for believing that he is
not guilty of committing such offence.

(8) The limitations on granting of bail specified in
sub-sections (6) and (7) are in addition to the limitations
under the Code or any other law for the time being in force
on granting of bail.

(9) Notwithstanding anything contained in
sub-sections (6), (7) and (8), no bail shall be granted to a
person accused of an offence punishable under this Act, if
he is not an Indian citizen except in very exceptional
circumstances and for reasons to be recorded therefor.

31. Cognizance of offences.- (1) The police officer
recording information in respect of an offence under this
Act shall promptly forward copies of all the material
including information given to the police under section 154
of the Code and its accompaniments to the Director General
of Police and the Review Committee.

(2) It shall be open to the Director General of
Police or the Review Committee to call for such further
information, as they may deem necessary, from the police or
any other person before approving or disapproving the action
taken by the subordinate authorities.

(3) If the Director General of Police does not
approve the recording of the aforesaid information within
ten days, or the Review Committee does not approve the same
within thirty days, the recording of the said information
shall become null and void with effect from the tenth, or as
the case may be, the thirtieth day and all proceedings in
that behalf shall stand withdrawn and if the accused is in
custody, he shall be released forthwith unless required in
connection with some other offence.

(4) Any action taken or any order passed under this
section shall be in addition to and independent of any
action taken by the Review Committee under section 39.

(5) No court shall take cognizance of any offence
under this Act without the previous sanction of the State
Government, or as the case may be, the Central Government.

32. Officers competent to investigate offences under
this Act.Notwithstanding anything contained in the Code, no
police officer below the rank,-

(a) in the case of the Delhi Special Police
Establishment, of a Deputy Superintendent of Police or a
police officer of equivalent rank;

(b) in the metropolitan areas of Mumbai, Calcutta,
Chennai and Ahmedabad and any other metropolitan area
notified as such under sub-section (1) of section 8 of the
Code, of an Assistant Commissioner of Police;

(c) in any other case not relatable to clause(a) or
clause (b), of a Deputy Superintendent of Police or a police
officer of equivalent rank, shall investigate any offence punishable under this Act.

33. Arrest.- (1) Whenever any person, who being a
citizen of India, is arrested, information of his arrest
shall be immediately communicated by the police officer to a
family member or to a relative of such person by telegram,
telephone or by any other means which shall be recorded by
the police officer under the signature of the person
arrested.

(2) Where a police officer arrests a person, he
shall prepare a custody memo of the person arrested.

(3) During the interrogation, the legal
practitioner of the person arrested shall be allowed to
remain present and the person arrested shall be informed of
his right as soon as he is brought to the police station.

34. Presumption as to offences under section 3.- (1) In
a prosecution for an offence under sub-section (1) of
section 3, if it is proved-

(a) that the arms or explosives or any other
substances specified in section 3 were recovered from the
possession of the accused and there is reason to believe
that such arms or explosives or other substances of a
similar nature, were used in the commission of such offence;
or

(b) that by the evidence of an expert the
finger-prints of the accused were found at the site of the
offence or on anything including arms and vehicles used in
connection with the commission of such offence,

the Special Court shall draw the adverse inference against
the accused.

(2) In a prosecution for an offence under
sub-section (3) of section 3, if it is proved that the
accused rendered any financial assistance to a person,
having knowledge that such person is accused of, or
reasonably suspected of, an offence under that section, the
Special Court shall draw the adverse inference against the
accused.

35. Saving.- (1) Nothing in this Act shall affect the
jurisdiction exercisable by, or the procedure applicable to,
any court or other authority under any law relating to the
naval, military or air forces or other armed forces of the
Union.

(2) For the removal of doubts, it is hereby declared
that for the purposes of any such law as is referred to in
sub-section (1), a Special Court shall be deemed to be a
court of ordinary criminal justice.

36. Overriding effect.- The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith
contained in any enactment other than this Act or in any
instrument having effect by virtue of any enactment other
than this Act.

37. Protection of action taken in good faith and
punishment for corruptly or maliciously proceeding against
any person under this Act.- (1) No suit, prosecution or
other legal proceeding shall lie against the Central
Government or a State Government or any officer or authority
of the Central Government or State Government or any other
authority on whom powers have been conferred under this Act,
for anything which is in good faith done or purported to be
done in pursuance of this Act:

Provided further that no suit, prosecution or other
legal proceedings shall lie against any serving member or
retired member of the Armed Forces or other para-military
forces in respect of any action taken or purported to be
taken by him in good faith, in the course of any operation
directed towards combating terrorism.

(2) Any police officer exercising powers under this
Act, who knows that there are no reasonable grounds for
proceeding under this Act and yet corruptly or maliciously
proceeds against any person, for an offence under this Act,
shall be punishable with imprisonment which may extend to
two years, or with fine, or with both.

38. In any proceedings under this Act, if the Special
Court is of opinion that any person has been corruptly or
maliciously proceeded against, the court may award such
compensation as it deems fit to the person, to be paid by
the officer, person, authority or Government, as may be
specified in the order.

39. Review Committees.- (1) The Central Government shall
constitute a Review Committee consisting of the Secretaries
in charge of the Ministries of Home, Law and Justice and the
other concerned Ministries, if any, to review, at the end of
each quarter in a year, the cases instituted by the Central
Government under this Act.

(2) The Review Committee shall be competent to give
such directions, as they may think appropriate, with respect
to the conduct and continuance of any case or a class of
cases, as the case may be.

(3) Every State Government shall also constitute a
Review Committee consisting of the Chief Secretary to the
Government and the Secretaries in charge of the Departments
of Home, Law and the other concerned Departments, if any, to
review, at the end of each quarter in a year, the cases
instituted by the State Government under this Act.

(4) The Review Committee shall be competent to give
such directions, as they may think appropriate, with respect
to the conduct and continuance of any case or a class of
cases, as the case may be.

40. Power of High Courts to make rules.- The High Court
may, by notification in the Official Gazette, make such
rules, if any, as it may deem necessary for carrying out the
provisions of this Act relating to Special Courts.

41- Power to make rules.- (1) Without prejudice to
the powers of the High Courts to make rules under section
39, the Central Government may, by notification in the
Official Gazette, make rules for carrying out the provisions
of this Act.

(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters, namely:-

(a) regulating the conduct of persons in respect of areas the control of which is considered necessary or expedient and the removal of such persons from such areas;

(b) the entry into, and search of,-
(i) any vehicle, vessel or aircraft;
or
(ii) any place, whatsoever, reasonably suspected of being used for committing
the offences referred to in section 3 or section 4 or for
manufacturing or storing anything for the commission of any
such offence;
(c) conferring powers upon,-

(i) the Central Government;
(ii) a State Government;
(iii) an Administrator of a Union Territory under
Article 239 of the Constitution;
(iv) an officer of the Central Government not
lower in rank than that of a Joint
Secretary; or
(v) an officer of a State Government not lower
in rank than that of a District Magistrate, to make general or special orders to prevent or cope with terrorist acts;
(d) the arrest and trial of persons contravening
any of the rules or any order made thereunder;
(e) the punishment of any person who contravenes
or attempts to contravene or abets or attempts to abet the
contravention of any rule or order made thereunder with
imprisonment for a term which may extend to one year or fine or both.
(f) providing for the seizure and detention of
any property in respect of which such contravention, attempt
or abetment as is referred to in clause (e) has been
committed and for the adjudication of such seizure and
detention, whether by any court or by any other authority.

Categories: Law Commission of India Report

Tagged as: