1

Partition Act 1893- Law Commission of India Report no 86




Proposal for division of supreme court into a constitution court and four appeal courts in India

Law Commission Of India Report No. 229 – 5 Aug 2009

Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in Four Regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai

Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Dr. Justice AR. Lakshmanan Chairman, Law Commission of India, on 5 August, 2009.

Dr. Justice AR. Lakshmanan
Former Judge, Supreme Court of India
Chairman, Law Commission of India
ILI Building (IInd Floor),
Bhagwandas Road,
New Delhi – 110 001

5 August, 2009

D.O. No. 6(3)/166 /2009-LC (LS)

Dear Dr Veerappa Moily ji,

Subject: Need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai

I am forwarding herewith the 229th Report of the Law Commission of India on the above subject.

2- Constitutional adjudication or determination of constitutional controversies by the Supreme Court has its own importance. This includes the authority to rule on whether or not laws that are challenged are in fact unconstitutional. All sorts of facts and their consequences, and the values we attach to them, questions of economics, politics, social policies etc. going beyond purely legal disputes, are for determination by the Court.

3. As constitutional adjudication occupies a place of its own, it always merits consideration as to whether there should be a separate constitutional court, as is the position in about 55 countries of the world (Austria established the world’s first separate constitutional court in 1920), or at least the Supreme Court should have a Constitutional Division. Many continental countries have constitutional courts as well as final courts of appeal called courts of cassation (Cour de Cassation in French) for adjudication of non-constitutional matters. A court of cassation is the judicial court of last resort and has power to quash (casser in French) or reverse decisions of the inferior courts.

4- We are today also in dire search for solution for the unbearable load of arrears under which our Supreme Court is functioning as well as 6the unbearable cost of litigation for those living in far-flung areas of the country. The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one’s own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied.

5- Whether the Supreme Court should be split into Constitutional Division and Legal Division for appeals, the latter with Benches in four regions – North, South, East and West, is a subject of fundamental importance for the judicial system of the country. This Report considers the question as to whether there is need for creating a Constitutional Court or Division in our Supreme Court that shall exclusively deal with matters of constitutional law and four Cassation Benches one each in the four regions.

6- We suo motu took up the subject for consideration and have recommended that a Constitution Bench be set up at Delhi to deal with constitutional and other allied issues and four Cassation Benches be set up in the Northern region at Delhi, the Southern region at Chennai/Hyderabad, the Eastern region at Kolkata and the Western region at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.

With warm regards,

Yours sincerely,
Dr. AR. Lakshmanan

Dr M. Veerappa Moily,
Union Minister of Law and Justice,
Government of India,
Shastri Bhawan,
New Delhi – 110 001.

Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in Four Regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai

I. Introduction

1.1 Ever since the High Courts were founded in 1860, they were the highest courts of appeal in each province (in the Chief Commissioners’ Provinces the Judicial Commissioner’s Courts were the highest courts of appellate jurisdiction) and an appeal lay from them to the Privy Council in England. The Government of India Act 1935 created the Federal Court of India with an original jurisdiction in disputes between the provinces inter se and between the provinces and the federation. The Federal Court had jurisdiction only in constitutional matters, but the federal legislature could confer on the court the power to hear appeals in civil matters decided by the High Courts. The jurisdiction of the Privy Council was abolished by the Abolition of the Privy Council Jurisdiction Act 1949, the appeals pending before the Privy Council before October 10, 1949, standing transferred to the Federal Court. Under our Constitution, the Supreme Court of India became the highest court of appeal for the whole of India. Its jurisdiction is wider than that of any Federal Supreme Court. It has original jurisdiction in disputes between the Union and the States, and between the States inter se. It has original jurisdiction under article 32 of the Constitution for the protection of fundamental rights. It is the highest court of civil and criminal appeal; and it has overriding powers to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces. It also has advisory jurisdiction under article 143 of the Constitution.1


1. H.M, Seervai, Constitutional Law of India – A Critical Commentary, 3rd Edn., (1984), Vol. 2, pages 2181-2182.


1.2 Constitutional adjudication or determination of constitutional controversies by the Supreme Court has its own importance. This includes the authority to rule on whether or not laws that are challenged are in fact unconstitutional. All sorts of facts and their consequences, and the values we attach to them, questions of economics, politics, social policies etc. going beyond purely legal disputes, are for determination by the Court.

1.3 As constitutional adjudication occupies a place of its own, it always merits consideration as to whether there should be a separate constitutional court, as is the position in about 55 countries of the world (Austria established the world’s first separate constitutional court in 1920), or at least the Supreme Court should have a Constitutional Division. Many continental countries have constitutional courts as well as final courts of appeal called courts of cassation (Cour de Cassation in French) for adjudication of non-constitutional matters. A court of cassation is the judicial court of last resort and has power to quash (casser in French) or reverse decisions of the inferior courts.1


1. For example, Central African Republic, Colombia, Egypt, France, Germany, Iran, Italy, Myanmar, Russia, South Africa.


1.4 We are today in dire search for solution for the unbearable load of arrears under which our Supreme Court is functioning as well as the unbearable cost of litigation for those living in far-flung areas of the country. The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one’s own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied.

1.5 Whether the Supreme Court should be split into Constitutional Division and Legal Division for appeals, the latter with Benches in four regions – North, South, East and West, is a subject of fundamental importance for the judicial system of the country. This Report considers the question as to whether there is need for creating a Constitutional Court or Division in our Supreme Court that shall exclusively deal with matters of constitutional law and four Cassation Benches one each in the four regions.

II. Recommendations And Views Expressed

2.1 The tenth Law Commission in its 95th Report titled “Constitutional Division within the Supreme Court – A proposal for”, submitted in 1984, recommended that the Supreme Court of India should consist of two Divisions, namely, (a) Constitutional Division, and (b) Legal Division. The proposed Constitutional Division of the Supreme Court should be entrusted with matters of constitutional law,i.e., every case involving a substantial question of law as to the interpretation of the Constitution or an order or rule issued under the Constitution and every other case involving a question of constitutional law. Other matters coming to the Supreme Court will be assigned to its Legal Division. It was further recommended that judges appointed to the Supreme Court would, from the very beginning, be appointed to a particular division. For effecting these recommendations, it was opined in the said Report, amendment of the Constitution would be necessary; ordinary legislation,vide article 246(1) read with Entry 77 of the Union List or statutory rules,vide article 145 of the Constitution would not be adequate.

2.2 It may be noted that the tenth Law Commission had also considered the question as to whether there should be created a Constitutional Court to decide constitutional questions, instead of a Constitutional Division, but keeping in view that creation of a separate Court for dealing with constitutional issues would involve structural changes of a more extensive and complex character than those that would be necessitated by a proposal for creating, within the Supreme Court as structured at present, separate divisions for dealing with constitutional 12and non-constitutional matters, as well as an overwhelming opinion in favour of a Constitutional Division, the Commission did not pursue the idea of creating a Constitutional Court.

2.3 The eleventh Law Commission in its 125th Report titled “The Supreme Court – A Fresh Look”, submitted in 1988, reiterated the above recommendation for splitting the Supreme Court into two and gave an additional reason for the same. The Commission stated the additional reason in paragraph 4.17 of the said Report as under:

“The Supreme Court sits at Delhi alone. Government of India, on couple of occasions, sought the opinion of the Supreme Court of India for setting up a Bench in the South. This proposal did not find favour with the Supreme Court. The result is that those coming from distant places like Tamil Nadu in the South, Gujarat in the West and Assam and other States in the East have to spend huge amount on travel to reach the Supreme Court. There is a practice of bringing one’s own lawyer who has handled the matter in the High Court to the Supreme Court. That adds to the cost. And an adjournment becomes prohibitive. Adjournment is a recurrent phenomenon in the Court. Costs get multiplied. Now if the Supreme Court is split into Constitutional Court and Court of Appeal or a Federal Court of Appeal, no serious exception could be taken to the Federal Court of Appeal sitting in Benches in places North, South, East, West and Central India. That would not only considerably reduce costs but also the litigant will have the advantage of his case being argued by the same advocate who has helped him in the High Court and who may not be required to travel to long distances. Whenever questions of constitutionality occur, as pointed out in that report1, the Supreme Court can sit en banc at Delhi and deal with the same. This cost benefit ratio is an additional but important reason for reiterating support to the recommendations made in that report.1


1. 95th Report of the Law Commission of India.


2.4 The problem of delay in trial and disposal of cases and consequent pendency of cases in the apex court and the courts subordinate has been a matter of great concern, debate, discussion and criticism. The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 28th Report dealing with the Supreme Court (Number of Judges) Amendment Bill 2008 has noted thus:

“The Committee has felt that inordinate delay in delivering justice to the people defeats the very purpose of the judiciary as an institution. The magnitude of the problem of the pendency of cases in various levels in the judiciary must be understood in the context that the people resort to judicial remedy as a last resort for the redressal of their grievances and to get justice. This is so because people have reposed their ultimate faith and trust in the judicial system above the legislature and executive. In this context pendency of cases hits the common man, seeking justice, the hardest. Perhaps, that is the reason that it is said justice delayed is justice denied. However, in spite of the various measures taken by the Government and the judiciary itself, it is a matter of serious concern that the pendency or arrears of cases has been increasing steadily over the years bringing the judicial system as a whole to near stagnation. Further, the pendency of cases in the Supreme Court is very reflective of the delays in the judicial system, thus, a cause of extreme concern requiring immediate remedial steps.”

2.5 The background note of the Department of Justice on the Bill for increasing number of Supreme Court Judges presented before the Standing Committee stated:

“The Chief Justice of India has informed that there were 41,078 cases pending in the Supreme Court as on 01.03.2007 and the Judges feel over-burdened and have been working under acute work pressure. He has further stated that despite satisfactory high rate of disposal, pendency of cases in the Supreme Court has constantly been on the rise due to comparatively higher rate of institution of cases. Pendency of cases in the courts could be 14directly ascribed to complex factors, with inadequate judge strength coming at the top”.

2.6 What has been stated before the Standing Committee is amply proved by the fact that in 1950, there were 1,215 cases which were instituted (1,037 admission matters and 178 regular matters). The disposal rate was 525 (491 admission matters and 34 regular matters) and pendency of cases at the end of the year was 690 (546 admission cases and 144 regular cases). Therefore, as against 1,215 institutions, the disposal of cases was 690 and the number of Judges was 7. In successive years, the number of Judges rose from 7 in 1950 to 10 in 1956, 13 in 1960, 17 in 1977 and 25 in 1986 and now the strength of Judges in 2009 is 30, excluding the Chief Justice of India. The total number of institution of cases from January to April in the year 2008 was 28,007 and the disposal of cases was 28,559,i.e., 552 cases above the institution of cases. Yet the pendency of cases remained as 46,374. This clearly shows that pendency of cases as accumulated over the years has also been carried forward. In three years notably,i.e., 1989, 1990 and 1991 the pendency-figure crossed over one lakh. The complete chart of institution, disposal and pendency of cases in the Supreme Court from the year 1950 to April, 2008 is at Appendix.

2.7 The said chart demonstrates that increase in number of Judges in the apex court does not result in reduction of pending cases. It is, therefore, clear that there are reasons other than the inadequacy of judge strength which are responsible for accumulation of undecided cases in the Supreme Court.

2.8 An important factor which needs to be kept in view is that in India, according to the Law Commission’s 120th Report titled “Manpower Planning in Judiciary: A Blueprint”, submitted in 1987, the ratio between judges and population is 10.5 judges per million (Shri Justice S. P. Bharucha, a former Chief Justice of India, in his Law Day address in 2001 stated this figure to be 12 or 13), whereas it is 107 per million in USA, 75.2 per million in Canada, 50.9 per million in U.K. and 41.6 per million in Australia.
2.9 It is, therefore, evident that the ratio between judges and population is hopelessly low in our country. The same is apparent in the apex court as well since the Judges were 25 and the institution of cases was 28,007 cases in January-April 2008. The ratio works out to 1: 112.
The figure given above is of institution of new cases only. If the pending arrears of 46,374 are taken into account, the ratio will be 1: 1855.

2.10 Therefore, it is argued that the bench-strength of the Supreme Court should be increased drastically to cover the backlog of pending cases and to promote future developmental programmes in the judiciary and thereby minimize delays in the justice-delivery system and promote speedy justice which is the avowed goal of the Constitution. But it is equally effectively argued that mere increase in number of Judges might not help improve the system.

2.11 Dr. P. C. Alexander, former Governor of Tamil Nadu and Maharashtra and Member of Parliament, has thrown considerable light on 16the malaise that ails the judicial system. In his article “Justice is pending” published in The Asian Age5 Dr. Alexander has stated:

“No doubt, increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem. There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases. They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgments.

The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved. When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency.

The practice of some judges in delaying the delivery of judgments for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though a maximum time limit of one month has been considered reasonable for the delivery of judgment, there is no mechanism for enforcement of any time limit, and this malpractice on the part of some judges thus goes on unchecked. Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods for help in clearing the backlog of cases. It appears that retired judges are reluctant to serve in this capacity as they consider such service not befitting their status. There is no reason why this issue cannot be sorted out to the satisfaction of the retired judges, but the judiciary does not appear to be very keen about resorting to these Constitutional provisions.”

2.12 We have tried some of the above-mentioned measures for the last 59 years of the functioning of the judicial system in our country. The result appears to be far from satisfactory. Time has come when the entire judicial set-up will have to be overhauled and refurbished in order to make the goal of speedy justice a pulsating reality. It is quite often argued that the present pattern of working of the Supreme Court needs to be revised if any success in this direction is to be achieved. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court. Also, the present situation makes the Supreme Court inaccessible to a majority of people in the country.

2.13 In this context, it may be noted that in its 2nd (2004), 6th (2005) and 15th (2006) Reports the Parliamentary Standing Committee on Law and Justice has repeatedly suggested that in order to promote speedy justice available to the common man, benches of the Supreme Court have to be established in the Southern, Western and North-Eastern parts of the country. In its 20th (2007), 26th (2008) and 28th (2008) Reports, the Standing Committee suggested that a bench of the Supreme Court should be established at least in Chennai on trial basis as this would be of immense help to the poor who cannot travel from their native places to 18Delhi. Despite these Reports, the Hon’ble Supreme Court has so far not agreed with the suggestion regarding setting up of its benches.

2.14 Paragraph 8.36 of the aforesaid 15th Report reads as under:

“The Committee is not satisfied with the persistent opposition for establishing benches of the Supreme Court in other parts of the country without giving any convincing reasons or justification thereof. The Committee, therefore, endorses its earlier view that establishment of benches of the Supreme Court in other parts of the country would be of immense help to the poor who can not afford to travel from their native places to Delhi. The Committee, therefore, feels that the Ministry should come forward with a necessary Constitutional amendment to address this deadlock.”

2.15 Again, in paragraph 6.8 of the 28th Report of the Standing Committee, the same view has been reiterated in the following words:

“The Committee in its Second, Sixth, Fifteenth, Twentieth and Twenty-sixth Reports on the Demands for Grants of the Ministry of Law and Justice has impressed upon for setting up of benches of the Supreme Court in Southern, Western and Eastern parts of the country. The Committee’s recommendation rests on the premise that it is not possible for the people living in far-flung and remote areas to come to the National Capital for seeking justice for various reasons. The Committee reiterates this recommendation.”

III. Benches Under Article 130 Of The Constitution

Cassation Benches in four zones

3.1 A feasible, workable and efficient system of judicial administration could be established if India were to be divided into four zones/regions, namely,

(I) Northern Zone – Bench to be established in Delhi dealing with the litigation of the States of Uttar Pradesh, Uttarakhand, Rajasthan, Punjab, Haryana, Madhya Pradesh, Chhattisgarh, Himachal Pradesh, Jammu and Kashmir, the National Capital Territory of Delhi and the Union territory of Chandigarh;
(II) Southern Zone – Bench to be established in Chennai/Hyderabad in order to deal with the litigation of the States of Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and the Union territories of Puducherry and Lakshadweep;
(III) Eastern Zone – Bench to be established in Kolkata dealing with the litigation of the States of West Bengal, Bihar, Orissa, Jharkhand, Assam and the Northeastern States including Sikkim and the Union territory of Andaman and Nicobar Islands;
(IV) Western Zone – Bench to be established at Mumbai dealing with the litigation of the States of Maharashtra, Gujarat, Goa and the Union territories of Dadra and Nagar Haveli, and Daman and Diu.

3.2 The said Benches shall act as Cassation Benches to deal with appeals from a High Court in the particular region. The apex court could then deal with constitutional issues and other cases of national importance on a day to day basis since the accumulated backlog of cases would go to the respective zones to which they pertain.
Constitution Bench at Delhi

3.3 The apex court would thus be relieved of the backlog of accumulated cases which are causing a burden and continuous strain on the resources of the apex court. Since the accumulated cases pertaining to a particular region would be dealt with by the particular zonal bench, the apex court would be free to deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by the zonal benches to larger benches due to conflict of authority or any other reason, cases where the interests of more than one State are involved such as interstate disputes on land, electricity, water, etc., references for advisory opinion made under article 143 of the Constitution, references made under article 317 of the Constitution, election petitions concerning Presidential and Vice-Presidential elections, suits between two or more States, etc. This list is merely illustrative and not exhaustive.

3.4 It is also suggested that all public interest litigations (PILs) from any part of India should be decided by the apex Constitution Bench so that there are no contradictory orders issued and also to arrest the mushrooming of cases increasingly.

3.5 The advantage of setting up of benches in the manner aforesaid is that this can be made effective without any delay since the constitution of benches is a matter within the purview and jurisdiction of the Supreme Court itself under the Supreme Court Rules 1966. 1


1. Order VII, Supremem Court Rules, 1966.


3.6 Article 130 of the Constitution providing for the seat of the Supreme Court may now be noted, which is extracted below:
“The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.”

3.7 Article 130 is an enabling provision which empowers the Chief Justice of India, with the approval of the President, to appoint place or places other than Delhi as the seat of the Supreme Court. Article 130 cannot be construed as casting a mandatory obligation on the Chief Justice of India to appoint place or places other than Delhi as the seat of the Supreme Court. No court can give a direction either to the Chief Justice of India or the President to exercise the power under article 130.1


1. Union of India v. S.P. Anand, AIR 1998 SC 2615.


3.8 If article 130 is liberally interpreted, no constitutional amendment may be required for the purpose of setting up of Cassation Benches in four regions and a Constitution Bench at Delhi. Action by the Chief Justice of India with the President’s approval may be enough. It may also be noted that under article 130 the Chief Justice of India acts as a persona designata and is not required to consult any other authority/person. Only Presidential approval is necessary. However, in case this liberal interpretation of article 130 is not feasible, suitable legislation/Constitutional amendment may be enacted to do the needful.
3.9 If the judge-strength of each zonal Cassation Bench is confined to six Judges, then only 24 Judges will be required for all the four zones to 7 Union of India v. S.P. Anand, AIR 1998 SC 2615 constitute Cassation Benches all over India. The other Judges will be available in the apex court, which will have a Constitution Bench at Delhi working on a regular basis.

IV. Conclusion And Recommendation

4.1 The concept of having a Constitution Bench along with a Cassation Bench is nothing new. The democratic transition that occurred in many parts of the world in the late 20th century resulted in the proliferation of courts with constitutional adjudication and powers of cassation being exercised simultaneously; there is a blend of functions of judicial review usually by the constitutional court or constitutional tribunal and also the exercise of powers of cassation. Italy has a Constitutional Court with the sole power of constitutional review and a Supreme Court of Cassation with the power to review the decisions of the ordinary courts for consistency with the law. Egypt also maintains a Court of Cassation that monitors the uniformity of lower court fidelity to the law but only its Supreme Constitutional Court has the authority to declare laws unconstitutional and to determine and rule upon legislative intent. Portugal’s Constitutional Tribunal has the greatest jurisdiction exercising both concrete review of lower court decisions and abstract review of all laws and legal norms. Other countries which blend the functions of judicial review and cassation or the review of lower court decisions are Ireland, the United States and Denmark.

4.2 It is, therefore, recommended that:

(1) A Constitution Bench be set up at Delhi to deal with constitutional and other allied issues as aforesaid.

(2) Four Cassation Benches be set up in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at 24Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.

(3) If it is found that article 130 of the Constitution cannot be stretched to make it possible to implement the above recommendations, Parliament should enact a suitable legislation/Constitutional amendment for this purpose.

4.3 We further recommend that with a view to reducing the heavy backlog of cases in the higher courts and meet the problem of finding suitable persons for appointment of judges in these courts, the retirement age for the Supreme Court and High Court Judges be raised to 70 and 65 years, respectively.





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.




Wrongful Prosecution (Miscarriage of Justice): Legal Remedies: Law Commission of India Report No. 277[AUGUST 2018]

Law Commission of India Report No. 277

Wrongful Prosecution (Miscarriage of Justice): Legal Remedies

Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Dr. Justice B.S. Chauhan Law Commission of India, on 30 August 2018


Dr. Justice B.S. Chauhan
Former Judge, Supreme Court of India
Chairman
Law Commission of India
Ministry of Law & Justice
Government of India
D.O. No. 6(3)319/2017-LC(LS) 30 August 2018

Dear Shri Ravi Shankar Prasad Ji,

The Delhi High Court, in the case of Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31, expressed grave concern about wrongful prosecution and incarceration of innocent persons, highlighting the need for a legislative framework for providing relief to such persons.
An effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions is lacking in the criminal justice resulting in wrongful prosecutions is lacking in the criminal justice system in the country, as it stands today. Also, there is no statutory or legal scheme articulating State’s response on the issue. Therefore, the Court directed the Law Commission to undertake a comprehensive examination of the issue and make its recommendations to the Government of India.
Article 21 of the Constitution provides for protection of life and personal liberty of the citizens. The infringement of a fundamental right due to police and prosecutorial misconduct invokes State liability. The Constitution, which secures the fundamental rights, is silent about grant of compensation by the State for infringement of such fundamental rights. Even under other remedies available under the existing system, the mechanism of compensation for miscarriage of justice resulting in wrongful prosecution remains complex and uncertain. The Commission has set out certain standards to be applied to the said ‘miscarriage of justice’ and has explained as to what amounts to wrongful prosecution. In order to give clarity to the whole procedure, the Commission has suggested amendments to Code of Criminal Procedure, 1973 and has prepared a Draft Bill titled “The Code of Criminal Procedure (Amendment) Bill, 2018”.
I take the privilege to forward herewith the Commission’s Report No. 277 titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” for consideration by the Government. I would like to place on record the laudable assistance provided by Ms. Nidhi Arora, Consultant, in preparation of the Report.
With warms regards

Yours sincerely,
Sd/-
[Dr. Justice B.S. Chauhan]

Shri Ravi Shankar Prasad
Hon’ble Minister for Law and Justice
Government of India
Shastri Bhawan
New Delhi – 110 015


Wrongful Prosecution (Miscarriage of Justice): Legal Remedies


Acknowledgments

The subject matter of this Report required a focused study for framing of new provision for providing legal remedies to the wrongully prosecuted, as no such legislative framework exists today. The Commission gratefully acknowledges the valuable assistance and advise provided to it in this endeavour by Mr. Justice A P Sahi, Sr. Judge, Allahabad High Court; Justice (Retd.) Mr. Pratyush Kumar; Shri Sidharth Luthra, Sr. Advocate, Supreme Court; Shri Abhay, Director General, Narcotics Control Bureau; and Dr. Aparna Chandara, Assistant Professor, National Law University, Delhi.


CHAPTER – 1
Introduction

A. Reference from the Delhi High Court

1.1 In Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31. the High Court of Delhi, while dealing with an appeal on the issues of fine and awarding of default sentences without reasoning, and suspension of sentence during pendency of appeal, expressed its concerns about wrongful implication of innocent persons who are acquitted but after long years of incarceration, and the lack of a legislative framework to provide relief to those who are wrongfully prosecuted. The Court, vide its order dated 30 November 2017, specifically called for the Law Commission of India (`the Commission’) to undertake a comprehensive examination of issue of `relief and rehabilitation to victims of wrongful prosecution, and incarceration’ (“the Reference”), noting that:
There is at present in our country no statutory or legal scheme for compensating those who are wrongfully incarcerated. The instances of those being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. They are left to their devices without any hope of reintegration into society or rehabilitation since the best years of their life have been spent behind bars, invisible behind the high prison walls. The possibility of invoking civil remedies can by no stretch of imagination be considered efficacious, affordable or timely…
… The decisions in Khatri v. State of Bihar (1981) 1 SCC 627; Veena Sethi v. State of Bihar AIR 1983 SC 339; Rudul Sah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677 and Sant Bir v. State of Bihar AIR 1982 SC 1470, are instances where the Supreme Court has held that compensation can be awarded by constitutional courts for violation of fundamental right under Article 21 of the Constitution of India. These have included instances of compensation being awarded to those wrongly incarcerated as well. But these are episodic and are not easily available to all similarly situated persons.
There is an urgent need, therefore, for a legal (preferably legislative) framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration… Specific to the question of compensating those wrongfully incarcerated, the questions as regards the situations and conditions upon which such relief would be available, in what form and at what stage are also matters requiring deliberation…
The Court, accordingly, requests the Law Commission of India to undertake a comprehensive examination of the issue highlighted in paras 11 to 16 of this order and make its recommendation thereon to the Government of India.”
(Emphasis Supplied)

B. Issue Under Consideration
1.2 The expression `miscarriage of justice’ is of wide amplitude. It has been defined as an error of justice meaning “errors in the interpretation, procedure, or execution of the law – typically, errors that violate due process, often resulting in the conviction of innocent people.”2 Wharton’s Law Lexicon (9th Edition) defines `Miscarriage of Justice’ as the failure of justice.
2 Brian Frost, Errors of Justice, Nature, Sources and Remedies (Cambridge: Cambridge University Press, 2004)3.
1.3 The Privy Council in Bibhabati Devi v. Ramendra Narayan Roy, AIR 1947 PC 19. defined the contours of the term `miscarriage of justice’ as a departure from the rules that permeates all judicial procedure so as to make the resulting proceedings not in the proper sense of the word `judicial procedure’ at all. The Court highlighted two scenarios: one, where violation of law or procedure must be of such erroneous proposition of law that if that proposition were to be corrected, the finding could not stand; and the other, where the neglect is of such principle of law or procedure, whose application will have the same effect.4
4 See also: Srinivas Ram Kumar v. Mahabir Prasad & Ors., AIR 1951 SC 177; and Union of India v. Ibrahim Uddin & Anr., (2012) 8 SCC 148.
1.4 Over the years, the expression `miscarriage of justice’ has been looked into in a plethora of judicial pronouncements, including within its purview a multitude of violations and desecrations. Miscarriage of justice is what arises from misconception of law, irregularity of procedure, neglect of proper precaution leading to apparent harshness of treatment or some underserved hardship to individuals.5
5 Janata Dal v. H. S. Chowdhary & Ors. AIR 1993 SC 892; see also: T. N. Dhakkal v. James Basnett & Anr. (2001) 10 SCC 419.
1.5 In Ayodhya Dube & Ors. v. Ram Sumar Singh, AIR 1981 SC 1415. the Supreme Court held that lack of judicial approach, non-application of mind, non-consideration or improper consideration of material evidence inconsistencies with faulty reasoning such that amounts to perversity amounts to grave miscarriage of justice.
1.6 A glaring defect in the procedure or a manifest error on a point of law is consequently a flagrant miscarriage of justice.7 If a judgment is unreasonable, based on an erroneous understanding of the law and of the facts of the case, it occasions miscarriage of justice. If a court’s approach in dealing with the evidence is found to be patently illegal, with findings recorded to be perverse, and the conclusions arrived thereto contrary to the evidence on record, it leads to miscarriage of justice.8
7 K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788.
8 State Of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368; see also: Abrar v. State of Uttar Pradesh, AIR 2011 SC 354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059.
1.7 Non-compliance of the principles of natural justice, may deprive the accused to explain a particular circumstance. Unjust failure to produce requisite evidence may cause prejudice to the accused, which may result in failure of justice. Prejudice is incapable of being interpreted in its generic sense. The expression failure of justice is an extremely pliable or facile expression, which can be made to fit into any situation of a case.9
9 Nageshwar Sh. Krishna Ghobe v. State of Maharashtra, AIR 1973 SC 165; Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921; State v. T. Venkatesh Murthy, AIR 2004 SC 5117; Prakash Singh Badal v. State of Punjab, AIR 2007 SC 1274; Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485; Bhimanna v. State of Karnataka, AIR 2012 SC 3026; and Darbara Singh v. State of Punjab, AIR 2013 SC 840).
1.8 Miscarriage of justice arises from a faulty and erroneous appreciation of evidence.10 In Ramesh Harijan v. State of Uttar Pradesh, AIR 2012 SC 979 the Court overturning an acquittal order, noted that undue importance to `insignificant discrepancies and inconsistencies’ by the trial court observing that such a course tantamount to miscarriage of justice – and preventing the same is of paramount importance.12
10 State of Uttar Pradesh v. Nawab Singh, AIR 2004 SC 1511; State of Uttar Pradesh v. Premi, AIR 2003 SC 1750; and Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka & Ors., AIR 2012 SC 1395.
12 Allarakha K Mansuri v. State of Gujarat, AIR 2002 SC 1051, the Supreme Court held that in a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the appellate court to re-appreciate the evidence in appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. See Also: State of Rajasthan v. Shera Ram, AIR 2012 SC 1.
1.9 These judicial pronouncements discuss a broader view of the expression `miscarriage of justice’, but in the context of issue under discussion in this report, `miscarriage of justice’ refers to wrongful or malicious prosecution, whether or not it leads to a conviction by any court of law, and whether or not it leads to any incarceration. These are the cases where the accused was not guilty of the offence, and the police and/or the prosecution engaged in some form of misconduct in investigating and/or prosecuting the person.

C. Previous Reports of the Law Commission

(i) The 1st Report on `Liability of State in Tort’ (1956)
1.10 The Commission looked into the question of a specific law with respect to citizen claims based on tort against the Union and the States, and if so, what should be the extent of State liability. It recommended the enactment of a suitable law to define the position on Government’s tortious liability, stating that it “is necessary that the law should, as far as possible, be made certain and definite.” On the extent to which such law should make the state liable for tortious acts, the Commission recommended that this issue requires “undoubtedly, a nice balancing consideration so as not to unduly restrict the sphere of activities of the State and at the same time to afford sufficient protection to the citizen.”
1.11 The Commission also considered the scope of the immunity of the State for the tortious acts of its officials and recommended the relaxation of the rule of state immunity, and that “the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine the liability of the State.”
(ii) The 78th Report on `Congestion of Under-trial Prisoners in Jails’ (1979)
1.12 The Commission in this report dealt with the issue of substantial number of undertrial prisoners in jails and the need for legal reforms required to deal with the same. The Commission noting that the jails should primarily be meant for lodging convicts and not for persons under trial, recommended that the two categories of inmates be housed separately, that there should be a separate institution for the detention of undertrial prisoners. The report also contained other recommendations on disposal of cases (delay and arrears in trial courts); amount of bond; release on bond without surety etc.
(iii) The 113th Report on `Injuries in Police Custody’ (1985)
1.13 The Commission in this report dealt with the issue of burden of proof in prosecution of a police officer for an alleged offence of having caused bodily injury to a person in custody. It recommended insertion of a Section 114B in the Indian Evidence Act, 1872 to provide that in the aforesaid cases of prosecution of a police officer, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.
1.14 The Commission further recommended that the Court, while considering the question of presumption in the said cases, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. The report also recommended shifting of burden of proof in offences relating to custodial violence and tortures.
(iv) The 152nd Report on `Custodial Crimes’ (1994)
1.15 The Commission in this report dealt with the issue of arrest and abuse of authority by the police officials. Referring to the concerned Constitutional and statutory provisions, the report recommended many amendments on the subject matter. One of the amendments recommended was with respect to the Indian Evidence Act, 1872 – reiterating insertion of section 114B (as was recommended in the 113th report). The recommendations made hereunder also suggested amendments to the Criminal Procedure Code, 1973, adding of a section 41(1A) for recording the reasons for arrest, and a section 50A to inform the nominated person about the arrest, among others.
(v) The 154th Report on `The Code of Criminal Procedure, 1973′ (1996)
1.16 The Commission undertook a detailed examination of the Code 1973 “so as to remove the germane problems leading to consequential delay in disposal of criminal cases”. It made comprehensive recommendations including amendments in the Code, 1973, the Police Acts, amongst others. One of these recommendations was to separate the investigating police force from the law and order enforcement police force: to inter alia increase the expertise of the investigating police; make investigations efficient which will reduce the possibility of unjustified and unwarranted prosecutions. The investigating police force was recommended to be placed under the supervision of higher authorities.
(vi) The 185th Report on the `Review of the Indian Evidence Act, 1872′ (2003)
1.17 The Commission while reviewing the Act 1872, once again looked into section 114B (as recommended in the 113th report and reiterated in the 152nd report). Along with recommending amendments to other sections of the Act 1872, the Commission reiterated the aforesaid recommendation of section 114B, but with a modification to provide the meaning of the expression `police officer’ for the purpose of the section. The said expression was recommended to include “officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences”.
(vi) The 273rd Report on `Implementation of `United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation’ (2017)
1.18 The Commission in this report, looking into the issue under consideration, made several recommendations. One of these was endorsing the views expressed in the 113th, 152nd and 185th reports with respect to insertion of section 114B in the Indian Evidence Act, 1872. The Commission noted that this provision will ensure that in a case where a person in police custody sustains injuries, it is presumed by the Court that those injuries have been inflicted by the police, and the burden of proof shall lie on the concerned police officer to explain such injury.

D. The Present Report

1.19 Pursuant to the Reference, the Commission conducted broad-based research and consulted stakeholders from various spheres – police, advocates, judicial officers, among others, on the issue of miscarriage of justice resulting in wrongful prosecution, incarceration and/or conviction. Taking into consideration the inputs and suggestions received, and upon extensive deliberations, discussions and in-depth study, the Commission has given shape to the present Report.
1.20 The Report discusses the international perspective on addressing the aforementioned miscarriage of justice; delving into the current scenario – remedies as available under the existing laws – identifying the standard of miscarriage of justice in the Indian context; and concludes with the recommendations of the Commission in terms of a legal framework to address the issue.

CHAPTER – 2
Data and Analysis
2.1 The National Crime Records Bureau’s (NCRB) annual statistical report called the `Prison Statistics India’ (PSI) contains information with respect to prisons, prisoners, and prison infrastructure. According to PSI 201513, there were 4,19,623 prisoners across the country14; out of which, 67.2% i.e. 2,82,076 were undertrials (i.e. people who have been committed to judicial custody pending investigation or trial by a competent authority)15; substantially higher than the convict population i.e. 1,34,168 (32.0%):
13 Ministry of Home Affairs. Available. National Crime Records Bureau, Prison Statistics India – 2015 (September 2016). Available at http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11- 2016.pdf. (Last Accessed: 10 August 2018)
14 Central Jails; District Jails; Sub Jails; Women Jails; Open Jails; Borstal Schools; Special Jails; and Other Jails, Ibid.
15 National Crime Records Bureau, Prison Statistics India – 2015, supra.

Source: National Crime Relations Bureau
2.2 A review of the data in PSI shows that across the country as well as in States, undertrial prisoners continue to be higher in numbers than the convict population. The States with the highest percentage of undertrials were Meghalaya – 91.4%, Bihar – 82.4%, Manipur -81.9%, Jammu & Kashmir -81.5%, Nagaland – 79.6%, Odisha – 78.8%, Jharkhand 77.1%, and Delhi – 76.7%.16 This percentage of undertrials (of the total number of prisoners) has remained consistently high over the preceding decade of 2005- 2015:
16 Ibid.

Source: National Crime Records Bureau
2.3 In terms of the State-wise statistics, the maximum number of undertrial prisoners in various jails across the country at the end of the year 2015 were reported from Uttar Pradesh – 62,669, followed by Bihar – 23,424, then Maharashtra – 21,667, Madhya Pradesh – 21,300, West Bengal – 15,342, Rajasthan – 14,225, Jharkhand – 13,588, Punjab – 13,046, Odisha – 12,584, Delhi – 10,879 and Haryana -10,489.
2.4 With respect to the issue of miscarriage of justice under consideration here, the period of incarceration of the undertrials also needs to be taken into consideration. The data shows that 25.1% (70,616) of the total undertrials spent more than a year in prison; 17.8% (50,176) spend up to 1 year in prison as undertrials, 21.9% (61,886) of the undertrials were in prison for 3 to 6 months, and 35.2% (99,398) undertrials spent up to 3 months in prison. The complete percentage breakup of `period of detention’ of the undertrials is as follows:

Source: National Crime Relations Bureau
2.5 Also to be noted is the data of release, which shows that during the year 2015, 82,585 prisoners were released by acquittal, and 23,442 prisoners were released in appeal.17
2.6 Further, according to the information compiled by NCRB (cited in the answer by Minister of State in the Ministry of Home Affairs, Shri Hansraj Gangaram Ahir in the Rajya Sabha to the Unstarred Question No. 550), during the year 2016, the number of undertrials increased by more than 10,000 (from 2015), recorded at 2,93,058; while the number of convicts increased by a little over 1000, recorded at 1,35,683.18
17 National Crime Records Bureau, Prison Statistics India – 2015, supra.
18 Available at https://mha.gov.in/MHA1/Par2017/pdfs/par2018-pdfs/rs-07022018- ENG/550.pdf. (Last Accessed 12 August 2018) .
2.7 An international study has noted that India, with the aforementioned 67.2%, has one of the highest undertrial populations in the world.19 It is noted to be the 16th highest in the world (out of a total of 217 countries);20 and the fifth highest in Asia – after Pakistan, Cambodia, Philippines and Bangladesh.21
19 “Highest to lowest – pre-trial detainees /remand prisoners”. World Prison Brief, Institute for Criminal Policy Research. Available at: http://www.prisonstudies.org/highest-to-lowest/pre-trialdetainees’ field_region_taxonomy_tid=All. (Last Accessed: 12 August 2018). See also: Amnesty International India, Justice Under Trial: A Study of Pre-trial Detention in India
20 World Prison Brief, Institute for Criminal Policy Research, `Highest to lowest – pre-trial detainees / remand prisoners’. Available at: http://www.prisonstudies.org/highest-to-lowest/pre-trialdetainees’ field_region_taxonomy_tid=All
21 In a total of 28 entries. “Institute for Criminal Policy Research, `Highest to lowest – pre-trial detainees / remand prisoners”. World Prison Brief. Available at: http://www.prisonstudies.org/highest-to-lowest/pre-trialdetainees’ field_region_taxonomy_tid=16. (Last Accessed: 12 August 2018).
2.8 Such large number of undertrials (more than the number of convicts) year after year and their long detention periods show that undertrials spent a substantial period of time awaiting trials/ judicial determination of their case. This delay and waiting becomes a graver miscarriage of justice when the person is wrongfully accused and incarcerated pending trial/proceedings, which he should not have been subjected to in the first place.
2.9 While the data does not specifically highlight the number of undertrials wrongfully incarcerated or acquitted pursuant to a wrongful prosecution or conviction; these numbers, nonetheless, press upon the importance of the issue and the urgency for a statutory remedial framework to provide relief to these victims of the system.
2.10 The Apex Court, taking note of this dreadful state of affairs, expressed anguish over the plight of accused persons languishing in prisons for unjustifiable extended periods of time, in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 590. See also: Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1369; Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and Ors. (1994) 6 SCC 731., observing:
The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity. It also reflects our imprudence when our prisons are bursting at their seams. For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence since the damning finger and opprobrious eyes of society draw no difference between the two….

CHAPTER – 3
International Perspective
A. The International Covenant on Civil and Political Rights
3.1 The International Covenant on Civil and Political Rights 1966 (`ICCPR’) is one of the key international documents on miscarriage of justice. ICCPR discusses the obligation of State in cases of miscarriage of justice resulting in wrongful conviction. It requires the State to compensate the person who has suffered punishment on account of a wrongful conviction provided that the conviction was final, and was later reversed or pardoned on the ground of miscarriage of justice i.e. a new fact proving that the accused was factually innocent. Article 14(6) of ICCPR states:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. (Emphasis Supplied)
Article 9(5) states:
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
3.2 The United Nations Human Rights Committee23 discussed Article 14 of the ICCPR in detail in its General Comment No. 32 (2007). In explaining the obligations of the State in `Cases of Miscarriage of Justice’, it required:
23 United Nations Human Rights Committee is the UN body whose interpretations of the ICCPR are considered authoritative.
52. ……. It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that the payment is made within a reasonable period of time.
53. This guarantee does not apply if it is proved that the non-disclosure of such a material fact in good time is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State. Furthermore, no compensation is due if the conviction is set aside upon appeal, i.e. before the judgment becomes final,24 or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice.25
(Emphasis Supplied)
24 Communications No. 880/1999; Irving v. Australia, para. 8.4; No. 868/1999, Wilson v. Philippines, para. 6.6., as cited in the General Comments 32, UN Human Rights Committee
25 Communication No. 89/1981; Muhonen v. Finland, para. 11.2. ibid
3.3 ICCPR and the above-referred General Comment together emphasise the need for a legislative framework for payment of compensation to the victims of wrongful conviction, and the same to be done within a “reasonable period of time”.
3.4 A total of 168 State parties, including India, have ratified the ICCPR. However, not all countries have converted their commitment into law. State parties have met their obligations under article 14(6) in one or more of the following ways: incorporation of the article (or a rewording of the article) directly into domestic legislation to create a statutory right to compensation; conferring a dedicated discretion on an administrative or judicial body to determine whether awards of compensation should be paid; or utilising the general power of domestic governments to make ex gratia payments.
3.5 These States have developed legal frameworks for remedying such miscarriage of justice by compensating the victims of wrongful convictions, providing them pecuniary and/or non pecuniary assistance. These frameworks establish the State’s responsibility of compensating the said victims and also lay down other substantive and procedural aspects of giving effect to this responsibility – quantum of compensation – with minimum and maximum limits in some cases – factors to be considered while deciding the right to compensation as well as while assessing the amount, claim procedure, the institution set up etc. The following section of this Chapter delves into few of these legal frameworks discussing their key features.
B. United Kingdom
(i) Criminal Justice Act 1988
3.6 In conformity with its international obligation under ICCPR, the United Kingdom has incorporated the aforesaid provision of Article 14(6) into its domestic legislation, the Criminal Justice Act 1988, under Part XI subtitled “Miscarriages of Justice”, sections 133, 133A, 133B.
3.7 The said section lay down the legislative framework under which the Secretary of State, subject to specified conditions, and upon receipt of applications, shall pay compensation to a person who has suffered punishment as a result of a wrongful conviction, that was subsequently reversed or pardoned on the ground that there has been a miscarriage of justice – where a new fact came to light proving beyond reasonable doubt that the person did not commit the offence. It also provides the factors to be considered while assessing the amount of compensation i.e. harm to reputation or similar damage, the seriousness of the offence, severity of the punishment, the conduct of the investigation and prosecution of the offence. In terms of the amount of compensation, the said sections provide an overall compensation limit (distinguishing on the basis of period of incarceration i.e. less than ten (10) years or ten (10) years or more).26
26 Under the Act there is also a time limit for filing of the claim i.e. before the end of the period of 2 years from the date on which the conviction of the person concerned is reversed or he is pardoned (Section 133).
3.8 Prior to 2011, the eligibility for compensation under this law requires that the claimant be exonerated and not acquitted on grounds of legal technicalities or evidence falling short of “beyond reasonable doubt.” However, in 2011 vide the case of R (on the application of Adams) v. Secretary of State for Justice,[2011] UKSC 18. the UK Supreme Court widened the definition of `miscarriage of justice and the notion of innocence’. A majority judgment ruled that the requirement of conclusive innocence was too narrow and held that even those who cannot prove their innocence beyond reasonable doubt were entitled to compensation; further noting that:
Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt… if it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now.
(ii) Criminal Cases Review Commission (CCRC)
3.9 The UK also has a Review Commission dedicated to the task of ascertaining whether an accused has suffered miscarriage of justice. The Criminal Cases Review Commission (CCRC), which was established in March 1997, reviews cases with possibility of miscarriages of justice in the criminal courts of England, Wales, and Northern Ireland, and refers appropriate cases to the appeal courts for review.
3.10 CCRC is the forum where those who believe they have either been wrongfully convicted or sentenced can apply to have their case reviewed. It can gather information related to a case and carry out its own investigation. Once completed, CCRC decides whether to refer the case to the appropriate appellate court for further review.
(iii) UK Police Act, 1996
3.11 Also noteworthy is the section 88 of the UK Police Act 1996, that deals with the `Liability for wrongful acts of constables’. This section lays down the remedy and procedure in the aforesaid cases. It makes the chief officer of police liable in respect of any unlawful conduct of constables under his direction and control in the performance of their functions, in like manner as a master is liable in respect of torts committed by his servants in the course of their employment; and, accordingly shall as in the case of a tort, be treated for all purposes as a joint tortfeasor. It further provides for payment of any damages or settlement amount, for such cases, out of the police fund.
3.12 In Hill v. Chief Constable of West Yorkshire,[1987] UKHL 12. the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. The conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was held to be inappropriate.
3.13 In Brooks v. Commissioner of Police for the Metropolis & Ors., [2005] UKHL 24. the House of Lords approving the decision in Hill v. Chief Constable of West Yorkshire (supra), reformulated the principle in terms of an absence of a duty of care rather than a blanket immunity, noting that “it is, of course, desirable that police officers should treat victims and witnesses properly … But to convert that ethical value into general legal duties of care … would be going too far. The prime function of the police is the preservation of the Queen’s peace … A retreat from the principle in Hill would have detrimental effects for law enforcement.”
3.14 In Robinson v. Chief Constable of the West Yorkshire Police, [2018] UK SC 4. the UK Supreme Court explained the scope of the common law duty of care owed by police when their activities lead to injuries being sustained by members of the public. It has long been the case that a claim cannot be brought in negligence against the police, where the danger is created by someone else, except in certain unusual circumstances such as where there has been an assumption of responsibility. This case, however, was focused on the question of injuries resulting from activities of the police, where the danger was created by their own conduct. The Court held that the police did owe a duty of care to avoid causing an injury to a member of the public in those circumstances. The Court while taking note of public law duties of the police further noted as follows in relation to their private law duties:
It follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency, as in Dorset Yacht and Attorney General of the British Virgin Islands v. Hartwell. Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by the conduct of third parties, in the absence of special circumstances such as an assumption of responsibility.
C. Germany
3.15 In Germany, the issue of miscarriage of justice resulting in wrongful convictions et.al. is primarily dealt with by assigning the liability to the State (`official liability’), and by providing compensation to those wrongfully convicted.
(i) Grundgesetz – The Constitution
3.16 The Constitution of Germany [Grundgesetz (GG)], 1949, also referred to as the Basic Law, in its Article 34 lays down the primary law in this respect. The Article titled `Liability for violation of official duty’ reads:
If any person, in the exercise of a public office entrusted to him, violates his official duty to a third party, liability shall rest principally with the state or public body that employs him. In the event of intentional wrongdoing or gross negligence, the right of recourse against the individual officer shall be preserved. The ordinary courts shall not be closed to claims for compensation or indemnity.
(ii) Law on Compensation for Criminal Prosecution Proceedings 1971
3.17 In addition to the above, specifically dealing with wrongful conviction, there is also An Act of Parliament – the Law on Compensation for Criminal Prosecution Proceedings 1971, which specifies that whoever has suffered damage as a result of a criminal conviction which is later quashed or lessened (the “applicant”) shall be compensated by the State (Article 1). The State also compensates a person who has suffered damage as a result of a remand order or certain other types of detention, provided he or she is acquitted, or the prosecution is suspended or abandoned (Article 2).
(iii) Law on Compensation for Law Enforcement Measures
3.18 There is also the `Strafverfolgungsentschädigungsgesetz’ (StrEG), translated as `Law on Compensation for Law Enforcement Measures’ in force since 1971, dealing with claims for compensation mainly arising out of mitigation or elimination of final conviction, unlawful pre-trial detention and other unlawful detention, unlawful search and seizure.
3.19 § 7 Abs. 3 StrEG provides for a fixed sum per day for the non-pecuniary damage as compensation i.e. €25 per day (wrongfully spent in custody) in addition to any compensation for financial loss. Factors comprising financial loss include loss of earnings often due to a loss of the place of employment, losses in the pension insurance policy (usually due or in direct consequence to loss of earnings), cost of the lawyer, cost arising from the search of a place to live and from damage to health.
3.20 Claim for compensation under this law is made before the state justice administration, which decides on the claim. The burden of proof in the aforesaid claims lie on the claimant, which has been noted to make it difficult in reality for the claimant to obtain any compensations for financial loss.
3.21 § 5 StrEG bars claims of compensation in certain cases, such as causation of the prosecution by the injured party – deliberately or gross negligently (the expression `gross negligently’ includes an act where the wrongfully convicted person neglected their duty of care, for example, accused confessing to his guilt despite being innocent); the concealment of relieving circumstances by the claimant.
(iv) The German Criminal Code
3.22 In terms of other specific statutes, the German Criminal Code called the `Strafgesetzbuch’ (in effect since 1872) in its sections 97a and 97b deals with the cases of suffering caused due to excessive length of the proceedings before the Federal Constitutional Court, providing for “adequate compensation” to victims of such delays; where the reasonableness of the length of the proceedings shall be established on a case-by-case basis, taking into account the Federal Constitutional Court’s tasks and position. A decision on compensation and reparation hereunder requires a formal complaint against judicial delay (Verzogerungsbeschwerde).31 The provision also talks in terms of a non-pecuniary disadvantage, which shall be assumed to exist if a case has taken excessively long. Compensation for such a disadvantage may only be claimed if the circumstances of the individual case do not permit a different kind of redress, in particular a declaration that the length of the proceedings was excessive.32
31 Section 97b(1), The German Criminal Code.
32 Compensation provided for in such a case is fixed at EUR 1,200 for each year of delay with the discretion for vested with the Federal Constitutional Court to set a higher or lower amount. Section 97a(1), The German Criminal Code.
(v) The German Civil Code
3.23 With respect to official breach of duty pertaining to administrative acts, the `official liability’ is the central standard of the German state liability law. The legal basis for the same resides in the German Civil Code (in effect since 1900) called Burgerliches Gesetzbuch (BGB). § 839, read with Art. 34 GG. § 839 BGB laying down the provision regarding `Liability in case of official breach of duty’, states as follows:
(1) If an official, intentionally or negligently, violates his official duty towards a third party, he shall reimburse the third party for the resulting damage. If the official is only liable for negligence, he may only be charged if the injured person cannot obtain compensation in any other way.
(2) If an official breaches his official duties in a judgment in a case, he is only responsible for the resulting damage if the breach of duty results in a criminal offense. In a wrongful refusal or delay in the exercise of their office, this provision does not apply.
(3) The duty of compensation shall not arise if the injured party intentionally or negligently failed to avert the damage by using an appeal.
3.24 § 839 BGB in conjunction with Art. 34 GG forms the basis of the liability of the public authorities by its transfer to the state and deals the external relationship with the citizen. Under these provisions, `official liability’ arises if public official breaches an official duty towards a third party, thereby causing harm to such third party be it a citizen or other legal entity. In terms of the examination scheme, the following 6 prerequisites must be fulfilled:
(i) Exercise of a public office by a public official;
(ii) Violation of a third-party duty;
(iii) Violation / breach of duty;
(iv) Imputability of the damage;
(v) No disclaimer and no limitation of liability; and
(vi) No statute of limitations
3.25 The aforesaid provisions lay down the consequences of unlawful and culpable administrative acts and justifies a claim for damages. The official liability initially includes the personal liability of the person acting for the State and for this purpose appointed by the State. This liability is then transferred to the State in accordance with Art. 34 GG. The official is thus liable himself and is subsequently relieved by the State. The misconduct of the official is therefore not considered a State wrongdoing. The State only assumes the guilt of the official. The State takes the place of the actually liable as a protective shield and compensates the affected citizen. The official liability is therefore not an immediate, but only an indirect State liability.
D. United States of America
3.26 In the United States of America (US), matters of miscarriage of justice resulting in wrongful conviction are primarily addressed by compensating those who have been wrongfully convicted in accordance with the federal or the respective state law, as may be applicable.
(i) Federal Law
3.27 The federal law on the issue is the United States Code Title 28 § 1495 & §2513. It deals with federal claims from persons unjustly convcited of an offence against the United States and imprisoned. A claimant is eligible for relief under this law on the grounds of pardon for innocence, reversal of conviction or of not being found guilty at a new trial or rehearing. These claims lie in the U.S. Court of Federal Claims. The Code provides for a fixed compensation amount depending on the length of incarceration.33
33 The compensation amount is fixed at $50,000 for each year of incarceration, and $100,000 per year for each year on death row.
(ii) State Laws
3.28 All the States in the US have their own respective laws providing for compensation – monetary and/or non-monetary assistance – to the victims of wrongful conviction, incarceration. In terms of monetary compensation, while some States have laid down fixed amount to be paid depending on the period of incarceration (Alabama, California, Colorado, District of Columbia, Florida, Illinois, Hawai, Iowa, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, Texas, Virginia, Vermont, Washington), others have given the discretion to the appropriate forum to decide the amount of compensation on case-to-case basis (with a statutory guidelines/prescribed maximum amount)(Connecticut, Massachusetts, Maine, Maryland, Nebraska, New Hampshire, West Virginia)
3.29 The compensation framework of Illinois needs a specific mention, where the statute (Ill Rev Stat Ch. 705 § 505/1) provides a tabular compensation formula, laying down maximum amount payable depending on the period of incarceration:
– 5 years or less – $85,350 maximum
– 14 year or less – $170,000 maximum
– More than 14 years – $199,150 maximum
3.30 District of Columbia is also worth mentioning, where DC ST § 2-421 provides for interim relief, stating that within 21 days of approval of a petition for compensation, the claimant will receive $10,000 to assist in immediately securing services such as housing, transportation, subsistence, re-integrative services, and mental and physical health care.
3.31 In addition to the above, most of the States in the US also provide for non-monetary compensation for assisting these victims in rehabilitation, and reintegration into society; it includes transitional services including housing assistance, job training, assistance in terms of job search and placement services, referral to employers with job openings, and physical and mental health services, counselling services; and expunging of the record of conviction – helpful in allowing the claimants to reintegrate into society.
E. Canada
3.32 Canada ratified the ICCPR in 1976; though no legislation has been enacted to give effect to the Covenant, the principles expressed in it appear to have informed a joint set of guidelines relating to compensation for the wrongfully convicted, formulated by the Federal and Provincial Ministers of Justice in 1988.
3.33 Titled as the `Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons’, these Guidelines contain the criteria which is to be met before a person can be considered eligible for compensation. Notably, the Guidelines expressly limit the payment of compensation only to the actual person who was wrongfully convicted and imprisoned.
3.34 As per the said Guidelines, the prerequisites for eligibility for compensation are as follows:
(i) the wrongful conviction must have resulted in imprisonment, all or part of which has been served;
(ii) compensation should only be available to an individual who has been wrongfully convicted and imprisoned as a result of a Criminal Code or other federal penal offence;
(iii) the conviction has been reversed, outside the normal appeal process, on the basis of a new or newly discovered fact;
(iv) the new fact shows that the applicant is factually innocent i.e. the applicant did not commit the crime, and that there has been a miscarriage of justice; and
(v) when all available appeal remedies have been exhausted.
3.35 The considerations for determining the quantum of compensation under the Guidelines include both non-pecuniary and pecuniary losses:
(i) Non-pecuniary losses
(a) Loss of liberty and the physical and mental harshness and indignities of incarceration;
(b) loss of reputation which would take into account a consideration of any previous criminal record;
(c) loss or interruption of family or other personal relationships.
(ii) Pecuniary Losses
(a) Loss of livelihood, including of earnings, with adjustments for income tax and for benefits received while incarcerated;
(b) loss of future earning abilities;
(c) loss of property or other consequential financial losses resulting from incarceration.
3.36 In assessing the aforementioned amounts, the inquiring body is required to consider the following factors:
(i) Blameworthy conduct or other acts on the part of the applicant which contributed to the wrongful conviction;
(ii) due diligence on the part of the claimant in pursuing his remedies.
3.37 Additionally, reasonable costs incurred by the applicant in obtaining a pardon or verdict of acquittal should be included in the award for compensation. Compensation for non-pecuniary losses should not exceed $100,000. It is to be noted that these Guidelines are not regarded as binding legislation; and just as they do not create any legal right to compensation, they also do not create any legal bar to compensation, payment of compensation remains at the discretion of the Crown. In this manner, reportedly, many of the awards of compensation that have been made in the last 20 years departed in some manner or the other from the criteria proposed by the Guidelines.34
34 `Entitlement to Compensation – The Legal Framework’. Available at: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott/section5.php
3.38 In addition to the above, a wrongfully convicted person, in Canada, also has the option to pursue a civil cause of action, such as a claim in tort for malicious prosecution, negligent investigation, prosecutorial misconduct, or false imprisonment, or a claim for breach of rights protected under the Canadian Charter of Rights and Freedoms. `Negligent investigation’, as a cause of action was recognized the Supreme Court of Canada in the case of Hill v. Hamilton-Wentworth Regional Police Services Board,[2007] SCC 41. where the Court noted that the appropriate standard of care, like for other professionals, is that of “a reasonable police officer in similar circumstances.”
F. New Zealand
3.39 In New Zealand, wrongful conviction and imprisonment is addressed via compensation granted ex-gratia by the State. These ex gratia payments are in accordance with the Ministry of Justice’s `Compensation for Wrongful Conviction and Imprisonment (May 2015)’ (“Guidelines”). These Guidelines are based on the `Cabinet Criteria for Compensation and Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned in Criminal Cases’ (Ministry of Justice, 1998). The said Guidelines cover both the issue of whether or not someone receives the compensation, and how much compensation they receive.
3.40 Under the Guidelines, a person is eligible for compensation if he is imprisoned following a wrongful conviction that is subsequently set aside; and is, at a minimum, innocent on the balance of probabilities. In addition to the foregoing, claimant must (i) be alive at the time of application; (ii) have served all or part of a sentence of imprisonment; (iii) have received a free pardon or have had their convictions quashed on appeal without order of retrial.
3.41 The Guidelines provide for three categories of compensation for successful claimants:
(i) payments for non-pecuniary losses following conviction – based on a starting figure of $100,000 for each year in custody.
(ii) payments for pecuniary losses following conviction.
(iii) a public apology or statement of innocence.
3.42 Where factors taken into consideration with respect to non-pecuniary losses include: loss of liberty, loss of reputation (taking into account the effect of any apology to the person by the Crown), loss or interruption of family or other personal relationships, and mental or emotional harm. And, for pecuniary losses include: loss of livelihood, including loss of earnings, with adjustments for income tax and for benefits received while incarcerated; loss of future earning abilities; loss of property or other consequential financial losses resulting from detention or imprisonment; and costs incurred by or on behalf of the person in obtaining a pardon or acquittal. The Guidelines also lay down the procedure for making a claim thereunder.
3.43 Compensation for wrongful conviction though not germinating from a statutory right in New Zealand, and only given by the Government ex-gratia, is frequently invoked and resorted to. In this respect, the 2016 case of Teina Anthony Pora is worth a mention, where the claimant was wrongfully convicted of rape and murder, and spent 21 years in prison. Pursuant to the Guidelines, the claimant was paid a compensation of about $2.52m (towards non-pecuniary and pecuniary losses) by the Government of New Zealand for wrongful conviction and incarceration.36
36 “Second Report for Minister of Justice on Compensation Claim by Teina Antihony Pora”. Hon Rodney Hansen Cnzm Qc. Available at: https://www.justice.govt.nz/assets/Documents/Publications/pora-teinacompensation- claim-quantum-report.pdf). (Last Accessed: 29 July 2018)
G. Australia
3.44 In Australia, individuals wrongfully convicted and imprisoned do not have a common law or statutory right to compensation except for in the Australian Capital Territory (ACT). However, a State or territory government may choose to make an ex gratia payment either on its own accord or as a result of a request by a party for such a payment.37
37 In Australian jurisdictions, where ex gratia compensation payments are made, they include both pecuniary and non-pecuniary loss to the person i.e. loss that is easily quantifiable (such as loss of income), and loss that is not readily calculable (such as pain and suffering or the loss of the expectations of life).
3.45 With respect to the ACT, Human Rights Act 2004 (ACT) lays down the law regarding compensation for wrongful conviction for ACT. Under section 23 of the Act, an individual who is wrongfully convicted of a criminal offence may apply for compensation if such individual: (i) has been convicted of a criminal offence by a final decision of a court; (ii) they have suffered punishment because of the conviction; and (iii) that conviction was reversed or the individual was pardoned as a result of a new fact showing conclusively that there has been a miscarriage of justice (Section 23(1)). Foregoing criteria being met, the section provides for a right to be compensated `according to law’ (Section 23(2)). The section marks a specific exception for cases where it is proved that the non-disclosure of unknown fact in time is completely or partly the person’s own doing (Section 23(3)).
3.46 Section 23, though pursuant to Article 14(6) of ICCPR, via its sub-section 1(b) adds an additional element of the person having suffered punishment because of the conviction to qualify for compensation thereunder. It is notable that the term `punishment’ as used in section 23(1)(b) has been interpreted to include not just imprisonment but even lesser sanctions, such as a fine or the recording of a conviction alone.38
38 Adrian Hole. Compensation for Wrongful Compensation. Trends & Issues in Crime and Criminal Justice: No. 356, May 2008, Australian Government, Australian Institute of Criminology. Available at https://aic.gov.au/publications/tandi/tandi356 (Last Accessed: 29 July 2018)
3.47 It is noteworthy that in the absence of a legal framework or even guidelines for the award of compensation, these ex gratia compensation payments have been noted to be `arbitrary’ and generally `very modest’, marred by lack of transparency, making it difficult to establish any formal or informal tariff of compensation payable39.
39 Tom Percy QC. Despised Outsiders: Compensation for Wrongful Convictions. Precedent Issue 81 July/August 2007. Available at http://www.austlii.edu.au/au/journals/PrecedentAULA/2007/66.pdf. (Last Accessed 29 July 2018).
3.48 A study of the international perspective shows that the international law and the law in Western countries (including the above-discussed) understands miscarriage of justice to take place after the claimant has been convicted by a final court, and a new fact comes to light that proved conclusively that the claimant did not commit the offence. And, they primarily address this miscarriage of justice by providing relief to the victim of wrongful conviction via monetary compensation and non-monetary assistance.

CHAPTER – 4
Current Scenario – Overview and Inadequacies
4.1 A review of the existing laws and the case law brings forward three categories of court-based remedies with respect to miscarriage of justice resulting in wrongful prosecution, incarceration or conviction etc.: (i) Public Law Remedy; (ii) Private Law Remedy; and (iii) Criminal Law Remedy. This Chapter also takes note of the relevant provisions of the Police Act, 1861, and of the role of the Human Rights Commissions in this context.
4.2 The first two of the aforementioned remedies are victimcentric providing for pecuniary relief from the State to persons who have suffered on account of wrongful prosecution, conviction and/or incarceration. The third remedy, available under criminal law, is on the lines of holding the wrongdoer accountable, i.e. proceeding with criminal action against the concerned officers of the state for their misconduct.
A. Public Law Remedy
4.3 Public law remedy for miscarriage of justice on account of wrongful prosecution, incarceration or conviction finds its roots in the Constitution of India. In such cases, it is the violation of fundamental rights under Article 21 (the right to life and liberty), and Article 22 (protection against arbitrary arrests and illegal detention etc.) that invokes the writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution respectively; which includes the grant of compensation to the victim, who may have unduly suffered detention or bodily harm at the hands of the employees of the State.
4.4 The function of maintaining law and order has been held to be a sovereign function.40 According to the traditional classification, arrest and detention were classified as `sovereign’ functions, whereby any person who suffered undue detention or imprisonment at the hands of the State was not entitled to any monetary compensation and, the courts could only quash an arrest or detention if it was not according to law. This, however, changed with the Maneka Gandhi judgment,41 where the Supreme Court gave a dynamic interpretation to Article 21, a new orientation to the concept of personal liberty. One of the important offshoots of the foregoing was that the courts started to consider awarding compensation in cases of undue detention and bodily harm.
40 See: The ‘Ad Hoc’ Committee, the Indian Insurance Company Association Pool v. Smt. Radhabai, AIR 1976 MP 164, the Court observed that “These cases show that traditional sovereign functions are the making of laws, the administration of Justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. Whether this list be exhaustive or not, it is at least clear that the socio-economic and welfare activities undertaken by a modern State are not included in the traditional sovereign functions.”.
41 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
4.5 In this respect, the case of Khatri & Ors. v. State of Bihar & Ors., AIR 1981 SC 928. (the Bhagalpur Blinding case), was one of the earlier cases where the question was raised as to whether a person who has been deprived of his life or personal liberty in violation of Article 21 can be granted relief by the Court, and what could such relief be. In this case, it was alleged that the police had blinded certain prisoners and that the State was liable to pay compensation to them. The Court though not giving a definitive answer to the question of the State’s pecuniary liability to pay compensation, did order the State to meet the expenses of housing the blinded victims in a blind home in Delhi.
4.6 Subsequent to the above, there was a series of Supreme Court judgments which expounded on the State’s vicarious liability, which developed the foundational principle for holding the State liable for abuse of power by its employees – one of them being misconduct on the part of police and investigating agencies. These judgments established pecuniary compensation as a prominent public law remedy for the aforesaid violations of fundamental rights.
4.7 One of the first precedent-setting cases is from the year 1983, Rudal Sah v. State of Bihar, AIR 1983 SC 1086 where the Supreme Court, exercising its writ jurisdiction, passed an order of compensation for the violation of Articles 21 and 22 of the Constitution. In this case the petitioner was unlawfully detained in prison for 14 years after the order of acquittal. The court observed thus:
One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. (Emphasis Supplied)
4.8 The Court further observed that this remedy is independent of the rights available under the private law in an action based on tort, or that under criminal law i.e. via criminal proceedings against the wrongdoer.44 On the heels of Rudal Sah (supra) came the Boma Chara Oraon45 case, where the Supreme Court declared that anyone deprived illegally of his life or personal liberty can approach the Supreme Court and seek compensation for violation of his fundamental right under Article 21. Subsequently, there has been a string of cases, where the Supreme Court awarded compensation to persons whose fundamental rights under Articles 21 and 22 had been violated on account of illegal detention, wrongful incarceration etc.46
44 Ibid.
45 B. C. Oraon v. State of Bihar, cited in M. P. Jain, Indian Constitutional Law Volume 1 (LexisNexis, Gurgaon, India Updated 6th Edition, 2013) 1618; see also: Devki Nandan v. State of Bihar, AIR 1983 SC 1134;
46 See: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.
4.9 Emphasising the need to compensate the victims of wrongful arrests, incarceration etc. by awarding “suitable monetary compensation”, the Supreme Court in the case of Bhim Singh, MLA v. State of J & K & Ors. (1985) 4 SCC 677. opined that the mischief, malice or invasion of an illegal arrest and imprisonment cannot just be “washed away or wished away” by setting free the person so arrested or imprisoned. The Court awarded a sum of Rs. 50,000/- as compensation for illegal detention but, it is noteworthy that it did not delve into the reasoning or mechanism of how this “suitable monetary compensation” was determined or should be determined in similar cases.
4.10 Delving into question of `who is responsible to pay the compensation in cases of State officials’ misconduct – individual police officers or the State’, the Supreme Court in the case of SAHELI, A Women’s Resources center & Ors. v. Commissioner of Police Delhi & Ors., AIR 1990 SC 513. upheld the principle of the vicarious liability of the State i.e. the State to responsible for the tortious acts of its employees; and, ordered the Delhi Administration to pay the compensation for police atrocities which lead to the death of a 9 year-old child; further noting that the Delhi Administration has the option to recover the amount paid from the officers found responsible.49
49 See also Peoples’ Union for Democratic Rights through its Secretary & Anr. v. Delhi Police Headquarters & Anr., (1989) 4 SCC 730; Joginder Kaur v. State of Punjab, (1969) 71 PLR 85.
4.11 The Supreme Court upholding the principle of vicarious liability of the State in the case of State of Maharashtra v. Ravi Kant Patil, AIR 1991 SC 871. further observed that the individual officers cannot be held personally liable because even if it is assumed that such officers exceeded the limits of their power, they were still acting as officials. These cases recognised State’s liability and responsibility to pay compensation for the wrongful acts of its employees but did not go into the compensation jurisprudence – factors taken into consideration for arriving at the amount of compensation etc.
4.12 A crucial judgment often credited with crystallising the principle of vicarious liability of the State underlining the abovediscussed cases and that of principle of sovereign immunity vis-avis violation of fundamental rights by the State officials was delivered in the case of Nilabati Behera v. State of Orissa AIR 1993 SC 1960; see also: State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 5 SCC 712. The Supreme Court in this case observed that award of compensation in writ proceedings is a remedy under public law, based on strict liability for contravention of fundamental rights, and that the principle of sovereign immunity is inapplicable in the cases involving violation of fundamental rights, though available as a defence under private law in an action based on tort52. The Court further observed that the State in such cases in turn has the right to be indemnified by, and/or take action against the concerned officers in accordance with law through appropriate proceedings. The principle of strict liability of the state was also upheld in the landmark decision on the issue of `police atrocities and awarding of compensation’ in the case of D. K. Basu v. State of West Bengal AIR 1997 SC 610..
52 The Court in this case distinguished the state’s liability in cases involving violation of fundamental rights from a claim the claim of damages for the tort of conversion under the ordinary process, stating that the decision of “the Court in Kasturilal (Kasturi Lal Ralia Ram Jain v. State of U.P, AIR 1966 SC 1039) upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort.”
4.13 The defence of sovereign immunity is not applicable to cases of violations of the fundamental rights guaranteed under the Constitution. Claim for compensation is a constitutional remedy under Article 32 or 226, and the said defence is not available against a constitutional remedy. This was reiterated by the Supreme Court in the case of Consumer Education and Research Center & Ors. v. Union of India AIR 1995 SC 922; Mrs. Sudha Rasheed v. Union of India, 1995 (1) SCALE 77. The Court further observed:
… It is a practicable and inexpensive mode of redress available for the contravention made by the State, its servants, it instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.
4.14 The right of personal liberty of citizens is precious, and no one can be permitted to interfere with it except in accordance with the procedure established by law. For any damage thereto, the State must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers.55
55 Dhaman Joy Sharma v. State of Haryana, AIR 1995 SC 1795; Dalbir Singh v. State of U.P., AIR 2009 SC 1674.
4.15 With respect to protection of fundamental rights from excesses and abuse of power, the Courts have taken a very restrictive view of the `sovereign functions’ of the State, thereby expanding the scope of State’s liability. In the case of People’s Union for Civil Liberties v. Union of India & Ors., AIR 1997 SC 1203; see also: Nasiruddin v. State, 2001 CriLJ 4925; Tasleema v. State (NCT of Delhi), 161 (2009) DLT 660. the Supreme Court held that the State cannot deprive a citizen of his life and liberty except according to the procedure established by law, and cannot claim immunity on the ground that the said deprivation of life occurred while the officers of the State were exercising the sovereign power of the State. The claim for compensation is based on the principle of strict liability to which the defence of sovereign immunity is not available.
4.16 The right to life under Article 21 is available not only to `citizens’, but also to `persons’ which would include `non-citizens.57 A foreigner too can claim protection under Article 21 along with the Indian citizens.58 A natural corollary to this is entitlement to compensation in the event of a violation of the said right. In line with the foregoing, the Supreme Court in the case of Chairman, Railway Board & Ors. v. Chandrima Das AIR 2000 SC 988. ruled that a citizen of Bangladesh i.e. a foreign national when in India was entitled to the protection of her person under Article 21, which when violated also entitled her to relief of compensation by the State under Article 226 as the State was under constitutional liability to pay compensation to her.
57 Anwar v. State of J & K, (1977) 3 SCC 367.
58 See: Common Cause, A Regd. Society v. Union of India, AIR 1999 SC 2979; National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234.
4.17 As the principle of granting compensation for violation of Article 21 was gaining ground, the scope of cases covered under this remedy once again came under review in the case of Sube Singh v. State of Haryana, (2006) 3 SCC 178. which laid down the proposition that compensation is not to be awarded in all cases. This case limited the award of compensation to cases where: (i) the violation of Article 21 is patent and inconvertible; (ii) the violation is gross and of a magnitude to shock the conscience of the court; or (iii) the custodial torture alleged has resulted in death, or the custodial torture is supported by medical report or visible marks or scars or disability. In this case, the petitioner alleged illegal detention, custodial torture and harassment to the family members of the petitioner. Applying the foregoing criteria, the Court did not award any compensation in this case on the ground of lack of clear and incontrovertible evidence.
4.18 In cases of wrongful incarceration, prosecution involving infringement or deprivation of a fundamental right, abuse of process of law, harassment etc., though it has evolved as a judicial principle that the Supreme Court and the High Courts have the power to order the State to pay compensation to the aggrieved party to remedy the wrong done to him as well as to serve as a deterrent for the wrongdoer;61 but there is no set framework (statutory or otherwise) within which the right to compensation or the quantum of compensation is determined. Compensation for violation of fundamental rights in aforementioned cases is a public law remedy but there is no express provision in the Constitution of India for grant of compensation by the State in such cases.62 It is a remedy determined and decided on case-to-case basis dependent on the facts of each case, the disposition of the court hearing the case etc.63; which makes this remedy arbitrary, episodic and indeterminate.
61 See: Dr. Rini Johar & Anr. v. State Of M. P. & Ors., Judgement dated 3 June 2016 in Criminal Writ Petition No. 30 of 2015; Ram Lakhan Singh v. State Government of Uttar Pradesh, (2015) 16 SCC 715; Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Anr., AIR 2011 SC 3393. See also: Geeta v. Lt. Governor, 75 (1998) DLT 822; Phoolwati v. National Capital Territory of Delhi, 84 (2000) DLT 177, Sunita v. State of National Capital Territory of Delhi, 151 (2008) DLT 192.
62 Vibin P.V. v. State of Kerela, AIR 2013 Ker 67.
63 See: Inder Singh v. State of Punjab, (1995) 3 SCC 702; Malkiat Singh v. State of U.P., (1998) 9 SCC 351; Ajab Singh v. State of Uttar Pradesh, (2000) 3 SCC 521; and Munshi Singh Gautam v. State of MP (2005) 9 SCC 631.
4.19 As is evident from the famous case of Adambhai Sulemenbhai Ajmeri & Ors. v. State of Gujarat (the Akshardham Temple case),2014) 7 SCC 716; see also: State of Orissa v. Duleshwar Barik, 2017 (I) OLR 824; Gopal Ramdas Sheyte v. State of Maharashtra, Judgement dated 5 May 2017 in Criminal Writ Petition No. 3960 of 2015. where the accused persons spent more than a decade in prison; the Supreme Court acquitted the accused persons with a specific noting as to the perversity in the conduct of the case from investigation to conviction to sentencing but did not award any compensation to those wrongfully convicted; despite also noting that the police instead of booking the real culprits caught innocent people and subjected them to grievous charges. However, when a separate petition praying for compensation came up before another bench of the Supreme Court, the plea for compensation was rejected on the grounds that acquittal by a court did not automatically entitle those acquitted to compensation and if compensation is to be awarded for acquittal, it will set a `dangerous precedent’, post which the petition was withdrawn.65
65 “There Must Be a Price to Pay for Wrongful Convictions” The Wire, 30 August 2016. Available at: https://thewire.in/law/cops-judges-andterrorists. (Last Accessed: 30 July 2018)
4.20 The foregoing is in contrast to the other cases where under similar circumstances the court held the State accountable and awarded compensation. Perhaps it was owing to this kind of variance in the decisions on otherwise similar facts that the High Court of Delhi in its Reference to the Commission noted that “these (awards of compensation for wrongful incarceration under public law) are episodic and are not easily available to all similarly situated persons.”66
66 I (2018) CCR 482 (Del.).
4.21 Further, whether awarding or denying compensation, as noted above, most of these cases did not provide much clarity as to the basis of how the amount of compensation was arrived at – the pecuniary and non-pecuniary factors and peculiarities considered by the Court while determining the amount. In few of these cases in the last few decades, the compensation standard fixed at Rs. 50,000/- in the Bhim Singh, MLA case (supra) was applied after adjustment for inflation; which in many instances amounts to a very modest sum, all things considered.67
67 Kamla Devi v. Govt. of NCT of Delhi, 114 (2004) DLT 57; Ashok Sharma v. Union of India, 2009 ACJ 1063; Prempal & Ors. v. The Commissioner of Police & Ors, (2010) ILR 4 Delhi 416; Neema Goyal v. Union of India, 2011 (125) DRJ 273.
B. Private Law Remedy
4.22 The private law remedy for errant acts of State officials exists in the form of a civil suit against the State for monetary damages. The Supreme Court has time and again emphasised the above discussed Constitutional remedy of a claim based on strict liability of the State being distinct from and in addition to the remedy available in private law for damages on account of tortious acts of public servants68 – especially negligence by a public servant in the course of employment.
68 Rudal Sah (supra); Nilabati Behera (supra).
4.23 The question of tortious liability of the state was examined in the State of Rajasthan v. Vidyawati Mst.AIR 1962 SC 933., the case regarded as the precursor of a new trend in the area of State liability; where the Supreme Court held that the State was vicariously liable for the rash and negligent acts of a driver of a State official car that fatally injured a pedestrian. Rejecting the State’s plea of exercise of sovereign powers/defence of sovereign immunity, the Supreme Court laid down the proposition that the government would be liable to pay damages for the negligence of its employees if the negligence was “such as would render an ordinary employer liable”.
4.24 This broadened scope of the State’s liability was, however, later curtailed by the Supreme Court in the case of Kasturi Lal Ralia Ram Jain v. State of U.P.;AIR 1964 SC 1039. where in a suit filed against the State of Uttar Pradesh seeking damages for the gold ornaments lost because of the negligence of the police officials, the Supreme Court applied the principle of sovereign immunity, observing that the government was not liable to pay damages because the police officers were performing a sovereign function. The police in exercise of sovereign power has immunity from tortious liability; a stark contrast from judicial pronouncements under public law, where the defence of sovereign immunity was rendered inapplicable in cases of police misconduct.71
71 Nilabati Behara (supra); D. K. Basu (supra); CERC v. Union of India (supra); People’s Union for Civil Liberties (supra); Saheli, A Women’s Resources center & Ors (supra); Consumer Education and Research Center & Ors. (supra).
4.25 Nevertheless, civil/money suits is also a remedy for holding the State accountable by payment of monetary damages. For instance, in cases of malicious prosecution, such as in State of Bihar v. Rameshwar Prasad Baidya & Anr.,AIR 1980 Pat 267. where criminal proceedings were initiated against an accused for the purpose of harassing him, the Court held the State liable to pay damages to the accused person for his malicious prosecution by the State employees. At the same time, there is a plethora of such civil suits where the function of maintaining law and order, since performed only by the State or its delegates, has been held to be a sovereign function, rendering the State to not be liable for consequences ensuing therefrom.73 The Law Commission also looked into the scope of immunity of the government for the tortious acts of its employees in its 1st Report on `Liability of State in Tort’ (1956); and recommended that “the old distinction between sovereign and nonsovereign functions should no longer be invoked to determine the liability of the State.”
73 State of Madhya Pradesh v. Saheb Dattamal & Ors., AIR 1967 MP 246; State of Orissa v. Padmalochan Panda, AIR 1975 Ori 41; State of Madhya Pradesh v. Chironji Lal, AIR 1981 MP 65; Roop Lal Abrol v. Union of India and Ors., AIR 1972 J&K 22; State of Madhya Pradesh v. Premabai and Ors., AIR 1979 MP 85.
4.26 Though there are these alternate remedies, a review of the precedent shows that with respect to illegal detention, wrongful incarceration, and police/other investigating agencies’ misconduct, public law remedy under Articles 32 and 226 has been resorted to more heavily than the remedy of civil suits. One of the reasons being that the foregoing actions also entail violation of fundamental rights for which this is the Constitutional remedy, that also tends to be speedier compared to ordinary civil proceedings. Further, the Constitutional Courts have also on various occasions emphasised public law remedy as the remedy for calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the remedy by way of a civil suit or criminal proceedings.74
74 Ibid.
4.27 The Apex Court distinguishing public law proceedings from private law proceedings in D. K. Basu (supra) held that public law proceedings serve a different purpose i.e. to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Constitutional remedy for the established violation of the fundamental rights under Article 21 is for fixing the liability for the public wrong on the State, which in the first place failed in the discharge of its public duty to protect the fundamental rights of the citizen.
4.28 Further, `damages’ pursuant to a civil action are different from `compensation’ under Article 32 or Article 226, because the former is dependent on the rights available under the private law in an action based on tort, while the latter is compensation in the nature of exemplary damages. It is giving relief by way of making `monetary amends’ for the wrong done due to breach of public duty of protecting the fundamental rights of a citizen.
C. Criminal Law Remedy
4.29 In terms of the remedy for wrongful prosecution, incarceration on account of police and prosecutorial misconducts, the applicable criminal law provisions focus on the other end of the miscarriage of justice i.e. wrongdoers – the concerned public officials. These provisions, as contained in the Indian Penal Code, 1860 (IPC) and the Criminal Procedure Code, 1973 (CrPC), lay down the substantive and procedural contours of the action(s) that can be taken against the wrongdoers.
(i) Indian Penal Code, 1860
4.30 Chapter IX of the IPC titled `Of offences by or relating to Public Servants’, deals with offences which can be committed by public servants and the offences which relate to public servants, though not committed by them. Chapter XI titled `Of false evidence and offence against public justice’, lays down the offences which obstruct the administration of justice. The sections as contained in these chapters together list offences that provide possible instances of police, investigating agency and prosecutorial misconduct concerning an investigation, prosecution, trial and other criminal proceedings.
(a) Offences by or relating to Public Servants
4.31 With respect to the issue under consideration, sections 166, 166A and 167 under Chapter IX are to be taken note of. Section 166 criminalises willful departure from the direction of the law by a public servant with an intent to cause injury to any person. To make an offence under the section it is required that (i) the offender must have done the act `being a public servant’; (ii) there must be a direction of law which the public servant was bound to obey; (iii) public servant knowingly disobeyed such direction; (iv) by such disobedience public servant must have intended to cause or knew it to be likely to cause injury to a person. This section has been observed to be comprehensive and generally includes several offences involving abuse of official authority. Offence hereunder is punishable with maximum imprisonment for one year with or without fine.
4.32 While section 166 deals with the disobedience of any direction of law in a general sense, a relatively more specific provision as contained in section 167 deals with particular instance of a public servant assigned the duty of preparation of a document, incorrectly prepares, frames, translates such document. A false entry in his diary by a Station House Officer (SHO) to support an Inspector rendered him guilty under this section of intentionally framing an incorrect public record75. The section prescribes a maximum imprisonment of three either description upto 3 years, or fine, or with both.
75 Pasupuleti Ramdoss v. Emperor, 1911 MWN 64.
4.33 To constitute a charge under section 167, it is also required that such public servant knew or believed that he was incorrectly framing or translating the document, and that he did the same with the intent or with the knowledge that it was likely that he would thereby cause injury. The intention to cause injury to any person by perversion of official duty is a requirement under the section, however, it is notable that where the act is in itself unlawful, the proof of justification or excuse lies with the defendant; and in failure thereof, the law implies criminal intent.76
76 Krishna Govind Patil v. The State of Maharashtra, AIR 1973 SC 138. See also: Dattajirao Bhausaheb Patil v. The State of Maharashtra, (1971) 3 SCC 410; Woodfall (1770) 5 Burr. 2661.
4.34 In the case of State v. Saqib Rehman & Ors., Unique Case ID 02405R1310232005. the Sessions Court, Dwarka, New Delhi, vide its order dated 2 February 2011, made a finding that the concerned police officials had framed the persons accused in a false criminal case, fabricating evidence etc., and ordered lodging of a complaint against the concerned officials under sections 166 and 167, IPC, among others. In this case, the persons accused were already in illegal custody when the police officials scripted an encounter basing it on a `fake secret informer’ and showing an arrest of a later date.
4.35 In addition to the above, there is also section 166A, IPC, titled `Public servant disobeying direction under law.’78 This section lays down three kinds of derelictions of law by a public servant which would amount to an offence thereunder: public servant (a) knowingly disobeys any direction of law prohibiting him from requiring attendance at any place of any person for the purpose of investigation into an offence or any other matter; (b) knowingly disobeys, to the prejudice of any person, any direction of law regulating the manner in which he is to conduct such investigation; and sub-clause (c) fails to record FIR in relation to offence under certain sections specified therein. The punishment provided is minimum of 6 months rigorous imprisonment and maximum of 2 years, and fine.
78 Inserted vide the Criminal Law (Amendment) Act, 2013 with retrospective effect from 3 February 2013.
4.36 If a public officer abuses his office either by commission or omission, and that results in an injury to any individual, an action may be maintained for an offence under Section 166(A), IPC against such an officer; when a duty is performed arbitrarily or capriciously, or the exercise of power results in harassment and agony then responsibility will be fastened upon erring officials and they be will be punished accordingly.79
79 Vide: Bharatbhai Chandubhai Gadhia v. State of Gujarat, High Court of Gujarat, Order dated 19 March 2014 in R/SCR.A/951/2014. See also: Jagdeo & Ors. v. The State of Maharshtra & Ors., 2017 (2) BomCR (Cri) 832.
4.37 In addition to the above provisions in Chapter IX, sections 218 to 220 under Chapter XI also deal with disobedience on the part of public servants in respect of official duty. The said sections though better suited under Chapter IX are included in Chapter XI.
4.38 Section 218, IPC on the same lines as section 167, IPC criminalises intentional preparation of a false/incorrect record by a public servant with the intent to cause or knowing it to be likely to cause loss or injury to any person. It is wider in scope compared to section 167 because it includes within its purview incorrect preparation or framing with the intention of saving any person from legal punishment or saving some property from forfeiture or other charge. An offence under section 218, IPC is punishable with a maximum imprisonment of 3 years of either description, or with fine, or with both.
4.39 An Assistant Sub-Inspector making incorrect entries in the general diary was held guilty of offence under section 218, IPC.80 In Maulad Ahmed v. State of Uttar Pradesh, (1963) Supp 2 SCR 38 the Supreme Court observed that if a police officer manipulates the record such as police diary etc., it will be the end of honest investigation; and, such offences shall receive deterrent punishment.82
80 Vide: Ashfaq Ahmed, 1981 All LJ 871
82 See also: Sohan Lal v. State of Punjab, High Court of Punjab & Haryana Order dated 24 March 2011 in Crl. Revision No. 31 of 2011.
4.40 Section 219, IPC deals with corrupt or malicious exercise of power by public servants engaged in the discharge of judicial function; criminalising corrupt or malicious making or pronouncing of any report, order, verdict etc. by a public servant in a judicial proceeding knowing it to be contrary to law. An offence under this section is punishable with a maximum imprisonment of 7 years of either description, or fine, or with both.
4.41 This section is invoked only with respect to judicial proceedings. Further, there must the judicial proceeding actually commenced or pending, wherein a party claims relief against another and seeks the decision of the court in regard thereto, and there must be the making of real report or a real pronouncement of an order, verdict or decision.83 Where a report was submitted by the police before any order under sections 112 or 145, CrPC was made, it was held that the report did not fall within the scope of section 219, IPC even if the same was corruptly or maliciously furnished.84
83 Vide: Narapareddi Seshareddi (in re:), (1938) 39 Cr LJ 875
84 Vide: Kodali Puranchandra Rao v. Public Prosecutor, A.P., AIR 1975 SC 1925; see also: Ram Narain, 1980 Cri LJn (NOC) 55 All.
4.42 While section 219, IPC is specific in application, extending only to judicial officers, its following section 220 is more general and applies to any person in an office which gives him the legal authority to commit persons for trial or to confinement, such as a magistrate or a police officer. The section criminalises corrupt or malicious commitment for trial or confinement of any person by such an officer knowing that in so doing he is acting contrary to law. An offence under this section is punishable by a maximum imprisonment of 7 years of either description, or fine, or with both. Knowledge that confinement is contrary to law’ is a question of fact and not of law, and it must be proved in order to satisfy the requirement of section 220, IPC.85
85 See: Narayan Babaji, (1872) 9 BHC 346.
4.43 This section addresses executive abuses in intentionally illegally confining innocent persons. It is aimed at preventing abuse of power by officers with the power to commit persons to trial or confinement. One such instance, also relevant to the issue under discussion, would be the power of police under section 41, CrPC to arrest a person without warrant in certain cases, subject to the requirement under Article 22(2) of the Constitution i.e. to produce the person arrested before the magistrate within 24 hours. A failure on the part of the police to comply with the foregoing requirement without a reasonable cause would come under the purview of this section, making the concerned officer liable for punishment thereunder.
4.44 However, for the purposes of this section 220, IPC, unlawful commitment to confinement will not of itself warrant the legal inference of malice; it needs to be alleged and proved that the concerned officer corruptly and maliciously confined a person wrongfully.86
86 Sita Ram Chandu Lall v. Malikar Singh, AIR 1956 Pep 30; Narayan Babaji (1872) 9 BHC 346; Smt. Priya Dubey v. The State of Jharkhand, High Court of Jharkhand Order dated 13 November 2013 in Cr. M.P. No. 1146 of 2010.
4.45 Confining a person on suspicion but with the knowledge that it is contrary to law invokes section 220, IPC.87 If the confinement of a person is itself contrary to law, regardless of the legal authority of the officer to confine, it would be an offence under section 220, IPC.88 Excess of his legal powers of arrest by a police officer invokes the requirements of acting corruptly or maliciously or the knowledge that he was acting contrary to law under section 220, IPC. However, where the arrest is legal, there can be no guilty knowledge “superadded to an illegal act”, such as it is necessary to establish against the accused to justify a conviction under section 220, IPC.89 Interpreting the expression `maliciously’ as it appears in section 220, IPC, the Court observed that unlawful confinement to put pressure on the person confined to come to terms with a person in whom the accused is interested amounts to `malice’.90 The expression `corruptly and maliciously’ was also interpreted to include wrongful confinement for the purpose of extortion.91
87 T.K. Appu Nair v. Earnest & Ors., AIR 1967 Mad 262.
88 Afzalur Rahman & Ors. v. Emperor, AIR 1943 FC 18.
89 Vide: Amarsingh Jetha, (1885) 10 Bom 506. See also: Beharry Singh, (1867) 7 WR (Cr) 3.
90 Sita Ram Chandu Lall v. Malkiat Singh, AIR 1956 Pep 30.
91 Vide: Mansharam Gianchand and Anr. v. Emperor, AIR 1941 Sind 36. In this case a Sub-inspector who wrongfully confined certain persons on charges of gambling to extort money on threat of prosecution that he knew to be false, was held guilty under section 220, IPC.
(b) False Evidence and Offences Against Public Justice
4.46 Including the above-discussed sections 218 to 220, there are 44 sections in Chapter XI of IPC – relating to giving and fabricating of false evidence (Section 191 to 200), and to offences against public justice (Sections 201 to 229). With respect to the issue under discussion, this part of the report delves into the working of sections 191 (giving false evidence), 192 (fabricating false evidence), 193 to195 (punishment for the aforesaid), and 211 (false charge with an intent to injure).
4.47 Not specific to public servants, sections 191 and 192, IPC deal with the offence of giving or fabricating false evidence, where section 191 defines what amounts to giving false evidence. To make a statement false evidence within the meaning of section 191, IPC, it must be established that the accused was legally bound by an oath or an express provision of law to state the truth or to make a declaration upon any subject. And, the statement made by the accused must be a false statement and he must know or believe it to be false or must not believe it to be true. The essence of the section lies in intentional making of a false statement.
4.48 In Ranjit Singh v. State of Pepsu AIR 1959 SC 843. in a matter concerning illegal detention of a person by the police, the accused, a police officer when called upon to make a statement against an application under Article 226 of the Constitution for a writ of habeas corpus, filed a false affidavit denying that the man was ever arrested by the police or was in his custody. The Court held that the accused had committed the offence of giving false evidence under section 191, IPC.
4.49 Section 192, IPC criminalises fabrication of false evidence done with an intention that such evidence appear in a judicial proceeding, and cause an erroneous opinion touching any point material to the result of such proceeding. The essence of the offence lies in either making a false entry in any book/record or making a document or electronic containing a false statement so as to cause a judge, a public servant or an arbitrator to entertain an erroneous opinion upon any material point.93
93 Vide: Ashiq Mahomed v. Emperor, AIR 1936 Lah 330.
4.50 It is the duty of the police officers as well as government officials to allow a case to come before the court without fabrication or padding; prosecution not to determine the guilt of an accused in advance and deceive the court in to giving a verdict based on false evidence.94 It is to be noted that under both sections 191 and 192, IPC, mens rea is an essential element, making punishable `intentional’ giving or `intentional’ fabrication of false evidence.
94 Ashiq Mahomed (supra); Police padding evidence to establish a charge where evidence is otherwise weak is flagrant fabrication under section 192, IPC. (Vide: State of M.P. v. Babulal Ramratan & Ors., AIR 1958 MP 55).
4.51 Sections 193 to 195, IPC lay down the punishment for the giving and fabricating of false evidence including with the intent to procure conviction for offence punishable with capital punishment and life imprisonment. An investigating officer who was found to be concocting false evidence framing an accused for murder – was found to be guilty under section 194, IPC.95
95 Vide: Darshan Singh, 1985 CrLJ NOC 71 (P&H).
4.52 With respect to the issue of miscarriage of justice resulting in wrongful prosecution, the next important section is 211, IPC. Under this section it is an offence if a person with the intention to cause injury to another, either (i) institutes criminal proceedings against such person; or (ii) falsely charges him of having committed an offence, knowing that there is no just or lawful ground for such proceedings or charge. Phrased generally, this section is applicable to anyone who commits an offence thereunder – public or a public servant alike. In one of the early judicial pronouncements, section 211, IPC was interpreted to be specifically applicable to investigating agencies including the police when they bring a false charge of an offence with an intent to injure.96
96 Vide: Nabodeep Chinder Sirkar, (1869) 11 WR (Cr) 2.
4.53 The essence of section 211, IPC contained in the words “with intent to cause injury to any person, institutes any criminal proceedings knowing that there is no just or lawful ground” has been held to be parallel to the foundation for an action for malicious prosecution – without any reasonable or probable cause. The expression `reasonable and probable cause’ has been defined as the honest belief in the guilt of the accused based upon a full conviction, founded upon existence of circumstances, which would reasonably lead any ordinary prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed.97
97 Kapoor R. P. v. Pratap Singh Kairon, AIR 1966 All 66.
4.54 While invoking section 211, IPC what needs to be established is that the person making the statement constituting the charge, did so, with the intention and object of setting the criminal law in motion against the person against whom such statement is directed.98
98 See: State v. Bala Prasad, AIR 1952 Raj 142, the Court observed that the term `false charge’ is not giving of false evidence by a prosecution witness against an accused during the course of a criminal trial, it refers to a criminal accusation that sets in motion the process of a criminal investigation.
4.55 In an instance of prosecutorial misconduct, where false evidence lead to wrongful conviction of an accused under section 363, 366 and 376 IPC, the Court directed the authorities to register a case against the prosecutor under section 211, IPC.99 A false report by a head constable to superiors, leading to prosecution of an accused who was later acquitted, made the constable liable under section 211, IPC.100 On the other hand, in a case where the report by the police officer was found to be false by the Magistrate after hearing the evidence, but not resulting in criminal proceedings against the accused, the police officer was held not to be liable under section 211, IPC;101 thereby emphasising the element of `institution of criminal proceedings’ for establishing an offence under section 211, IPC. However, subsequently in another case, interpreting the expression “institutes or causes to be instituted any criminal proceeding”, the Court held that just the laying of information before a Magistrate constitutes institution of a criminal proceeding.102Similarly, providing information to a police officer which he has power to investigate and/or causing the officer to investigate the information amounts to institution of criminal proceedings.103
99 Jitendra (in jail) v. State of U.P., 2000 Cri LJ 3087 (All).
100 Rhedoy Nath Biswas, (1865) 2 WR (Cr) 44.
101 Thakur Tewary, (1900) 4 CWN 347.
102 Boaler, (1914) 1 KB 122.
103 Nanhkoo Mahton v. Emperor, AIR 1936 Pat 358.
4.56 Distinguishing the expression “instituting criminal proceedings” from “falsely charge any person with having committed an offence”104, the Supreme Court in Hari Das v. State of West Bengal, AIR 1964 SC 1173. held that the scope of section 211 is wide enough to include both. The expression `falsely charges any person’ as used in section 211, IPC means a false accusation, and there is no necessity of this false accusation being made in connection with a criminal proceeding.106 False charge must be made to a court or to an officer who has the power to investigate, send it for trial, who is in a position to get the other person punished.107
104 The term `offence’ as used here is not only limited to the offences under IPC, but also includes offence under any special or local laws.
106 Dasrathi Mandal v. Hari Das, AIR 1959 Cal 293.
107 Jamoona (1881) 6 Cal 620; Brajobashi Panda (1908) 13 CWN 398.
4.57 In addition to the intention to cause injury, another important requirement for proving an offence under section 211, IPC is that the accused should have known that there is `no just and lawful ground’ for the proceeding or the charge. It has been held that it is not enough that the person making the charge acted in bad faith, without due care of inquiry or maliciously or that he did not believe the charge to be true. Recklessness in acting upon information without scrutinising the sources, malice towards the person charged are all relevant evidence but the ultimate test under section 211, IPC is that the accused knew that there was no just or lawful ground for the proceedings; and the same must be proved.108
108 Murad (1893) PR No. 29 of 1894; See also: Badri Prasad Sharma v. Shanti Prasad Sharma, 1982 A Cr R 9; Ahmed Kutty (1963) 1 Cri LJ 597 (ker.); Mirza Hassan Mirza v. Mussammat Mahbuban (1913) 18 CWN 391; Chidda (1871) 3 N.W.P. 327.
4.58 In Santosh Singh v. Izhar Hussan, AIR 1973 SC 2190. the Supreme Court looking into section 211 on one hand, and sections 191 and 192 on the other, noted that the two are not intended to overlap, with proceedings under each optional to the other.
4.59 The offences described in the above-discussed provisions of Chapter IX and XI, IPC – public servant disobeying law, framing incorrect document, giving false evidence, fabricating false evidence, falsely charge a person of an offence – more often than not underscore the wrongful investigations, prosecutions, proceedings which are the subject of this report; but to make an offence under these sections there needs to be proven an element of mens rea (knowledge, intention) on the part of the accused thereunder. Mens rea in these cases is not only difficult to establish or prove in a court of law but also very often may not even be there for these cases of wrongful convictions, preceded by or entailing tainted investigations or other police and prosecutorial misconducts, also result from lack of due care, or negligence or recklessness on the part of the police or investigating agency and/ or prosecutors. Further, institution of criminal proceedings against a police officer/public servant is also subject to the procedural safeguards such as the requirement of Government sanction under section 197, CrPC (discussed in detail later in this Chapter).
(c) Case law
4.60 The aforesaid is evident from the caselaw, discussed hereafter, where the accused persons were wrongfully charged/convicted to be exonerated later on grounds of lapses and deficiencies in investigation; of the evidence submitted by the police and the prosecution being false, tampered with, fabricated, or was without any legal sanction; or of the prosecution’s case being unreliable.
4.61 In State v. Mohd. Naushad & Ors. (the 1996 Lajpat Nagar Bombing case),110 the Delhi High Court in its order noted that the police showed casualness, and that there were grave lapses on the part of the police – not recording the statement of witnesses support its case, complete absence of diary entries to corroborate the movements of the police – “all betray(ing) a slipshod approach.” The Court further noted that the flaw is in the understanding and implementation of the law by the police force. Highlighting prosecutorial misconduct, the Court noted that there was a flaw in the presumption of guilt, a violation of the principle that the burden of proof is on the prosecution – to prove the accused person’s guilt and not on the accused to prove his innocence.
110 Delhi High Court Order dated 22 November 2012 in Criminal Appeal Nos. 948, 949, 950 and 951 of 2010.
4.62 Similarly, in Adambhai Sulemanbhai Ajmeri & Ors. (supra), in an appeal against conviction order based primarily on the confessions of the accused, the Supreme Court highlighted various peculiarities and deficiencies in the method of investigation – the nature of confessions, the absence of independent evidence etc. The Apex Court specifically noted that there was fabrication of evidence, an attempt on the part of the investigating agency to fabricate and make a case against the accused person since they had not been able to solve the case even after almost a year of the incidence.
4.63 In the case of Mohd. Aamir Khan, who was wrongfully incarcerated for 14 years as the main accused in multiple terror cases, there appeared a uniform noting in all the cases against him with regard to the lack of incriminating evidence connecting the accused with the explosions. The Delhi High Court in one of the said cases Mohd. Aamir Khan v. State, 138 (2007) DLT 759. noted the above and setting aside the conviction, held that the prosecution has “failed to adduce any evidence to connect the accused with charges framed much less prove them”.
4.64 One of the gravest instances of miscarriage of justice resulting in an extremely long wrongful incarceration was in the case of Mohd. Jalees Ansari & Ors. v. Central Bureau of Investigation. AIR 2016 SC 2461. The accused Mohammad Nissarudin was taken in to police custody in the year 1994, then booked for a bomb blast in Hyderabad (October 1993), later booked under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) for bomb blasts in five trains in Mumbai (December 1993). Subsequently, after a `confession,’ Nissarudin was sent to a prison in Ajmer, where he spent the next 23 years – during which time, in 2005 a TADA court at Ajmer convicted him and gave him life sentence. In 2016, the matter reached the Supreme Court, where the Apex court, overturning the TADA court’s decision, ruled that the confession (which was taken in police custody) and formed the basis of the conviction did not have legal sanction and was inadmissible. And, after suffering through 23 long years of wrongful incarceration, Nissarudin was exonerated of all charges.
4.65 A report by the Jamia Teachers’ Solidarity Association highlights more of such cases where the accused persons were charged with offences of planning and causing bomb blasts, criminal conspiracy, collection of arms, training of terrorists etc., but later acquitted for the reasons of shoddy investigation and flimsy evidence, or that the prosecution’s case was doubtful and lacked credibility, or that there were procedural lapses and the investigating agency violated established legal norms, lacking transparency.113 The report also noted a certain pattern of procedural lapses and misconducts in investigations and prosecutions/proceedings of the cases discussed therein:
113 “Framed, Damned, Acquitted: Dossiers of `Very’ Special Cell”. A Report by Jamia Teachers’ Solidarity Association (2012). Available at: http://www.jamiajournal.com/wp-content/uploads/2012/09/JTSA-Report-Framed- Damned-and-Acquitted-Dossiers-of-a-Very-Special-Cell.pdf (Last Accessed: 16 August 2018).
(i) Illegal detention, where the time and date of the actual `picking up’ of the accused, as revealed during the trial, is earlier than that alleged in the police’s case.
(ii) Secret information, often central to the police’s case leading them to the accused cannot be verified or disclosed.
(iii) Public and independent witnesses are rarely joined in the actual operation, even in cases where the accused were apprehended in public places with people around.
(iv) Private vehicles used in the operation doing away with the need of maintaining logs, making it difficult to verify the information about the operation.
(v) Delayed seizure memos – not made at the time of actual seizure – made later in the police station, often found to be in the same handwriting and ink as the FIR.114
114 Ibid.
(i) Code of Criminal Procedure, 1973
4.66 Procedural embargoes to the substantive provisions of the IPC discussed hereinabove, sections 132 and 197, CrPC entail safeguards to protect judges and public servants from vexatious litigation with respect to their actions while performing a public function.115 While section 132, CrPC mandates sanction of the government for the prosecution of police officers for any act purporting to be done under section 129 to 131 CrPC, which deal with controlling an unlawful assembly that is alleged to have caused a breach of peace;116 section 197 requires that sanction be received from the Central or the State Government before any criminal proceeding is instituted against a police officer alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”.
115 Jaysingh Wadhu Singh v. State of Maharashtra, 2001 CrLJ 456 (Bom).
116 Nagraj v. State of Mysore, AIR 1964 SC 269, the Supreme Court held that under Section 132, if the accused police officer is able to establish that he attempted to disperse the unlawful assembly and that he used force only on the failure of such attempt, then he gets protection under Section 132, CrPC.
4.67 As a general guiding principle for invoking section 197, CrPC the Supreme Court in Subramanian Swamy v. Manmohan Singh & Anr. (2012) 3 SCC 64. held “….These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption”. Over the years, numerous judicial pronouncements have examined the scope of section 197, CrPC, and have ruled for police officers to have the protection of Section 197, CrPC, while also drawing exceptions for cases and situations where this protection will not be applicable.118 A few of these decisions are discussed hereinafter.
118 Baijnath v. State of Madhya Pradesh, AIR 1996 SC 220; Balbir Singh v. D.N. Kadian, AIR 1986 SC 345; S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841; Matajog Dubey v. H.C Bhari, AIR 1956 SC 44; Amrik Singh v. State of PEPSU, AIR 1955 SC 309.
4.68 In Dhannjay Ram Sharma v. M.S. Uppadaya & Ors.,AIR 1960 SC 745. the Supreme Court observed that before the protection of Section 197, CrPC can be claimed by an accused person but he has in the first instance to satisfy the Court that he is a Public Servant “not removable from his office save by or with the sanction of a State Government or the Central Government”, and next that the acts complained of, if committed by him were committed “while acting or purporting to act in the discharge of his official duty”.120
4.69 In P.P. Unnikrishnan v. Puttiyottil Alikutty121, a case of illegal detention and custodial torture, the Supreme Court discussing the scope of section 197(1), CrPC held that there must be a reasonable connection between the act in question and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable, and not just a pretended claim, that he did it in the course of his duty. The Court illustrated the foregoing with an example: if a police officer wrongly confines a person in lock-up for more than 24 hours without sanction of the court or assaults a prisoner, he is acting outside the contours of his duty, and therefore, not entitled to protection under section 197, CrPC.122
120 H. H. B. Gill v. The King, AIR 1948 PC 128, the Court observed that a public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to be within the scope of his official duty.
121 AIR 2000 SC 2952, a defence was raised by the police officers under Section 64 of the Kerala Police Act wherein there are procedural safeguards against initiation of legal proceedings against police officers acting in good faith in pursuance of any duty imposed or authority conferred by the State, the Court considered this provision to be based on the rationale of Section 197 of the CrPC.
122 See also: S.S. Khandwala (I.P.S.) Addl. D.G.P. & Ors v. State of Gujarat, (2003) 1 GLR 802, the Gujarat High Court held that the accused police officers would not get the protection under Section 197 because their acts of torture were clearly outside the scope of their official duty.
4.70 On the same lines, it was held in Rajib Ranjan & Ors. v. R. Vijaykumar, (2015) 1 SCC 513. as follows:
even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.124
124 See also: Shambhoo Nath Misra v. State of U.P. & Ors., (1997) 5 SCC 326.
4.71 With respect to the issue under consideration, reference needs to be made to Uttarakhand Sangharsh Samiti v. State of U.P.125, where the Court specifically held that acts of wrongful restraint and detention, planting weapons to show fake recoveries, deliberate shooting of unarmed agitators, tampering with or framing incorrect records, commission of rape and molestation etc. are neither acts done, nor purported to be done in the discharge of official duties; and that no sanction of the Government is required in ordering prosecution of such police officials. The Court also granted exemplary damages to the victims of police atrocities.
125 (1996) 1 UPLBEC 461, this case involved mass human rights violations including firing by the police and paramilitary forces on an assembly of protestors, resulting in the loss of many lives, mass scale molestation and rape, illegal detentions and incarceration of large number of persons. See also: H. H. B Gill (supra); Amrik Singh v. State of PEPSU, AIR 1955 SC 309; Matajog Dubey v. H.C Bhari, AIR 1956 SC 44; Balbir Singh v. D.N. Kadian, AIR 1986 SC 345.
4.72 The Courts have in a series of caselaw defined and whittled down the scope of section 197, CrPC, however, it appears that the procedural safeguards under the said section are often misused by the police officials by not allowing lodging of complaints or First Information Report (FIRs), thereby hindering the process of remedying police and prosecutorial misconducts.126
126 “Accountability for The Indian Police: Creating An External Complaints Agency”. Human Rights Law Network (August 2009). Available at: http://indiagovernance.gov.in/files/police_reforms.pdf (Last Accessed: 10 August 2018). See also: “Torture in India 2011′. Asian Centre for Human Rights (November 2011). Available at: http://www.indianet.nl/pdf/torture2011.pdf. (Last Accessed: 11 August, 2018)
4.73 In addition to these provisions in CrPC, there are also similar procedural safeguards vis-a-vis the police under a few of the States’ Police Acts and the Rules thereunder. Further, various High Court Rules also contain provisions with respect to instituting proceedings against police officials or other Government servants.
4.74 In this context, lastly reference needs to be made to the Supreme Court judgment in the case of The State of Uttar Pradesh v. Mohammad Naim,127 which laid down the guidelines for the courts to bear in mind while making remarks about police or other public officials and authorities’ “improper conduct”. The Apex Court in this case was reviewing Justice Mulla’s (of the Allahabad High Court) observation on police conduct inter alia, “…. That there is not, a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force….”, and held that courts of law while making observations on the objectionable and improper conduct of the persons and authorities whose conduct comes before them for scrutiny should consider: “.. (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.”.
127 AIR 1964 SC 703; see also: In the Matter of: K, a Judicial Officer, (2001) 3 SCC 54; Amar Pal Singh v. State of UP, AIR 2012 SC 1995.
4.75 Under the CrPC, another provision that merits a quick mention in this context is section 358 – providing for compensation to persons groundlessly arrested. From the wording of the section, it appears that it primarily targets groundless arrests instigated by one person against the other. It empowers the Court to order the person who has caused for a police officer to make such arrest to pay compensation to the person wrongfully arrested without any “sufficient ground”. That is to say, if a person is instrumental in causing a groundless arrest of a person through the police, the Court may order such person to pay compensation to the person so arrested to make up for his loss of time and expense. In order to invoke this section, there must be some direct and proximate nexus between the complainant – complaint/information provided and the arrest that is made on the basis of such complaint/information. There should be evidence to indicate that the informant caused the arrest of accused without any sufficient cause. The test should be that but for the efforts of the complainant the arrest could not have been made.128
128 Mallappa v. Veerabasappa & Ors., 1977 CriLJ 1856 (Kant.)
4.76 The person at whose instance the arrest was made may be ordered to pay compensation of maximum Rs. 1000/- to the person(s) arrested, and the amount thereof may be recovered as if it were a fine; Such person may be liable to be sentenced to simple imprisonment for a maximum period of 30 days if the ordered compensation amount cannot be recovered. Though addressing wrongful (groundless) arrests, this section is not directly relevant to the discussion herein for it does not address the police officer(s) making such an arrest, even if he were acting in collusion with the person who caused the arrest. Further, the modest amount of (maximum) compensation provided for in the section, hardly makes it a relief for the wrong done or the suffering caused, or a deterrent to preclude such wrongs from happening.
(ii) The Police Act, 1861
4.77 In addition to the above discussed provisions of IPC, a police official can be held liable for violating laws and rules through internal police mechanisms of remedial action such as those provided for under the Police Act, 1861. With provisions such as section 7, which deals with the “Appointment, dismissal, etc of inferior officers”; and section 29 that deals with “Penalties for neglect of duty etc.”
4.78 Such proceedings usually take place through internal disciplinary authorities that collect evidence and pass binding orders.129 As per the Act 1861, orders from these proceedings can be challenged before the High Court and the Supreme Court. However, it appears from caselaw on the issue that the powers of the courts in terms of interfering with the order(s) of these proceedings is largely contained to assessing the punishment given on the ground of proportionality.130
129 See: Dayal Singh & Ors. v. State of Uttaranchal, AIR 2012 SC 3046, the Supreme Court in this case directed the concerned authority to initiate disciplinary proceedings against a police officer even if such officer had retired, for dereliction of duty or misconduct in investigation. See also: Karan Singh v. State of Haryana & Anr., AIR 2013 SC 2348.
130 Ramanuj Pandey v. The State of M.P. & Ors., (2009) 7 SCC 248; B.C. Chaturvedi v. Union of India, AIR 1996 SC 484
D. Human Rights Commissions
4.79 The National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) established, under The Protection of Human Rights Act, 1993, have the power to inquire suo motu or on petitions filed for matters pertaining to human rights violations, which is often the case in matters of illegal detentions, wrongful investigations, incarcerations etc. However, it is pertinent to note that under the Act 1993, if the NHRC or a SHRC through inquiries has proven certain human rights violations or negligence in the prevention of violation of human rights or abatement by a public servant, it may only recommend to the concerned Government or authority to pay compensation to the victims or to prosecute the concerned wrongdoer (Section 18).
4.80 The Act 1993 does not specify if these recommendations are binding on the Government, nor does it empower the NHRC or SHRCs to give any directions to the Government or authorities in this regard. So, while every death in police and judicial custody is to be reported to the NHRC for scrutiny, irrespective of whether such death was natural or otherwise131, its role and powers are limited to advising the government to prosecute the concerned persons or grant relief to the victim. This lack of power to obtain compliance makes this remedy inefficacious on both the fronts – compensating the victim and holding the concerned public servant accountable.
131 “Guidelines on Procedure to be followed in case of Death during Police Action”. National Human Rights Commission. (May, 2010). Available at: http://nhrc.nic.in/documents/death%20during%20the%20course%20of%20police%20ac tion.pdf (Last Accessed: 10 August 2018); see also: “On Custodial Deaths/Rapes”. National Human Rights Commission. (December, 1993). Available at: http://nhrc.nic.in/documents/sec-1.pdf. (Last Accessed: 10 August 2018).
4.81 As is evident from the NHRC’s Annual Report for the year 2015 – 2016, in which out of a total of 332 recommendations of compensation made during the said year, 229 (i.e. 69%) recommendations remained not complied with by the concerned Government or authorities.132 Though dealing with one of the most crucial aspects of Rule of Law i.e. Human Rights and its violations, this dependence of the NHRC on the Government or authorities for execution of relief or proceedings makes it a rather weak institution/mechanism.
132 This status is as of 14 March 2017. “Annual Report 2015-2016”. National Human Rights Commission. (June 2017). Available at http://nhrc.nic.in/Documents/AR/NHRC_AR_EN_2015-2016.pdf. (Last Accessed: 11 August 2018). Further, as of 14 March 2017, a total of 437 of Commission’s recommendations for compensation/disciplinary action against the errant public servants remained not complied with, out of which, while 299 cases were pertaining to the year 2015-2016, 66 cases were pertaining to the year 2014-2015, and 72 cases were pertaining to the years 2008-2009 to 2013-2014.

CHAPTER – 5
Standard of `miscarriage of Justice’
5.1 One of the most critical aspects of laying down a legal framework for addressing miscarriage of justice, with respect to the issue under consideration, is identifying what amounts to miscarriage of justice. Whether the standard of miscarriage of justice should be wrongful prosecution, incarceration, conviction, or all three; also, what would constitute `wrongful’.
A. Standard to be applied to `Miscarriage of Justice’
5.2 The international law standard as laid down in the ICCPR133, and included in the law of compensation for miscarriage of justice of many Western countries (including the federal and state laws in the United States, Canada, Germany and others discussed in the previous chapter), recognize miscarriage of justice as resulting in `wrongful conviction’ by virtue of a final order, after all avenues of appeal have been exhausted and a new fact surfaces which then proves conclusively that the convicted person was factually innocent, and only in such case does the claimant qualify for the relief of compensation. The said standard bars compensation in cases where the conviction was (partly or fully) attributable to the claimant.
133 Article 14(6), ICCPR (supra).
5.3 This standard of miscarriage of justice is, therefore, invoked only when a new fact establishes factual innocence of the claimant after a final conviction order by the final appellate court and after all avenues of appeal have been exhausted; thereby recognizing `wrongful conviction’ (and suffering of punishment on its account) as the standard of miscarriage of justice. This standard if applied, however, will fail to consider the systemic shortcomings of the criminal justice system in India.
5.4 Firstly, this standard would not include within its purview forms of miscarriage of justice that an accused person may suffer even if they are eventually acquitted. For example, illegal and wrongful detention, torture in police custody, long incarceration, repeated denial of bail, among others. A requirement that all `avenues of appeal be exhausted and post which a new fact shows that there has been a miscarriage of justice’ does not work in the Indian conditions because of the delays in the criminal trial/appeal process; the accused person may be in the prison (or suffer otherwise) for the period which may be as long as or longer than the sentence for the offence for which he is ultimately acquitted.
5.5 The second issue in applying this standard is the parameter of `new fact proving factual innocence’ post the (final) conviction. In most of the western jurisdictions using this standard, given their advanced forensic investigation system, factual innocence is often proved through the use of DNA technology/evidence. For example, in the United States, since the early 1990s there is the Combined DNA Index System (CODIS) for the purpose of amalgamating forensic sciences and computer technology into an effectual apparatus for solving serious crimes.134 Similarly, in the United Kingdom, there is the National DNA Database (NDNAD), and the Criminal Justice and Public Order Act that allows the police to take DNA samples of the arrested person before the investigation process begins so as to make the process faster, and to eliminate innocents. In India, however, since the forensic investigation system is not that well developed, and the use of DNA based technology in criminal investigation and proceedings is yet to gain ground, the chances of DNA based evidence contributing towards the exoneration of innocents are very limited.
134 This was corroborated by the recent judgment of the US Supreme Court in Maryland v. King, 133 S. Ct. 1958 (2013), wherein it was held that officers making an arrest for a serious offence are authorized to take and analyse a cheek swab of the arrestee’s DNA and the same is legitimate under the Fourth Constitutional Amendment. See: Law Commission of India, Report No. 271 “Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology” (2017).
5.6 Thirdly, this standard excludes claims of compensation in cases where the conviction was partly or wholly attributable to the accused person; for example, causation of prosecution by the claimant such as confessing to guilt despite being innocent. This exclusion, if applied, would disqualify from relief cases where the accused are forced to confess under duress and they do so despite being innocent; a practice endemic to criminal investigations in India.135
135 See: Adambhai Sulemanbhai Ajmeri (supra); and Mohd. Jalees Ansari & Ors, (supra).
5.7 Further, if wrongfulness is understood as convicting a person of an offence of which they were factually innocent, it will create a hierarchy of acquittals – those who were factually innocent and those who were not. Currently, the Indian legal system presumes anyone who is not convicted of an offence to be innocent of it. This presumption of innocence would be in jeopardy by creating categories of innocent persons, and would seriously disadvantage those who cannot show that they were factually innocent. This is especially problematic because, as noted above, factual innocence is very difficult to prove.
5.8 In this manner, wrongful conviction is too high a standard, and there are many forms of miscarriage of justice that arise even though there is no conviction ultimately. This standard would therefore be under-inclusive in application in the Indian context.
5.9 The second standard is that of `wrongful incarceration’, i.e. miscarriage of justice resulting in wrongful incarceration – where the person has spent time in prison for an offence for which they may ultimately not be convicted, prosecuted, or even charged. This standard would invoke miscarriage of justice in all cases of acquittals where the person has spent some or substantial time in prison i.e. all cases with long-drawn trials resulting in acquittals.
5.10 Although addressing a very serious form of miscarriage of justice, this standard in application would be both over-inclusive and under-inclusive. Firstly, because not all cases of acquittals are a result of wrongful prosecution; acquittals may very well be on account of other reasons such as factual or legal errors, or the inability of the prosecution to prove the case beyond reasonable doubt, or the accused being given the benefit of doubt. But, this standard would include each of the cases where the person was incarcerated for whatever amount of time and was later found to be not guilty. A corollary of the foregoing would be relief being granted to those who may be factually guilty, but were acquitted for procedural reasons such as witness turning hostile etc. In this manner, this standard in practice will overshoot its intended objective.
5.11 Secondly, making only wrongful incarceration as the standard of miscarriage of justice will exclude such cases of wrongful prosecution (resulting in acquittal) where the accused was granted bail and/or did not spend any time in prison; but, they nonetheless suffered on account of such wrongful prosecution/charges – prolonged trial, social stigma, loss of employment, legal expenses and the mental and physical harassment etc. This standard of `wrongful incarceration’ in this manner would be under-inclusive.
5.12 The third standard is that of wrongful prosecution. This standard identifies miscarriage of justice as police or prosecutorial (procedural) misconducts resulting in malicious or negligent investigation or prosecution of an innocent person. It targets cases where the police or prosecution maliciously, falsely or negligently investigated or prosecuted a person who was found not guilty of the crime.
5.13 This standard is based on a finding that the accused was not guilty of the offence, but the police and/or prosecution engaged in some form of misconduct in investigating, charging and/or prosecuting the person. Since the qualifying threshold of this standard is wrongful prosecution, it would include both the cases where the person spent time in prison as well as where he did not; and cases where the accused was adjudged innocent by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty.
5.14 In the Indian context, the standard of wrongful prosecution should be the most effective for identifying the cases of miscarriage of justice as it directly targets procedural and other police and prosecutorial misconducts, which appears to be one of the primary sources of factual errors that results in innocent people being held guilty of offences they did not commit. As is evident from the cases discussed earlier in the Report (Chapter IV – `Current Scenario – Overview and Inadequacies’), bringing to light instances of police, investigating agency, and/or prosecutorial misconduct leading to wrongful prosecution of persons who were ultimately found not guilty in trial/appeal, with many of the court orders also recording a finding to that effect.
5.15 Reference is made to an Order dated 31 May 2018 of a Special CBI Court in CBI v. Om Prakash Aggarwal & Ors.136, where the Court noted the abuse of process of law, excess of discretion and jurisdiction and violation of the mandate of law by the IO (Investigating Officer) in booking innocent persons for a bank fraud; who were then acquitted, after a long trial of 14 years, for the lack of any incriminating evidence. The Court specifically observed that:
136 CC No. 39/2016 (Unique Case ID No.: DLST010000112003) in the Court of Savita Rao, Spl. Judge, (PC Act) CBI01, (South) Saket Courts: New Delhi.
It is astonishing to note that IO despite having come to the conclusion regarding ‘no misuse’ of power or breach or non following of the procedure by accused bank officers, yet decided to file the charge sheet against them.
5.16 The underlined determining factor of this standard is the malpractice on the part of the police, investigating agency, and/or the prosecution in the proceedings leading up to and/or during the wrongful prosecution of the accused, who was later found to be not guilty of the offence.
B. What amounts to Wrongful Prosecution’
5.17 Wrongful prosecution, as noted above, are the cases of miscarriage of justice where procedural misconducts – police or prosecutorial, malicious or negligent – resulted in wrongful prosecution of an innocent person, who was ultimately acquitted, with a court making an observation or recording a finding to that effect. The underlying sentiment being that such person should not have been subjected to these proceedings in the first place.
5.18 This section delves into the forms in which the said police and prosecutorial misconducts manifests. A review of the caselaw discussed earlier and other comparative examples shows that the said misconducts broadly surfaces in the form of disregard of procedural rules such as improper disclosure of information; falsifying or planting or fabricating evidence; withholding, suppressing or destroying exculpatory evidence; coercing confessions/recoveries or other abuse of process of law etc. Within the existing criminal law framework, to determine what could amount to such misconduct, reference can be made to the provisions contained in Chapters IX and XI of the Indian Penal Code (IPC) (discussed in detail in Chapter IV – `Current Scenario – Overview and Inadequacies’).
5.19 Based on the aforesaid, an illustrative list of procedural misconduct would include the following:
(i) Making or framing a false or incorrect record or document for submission in a judicial proceeding or any other proceeding taken by law;
(ii) Making a false declaration or statement authorized by law to receive as evidence when legally bound to state the truth – by an oath or by a provision of law;
(iii) Otherwise giving false evidence when legally bound to state the truth – by an oath or by a provision of law;
(iv) Fabricating false evidence for submission in a judicial proceeding or any other proceeding taken by law
(v) Destruction of an evidence to prevent its production in a judicial proceeding or any other proceedings taken by law
(vi) Bringing a false charge, or instituting or cause to be instituted false criminal proceedings against a person;
(vii) Committing a person to confinement or trial acting contrary to law; or
(viii) Acting in violation of any direction of law in any other manner not covered in (i) to (vii) above, resulting in an injury to a person.

CHAPTER – 6
Conclusion and Recommendations
A. Conclusion
6.1 After identifying `wrongful prosecution’ as the standard of miscarriage of justice and determining the contours of term `wrongful’, this chapter discusses the rectification of the said miscarriage i.e. how to make reparations for the same because mere acquittals are not enough. This chapter, therefore, concludes the Report with Commission’s recommendations on rectification of this miscarriage of justice resulting in wrongful prosecution.
6.2 A person wrongfully prosecuted though acquitted and released from jail is free to go back to his life; but is it actually possible for him to go back to the same life – the life he had before he were subjected to the ordeal of wrongful prosecution. For a person who has been accused of a crime, who underwent criminal proceedings (often long drawn), whose name and reputation has been affected for being accused and/or convicted of a crime he did not commit, who has spent time in prison for a crime he did not commit, there still lies an uphill battle even after acquittal.137
137 “For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence since the damning finger and opprobrious eyes of society draw no difference between the two….”, the Supreme Court in Thana Singh v. Central Bureau Of Narcotics (supra).
6.3 There needs to be recompense for the years lost, for the social stigma, the mental, emotional and physical harassment, and for the expenses incurred etc. There needs to be compensatory assistance by the State to help the innocent victims of miscarriage of justice, who have suffered through wrongful prosecution, to rehabilitate and to adjust to the life-after, and to reintegrate into society.
6.4 Article 14(6) of the ICCPR read with the General Comment 32 of the United Nations Human Rights Committee (supra), dealing with miscarriage of justice, requires that the victims of proven cases of such miscarriage to be compensated `according to law’. These provisions collectively create an obligation on the state parties to it to enact a legislation ensuring that the said victims are compensated, and such compensation is made within a `reasonable period of time’. As noted earlier, many countries including the United Kingdom, the United States, and Germany have converted this commitment into law, where the State has assumed statutory responsibility for compensating the victims of such miscarriage of justice. India ratified ICCPR in the year 1968 (with certain reservations) but is yet to comply with its obligations and enact a legislation laying down the law for compensation of the victims of this miscarriage of justice.
6.5 One of the reservations made by India, while ratifying ICCPR, was that the Indian legal system does not recognize the right to compensation for victims of unlawful arrest and detention.138 However, subsequently by virtue of judicial decisions, compensation was recognised as a remedy for redressal of miscarriage of justice resulting in violation of right to life and personal liberty including wrongful prosecution; albeit under public law as a claim of constitutional tort against the State, to be filed in the Constitutional Courts i.e. the Supreme Court and the High Courts.
138 See: “1st Peoples’ Tribunal on Innocent Acquitted, Report of the Jury, Towards a Framework for Compensation & Rehabilitation for Victims of Wrongful Prosecution/ Conviction”. Innocence Network India (October 2016). Available at: http://jtsa.in/document/Innocence%20Network%27s%201st%20People%27s%20Tri bunal%20-%20Jury%20Report.pdf) (Last Accessed on 25 July 2018).
6.6 From the landmark cases of Rudal Sah (supra), Nilabati Behera (supra), D. K. Basu (supra) to the 2016 case of Dr. Rini Johar (supra), the Supreme Court has recognised the remedy of recovering appropriate damages from the State as one of the telling ways in which the violation of fundamental rights can be prevented “…to mulct its violations in payment of monetary compensation”139. Holding monetary compensation for the suffering and humiliation as “a redeeming feature”140; “…an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement….to apply balm to the wounds of the family members of deceased victim who may have been the breadwinner of the family.”141. This view has also been echoed by various High Courts over the years, as was also observed in the Order dated 6 July 2018 of a Division Bench of the Madhya Pradesh High Court in the case of Durga @ Raja v. State of Madhya Pradesh Criminal Appeal No. 812 of 2008. and Nandu @ Nandkishore v. State of Madhya Pradesh, Criminal Appeal No. 866 of 2008. where the Court held that appellants who are innocent and have suffered because of poor investigation and tainted prosecution, deserve compensation from the State.
139 Rudal Sah (supra).
140 Dr. Rini Johar (supra).
141 D. K. Basu (supra); See also: `1st Peoples’ Tribunal on Innocent Acquitted, Report of the Jury, Towards a Framework for Compensation & Rehabilitation for Victims of Wrongful Prosecution/ Conviction’, Innocence Network India (October 2016); Available at: http://jtsa.in/document/Innocence%20Network%27s%201st%20People%27s%20Tri bunal%20-%20Jury%20Report.pdf). Last Accessed on 25 July 2018.
6.7 Despite the above, under the current set of remedies, claim and grant of compensation for the said miscarriage of justice still remains complex and uncertain. Under public law (as discussed earlier, in Chapter IV – `Current Scenario – Overview and Inadequacies’), a violation of fundamental rights due to police and prosecutorial misconduct can invoke State liability (as noted in the case laws discussed); but the amount and payment of compensation remains arbitrary and lacks transparency. In other words, despite decades of jurisprudence on compensation under public law, there is no set legislative principle regarding the basis for determining the award of compensation or its amount thereof.
6.8 It needs to be noted that Article 21 protects `life and personal liberty’, and by virtue of judicial pronouncements, deprivation of the `life and personal liberty’ invokes the aforesaid public law remedy of compensation, but there is no explicit provision in the Constitution of India for grant of compensation by the State for the infringement of right to life and personal liberty (as noted earlier in the Report). In this manner, the currently available remedies only create an ex gratia obligation, and not a statutory obligation on the State to compensate. A natural corollary of which is that while there is judicial precedent enabling a victim of the said miscarriage of justice to approach the Supreme Court and the High Courts under their respective writ jurisdiction for relief, there is still no statutory right of compensation for such victim/claimant.
6.9 The criminal justice system, as it stands, does not provide for an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions. As things stand, there is no statutory or legal scheme articulating the State’s response to this issue. Moreover, given the endemic and sensitive nature of the issue, and the glaring inadequacies of the available remedies, there is a pressing need for an explicit law for compensating the victims who have suffered miscarriage of justice at the hands of the State machinery – laying down State’s statutory obligation to recompense these victims of wrongful prosecution, and a dedicated judicial mechanism to give effect to the same.
B. Recommendations
6.10 The Commission at this time, accordingly, recommends enactment of specific legal provision for redressal of cases of miscarriage of justice resulting in wrongful prosecution – covering both the substantive and procedural aspects; i.e. a statutory and legal framework establishing the mechanism for adjudicating upon the claims of wrongful prosecution, and inter alia award payment of compensation by the State, if so determined. Consequently, creating a statutory obligation on the State to compensate the victims of wrongful prosecution, and a corresponding statutory right of compensation for the said victims. And, in such cases where the State pays compensation for the errant acts of its officials, it can seek indemnification from the concerned officials, and also initiate appropriate proceedings against them in accordance with law.
6.11 The need for a legislative framework for redressal of harms inflicted by wrongful prosecution arises on many counts. One of the most important being that the injustice caused to the innocents needs to be redressed within the framework of rights and not ex gratia by the State. The other being that there needs to be an established legislative process according a transparent, uniform, efficacious, affordable and timely remedy for the loss and harms inflicted on the victims on account of wrongful prosecution. In view of the foregoing, the core principles underlining the recommended legal framework would be as follows:
(i) Special Court: One of the most important considerations in creating this remedy framework is that the claims need to be decided as speedily and swiftly as possible. The element of speed and time efficiency particularly gains importance because the claim itself arises from unjustified prosecution (often prolonged), which the wrongfully accused and his family should not have been put through in the first place. Any process of relief so designed, therefore, needs to be speedy, expedient, and be made keeping in mind the interest of the claimant; and the most crucial aspect of this is the forum at which these claims are adjudicated.
Accordingly, the Commission recommends designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice jurisdiction should be made by the applicant, as follows: (i) either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred; or (ii) the Special Court within the local limits of whose jurisdiction the applicant resides.
(ii) Cause of Action: Within this legal framework, the cause of action for filing a claim for compensation would be that of `wrongful prosecution’, which ended with an order or judgment in favor of the accused, inter alia acquitting him. The ambit of `wrongful prosecution’ herein would include (i) malicious prosecutions; and (ii) prosecutions instituted without good faith.
Malicious prosecution, as included herein, means malicious institution by one against another of unsuccessful proceedings without reasonable or probable cause. Where the expression `reasonable and probable cause’ is the honest belief in the guilt of the accused based upon a full conviction, founded upon existence of circumstances, which would reasonably lead any ordinary, prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed144; the question being whether there was a case fit to be tried. The foundation of this cause of action lies in the abuse of legal process by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper cause.145
A prosecution instituted without `good faith’ would also be included within the purview of wrongful prosecution, giving rise to a claim for compensation hereunder. Section 52, IPC, laying down an exclusionary definition of the term `good faith’, says that no act is done in good faith if it is done without “due care and attention”146; where `due care’ denotes the degree of reasonableness in the care sought to be exercised147 – when holding an office or duty requiring skill or care, merely good intention is not enough but such care and skill as the duty reasonably demanded for its due discharge. Absence of `good faith’ can, therefore, be understood to mean negligence or carelessness;148 i.e. a prosecution instituted negligently without due care and attention would be included within the definition of wrongful prosecution under this legal framework.
144 R. P. Kapoor v. Pratap Singh Kairon, AIR 1966 All 66.
145 Mohammad Amin v. Jogendra Kumar, AIR 1947 PC 106.
146 “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.”: Section 52, IPC.
147 S.K. Sundaram, AIR 2001 SC 2374; Black’s Law Dictionary explains `reasonable care’ as “such a degree of care, precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent person would exercise under the conditions existing at the time he is called upon to act.” (Black’s Law Dictionary (8th ed. 2004).
148 Bux Soo Meah Chowdry, AIR 1938 Rang 350; see also: Harbhajan Singh v. State of Punjab & Anr., AIR 1966 SC 97.
(iii) Who can apply: A claim for compensation hereunder would be for the harm or damage caused to any accused person in body, mind, reputation or property as a result of the wrongful prosecution – i.e. for the `injury’ resulting from wrongful prosecution. The claim for compensation can be brought by the accused person so injured; or by any agent duly authorized by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.
(iv) Nature of Proceedings: Keeping in mind the objective of efficiency in terms of time and process, it is recommended that the Special Court for the purpose of inquiry and adjudication herein, follow summary procedures as may be prescribed. The standard of proof in these proceedings on probabilistic threshold will be that of `balance of probabilities’149; with the burden on the claimant (accused) to prove misconduct which lead to wrongful prosecution, and/or the misconduct during the prosecution which made it wrongful. The standard is the supposition of a prudent man faced with connecting probabilities or improbabilities concerning a fact-situation, after weighing the various probabilities and improbabilities, and arriving at the preponderance150 – i.e. whether a reasonable man could have come to the same conclusion.151
149 See: Mahesh Dattatray Thirthakar v. State of Maharashtra, AIR 2009 SC 2238; State of Rajasthan v. Netrapal, (2007) 4 SCC 45; and Sarjudas v. State of Gujarat, AIR 2000 SC 403.
150 Gulabchand v. Kudilal, AIR 1966 SC 1734. See also: Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534.
151 See: U.P. State Road Transport Corporation v. State of U.P., 2000 All LJ 1461.
Additionally, the framework will also include prescribed timelines for the disposal of the application, for payment of compensation; period of limitation for filing the claim for compensation, and for filing an appeal against the order of the Special Court.
Upon receiving an application for claim of compensation, the Special Court, after giving notice to the contesting parties (including the Central/State Government, as the case may be), and giving them an opportunity of being heard, inquire into the claim, and may make an award determining the compensation to be paid by the Central/State Government. The Special Court may also direct the concerned authorities to initiate proceedings against the erring official(s) in accordance with law.
(v) Compensation: The essence of a statutory response to the victims of wrongful prosecution lies in the relief provided to them, for that underlines the basic intent and objective of this law i.e. to assist the wrongfully accused/convicted in reintegrating into society or their lives for that matter. Accordingly, this statutory framework in addition to establishing the State’s liability to pay compensation in the proven cases of wrongful prosecution, will also elaborate on the relief i.e. compensation to be paid in such cases. While at this point, it does not appear feasible for the law to lay down a fixed amount of monetary compensation to be paid, the law will include the guiding principles/factors that a Special Court will be required to consider while determining the compensation including the amount of monetary compensation. There also needs to be a provision providing for interim compensation in certain specified category of cases, if applied for, for immediate assistance; to be paid pending the adjudication of the claim.
Compensation under this framework will include both pecuniary and non-pecuniary assistance to effectuate the rehabilitation of these victims of wrongful prosecution into society. While pecuniary assistance will be in terms of monetary award as may be determined by the Special Court; non-pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and such other similar services.
Non-pecuniary assistance shall also include a specific provision for removing disqualifications attached to a prosecution or conviction – particularly affecting wrongfully accused person’s chances of finding employment in public and private sectors; getting admission in an educational institution etc. The foregoing is of utmost importance because of the social stigma and other such disadvantages attached to a prosecution and conviction (notwithstanding that it was wrongful in the first place). In a criminal case, acquittal by a trial court or by the appellate court recording a finding that the accused had been wrongly implicated in a case must take away the stigma because the charges themselves stand washed off, i.e. in cases of honourable acquittals152. An order of acquittal operates retrospectively, and when given by the appellate court it also wipes out the sentence awarded by the lower court.153 To give practical effect to the foregoing, it is imperative to include a specific provision removing the aforesaid disqualifications. Such a provision, backed by statutory force, would go a long way in assisting the accused person to reintegrate into society.
152 “When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.”: Management of Reserve Bank of India v. Bhopal Singh Panchal, (1994) 1 SCC 541. See also: Baljinder Pal Kaur v. State of Punjab, (2016) 1 SCC 671; Deputy Inspector General of Police and Anr. v. S. Samuthiram, (2013) 1 SCC 598; and Commissioner of Police New Delhi v. Mehar Singh, (2013) 7 SCC 685.
153 B.R. Kapur v. State of Tamil Nadu & Ors., AIR 2001 SC 3435; and Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547.
The factors to be taken into consideration while determining the amount of compensation can be broadly categorised as `financial’ and `other factors’ including inter alia seriousness of the offence, severity of the punishment, the length of incarceration, loss or damage to health, psychological and emotional harm; status of the victim in the society, harm to reputation, loss of opportunities (of education, livelihood), loss of income/earnings, loss or damage to property.
6.12 The principles discussed in the Report are articulated in the Code of Criminal Procedure (Amendment) Bill, 2018, attached herewith as `Annexure’.

The Commission recommends accordingly.

Sd/-

[Justice Dr. B.S. Chauhan]

Chairman
Sd/-*

[Justice Ravi R. Tripathi]

Member
Sd/-

[Prof. (Dr.) S. Sivakumar]

Member
Sd/-

[Dr. Sanjay Singh]

Member-Secretary
Sd/-**

[Suresh Chandra]

Member (Ex-officio)
Sd/-

[Dr. G. Narayana Raju]

Member (Ex-officio)
* Note Away on leave.


Annexure

The Code of Criminal Procedure (Amendment) Bill, 2018
A BILL further to amend the Code of Criminal Procedure, 1973.
Be it enacted by Parliament in the Sixty-ninth year of the Republic of India as follows:
1. Short title and commencement. – (1) This Act may be called the Code of Criminal Procedure (Amendment) Act, 2018.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Amendment of Section 2. – In the Code of Criminal Procedure, 1973 (2 of 1974) (hereinafter referred to as the Code of Criminal Procedure), in section 2 ‘
(ii) after clause (j), the following clause shall be inserted, namely:’
`(ja) “malicious prosecution” means instituting the prosecution complained of without any existing reasonable or probable cause;’
(iii) after clause (x), the following clause shall be inserted, namely:’
`(xa) “wrongful prosecution” means malicious prosecution or prosecution instituted without good faith, which concluded in favour of the accused, and includes any of the following, namely:’
(i) making or fabricating a false or incorrect record or document for submission;
(ii) making a false declaration or statement before an officer authorised by law to receive as evidence when legally bound to state the truth that is to say by an oath or by a provision of law;
(iii) otherwise giving false evidence when legally bound to state the truth that is to say by an oath or by a provision of law;
(iv) fabricating false evidence for submission;
(v) suppression or destruction of an evidence to prevent its production;
(vi) bringing a false charge, or instituting or cause to be instituted false proceedings against a person;
(vii) committing a person to confinement or trial acting contrary to law;
(viii) acting in violation of any law in any other manner not specifically covered under (i) to (vii) above;’
3. Insertion of new Chapter XXVIIA. – In the Code of Criminal Procedure, after Chapter XXVII, the following chapter shall be inserted, namely:’
CHAPTER XXVIIA
Compensation to persons wrongfully prosecuted
Section 365A Application for compensation. – (1) An application seeking compensation for a wrongful prosecution may be made’
(a) by the accused person, who has sustained the injury; or
(b) by any agent duly authorised by the accused person, who has sustained the injury; or
(c) where the accused person died either before or after the termination of the wrongful prosecution, by all or any of the heirs or the legal representatives of the deceased:
Provided that where all the heirs or the legal representatives of the deceased have not joined in any such application for compensation, the application shall be deemed to have been made on behalf of and for the benefit of all the heirs and the legal representatives of the deceased.
Explanation 1. – In this section and section 365B, “injury” means any harm caused to any accused, of body, mind, reputation or property, actual or as a probable result of the wrongful prosecution.
Explanation 2. – In this section and sections 365B, 365C, 365D, 365E, 365F and 365I, “compensation” includes pecuniary or non-pecuniary compensation, or both; whereas the non-pecuniary compensation includes counseling services, mental health services, vocational or employment skills development, and such other services or assistance that the accused may require to facilitate reintegration into society.
(2) Every application under sub-section (1) shall be filed, at the option of the applicant, either in the Special Court having jurisdiction over the area in which the wrongful prosecution occurred or to the Special Court within the local limits of whose jurisdiction the applicant resides, in such form containing such particulars as may be prescribed.
(3) In case of longer incarceration exceeding six months, the Special Court may, after providing an opportunity of hearing to the applicant and the other parties, award interim compensation to the applicant, if so claimed, to facilitate his immediate rehabilitation, such compensation which shall not exceed fifty thousand rupees, but in any case shall not be less than twenty five thousand rupees.
(4)Every application for such compensation under subsection (1) shall be preferred within a period of two years from the date when acquittal attains finality:
Provided that the Special Court may entertain the application after the expiry of the said period of two years but not later than three years, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
Section 365B Option regarding claims for compensation in certain cases. – Notwithstanding anything contained in any other law for the time being in force, where an injury gives rise to a claim for compensation under this Chapter, or through any other remedy, the person entitled to compensation may claim such compensation under any one of these remedies to the exclusion of other remedies.
Section 365C Award of the Special Court. – (1) On receipt of an application for compensation made under section 365A, the Special Court shall, after giving notice of the application to the Central Government or as the case may be the concerned State Government, and after giving an opportunity of being heard to all the parties, hold an inquiry into the claim or, as the case may be, into each of the claims and, may make an award determining the just and reasonable compensation, specifying the person or persons to whom it shall be paid, and shall also specify the amount which shall be paid by the Central or the State Government concerned, as the case may be, and may also direct the Central or the State Government concerned to proceed against the erring official in accordance with law.
(2) The Special Court shall arrange to deliver copies of the award to the parties concerned, free of cost, within fifteen days from the date of the award.
(3) The application made under section 365A shall be disposed of within a period of one year from the date of receipt of the application.
Provided that in case the application is disposed of within the said period, the Court shall record the reasons in writing for not disposing of the application within the specified period.
(4) An application for interim compensation shall be disposed of within a period of ninety days from the date of service of notice to the respondent(s).
(5) On an award being made under this section, the person(s) who is liable to pay any amount in terms of such award shall, deposit the entire amount within a period of thirty days from the date of making the award in such manner as may be prescribed in the rules.
Section 356D Award of interest where any claim is allowed. – Where a Special Court allows a claim for compensation made under this Code, it may direct that in addition to the amount of compensation interest shall also be paid at the rate of six per cent per annum and from such date not earlier than the date of making the claim as it may specify in the award.
Section 365E Factors to be taken into account by the Special Court. – While adjudicating the quantum of compensation or interest under section 365C or 365D, as the case may be, the Special Court shall take into consideration the following financial and other factors, namely:’
(i) seriousness of the offence; severity of the punishment; the length of incarceration;
(ii) loss or damage to health;
(iii) loss of income or earnings;
(iv) loss or damage to property;
(v) legal fees and other consequential expenses resulting from the wrongful prosecution;
(vi) loss of family life;
(vii) loss of opportunities (of education, of possibilities of livelihood, future earning abilities, skills);
(viii) stigmatization that is harm to reputation or similar damage;
(ix) psychological and emotional harm caused to accused and his family;
(x) such other factors which the Special Court considers necessary as regards the claim in furtherance of justice.
Section 365F Removal of disqualification attaching to conviction. – Notwithstanding anything contained in any other law for the time being in force, a person who is awarded compensation for wrongful prosecution under section 365C shall not suffer any disqualification on account of such prosecution or conviction.
Section 365G Procedure and powers of Special Court. – (1) For holding an inquiry under section 365C, the Special Court may, subject to any rules that may be made in this behalf, follow such summary procedures as it thinks fit.
(2) The Special Court, while adjudicating a claim under this Chapter, shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:’
(i) the summoning and enforcing the attendance of any party or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness;
(vi) any other matter which may be prescribed.
(3) Subject to the provisions of this Chapter, a Special Court shall, for the purpose of the adjudication of a claim under this Chapter, have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed and shall adjudicate upon such a claim as if it were a Civil Court.
Section 365H Appeals. – (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Special Court may, within a period of ninety days from the date of the award, prefer an appeal to the High Court.
(2) No appeal by the person, who is required to pay any amount in terms of such award, shall be entertained by the High Court, unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is higher, in the manner as may be prescribed.
(3) The High Court may entertain an appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(4) No appeal shall lie against an award of a Special Court if the amount awarded is less than fifty thousand rupees.
Section 365I Power of State Government to make rules. – (1) The State Government may, by notification, make rules for the purpose of carrying out the purposes of this Chapter.
(2) Without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely: ‘
(a) the form of making application for claims for compensation and the particulars it may contain, to be paid in respect of such applications under sub-section (2) of 365A;
(b) the procedure to be followed by a Special Court in holding an inquiry under sub-section (1) and the powers vested in a Civil Court which may be exercised by a Special Court under sub-section (2)(vi) of section 365G;
(c) the form and the manner of the payment of amount for preferring an appeal against an award of a Special Court under sub-section (2) of section 365H;
(d) any other matter which is considered necessary.’.
(2) Every rule made by a State Government under this section shall be laid, as soon as may be after it is made, before the State Legislature.


List of Cases

1. Allarakha K Mansuri v. State of Gujarat, AIR 2002 SC 1051.
2. Adambhai Sulemenbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716.
3. Afzalur Rahman & Ors. v. Emperor, AIR 1943 FC 18.
4. Ahmed Kutty (1963) 1 Cri LJ 597 (ker.).
5. Ajab Singh v. State of Uttar Pradesh, (2000) 3 SCC 521.
6. Allarakha K Mansuri v. State of Gujarat, AIR 2002 SC 1051.
7. Amar Pal Singh v. State of UP, AIR 2012 SC 1995.
8. Amarsingh Jetha, (1885) 10 Bom 506.
9. Amrik Singh v. State of PEPSU, AIR 1955 SC 309.
10. Anwar v. State of J & K, (1977) 3 SCC 367.
11. Ashfaq Ahmed, 1981 All LJ 871.
12. Ashiq Mahomed v. Emperor, AIR 1936 Lah 330.
13. Ashok Sharma v. Union of India, 2009 ACJ 1063.
14. Ayodhya Dube & Ors. v. Ram Sumar Singh, AIR 1981 SC 1415.
15. B. C. Oraon v. State of Bihar, cited in M. P. Jain, Indian Constitutional Law Volume 1 (LexisNexis, Gurgaon, India Updated 6th Edition, 2013) 1618.
16. B.C. Chaturvedi v. Union of India, AIR 1996 SC 484.
17. B.R. Kapur v. State of Tamil Nadu & Ors., AIR 2001 SC 3435.
18. Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31.
19. Badri Prasad Sharma v. Shanti Prasad Sharma, 1982 A Cr R 9.
20. Baijnath v. State of Madhya Pradesh, AIR 1996 SC 220.
21. Balbir Singh v. D.N. Kadian, AIR 1986 SC 345.
22. Baljinder Pal Kaur v. State of Punjab, (2016) 1 SCC 671.
23. Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka & Ors., AIR 2012 SC 1395.
24. Beharry Singh, (1867) 7 WR (Cr) 3.
25. Bharatbhai Chandubhai Gadhia v. State of Gujarat, High Court of Gujarat, Order dated 19 March 2014 in R/SCR.A/951/2014.
26. Bhim Singh, MLA v. State of J & K & Ors. (1985) 4 SCC 677.
27. Bhimanna v. State of Karnataka, AIR 2012 SC 3026.
28. Bibhabati Devi v. Ramendra Narayan Roy, AIR 1947 PC 19.
29. Boaler, (1914) 1 KB 122.
30. Brajobashi Panda (1908) 13 CWN 398.
31. Brooks v. Commissioner of Police for the Metropolis & Ors., [2005] UKHL 24.
32. Bux Soo Meah Chowdry, AIR 1938 Rang 350.
33. CBI v. Om Prakash Aggarwal & Ors., CC No. 39/2016 (Unique Case ID No.: DLST010000112003) in the Court of Savita Rao, Spl. Judge, (PC Act) CBI01, (South) Saket Courts: New Delhi.
34. Chairman, Railway Board & Ors. v. Chandrima Das, AIR 2000 SC 988.
35. Chidda (1871) 3 N.W.P. 327.
36. Commissioner of Police New Delhi v. Mehar Singh, (2013) 7 SCC 685.
37. Common Cause, A Regd. Society v. Union of India, AIR 1999 SC 2979.
38. Consumer Education and Research Center & Ors. v. Union of India, AIR 1995 SC 922.
39. D. K. Basu v. State of West Bengal, AIR 1997 SC 610.
40. Dalbir Singh v. State of U.P., AIR 2009 SC 1674.
41. Darbara Singh v. State of Punjab, AIR 2013 SC 840.
42. Darshan Singh, 1985 CrLJ NOC 71 (P&H).
43. Dasrathi Mandal v. Hari Das, AIR 1959 Cal 293.
44. Dattajirao Bhausaheb Patil v. The State of Maharashtra, (1971) 3 SCC 410.
45. Dayal Singh & Ors. v. State of Uttaranchal, AIR 2012 SC 3046.
46. Deputy Inspector General of Police & Anr. v. S. Samuthiram, (2013) 1 SCC 598.
47. Devki Nandan v. State of Bihar, AIR 1983 SC 1134.
48. Dhaman Joy Sharma v. State of Haryana, AIR 1995 SC 1795.
49. Dhannjay Ram Sharma v. M.S. Uppadaya & Ors., AIR 1960 SC 745.
50. Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534.
51. Dr. Rini Johar & Anr. v. State Of M. P. & Ors., Criminal Writ Petition No. 30 of 2015, decided on 3 June 2016.
52. Durga @ Raja v. State of Madhya Pradesh, Criminal Appeal No. 812 of 2008.
53. Geeta v. Lt. Governor, 75 (1998) DLT 822.
54. Gopal Ramdas Sheyte v. State of Maharashtra, Criminal Writ Petition No. 3960 of 2015, decided on 5 May 2017.
55. Gulabchand v. Kudilal, AIR 1966 SC 1734.
56. H. H. B. Gill v. The King, AIR 1948 PC 128.
57. Harbhajan Singh v. State of Punjab & Anr., AIR 1966 SC 97.
58. Hari Das v. State of West Bengal, AIR 1964 SC 1173.
59. Hill v. Chief Constable of West Yorkshire, [1987] UKHL 12.
60. Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] SCC 41.
61. Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1369.
62. In the Matter of: K, a Judicial Officer, (2001) 3 SCC 54.
63. Inder Singh v. State of Punjab, (1995) 3 SCC 702.
64. Irving v. Australia, para. 8.4; No. 868/1999.
65. Jagdeo & Ors. v. The State of Maharshtra & Ors., 2017 (2) BomCR (Cri) 832.
66. Jamoona (1881) 6 Cal 620.
67. Janata Dal v. H. S. Chowdhary & Ors. AIR 1993 SC 892.
68. Jaysingh Wadhu Singh v. State of Maharashtra, 2001 CrLJ 456 (Bom).
69. Jitendra (in jail) v. State of U.P., 2000 Cri LJ 3087 (All).
70. Joginder Kaur v. State of Punjab, (1969) 71 PLR 85.
71. K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788.
72. Kamla Devi v. Govt. of NCT of Delhi, 114 (2004) DLT 57.
73. Kapoor R. P. v. Pratap Singh Kairon, AIR 1966 All 66.
74. Karan Singh v. State of Haryana & Anr., AIR 2013 SC 2348.
75. Kasturi Lal Ralia Ram Jain v. State of U.P, AIR 1966 SC 1039.
76. Khatri & Ors. v. State of Bihar & Ors., AIR 1981 SC 928.
77. Kodali Puranchandra Rao v. Public Prosecutor, A.P., AIR 1975 SC 1925.
78. Krishna Govind Patil v. The State of Maharashtra, AIR 1973 SC 138.
79. Mahesh Dattatray Thirthakar v. State of Maharashtra, AIR 2009 SC 2238.
80. Malkiat Singh v. State of U.P., (1998) 9 SCC 351.
81. Mallappa v. Veerabasappa & Ors., 1977 CriLJ 1856 (Kant.).
82. Management of Reserve Bank of India v. Bhopal Singh Panchal, (1994) 1 SCC 541.
83. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
84. Mansharam Gianchand and Anr. v. Emperor, AIR 1941 Sind 36.
85. Maryland v. King, 133 S. Ct. 1958 (2013).
86. Matajog Dubey v. H.C Bhari, AIR 1956 SC 44.
87. Maulad Ahmed v. State of Uttar Pradesh, (1963) Supp 2 SCR 38.
88. Mirza Hassan Mirza v. Mussammat Mahbuban (1913) 18 CWN 391.
89. Mohammad Amin v. Jogendra Kumar, AIR 1947 PC 106.
90. Mohd. Aamir Khan v. State, 138 (2007) DLT 759.
91. Mohd. Jalees Ansari & Ors. v. Central Bureau of Investigation. AIR 2016 SC 2461.
92. Mrs. Sudha Rasheed v. Union of India, 1995 (1) SCALE 77.
93. Munshi Singh Gautam v. State of MP (2005) 9 SCC 631.
94. Murad (1893) PR No. 29 of 1894.
95. Nabodeep Chinder Sirkar, (1869) 11 WR (Cr) 2.
96. Nageshwar Sh. Krishna Ghobe v. State of Maharashtra, AIR 1973 SC 165.
97. Nagraj v. State of Mysore, AIR 1964 SC 269.
98. Nandu @ Nandkishore v. State of Madhya Pradesh, Criminal Appeal No. 866 of 2008.
99. Nanhkoo Mahton v. Emperor, AIR 1936 Pat 358.
100. Narapareddi Seshareddi (in re:), (1938) 39 Cr LJ 875.
101. Narayan Babaji (1872) 9 BHC 346.
102. Nasiruddin v. State, 2001 CriLJ 4925.
103. National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234.
104. Neema Goyal v. Union of India, 2011 (125) DRJ 273.
105. Nilabati Behera v. State of Orissa. AIR 1993 SC 1960.
106. P.P. Unnikrishnan v. Puttiyottil Alikutty, AIR 2000 SC 2952.
107. Pasupuleti Ramdoss v. Emperor, 1911 MWN 64.
108. People’s Union for Civil Liberties v. Union of India & Ors., AIR 1997 SC 1203.
109. Peoples’ Union for Democratic Rights through its Secretary & Anr. v. Delhi Police Headquarters & Anr., (1989) 4 SCC 730.
110. Phoolwati v. National Capital Territory of Delhi, 84 (2000) DLT 177.
111. Prakash Singh Badal v. State of Punjab, AIR 2007 SC 1274.
112. Prempal & Ors. v. The Commissioner of Police & Ors, (2010) ILR 4 Delhi 416.
113. R (on the application of Adams) v. Secretary of State for Justice, [2011] UKSC 18.
114. R. P. Kapoor v. Pratap Singh Kairon, AIR 1966 All 66.
115. Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Anr., AIR 2011 SC 3393.
116. Rajib Ranjan & Ors. v. R. Vijaykumar, (2015) 1 SCC 513.
117. Ram Lakhan Singh v. State Government of Uttar Pradesh, (2015) 16 SCC 715.
118. Ram Narain, 1980 Cri LJn (NOC) 55 All.
119. Ramanuj Pandey v. The State of M.P. & Ors., (2009) 7 SCC 248.
120. Ramesh Harijan v. State of Uttar Pradesh, AIR 2012 SC 979.
121. Ranjit Singh v. State of Pepsu, AIR 1959 SC 843.
122. Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485.
123. Rhedoy Nath Biswas, (1865) 2 WR (Cr) 44.
124. Robinson v. Chief Constable of the West Yorkshire Police, [2018] UK SC 4.
125. Roop Lal Abrol v. Union of India and Ors., AIR 1972 J&K 22.
126. Rudal Sah v. State of Bihar, AIR 1983 SC 1086.
127. Rukia Begum v. State of Karnataka, AIR 2011 SC 1585.
128. S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841.
129. S.K. Sundaram, AIR 2001 SC 2374.
130. S.S. Khandwala (I.P.S.) Addl. D.G.P. & Ors v. State of Gujarat, (2003) 1 GLR 802.
131. SAHELI, A Women’s Resources center & Ors. v. Commissioner of Police Delhi & Ors., AIR 1990 SC 513.
132. Santosh Singh v. Izhar Hussan, AIR 1973 SC 2190.
133. Sarjudas v. State of Gujarat, AIR 2000 SC 403.
134. Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.
135. Shambhoo Nath Misra v. State of U.P. & Ors., (1997) 5 SCC 326.
136. Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921.
137. Sita Ram Chandu Lall v. Malikar Singh, AIR 1956 Pep 30.
138. Smt. Priya Dubey v. The State of Jharkhand, High Court of Jharkhand Order dated 13 November 2013 in Cr. M.P. No. 1146 of 2010.
139. Sohan Lal v. State of Punjab, High Court of Punjab & Haryana Order dated 24 March 2011 in Crl. Revision No. 31 of 2011.
140. Srinivas Ram Kumar v. Mahabir Prasad & Ors., AIR 1951 SC 177.
141. State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 5 SCC 712.
142. State of Bihar v. Rameshwar Prasad Baidya & Anr. AIR 1980 Pat 267.
143. State of M.P. v. Babulal Ramratan & Ors., AIR 1958 MP 55.
144. State of Madhya Pradesh v. Chironji Lal, AIR 1981 MP 65.
145. State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059.
146. State of Madhya Pradesh v. Premabai and Ors., AIR 1979 MP 85.
147. State of Madhya Pradesh v. Saheb Dattamal & Ors., AIR 1967 MP 246.
148. State of Maharashtra v. Ravi Kant Patil, AIR 1991 SC 871.
149. State of Orissa v. Duleshwar Barik, 2017 (I) OLR 824.
150. State of Orissa v. Padmalochan Panda, AIR 1975 Ori 41.
151. State Of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368.
152. State of Rajasthan v. Netrapal, (2007) 4 SCC 45.
153. State of Rajasthan v. Shera Ram, AIR 2012 SC 1.
154. State of Rajasthan v. Vidyawati Mst., AIR 1962 SC 933.
155. State of Uttar Pradesh v. Nawab Singh, AIR 2004 SC 1511.
156. State of Uttar Pradesh v. Premi, AIR 2003 SC 1750.
157. State v. Bala Prasad, AIR 1952 Raj 142.
158. State v. Mohd. Naushad & Ors., Delhi High Court Order dated 22 November 2012 in Criminal Appeal Nos. 948, 949, 950 and 951 of 2010.
159. State v. Saqib Rehman & Ors., Unique Case ID 02405R1310232005.
160. State v. T. Venkatesh Murthy, AIR 2004 SC 5117.
161. Sube Singh v. State of Haryana, (2006) 3 SCC 178.
162. Subramanian Swamy v. Manmohan Singh & Anr. (2012) 3 SCC 64.
163. Sunita v. State of National Capital Territory of Delhi, 151 (2008) DLT 192.
164. Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and Ors., (1994) 6 SCC 731.
165. Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and Ors. (1994) 6 SCC 731.
166. T. N. Dhakkal v. James Basnett & Anr. (2001) 10 SCC 419.
167. T.K. Appu Nair v. Earnest & Ors., AIR 1967 Mad 262.
168. Tasleema v. State (NCT of Delhi), 161 (2009) DLT 660.
169. Thakur Tewary, (1900) 4 CWN 347.
170. Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.
171. The ‘Ad Hoc’ Committee, the Indian Insurance Company Association Pool v. Smt. Radhabai, AIR 1976 MP 164.
172. The State of Uttar Pradesh v. Mohammad Naim, AIR 1964 SC 703.
173. U.P. State Road Transport Corporation v. State of U.P., 2000 All LJ 1461.
174. Union of India v. Ibrahim Uddin & Anr., (2012) 8 SCC 148.
175. Uttarakhand Sangharsh Samiti v. State of U.P., (1996) 1 UPLBEC 461.
176. Vibin P.V. v. State of Kerela, AIR 2013 Ker 67.
177. Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547.
178. Woodfall (1770) 5 Burr. 2661.


30 August 2018




Liability of the State in Tort- Law Commission of India Report No. 1

Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by M. Jagannadha Rao, Chairman, Law Commission of India, on ay May 11, 1956.

Chairman,
Law Commission,
New Delhi
May 11, 1956.

My Dear Minister,
1. I have great pleasure in forwarding herewith the First Report of the Law Commission on the Liability of the State in Tort.
2. The Commission was invited to consider the question by the Law Ministry in consequence of a communication received by the Ministry from the President of India.
3. The consideration of the subject was initiated by Sri Satyanarayana Rao, the senior Member of the section of the Commission dealing with Statute Law Revision who prepared a detailed study of the question and formulated certain proposals. After a preliminary discussion the matter was referred to a Committee of Sri Rao, Sri Pathak and Sri Joshi who after consideration approved in the main the proposals formulated by Sri Rao. The draft Report prepared by the Committee was circulated to all the members of the Commission and their views were invited thereon. These views with the draft report were discussed at meetings of the Statute Revision Section of the Commission held on the 11th February, 1956 and the 11th March, 1956. Important suggestions made by members at these meetings were accepted and it was left to the Chairman and Sri Satyanarayana Rao to finally settle the report in the light of the discussion at these meetings.
4. The Commission wish to acknowledge the services rendered by Sri Basu, the Joint Secretary, in connection with the preparation of the report.

Yours sincerely,
M.C. Setalvad.
Shri C.C. Biswas,
Minister of Law & Minority Affairs,
New Delhi.


Liability of the State in Tort

CHAPTER I

Introductory

1. Reference.—On the initiative of the President of India, the Law Ministry took up for consideration the question whether legislation on the lines of the Crown Proceedings Act, 1947 of the United Kingdom in respect of claims against the Union and the States based on tort is needed and, if so, to what extent. After the constitution of the Law Commission, the Law Ministry referred the matter to the Commission for consideration and report.
2. The law regarding the liability of the Union and the States in respect of contracts, property etc., is not in doubt. But the law relating to the liability of the Union and the States for tortious acts is in a state of uncertainty. It becomes necessary, therefore, to examine the existing law with a view to determine the extent of the liability of the Union and the States for tortious acts.

CHAPTER II

Existing Law In India

3. At the present moment, the liability of the Union and the States to be sued is regulated by Article 300 of the Constitution. It provides:
“The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.”

It would be noticed that under this Article, the liability of the Union and the States is the same as that of the Dominion and the Provinces of India before the Constitution came into force. But this, however, is subject to legislation by the Parliament or the Legislatures of the States. What then was the liability of the Dominion and the Provinces before the Constitution? To answer this question we are driven back to the provisions of the Government of India Act, 1858, by which the Crown assumed sovereignty over the territories in India which till then were under the Administration of the East India Company. Section 65 of that Act enacted:
“All persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable against the Secretary of State of India as they could have done against the said Company.”

This, it would be seen, preserves against the Secretary of State for India the same suits, remedies and proceedings which were till then available against the East India Company. East India Company. This provision was continued under the Government of India Acts, 1915 and 1935.1 The liability of the Dominion and the Provinces before the Constitution was thus the same as that of the East India Company before 1858. It is, therefore, incumbent on us to consider the question to what extent the East India Company was liable before 1858.
1. Vide Section 32 of the Government of India Act, 1915 and section 176(I) fo the Government of India Act, 1935.
4. The East India Company came into existence under a Charter of Queen Elizabeth of the year 1600. It started merely as a trading concern with a monopoly to carry on trade within certain geographical limits. Under various subsequent Charters it acquired certain judicial and legislative functions. It acquired territories. The sovereignty of the Crown in respect of acquisitions of territories made by the East India Company was reserved in the Charter of 1698. It was not, however, till 1833 that the sovereignty over the territories was directly assumed by the Crown. It was the Charter Act of 1833 that reduced the Company to the position of a trustee for the Crown in respect of the territorial possessions acquired by the Company. Under this Charter the Company was allowed to remain in possession of the territories for a further period but its monopoly of even the China trade and the tea trade was finally taken away. It was directed to close its commercial operations but retain its administrative and political power under the system of double Government instituted under the Charter. The Charter Act of 1833 contained elaborate provisions in respect of various matters. Section 9 of that Act continued the liability of the Company—liability then existing as well as to be incurred thereafter—which was charged upon the revenues. Section 10 of the Act which was similar in language to section 65 of the Government of India Act, 1858 provided:
“that so long as the Possession and Government of the Territories shall be continued to the said Company all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the said Company, in respect of such debts and liabilities as aforesaid, and the property vested in the said Company in Trust as aforesaid shall be subject and liable to the same Judgments and Executions in the same manner and form respectively as if the said property were hereby continued to the said Company to their own use”.

Under these provisions not only the contractual obligations but all liabilities then existing and all liabilities to be incurred thereafter by the Company were chargeable on the revenues and could be enforced by suit as if the assets belonged to the Company. There is no provision in any of the Charter Acts extending the immunity which the Crown in England enjoyed in respect of torts to the Company as it was a corporation having an independent existence and bearing no relationship of servant or agent to the Crown. It is clear from a judgment of Sir Erskine Perry in Dhackjee Dadajee v. East India Company, Morley’s Digest, 307, 329-30, that before the Charter Act, 1833, no distinction was made between acts committed by the Company in its political capacity and acts done by it in the exercise of its commercial activities. The learned Judge referred to the prior statutes at page 330 and observed that those statutes clearly provided for actions to be brought against the Company for torts and trespass of their servants committed in India and that the Charter of the Supreme Court established at Calcutta in 1774 expressly referred to the action of trespass against the Company without the slightest reference to any distinction between the political and commercial activities of the corporation. If that was the true legal position, it is clear that before 1833, section 10 of the Charter Act of 1833 made available and preserved the right to institute a suit against the Company, not only in respect of the then existing liabilities but also in respect of future liabilities. There is, therefore, no justification for drawing a distinction, as was done in later decisions, between sovereign and non-sovereign powers of the East India Company while interpreting section 65 of the Act of 1858. In the case decided by Sir Erskine Perry1, the trespass was committed by a Superintendent of Police under a warrant issued by the Governor-in-Council. Under various Acts, the Governors­in-Council of Calcutta, Madras and Bombay enjoyed immunity from suit in courts. The claim was, therefore, made for damages for trespass against the East India Company. While it was agreed that a corporation could be liable for trespass committed by its servants or agents, Perry J., dismissed the suit on the ground that the Company could not be made liable for acts not authorised by it or ratified by it or for acts over which the Company had no control. Further, the act complained of was done under the authority of the Governor and was one unconnected with the business of the company. Under section 10 of the Charter Act, 1833, the Company could be made liable only in respect of liabilities incurred by it and not by a superior authority like the Governor over whose acts it had no control. It is, however, significant that throughout the judgment no reference is made to the question of immunity of the Crown in England being extended to the Company. Notwithstanding the changes introduced by the Charter Act, 1833, the Company still remained an independent corporation having no sovereign character. The decision in the above case is important because it was given before the Act of 1856 and under the law then obtaining.
1. Morley’s Digest, 307, 329-30.
5. After the Act of 1858, there came the decision of Sir Barnes Peacock, C.J., and Jackson and Wells JJ., in the P. & 0. case1 and much of the conflict of judicial opinion in later decisions has arisen from certain expressions used in the judgment in that case. The actual decision in the case was that the Secretary of State for India in Council was liable for damages occasioned by the negligence of servants of the Government if the negligence was such as would render an ordinary employer liable. The learned Judges pointed out that the East India Company was not sovereign though it exercised Sovereign functions and, therefore, was not entitled to the immunity of the Sovereign. Though certain sovereign powers were delegated to the Company, the servants of the Company were not public servants. The learned Chief Justice stated as follows:
“But where an act is done or a contract is entered into, in the exercise of powers usually called sovereign powers by which we mean powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them, no action will lie.”2

1. 5 Bom HCR App I.
2. 5 Bom HCR App 1 (44).

The meaning of the expression “lawfully exercised except by a sovereign” was elucidated by the learned Chief Justice by a reference to certain decided cases. All these cases dealt with “Acts of State”, which were not subject to municipal jurisdiction. The judgment considered all the relevant provisions of the Charter Acts and the Government of India Act, 1858. It reached the conclusion that the Company was not sovereign and did not enjoy the immunity of the Crown and that prior to the Charter Act of 1833 no such immunity was allowed or recognised in respect of any acts done in the exercise of its powers except in respect of “Acts of State”. Nor did the Charter Act draw a distinction between sovereign and non-sovereign functions of the Company.
6. In Moment’s case,1 the decision in the Peninsular case,2 was accepted. That was a case of trespass and was concerned more with the question whether a local legislature had power to take away the right of action conferred by section 65 of the Act of 1858. The observations of their Lordships were, however, directed to the particular facts before them and the judgment did not in any manner approve the dictum of Sir Barnes Peacock, C.J., in the P. & 0. case,3. In Venkatarao’s case,4 their Lordships of the Judicial Committee considered section 32 of the Government of India Act, 1915, the language of which was similar to section 65 and expressed the view that the section related to parties and procedure and had not the effect of limiting or barring the right of action otherwise available to an individual against the Government. We do not, therefore, derive any clear guidance from these two decisions of the Judicial Committee.

1. I Cal II.
2. 5 Bom HCR App 1 (14).
3. 40 Cal 391 (PC).
4. 64 IA 55 on appeal from 57 Mad 85.

7. Two divergent views were expressed by the courts after the decision in the Peninsular case1. The most important decision is that of the Madras High Court in Hari Bhanji’s case2 decided by two eminent Judges of that Court, Sir Charles Turner, C.J. and Muthuswami Aiyar, J. The facts of that case, shortly, were that during the course of transit of salt from Bombay to Madras ports, the rate of duty payable on salt was enhanced and the merchant was called upon to pay the difference at the port of destination. The amount was paid under protest and the suit was instituted to recover the amount. The principal question which arose was the jurisdiction of the court to entertain the suit. The Calcutta High Court in an earlier decision in Nobinchandra’s case3 had taken the view that in respect of acts done in the exercise of its sovereign functions by the East India Company, no suit could be entertained against the Company. This position was examined by the learned Judges of the Madras High Court and two questions governing the maintainability of suits by a subject against the sovereign were considered. The first related to the personal status of the defendant i.e., whether the defendant was a sovereign, who could not be sued in his own courts. The second related to the character of the act in respect of which the relief was sought. The first question did not present much difficulty as the immunity enjoyed by the Crown in England did not extend to the East India Company, all the Charter Acts having recognised the right and liability of the Company to sue and to be sued. The second question regarding the nature of the act complained of was more difficult. It was held that the immunity of the East India Company extended only to what are known as “Acts of State” strictly so-called, and the distinction based on sovereign and non-sovereign functions of the East India Company was not well-founded. The cases before the Act of 1858 and the later cases were considered by the High Court.4 It was conceded that the immunity might also extend to certain acts done for the public safety though these acts would not be Acts of State. The decisions in the Tanjore case5 and Nabob of Arcot v. East India Company, 4 Brown’s Chancery Cases 81 may be taken as instances of “Acts of State”. It is significant that in neither of these cases was the decision, based upon a distinction between the exercise of sovereign and non-sovereign powers.
1. 5 Bom HCR App 1 (14)
2. 5 Mad 273.
3. I Cal II.
4. The decisions are summarised in Ilbert, Government of India, (196 & 202).
8. In the case of Forrester v. Secretary of State of India, IA Supp Vol., p. 55 where the act complained of could be done only in the exercise of sovereign power and not by a private citizen, the Privy Council upheld the jurisdiction of the court to entertain the suit. It was not an act done in relation to an independent sovereign but was a resumption of a jagir belonging to a private subject. It was, therefore, an act directed by the Executive against a subject within its territory and was not an “Act of State”. The importance of this decision is that the Judicial Committee did not consider that the exercise of sovereign power against a subject could not be questioned in a court of law. The levy of customs duty is undoubtedly a sovereign function; yet the Madras Judges in Hari Bhanji’s cases1 held that as it was an act, the justification for which was sought under the municipal law, the municipal courts had undoubted jurisdiction. That decision is noteworthy as laying down a test which can be applied with certainty. The question was recently considered in an exhaustive judgment by Chagla C.J., and Tendolkar J., who after reviewing all the decisions held that the Madras case laid down the law correctly.1 This view was approved by Mukherjea J. (as he then was), when the matter went up on appeal to the Supreme Court.2 Mukherjee J., accepted the definition of “Act of State” given in Eshugbay v. Government of Nigeria, 1931 AC 662 (671) The other learned Judges of the Supreme Court did not express any opinion on this point.
1. 5 Mad 273.
2. AIR 1949 Bom 277.
3. AIR 1950 SC 222: 1950 SCR 621 (696).
9. The other line of cases proceeded on the basis of a distinction between sovereign and non-sovereign functions. Seshagiri Iyer J., in Secretary of State v. Cockraft, 39 Mad 351 added a further test that if the State derived benefit from the exercise of sovereign powers, it would be liable. The decisions which have followed this line of reasoning are summarised in Appendix I. No attempt has, however, been made in these cases to draw a clear line of distinction between sovereign and non-sovereign functions.
10. In our view, the law was correctly laid down in Hari Bhanji’s case.
11. We have not considered it necessary to examine the liability of Part B States with reference to the law obtaining in the former Indian States, as we are concerned with the proposals for legislation relating to the whole of the territory of India.

CHAPTER III

The Law In England

12. In England, from very early times the King could not be sued in his own courts and the maxim that the “King can do no wrong” was invoked to negative the right of a subject to sue the King for redress of wrongs1. The rigour of the immunity, however, was relaxed by making a petition of right available to a subject for redress only in respect of certain wrongs relating to contract or property. In the beginning even the procedure by way of Petition of Right was cumbersome until it was modified by the Petitions of Right Act, 1860. But this Act did not alter the law relating to torts. The injustice of applying the rule of immunity was, however, realised very soon by the Crown and compensation was paid in proper cases by settling the mafter with the injured person. But this was as a matter of grace and not as of right. When the officer or servant who committed the tort was known and was impleaded as defendant in an action, the Crown stood by him and met his liability. In very many cases, however, it was not possible to fix the liability upon a particular servant or officer of the Crown. The device, therefore, of impleading as defendant any officer of the Crown and defending the action in his name was adopted. But this practice was condemned by the House of Lords in Adams v. Naylor, 1946 AC 543 which was followed later in Royster v. Cavey, 1947 KB 204. These decisions gave the immediate provocation to revive the Bill of 1927, relating to Crown Proceedings and finally led to the passing of the Crown Proceedings Act, 1947.
1. Vide Canterbury v. Att. General, I phillips, 306 (327).
13. There was another method by which the person injured could get the remedy not only against the servant but also against certain public authorities, or public corporations. Owing to the increase in governmental activities in a welfare State, the government departments were separated and were given the position of statutory corporations with the right and liability to sue and to be sued. There are now as many as 31 departments. Some of them are parts of the Crown, some are incorporated either by statute or by Crown and some, though not incorporated, have been given the power to own property or to enter into contracts and to sue and be sued in respect of the same. The Ministry of Fuel and Power Act, 1945, section 5(1), Ministry of Civil Aviation Act, 1945, section 6(1), Ministry of Defence Act, 1946, section 5(v)(i), Merchant Shipping Act, 1894, section 460(1), Post Offices Act, 1908, section 45(1) give some examples of departments which could be sued, but there is no specific provision in the Acts except two, i.e. Merchant Shipping Act and Ministry of Transport Act [section 26(1)], for liability for torts of the servants and agents of the department. Notwithstanding the absence of an express provision making the corporations liable for torts, it was held that the very corporate existence carried with it the right to sue and the liability to be sued. This was the view of Phillimore J., in Grahams case (1901) 2 KB 78, followed in Ministry of Works v. Henderson, (1947) 1 KB 91 see also 1941 AC 328 : 19 Can Bar Rev 543 and the view of Phillimore J., though there was difference of opinion, prevailed. The question was debated whether the immunity of the Crown would not extend to such departments and corporations. In the recent case of Tamlin v. Hannaford, (1951) 1 KB 18 the question arose whether the Rent Restriction Acts would apply to houses owned by the railway authorities. Though the Transport Commission is a public authority and exists for public purposes, it was held that it was in no sense a department of the Government and its powers did not fall within the province of Government. On this ground it was decided that the immunity of the Crown did not extend to the Transport Commission and that it was bound by the Rent Restriction Acts.
14. In Mersey Docks Harbour Board v. Gibbs, 1866 LR 1 HL 93 Blackburn J., held that in the absence of anything showing a contrary intention in the statutes which create such corporations, the true rule of construction is that the legislature intended that the liability of the corporation thus substituted for individuals should, to the extent of the corporate funds, be co-extensive with that imposed by the general law on the owners of similar works. It followed, therefore, that these corporations could be made liable for the torts committed by their servants. But the liability did not extend to the departments of Government which were not corporations. It may be possible that notwithstanding their corporate existence they may yet be considered to be agents, or servants of the Crown. Prof. W. Friedman examined the legal status of the incorporated public companies in a learned article in 22 Australian Law Journal, page 7. He divided public corporations into two categories: industrial and commercial public corporations such as the National Coal Board, Electricity Authority, Transport Commission and Airways Corporation and Social Service Corporations such as the Town Development Corporations, Regional Hospital Boards, the Central Land Board and the Agricultural Land Commission. The first category of corporations, it would be seen, are merely substitutes for private enterprise and are designed to run an industrial or public utility service according to economic or commercial principles but in the interests of the public. They are, therefore, undoubtedly liable for torts committed by their servants and the immunity of the Crown does not extend to them. There is no reason to place social service corporations on a different footing. The learned author concluded that the very corporate existence carried with it the liability to sue and to be sued and that there was no relationship of master and servant or principal and agent between the corporations and departments of the Government. The liability of the Hospital authorities was originally negatived but after they were taken over by the State, it was held recently that the hospital authorities were liable for torts committed by the negligence of the staff (Cassidy v. Ministry of Health, (1951) 2 KB 343). The test of control to determine the relationship of master and servant is now changed to that of organisational liability. To a large extent, therefore, liability for torts committed by servants, where incorporated departments were substituted for private enterprise, was transferred to such authorities and the rigour of the immunity rule was in practical working modified by the device of incorporation. After the Crown Proceedings Act, the position of public corporations in relation to the Crown raises the question whether they are servants of the Crown within the meaning of section 2(6) of the Act. The question has not yet been finally settled by the courts in England.
15. Crown Proceedings Act.— The Crown Proceedings Act altered the law relating to the civil liability of the Crown in many respects. We are concerned here only with the question of the extent to which the Crown was made liable under the Crown Proceedings Act for torts. The relevant provisions relating to this topic are sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 38, 39 and 40.

These provisions may be classified under three heads:
(1) liability of the Crown under common law;

(2) liability for breach of statutory duties and powers;

(3) exceptions under the Act exonerating the Crown from liability.

16. The doctrine that the “The King can do no wrong” which is a relic of the old feudal system and on which the immunity of the Crown was based, was not entirely abrogated by the Act. Under the Act the extent of the liability of the Crown in tort is the same as that of a private person of full age and capacity. The Bill of 1927 used the expression “act, neglect or default” while the word “tort” is used in section 2(1) of the Act. The alteration of the language is, no doubt, deliberate. Act, neglect or default would apply to tort as understood under common law and to breaches of statutory duties as well. Section 2(1)(a), (b) and (c) refer to the liability for tort under common law. Some of the principles of common law were modified by statutes. Whether the statutory modifications are also attracted by referring to common law in section 2(1) of the Act, may be a question that would arise in the construction of the Act. But as section 2(1) opens with the words “that the Crown shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity it would be subject”, there may not be room for argument that the statutory modifications will not be attracted, the liability of the Crown being equated to that of a private person. For example, the Fatal Accidents Act, which gives a cause of action in case of death does not bind the Crown but expressly modifies the common law rule that an action dies with the person. Under that Act, a private person would be liable to the dependants of the deceased who was wronged and there is no reason to exclude the liability of the Crown in such an event.
17. There is no scientific definition of “tort” and it is not possible to give one. The learned authors Clark & Lindsell on Torts (Eleventh Edition) prefer the definition given by Winfield, viz.,
“Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”1

1. Clerk & Lindsell on Torts, 11th Ed., p. 1.
18. Section 2(1)—The common law duties for the breach of which the Crown is liable under this Act may be considered under three heads:—
The first relating to the liability of the master for the torts committed by servants or agents or what is customarily treated as the vicarious liability of the master.
The second relating to the liability of the master to his servants or agents in his capacity as an employer.
The third relating to the duties which arise at common law by reason of the ownership, occupation, possession or control of property.
19. The proviso to section 2(1) adds a qualification to the vicarious liability of the Crown for the torts committed by its servants [clause (a)], namely, that the act or omission should give rise to a cause of action against the servant or agent or his estate apart from the provisions of this Act. In other words, if the servant himself could not be sued in respect of the tort committed by him, the Crown would not be liable. It was probably intended to exclude the liability when the servant has the defence of an “Act of State” open to him or in the extreme case which arises in England when the tortfeasor is the husband of the person wronged, as the wife could not sue the husband under the English law for torts committed by him against her. This latter restriction does not arise in India and, therefore, need not trouble us. If the defence of “Act of State” is open to the servant, the wrong does not become a tort and the Proviso was, accordingly, criticized by a learned author (Mr. Street) as unnecessary.
20. Vicarious liability of the master.—The question that arises in limine is to consider who a “servant” is. Section 38(2) of the Act defines an “officer” in relation to the Crown as including any servant or agent of His Majesty and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minister of the Crown. “Agent” is defined in section 38(2). Section 2(6) defines “officer” for the purpose of section 2. This definition has been severely criticised on the ground that it excludes very many officers who hold office under common law such as the police who are appointed by the local authorities in England. It is unnecessary to consider these difficulties as under the Indian Constitution the question of definition of an officer or servant or agent of the Union and the States does not present any such difficulties. The definition of “Agent” includes an independent contractor. But section 40(2)(d) makes it clear that the Crown is under no greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than those to which the Crown would be subject in respect of such acts or omissions if it were a private person. The exceptional cases in which a private person is liable even for torts of an independent contractor are enumerated in all the text-books1.
1. Clerk & Lindsell on Torts, 11th Edn., p. 137.
21. Principles governing master’s liability.—The principles governing the liability of the master for torts committed by servants are discussed in Clark & Lindsell, section 19, page 118 and those principles govern the Crown also as the Crown is placed in the position of a master. No distinction should, however, be made based on the nature of the functions whether sovereign or non-sovereign and whether they could be such as a private person could or could not exercise. The language of the Crown Proceedings Act is not quite clear on this point.
22. Defence of common employment.—The defence of common employment was negatived by the Law Reform (Personal Injuries) Act, 1948 and any provision in a contract excluding or limiting the liability of an employer for personal injuries caused to an employee by the negligence of persons in common employment with him is void. By implication, section 2(1)(a) of the Crown Proceedings Act would also apply to torts committed by a servant against his co-employee as he would be in the position of a stranger. Section 4 of the Act expressly mentions the Law Reform (Married Women and Tortfeasors) Act, 1935 as binding on the Crown but does not mention the Fatal Accidents Act. The Law Reform (Personal Injuries) Act, 1948 itself provides that it is binding on the Crown (section 4). Section 10(1) creates an exception in respect of the Armed Forces and enacts an absolute doctrine of common employment. Section 10(2) creates another exception.
23. The Crown as master and its liability to servants.—The liability of the Crown as master to its servants is, again, restricted to the common law liability. A master’s duty to take reasonable care and to provide adequate plant and appliance is discussed in Wilson Clyde Coal Co. v. English, 1935 AC 57.

These duties are:
(1) to employ competent servants;

(2) to provide and maintain adequate plant and appliances for the work to be carried out;

(3) to provide and maintain a safe place of work;

(4) to provide and enforce a safe system of work.

Section 2(1)—The provision, in section 2(1)(b) does not attract the duties imposed by statute on a private employer as it is restricted to common law liability. The State in the present day is, perhaps, the biggest employer of workmen in various industries. The State also provides public utility services, runs transport and in respect of such operations, the Factories Acts, and the Employers’ Liability Acts, impose various duties on persons carrying on such operations. These are not included within the liability imposed on the State under clause (b) of section 2(1). They are provided for separately. To what extent the Crown is liable for the statutory duties thus imposed by law will be considered presently.
24. Clause (c) provides for the breach of common law duties in respect of property. Liability may arise in different ways: Liability to invitees or licensees injured in dangerous premises and liability for nuisance for the escape of noxious things, are some of the instances. Section 40(4) provides that no liability shall rest upon the Crown until the Crown or some person acting for the Crown has in fact taken possession or control of any such property, or entered into occupation of such property. This is because the liability attaches by reason of the fact that the property is in the occupation or possession of the Crown. Section 2(b) and (c) impose liability on the Crown only in respect of its breach of duty but no liability in respect of tort of a servant.
25. Statutory duties and powers.—Before considering sections 2(2) and 2(3) of the Crown Proceedings Act, which relate to the liability of the Crown with regard to statutory duties and powers, it is necessary to bear in mind the nature of the liability that arises in this connection. It is unnecessary to refer to the decisions which deal with this matter elaborately and it will be sufficient to refer to two decisions which have settled the law in England.
26. Statutory duties.—Breach of statutory duties, which gives rise to liability analogous to torts is treated as a group of torts which are sui generic. Lord Wright deals with the nature of the action and the basis of it.1 He says at page 168:
1. 1949 AC 155.
“I think the authorities such as Caswell’s, 1940 AC 152 case, Lewis v. Denye, 1940 AC 921 and Spark’s, 1943 KB 223 case show clearly that a claim for damages for breach of a statutory duty intended to protect a person in the position of the particular plaintiff is a specific common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff his right to the performance by the defendant of the defendant’s statutory duty. It is an effective sanction. It is not a claim in negligence in the strict or ordinary sense; as I said in Caswell’s, 1940 AC 152 case. ‘I do not think that an action for breach of a statutory duty such as that in question is completely or accurately described as an action in negligence. It is a common law action based on the purpose of the statute to protect the workmen, and belongs to the category often described as that of cases of strict or absolute liability. At the same time it resembles actions in negligence in that the claim is based on a breach of a duty to take care for the safety of the workman’. But whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim.”

It would be seen that whether the breach is of a statutory duty or of a common law duty, there is a common law action for damages. The source of the obligation or the duty is, no doubt, different. If there is breach of a statutory duty, it may be presumed that there is negligence. In the case of a common law duty, the duty itself has to be established before its violation is proved giving rise to a claim for damages. It follows, therefore, whether there is a breach of statutory duty or not, there may be a common law action for negligence.
27. Statutory powers.—In the case of statutory powers, Lord Greene, M.R., in Fisher v. Ruislip U.D.C. exhaustively reviewed the cases and enunciated at page 592 the following principles:
“The duty of undertakers in respect of the safety of works executed under statutory powers has been considered on many occasions. Statutes conferring such powers do not as a rule, in terms, impose a duty on the undertakers to exercise care in the construction or maintenance of the works. No such duty was imposed by the Civil Defence Act, 1939 in respect of shelters constructed under its powers. Nevertheless, it is clearly established that undertakers entrusted with statutory powers are not in general entitled, in exercising them, to disregard the safety of others. The nature of the power must, of course, be examined; before it can be said that a duty to take care exists, and if so, how far the duty extends in any given circumstances. If the legislature authorises the construction of works which are in their nature likely to be a source of danger and which no precaution can render safe, it cannot be said that the undertakers must either refrain from constructing the works or be struck with liability for accidents which may happen to third persons. So to hold would make nonsense of the statute. If, on the other hand, the legislature authorises the construction and maintenance of a work which will be safe or dangerous to the public according as reasonable care is or is not taken in its construction or maintenance, as the case may be, the fact that no duty to take such care is expressly imposed by the statute cannot be relied on as showing that no such duty exists. It is not to be expected that the legislature will go out of its way to impose express obligations or restrictions in respect of matters which every reasonably minded citizen would take for granted.”

Except, therefore, where the legislature authorised the construction of a work which by its very nature is likely to be a source of danger, the common law obligation of taking reasonable care is cast upon the authority exercising a power. Whether a statutory authority or statutory power is exercised, one cannot escape liability if one fails to take reasonable care to avoid injury and thus be guilty of negligence. These principles should govern equally whether the authority exercising the power is the government, a local authority, or a private person.
28. Public duties.—There are, of course, public duties of a State, such as, a duty to provide education but such duties do not give rise to a cause of action as the very foundation of an action for tort is that the right of a private person is infringed by breach of a certain duty. No rights would be created in favour of a private person in respect of public duties.
Incidentally, we may mention that in Italy a distinction is recognised between right (diritto) and legitimate interest (interesse legitimo). In the case of public duties a subject may have an interest but no right, whereas in the case of duties owed to particular persons or class of persons a right is involved. The violation of a public duty does not cause an injury to any person by infringing any right of his and does not constitute a tort. With this background, sub-sections (2) and (3) of section 2 of the Crown Proceedings Act may now be considered.
29. Section 2(2).—In order to exclude from the purview of the Act public duties and Governmental functions, sub-section (2) of section 2 limits the responsibilities of the Crown for Breach of a statutory duty only if such statutory duty is also binding upon persons other than the Crown and its officers; in other words, it is a duty imposed both upon the Crown and its officers and other persons as well, e.g., under the Factories Act. But there are other Acts which impose a statutory duty upon private persons but which do not bind the Crown. And the Crown in such cases naturally relies upon the presumption that an Act of Parliament is not binding unless the Crown is expressly mentioned or is bound by necessary implication. The propriety of the continuance of this rule in a modern State is doubted by some jurists but the Crown Proceedings Act [section 40(2)(f)] preserves the presumption, for it says:
“That except as therein otherwise expressly provided, nothing in this Act shall affect any rules of evidence or any presumption relating to the extent to which the Crown is bound by any Act of Parliament.”

Most of the legislation imposing liability upon a private employer is excluded by this rule and the Crown is not liable for breach of such statutory duties. When the Crown enters the field of industry and engages labour, there is no reason or justification for putting itself in a different category from that of an ordinary employer. The Crown must set the example of following the principle of equality before the law and should not stand apart from the subjects.
30. Section 2(3).—Sub-section 3 imposes liability upon the Crown in respect of functions conferred or duties imposed upon an officer of the Crown by any rule of common law or by statute as if the Crown itself had issued instructions lawfully to the officer to discharge the duty or exercise the functions. The reason for this provision is the decision in Stanbury v. Exeter Corporation which held that a corporation was not liable for the negligence of a veterinary inspector appointed by them to exercise the functions imposed by the statute and the directions issued by the Board of Agriculture. Darling J., pointed out that the local authority which appointed the Inspector would be liable if he acted negligently purporting to exercise the corporate powers and not if he acted in the discharge of some obligation imposed upon him by a statute. The relationship between the local authority and the officer in respect of such a duty would not be that of master and servant as it had no control over the servant when he discharges the statutory obligations. On the analogy of that decision, it is possible to argue that where a statute or common law imposes a function upon an officer of the Crown rather than upon the Crown itself, the liability of the Crown would be limited to the appointment of a competent officer and the Crown would not be liable for torts committed by him in the discharge or purported discharge of a function. This principle was applied in Australia in Enver v. King, 3 CLR 969 The peace officer in that case was not the agent or servant of the appointing authority, for, in the preservation of peace his authority is original and is exercised in his own discretion by virtue of his office. His powers under the law being definite he is not held out by the authority who appointed him as having any greater authority than was lawfully his2. It is to meet such a situation that the provision in section 2(3) is made. In view of section 11, it may be possible to argue by virtue of the fiction imposed by this sub-clause that the Crown must be deemed to have issued instructions lawfully and since such instructions could only be issued by virtue of the prerogative of the Crown, the Crown may not be liable at all. But it is a matter for judicial interpretation and it is difficult to venture a definite opinion at this stage.
31. Section 3.—Though it is not strictly a case of liability in tort [some text­book writers, however, e.g., Salmond (11th Edn., p. 716) include them in torts] section 3 of the Act makes the Crown liable for the infringement by a servant or agent of the Crown of a patent, a registered trade mark and a copyright including any copyright and design vested under the Patents & Designs Acts, 1907 to 1946. The infringement, however, must have been committed with the authority of the Crown.
32. Section 4.—Under section 4 the law as to indemnity, contribution between joint and several tortfeasors and contributory negligence is made applicable to the Crown. Part II of the Law Reform (Married Women and Tortfeasors) Act, 1935 which relates to proceedings for contribution between joint and several tortfeasors, and the Law Reform (Contributory Negligence) Act, 1945 which amends the law relating to contributory negligence, are made binding on the Crown under this section.
33. Sections 5, 6, 7.—Sections 5, 6 and 7 deal with the liability in respect of the Crown’s ships, rules as to the apportionment of loss and the liability of the Crown in respect of docks and harbours, etc.
34. Section 9 – Postal Packets.—Under section 9, the liability of the Crown in respect of postal packets is restricted to loss of or damage to a registered inland postal packet not being a telegram so far as the loss or damage is due to any wrongful act done or neglect or default committed by a person employed as a servant or agent of the Crown while performing or purporting to perform his functions as such in relation to the receipt, carriage, delivery or other dealing with that packet. The proviso to sub-section 2 of the Act lays down limits of the liability in respect of registered postal packets and also lays down the whole some presumption that until the contrary is shown on behalf of the Crown, the loss of or damage to the packet must be presumed to be due to a wrongful act or neglect or default of a servant or agent of the Crown. There are also other limitations imposed in respect of this liability by this section.
35. Section 10 – Armed forces.—Section 10 relates to the armed forces. The liability of both the Crown and a member of the armed forces for causing death or personal injury to another member is excluded if at the time of the injury the person was on duty or though not on duty was on any land, premises, ship, aircraft or vehicle for the time being used for the purpose of the armed forces of the Crown, subject, however, to the condition that the Minister of Pensions certifies that his suffering has been or will be treated as attributable to service for the purpose of entitlement to award of pension under the Royal Warrant, Order in Council, or Order of His Majesty relating to ,the disablement or death of members of the force of which he is a member. Sub-section 2 of that section excludes the liability of the Crown for death or personal injury to anything suffered by a member of the armed forces of the Crown by reason of the nature and condition of any such land, premises, ship, aircraft or vehicle or negligence of the nature and condition of any equipment or buildings used for the purpose of those forces, provided the Minister of Pensions certifies that the suffering was attributable to service for the purpose of entitlement of pension as provided above. It will be noticed that the section is restricted only to death or personal injury and does not extend to other wrongs. If the tort was such that it did not cause either personal injury or death it would seem that the Crown would be liable; for example, in the case of defamation a member of the armed forces as well as the Crown would be liable. The reason for excluding liability in the above cases seems to be that sufficient provision to repair the injury or the loss occasioned by death is made under the Pensions Act to be determined by the Minister of Pensions. Why the officer should also escape from liability in such cases is not clear but it may be that the compensation paid under the Pensions Act is treated as adequate.
36. Section 2(5) – Judicial acts and Judicial process.—Section 2(5) exempts the Crown from liability for judicial acts and also executions of judicial process.
37. Section 2(4) – Discretionary powers.—Section 2(4) substitutes the Crown for a Government department or officer of the Crown in cases in which the liability of such department or officer was negatived or limited by any enactment. In other words, in respect of torts committed by a department or officer the liability of the Crown is exactly the same as the liability of the department or officer before the Crown Proceedings Act, 1947. The Act is silent regarding discretionary powers, probably for the reason that under common law a public officer is not liable in the absence of negligence causing additional damage in the exercise of discretion.1
1. East Suffolk Rivers Catchment Board v. Kent, 1941 AC 74.

38. Section 11(1).—Section 11(1) of the Act provides that nothing in the Part I of the Act shall extinguish or abridge the prerogative and statutory powers of the Crown. Power is conferred on the Admiralty or the Secretary of State by sub­section 2 of section 11 to issue a certificate to the effect that the act was properly done in the exercise of the prerogative of the Crown. But as regards statutory powers conferred on the Crown if the section is intended to save the Crown from all liability in respect of acts done either by it or its servants and agents, it goes too far. Even statutory power may imply a duty towards particular individuals and not to the public generally. In such an event why the Crown should be immune altogether from liability for torts committed in the exercise of statutory powers by its servants and agents is rather difficult to see. Sub-sections (2) and (3) of section 2 are very restricted in their scope regarding the liability of the Crown for the breach of statutory duties or for the exercise of a statutory power. A large field seems to have been excluded by virtue of the provision in section 11 of the Act. Section 11(1), however, refers to “powers conferred on the Crown” as distinguished from “functions conferred or imposed upon an officer of the Crown”, which is dealt with in section 2 (3). The number of statutes which confers powers on the Crown as such (as distinguished from its officers) is very small. One learned author thinks that the reason for enacting section 11 is obscure and it seems to make little change in the law.
39. Section 40(e) – Highways.—Section 40(e) provides that the Crown in its capacity as a highway authority shall not be subject to any greater liability than that to which a local authority is subjected in that capacity.

CHAPTER IV

The Law In The U.S.A.

40. Federal Tort Claims Act.—Even in a republican country like the United States of America, the doctrine of immunity of the State from liability for torts has been imported for reasons which are differently explained, but, as in England, exceptions were sought to be introduced by permitting the State to be sued through the procedure of private bills. That procedure was, however, found to be unsatisfactory and the Federal Tort Claims Act was enacted in 1946 to do away partially with the immunity. The Federal Tort Claims Act, however, is far more restricted in its scope than the English Act. The liability of the State under common law is stated in the Act in these terms:
“district court……shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred”.

It is also provided that:
“the United States shall be liable…..in the same manner and to the same extent as a private individual under like circumstances except that the United States shall not be liable for interest prior to judgment, or for punitive damages”.

41. So far as statutory duties and discretionary powers and duties are concerned, it is laid down in one of the exceptions that the “State” shall not be liable in respect of:
“any claim based upon an act or omission of any employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal Agency or an employee of the Government whether or not the discrelion involved be abused”.

“‘Employee of the Government” and “Federal Agency” are defined in the Act.

42. It would be seen from the foregoing provisions that the liability of the State under common law is restricted to torts to property and injury to a person or death. Exception (h) (vide Appendix II) excludes intentional torts, such as, assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. So far as statutory duties are concerned, the United States is not liable for any tort committed in the discharge of such duties so long as the duties are performed with due care. In respect of discretionary functions and duties conferred on a Federal Agency or an employee of the Government, the State is not liable even if the discretion is abused or even if there is negligence.
43. In the case of common law duties, the liability is restricted by adopting the formula that the “United States shall be liable in the same manner and to the same extent as a private individual under like circumstances”. This definition of liability is shrouded in uncertainty. It is not clear whether by this formula it was intended to attract not only the common law principles by which a private individual’s liability for tort is determined but also brings in the nature of the act or function (i.e.) whether it is governmental or non-governmental. This vague expression has given rise to conflicting decisions of the Supreme Court even within the short period that has elapsed from the date when the Act came into force. In Feres v. United States,’ the Supreme Court expressed the view that the Act did not create new causes of action which were not recognised before. The case related to claims by members in the armed forces injured through the negligence of other military personnel. The decision in that case was that as no private individual has power to conscript or mobilise a private army, the State could not be made liable. The interpretation so placed reminds one of the dictum of Sir Barnes Peacock, C.J., in the peninsular case. This interpretation revives the old distinction between governmental and non-governmental functions of the State and the rule that it should be liable only in the latter case. In each case the question has to be raised and answered whether the activity out of which the tort arose was such as a private individual could have indulged in and if the answer is in the affirmative, the Government should be made liable, otherwise not.
44. This interpretation was followed and applied in the later case Dalehite v. United States, 346 US 15. The Court had to consider in that case the claims preferred under the Act in connection with the disastrous explosion of ammonium nitrate fertiliser in Texas city which resulted in damage unparalleled in history. The action was rested on the main ground that there was negligence on the part of the government and its servants. Reed, J., who delivered the opinion of the majority of the Court examined the scope of the Act and held that under the provisions of the Act, the liability of the United States was restricted to ordinary common law torts and did not extend to the liability arising from governmental acts. In support of his view the learned Judge relied on the Committee reports which preceded the enactment of the law. The exception relating to statutory duties was intended, according to the Committee, to preclude any possibility that the bill might be construed to authorise a suit for damages against the government arising out of an authorised activity such as flood control or irrigation project, where negligence on the part of the government agent was shown and the only ground for the suit was the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid. It was also designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon the alleged abuse of discretionary authority by an officer or employee whether or not negligence was alleged, to have been involved. The learned Judge stressed on the language of the Act which imposed the liability on the United States to the “same extent as a private individual would be liable under like circumstances”. This, he said, was a definite pointer negativing complete relinquishment of sovereign immunity. The exception relating to statutory duties, according to the learned Judge, was intended to protect the government from claims arising out of acts however negligently done which affect the governmental functions. The question of the liability of the State for negligence of the Coast Guards in the discharge of fire-fighting duties, which is a discretionary function, was also considered. It was ruled by the majority that the Federal Tort Claims Act—
“did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question was determined by what was said in the Feres case. The Act, as was there stated, limited United States’ liability to ‘the same manner and to the same extent as a private individual under like circumstances’.

Here, as there, there is no analogous liability; in fact, if anything is doctrinally sanctified in the law of torts it is the immunity of communities and other public bodies for injuries due to fighting fire”.

Jackson, J., who delivered the judgment of the minority, however, took the opposite view. He graphically described the situation under modern conditions in justification of his view that the State should be liable. He said at page 51:
“Because of reliance on the reservation of governmental immunity for acts of discretion, the Court avoids direct pronouncement on the duty owing by the Government under these circumstances but does sound overtones and undertones with which we disagree. We who would hold the Government liable here cannot avoid consideration of the basic criteria by which courts determine liability in the conditions of modern life. This is a day of synthetic living; when to an ever-increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are natural or simple products but complex ones whose composition and qualities are often secret. Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster’s cowboy suit or the wife’s sweater to see if they are apt to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of goods in transit. Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise.”

And, lastly, he concludes at page 60:
“But many acts of government officials deal only with the housekeeping side of Federal activities. The Government, as landowner, as manufacturer, as shipper, as warehouseman, as ship-owner and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute”.

45. In a recent decision, however, Indian Towing Co. v. U.S.A., (1955) 350 US 61., the Supreme Court did not accept the interpretation placed by the above two decisions on the provisions of the Act. The claim was for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. The same contentions as in the earlier decisions were again raised and the implication of the expression “in the same manner and to the same extent as private individual under like circumstances” had to be canvassed. It was contended on behalf of the State that this expression excluded its liability in the performance of activities which a private person could not perform. In other words, the liability of the State for governmental functions was excluded. It was pointed out that the words used were not “under the same circumstances” but “under like circumstances”. According to the majority view, this expression imposed the duty of exercising care upon the State which undertakes to warn the public of danger. At page 65 it was observed:
“Furthermore, the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the “non-governmental” and “governmental” quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavour, however, awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts.”

The question was put whether if the United States were to permit the operation of private lighthouses, the basis of differentiation urged on behalf of the Government would be gone and it could be made liable if negligence had been established. The Government, it is stated “is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. On the other hand, it is hard to think of any governmental activity on the “operational level” our present concern which is “uniquely governmental” in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed”.
In this case, Reed, J., was in the minority and he delivered the minority judgment. The minority stuck to their view expressed in the earlier decisions. But it is significant that even the minority judges realised that there is uncertainty and ambiguity in the expressions used in the Act.
46. This discussion is necessary to show that to adopt the formula of the Federal Tort Claims Act, however, attractive it may be, is to introduce an uncertainty in the law and is calculated to revive the old controversy between “governmental” and “non-governmental” functions, which the decisions in India, already summarised, introduced into the law on the basis of the dictum of Sir Barnes Peacock, C.J., in the Peninsular case
47. There are also other decisions like Seigmon v. U.S., (1953) 110 FR 906. which reiterated the view that the Federal Tort Claims Act was not intended to create a new cause of action. This case related to a claim by a prisoner who was injured by another while in prison. It was held that as before the Act, the prisoner in such a situation had no right of action against an individual galore, he had none after the Act. But it is somewhat interesting to find that in England in Ellis v. Home Office, (1953) 2 All England Reports, 149, the contrary view was taken on similar facts though the suit was ultimately dismissed as negligence was not established.
48. The foregoing discussion will show that the liability of the State under the Federal Tort Claims Act is very much restricted and that the exceptions have narrowed down the liability. For convenience of reference the relevant sections of the Federal Tort Claims Act are reproduced in Appendix II.

CHAPTER V

The Law In Australia

49. Under section 78 of the Commonwealth of Australia Constitution Act, Parliament was enabled to make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. Under the Judiciary Acts, 1903 to 1915, section 64, it was provided that in a suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same and judgment may be given and cause evolved on either side as in a suit between a subject, and a subject. Section 56 of the said Act enables the citizen to bring a suit whether in contract or in tort against the Commonwealth in the High Court or the Supreme Court of the State in which the claim arose. These provisions were considered in Baume v. Commonwealth,4 CLR 74, and it was held that the Act gave the subject the same rights of action against the Government as against a subject in matters of tort as well as contract, and that the Commonwealth was therefore responsible and an action was maintainable for tortious acts of its servants in every case in which the gist of the cause of action was infringement of a legal right. If the act complained of is not justified by law and the person doing it is not exercising an independent discretion conferred on him by statute but is performing a ministerial duty, the State is not liable. The party, therefore, making a claim against a State has to establish his legal right and the infringement thereof and would be entitled to a decree for damages if the act complained of is not justified by law and was not done in the course of the exercise of ait independent discretion conferred upon a person by statute. In other words, to make the State liable the servant must have performed a ministerial duty and not a discretionary duty. The formula adopted in Australia that the rights of parties shall, as nearly as possible, be the same as in a suit between a subject and a subject, is simpler, especially in view of the interpretation that it has received in Australia. It gives a wide scope for judicial interpretation, and it is difficult to say to what extent the State’s liability, without distinction between sovereign and non-sovereign functions, would be recognised under the Australian formula. It is not safe to leave the law in such an elastic and uncertain state.

CHAPTER VI

The Law In France

50. It is common knowledge that under the French system of administration, there is a dichotomy of courts, unlike in England and America—one set of courts dealing with the disputes between the State and the citizen known as the Administrative Courts and the other set dealing with the disputes between a citizen and a citizen. The Council of State (Council d’etat) is at the apex of the hierarchy of administrative courts just as the Court of Cassation is at the head of the civil courts. The Council of State has both judicial and administrative functions, sections of that body dealing with the two matters being different. Its administrative functions are mostly consultative. In case of conflict of jurisdiction between the two categories of courts, there is a Court of Conflict to resolve the dispute and the personnel of this body is partly drawn from the Council of State and partly from the Court of Cassation.
51. The development of the law relating to the liability of the State for the claims of the citizen against the State was through the Council of State. It is somewhat curious that while French Law started with the absolute immunity of the officer and the State in respect of tortious acts, through a process of evolution it has established absolute liability of the State and partial liability of the officer. The maxim that “A King can do no wrong” is replaced by the maxim that “the State is an honest man”. It is unnecessary to follow the vicissitudes through which the evolution had to pass but a great change was effected in 1870 by a decree and the celebrated Pelletier case in 1873. A distinction was drawn between personal fault (faute personnelle) and service-connected, fault (faute de service). In respect of the former, the officer alone was liable to be sued in the civil court while in respect of the latter, the State alone was liable in the administrative courts. But the meaning of “personal fault” was developed by jurists. A public officer was liable if there was wilful malice or gross negligence on his part. To this a further qualification was added by Haurion that he should not be acting within the scope of his official functions. It may, therefore, be stated that in the droit administratif of to-day a public officer is liable personally only when he has acted wilfully, maliciously, with gross negligence or outside the scope of his official functions. If he acts within the scope, he is not liable, for, he committed no personal fault but a service-connected fault for which the administration alone is liable. It was felt that the strict rule of personal liability might impede effective administration, for, if an officer knew that his exercise of judgment in doubtful cases might expose him to a suit for damages, he might be disinclined to act in all such cases. If he was a man with low pay and slender resources, it would be inequitable to saddle him with liability.
52. The State’s responsibility for the injuries of a private citizen inflicted by the administration is treated logically as an extension of the principle that when private property is acquired by the State from a citizen the latter should be paid just compensation by the State. On that analogy, if for the benefit of (the members of) the State a person is injured, all the other persons should make good the injury. Gradually the basis of liability was shifted from that of fault to one of risk as under the Workmen’s Compensation Acts. It enabled administrative law to view the basis of such liability in a new light:
“The Council of State”, says Schwartz on ‘Administrative Law’,1 “has for many years assumed that one of the fundamental principles of French public law derived from the equalitarian ideal that inspired the men of the French Revolution was that which provided for an equal distribution among the citizenry of the costs of government in the absence of a legislative disposition to the contrary. If a particular citizen is damaged by the operation of an administrative service, even if there is no fault, the principle of equality in sharing the expense of government is violated. The victim of the administrative act that caused the damage is in effect asked to assume a burden not imposed on other citizens, a burden thrust upon him, by the operation of a public service that functions for the benefit of the community as a whole. In such cases, it has been asked by French jurists, is not the State, even though it has not committed a fault, under an obligation to vindicate the principle of equality before the costs of government by removing the additional burden that has fallen upon the one injured and, by assuming it itself, distributing it among the entire body of the citizenry? Such indeed, is the master principle that tends more and more to govern the jurisprudence of the French Council of State. The law of State liability is aimed at restoring the equality that has been upset at the expense of a particular individual. In the absence of fault on the part of the administration, stated the Government Commissioner in his conclusions in an important case before the Council of State, the basis of State liability is to be found in Article 13 of the Declaration of the Rights of Man. That article laid down the principle of the equality of citizens before the costs of government. It is, in actuality, not permissible for a public activity even though it be legal, to cause certain individuals damage that they alone must bear; that would be to make them carry more than their share of the costs of the State. All public activity is intended to benefit the community as a whole. It must, therefore, be paid for by the entire community. Consequently, individual damage caused by such activity which, by upsetting the balance sought by the Declaration of Rights, destroys the equality of the citizenry before the costs of government, should lead to reparation. Such reparation, which by means of the tax system, is actually made by the whole body politic restores the equality thus destroyed.”

1. P. 292.

CHAPTER VII

Rule Of Statutory Construction

53. Crown when bound by a statute.—The rule of construction that the Crown is not bound by a statute unless expressly mentioned therein or by necessary implication also requires examination as it was referred to by the Law Ministry in the present context. There are very many rules of English law founded on the prerogative rights of the Crown, and, as pointed out in 7 Halsbury’s Laws of England, 3rd Edition, at page 222 et seq., this rule of construction was also considered as one of the incidents flowing from the pre­eminent position which the Crown in England occupies. The basis of the prerogative rights and powers of the Crown is common law. The Crown’s pre­eminence still survives in England except in so far as it is, for the time being, curtailed by statute. The question is whether there is any necessity or justification for the application of this rule of construction in India after it became a Republic.
54. The Australian Constitution was enacted by the British Parliament. Section 61 of the Constitution Act vests the executive power in the Queen and is exercisable by the Governor-General as the Queen’s representative. The residuary prerogative rights and powers which continue to be vested in the Sovereign in England are still exercisable under that Constitution by the Crown until that power is curtailed by statute. The same applies to Canada.
55. The Constitution of the United States of America and of India were established by the people themselves in whom the sovereign power vested. Under our Constitution there is no room for any right or power outside the Constitution exercisable by a specially pre-eminent authority. There is no room for invoking prerogative rights or powers as an incident of sovereignty. The executive power of the Union is vested in the President (Article 53) and the extent of it is specified in Article 73. It extends to the matters with respect to which Parliament has power to make law and the powers under treaties and agreements. The executive power of the State is vested in the Governor (Article 154) and extends to the matters in respect of which the State Legislature has power to make laws (Article 162). The proviso to Article 162 provides that in respect of matters in the Concurrent list, the power of the State must yield to the power of the Union. The residuary executive power not covered by Lists II and III of the Seventh Schedule and items 1 to 96 of list I, is vested in the Union (vide item 97 of List I and Article 248). The entire field of the executive power is distributed between the States or the Union. There is no room for invoking any power outside the Constitution and to place the Union or the States in a pre­eminent position.
56. It has now been held by the Supreme Court1 that the executive power of the State or the Union may be exercised even though there is no enactment relating to such power for the reason that the executive power is related under the Constitution to “matters” in the legislative lists and does not require a statute conferring or regulating the power to enable the State or the Union to exercise the power.
1. Ramjaya Kapoor v. State of Punjab, AIR 1955 SC 549.
57. The principle of construction adopted in England that the Crown is not bound by a statute unless expressly mentioned or by necessary implication was explained in Attorney General v. Donaldsonl, (1804) 10 m&w 117 (124.):
“Prima facie the law made by the Crown with assent of the Lords and Commons is made for subjects and not for the Crown”.

In Bacon’s abridgment, the reason is given differently and perhaps it is more satisfactory. It is stated that where the statute is general and thereby any prerogative right, title or interest is divested or taken away from the King, the King shall not be bound unless the statute is made by express terms to extend to him. The principle is that there should be no encroachment upon the prerogative, right or power of the Crown unless the Crown consented to it, for, a right or power cannot be taken away without the consent of the Crown even by a statute. When there is no question of any prerogative power or right as under our Constitution there is no reason to adopt the principle. Even in England the rule has been criticised by jurists like Glanville Williams and Street as an “archaic survival of an ancient law”. The application of the rule does not present any difficulty so long as the statute expressly exempts the Crown but the other part of the rule based on “necessary implication” is of difficult application. One test suggested was that if a statute was for the public good, it should be presumed to bind the Crown. This test was given the go-bye by the Privy Council and was shifted to the ascertainment of the intention of the Legislature. But no objective test was laid down by any of the decisions as to how the intentions of the Legislature is to be ascertained. The principle was applied to India by the Privy Council in the Bombay Municipal Corporation case, 73 Indian Appeals 271. The Judicial Committee negatived the test of public good on the ground that every statute is for the public good but emphasised the other test of ascertaining the intention of the Legislature.
58. The question was examined in England in Attorney General v. Hancock, (1940) 1 KB 427. There it was laid down after examination of the authorities that if an Act diminishes the Crown’s property, interest, prerogative or rights, the Crown would not be affected unless expressly mentioned. In a recent decision, U.S. v. Mine Workers of America, (1946) 67 SC Reports 677. Frankfurter, J., said:
“At best this cannon, like other generalities about statutory construction, is not a rule of law. Whatever persuasion it may have in construing a particular statute, it derives from the particular statute and the terms of the enactment in its total environment.”

As Street puts it, in the United States the Courts laid emphasis on the legislative objects and the presumption for excepting Government privileges is invoked only to resolve doubts. This test is more satisfactory.
It is needless to discuss the development of this rule and the criticism against it as it is to be found in Street’s “Governmental Liability”, Chapter VI, page 143 and in Glanville Williams’ “Crown Proceedings”, page 49. At page 53, Glanville Williams summarises the position thus:
“The rule originated in the Middle Ages, when it perhaps had some justification. Its survival, however, is due to little but the vis inertice. The chief objection to the rule is its difficulty of application: One might suppose that if there were any statute that ought to bind the Crown by necessary implication, it would be a statute passed for the safety of the subjects; yet as we have seen, it does not always do so; and the circumstances in which it does not do so cannot be catalogued.”

Glanville Williams, therefore, suggests that the law could be made clear by adopting the rule that the Crown is bound by every statute in the absence of express words to the contrary:
“Such a change in the law would make no difference to the decision of the preliminary question of legislative policy whether the Crown should be bound by a statute or not. At the moment if the draftsman of a bill is instructed that the Crown is not to be bound, he simply says nothing on the subject of the bill. Under the rule here suggested, he would insert express provision exempting the Crown. The change of the rule would not prevent the Crown from being expressly exempted from a statute if its framers so wished to.”

The rule suggested by the learned author is undoubtedly just and reasonable and would avoid the difficulty of invoking the principle of “necessary implication” which is always an uncertain rule.
Professor W. Friedman examined the question in chapter 12 of his book “Law & Social Change” and opined that this rule of interpretation should no longer be applied. His conclusion is:—
“The rule that the Crown is not bound by statutes except when specially mentioned or by necessary implication is socially and politically objectionable, nor is it legally compelling. It is the exception to the rule which should be developed by courts, not the rule itself. The application of the rule should be limited to such cases where an overwhelming public interest demands that the Crown should be exempt.”

After the Constitution the Calcutta High Court declined to apply this rule of construction Corporation of Calcutta v. The Director of Rationing, AIR 1955 Cal 282.
59. If simplification is to be achieved, it is suggested, that a provision may be made in the General Clauses Act stating the rule in the terms suggested by Glanville Williams and that in respect of Acts passed after a particular date the rule should apply. But then the difficulty would arise regarding Acts passed before the Constitution when the British sovereignty existed and Acts passed after the Constitution before the appointed date. It should be possible, though it may be a difficult task, to examine which of those Acts bind the State and then to initiate suitable legislation.

CHAPTER VIII

Conclusions and Proposals

60. In the context of a welfare State it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State. While the responsibilities of the State have increased, the increase in its activities has led to a greater impact on the citizen. For the establishment of a just economic order industries are nationalised. Public utilities are taken over by the State. The State has launched huge irrigation and flood control schemes. The production of electricity has practically become a Government concern. The State has established and intends to establish big factories and manage them. The State carries on works departmentally. The doctrine of laissez faire—which leaves every one to look after himself to his best advantage has yielded place to the ideal of a welfare State—which implies that the State takes care of those who are unable to help themselves.
61. Some of the activities are entrusted to public corporations to run the business on sound economic and business lines efficiently. Public Corporations like the Air Corporations, Damodar Valley Corporation, etc. (vide Appendix IV for a list) are such examples. For all these it employs labour on a large scale. There is no convincing reason why the Government should not place itself in the same position as a private employer subject to the same rights and duties as are imposed by statute.
62. When the Constitution was framed, the question to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation. The point for consideration, therefore, is on what lines the legislation should proceed. This, indeed, is a difficult question to decide, as it involves the question of demarcating the line up to which the State should be made liable for the tortious acts. It involves, undoubtedly, a nice balancing of considerations so as not to unduly restrict the sphere of the activities of the State and at the same time to afford sufficient protection to the citizen. Even conservative countries like England realise that the law should progress in favour of the subject in the context of a welfare State and should not remain stagnant. Even under the law obtaining before the Crown Proceedings Act in England, when the immunity of the Crown extended to the departments of State and the injured party had no remedy at all in respect of claims founded on tort, the State mitigated the hardship by paying compensation though this was as a matter of grace and not as of right.
63. The tendency in England, therefore, is towards relaxation of the immunities of the Crown in favour of the subject. But it has not gone far enough.
64. The liberalisation of the law in England and other countries should not be ignored in framing the law in this behalf. Our country also must formulate the law suitably having regard to the changed conditions and the provisions of our Constitution. In America, as has been seen, the liability is very restricted. In Australia, which was the first to give the lead in reducing the immunity of the Crown, a simpler formula that the “rights of the parties shall as nearly as possible be the same as in a suit between subject and subject” was adopted. This was judicially interpreted to exclude liability for discretionary duties. The Crown Proceedings Act is more liberal than the legislation in the United States but in respect of statutory duties and powers, the scope is very restricted. Though the State is the biggest employer, industrialist and factory owner, the legislation which imposes certain duties on the employer has not been adopted in its entirety. In other words, the whole of the industrial legislation except the Factories Act was excluded on the principle that the Crown is not bound by any statute unless it is expressly mentioned or is bound by necessary implication. The Act is silent regarding discretionary powers and duty but that may be on the principle that the officer who committed the tort was not liable at common law in the absence of additional damage caused by negligence in the exercise of discretion.
65. It would, therefore, not be advisable to adopt the legislation in this respect in England, America or Australia. It is necessary that the law should, as far as possible, be made certain and definite instead of leaving it to courts to develop the law according to the view of the judges. The citizen must be in a position to know the law definitely.
The old distinction between sovereign and non-sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friedman1 observes:
1. Law and Social Change, p. 273.
“It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity in question.”

This was also what was decided in Haribhanji’s case1. We would recommend that legislative sanction be given to the rule laid down in that case.
1. ILR 5 Mad 273. See also in this connection the observations of Mukerjea, J., (as he then was), Saghir Ahmed v. State, (1955) 1 SCR 707 (731).

66. Proposals.—The following shall be the principles on which legislation should proceed:—
I. Under the general law:
Under the general law of torts i.e., the English Common Law as imported into India on the principle of justice, equity and good conscience, with statutory modifications of that law now in force in India (vide the Principles of General Law, Appendix VI)—
(i) The State as employer should be liable for the torts committed by its employees and agents while acting within the scope of their office or, employment.

(ii) The State as employer should be liable in respect of breach of those duties which a person owes to his employees or agents under the general law by reason of being their employer.

(iii) The State should be liable for torts committed by an independent contractor only in cases referred to in Appendix VI.

(iv) The State also should be liable for torts where a corporation owned or controlled by the State would be liable.

(v) The State should be liable in respect of breach of duties attached under the general law to the ownership, occupation, possession or control of immoveable property from the moment the State occupies or takes possession or assumes control of the property.

(vi) The State should be subject to the general law liability for injury caused by dangerous things (chattels).

In respect of (i) to (vi) the State should be entitled to raise the same defences, which a citizen would be entitled to raise under general law.
II. In respect of duties of care imposed by statute:
(i) If a statute authorises the doing of an act which is in itself injurious, the State should not be liable.

(ii) The State should be liable, without proof of negligence, for breach of a statutory duty imposed on it or its employees which causes damage.

(iii) The State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty.

(iv) The State should be liable if in the exercise of the powers conferred upon it or its employees the power is so exercised as to cause nuisance or trespass or the power is exercised negligently or maliciously causing damage.

N.B.—Appendix V shows some of the Acts which contain protection clauses. But under the General Clauses Act a thing is deemed to be done in good faith even if it is done negligently. Therefore, by suitable legislation the protection should be made not to extend to negligent acts however honestly done and for this purpose the relevant clauses in such enactments should be examined.
(v) The State should be subject to the same duties and should have the same rights as a private employer under a statute, whether it is specifically binding on the State or not.

(vi) If an Act negatives or limits the compensation payable to a citizen who suffered damage, coming within the scope of the Act, the liability of the State should be the same as under that Act and the injured person should be entitled only to the remedy, if any, provided under the Act.

III. Miscellaneous:
Patents, Designs and Copyrights: The provisions of section 3 of the Crown Proceedings Act may be adopted.
IV. General Provisions:
(i) Indemnity and contribution: To enable the State to claim indemnity or contribution, a provision on the lines of section 4 of the Crown Proceedings Act may be adopted.

(ii) Contributory negligence: In England, the Law Reform (Contributory Negligence) Act, 1945 was enacted amending the law relating to contributory negligence and in view of the provisions of the Crown Proceedings Act the said Act also binds the Crown. In India, the trend of judicial opinion is in favour of holding that the rule in Merryweather v. Nixan, (1799) 8 TR 186. does not apply and that there is no legal impediment to one tortfeasor recovering compensation from another. But the law should not be left in an uncertain state and there should be legislation on the lines of the English Act.

(iii) Appropriate provision should be made while revising the Civil Procedure Code to make it obligatory to impaled as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceeding as all the parties will be before the court.

V. Exceptions:
(i) Acts of State: The defence of “Act of State” should be made available to the State for any act, neglect or default of its servants or agents. “Act of State” means an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owning temporary allegiance, in pursuance of sovereign rights.

(ii) Judicial acts and execution of judicial process: The State shall not be liable for acts done by judicial officers and persons executing warrants and orders of judicial officers in all cases where protection is given to such officers and persons by section 1 of the Judicial Officers Protection Act, 1850.

(iii) Acts done in the exercise of political functions of the State such as acts relating to:

(a) Foreign Affairs (entry 10, List I, Seventh Schedule of the Constitution);

(b) Diplomatic, Consular and trade representation (entry 11);

(c) United Nations Organisation (entry 12);

(d) Participation in international conferences, associations and other bodies and implementing of decisions made thereat (entry 13);

(e) entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries (entry 14);

(f) war and peace (entry 15);

(g) foreign jurisdiction (entry 16);

(h) anything done by the President, Governor or Rajpramukh in the exercise of the following functions:

Power of summoning, proroguing and dissolving the Legislature, vetoing of laws and anything done by the President in the exercise of the powers to issue Proclamations under the Constitution;

(i) Acts done under the Trading with the Enemy Act, 1947;

(j) Acts done or omitted to be done under a Proclamation of Emergency when the security of the State is threatened.

(iv) Acts done in relation to the Defence Forces:

(a) Combatant activities of the Armed Forces during the time of war;

(b) Acts done in the exercise of the powers vested in the Union for the purpose of training or maintaining the efficiency of the Defence Forces;

The statutes relating to these already provide for payment of compensation and the machinery for determining the compensation: See Manoeuvres, Field Firing and Artillery Practice Act, 1948; Seaward Artillery Practice Act, 1949;
(c) The liability of the State for personal injury or death caused by a member of the Armed Forces to another member while on duty shall be restricted in the same manner as in England (Section 10 of the Crown Proceedings Act).

(v) Miscellaneous:

(a) any claim arising out of defamation, malicious prosecution and malicious arrest,

(b) any claim arising out of the operation of quarantine law,

(c) existing immunity under the Indian Telegraph Act, 1885 and Indian Post Offices Act, 1898,

(d) foreign torts. (The English provision may be adopted.)

VI. Definitions:

1. “Agent” shall have the same meaning as under the Contract Act, 1872.
2. “Employee” of the Government includes every person who is a member of the defence service or of a civil service of the Union or of an All-India Service or holds any post connected with the defence or any civil post under the Union and every person who is a member of the civil service of a State or holds a civil post in a State, and any other person acting on behalf of or under the control and direction of the Union or State with or without remuneration.
3. “Independent contractor” is a person who enters into a contract to do a work for the State without being controlled by the State as to the manner of execution of the work.
4. “State” includes the Union of India.
VII. Rule of construction regarding statutes binding on the Union and States:

We have discussed this question in paragraph 53, ante, and we recommend that a provision be inserted in the General Clauses Act as follows:
“In the absence of express words to the contrary, every statute shall be binding on the Union or the Stale, as the case may be.”

M.C. Setalvad Chairman
M.C. Chagla, Member
K.N. Wanchoo, Member
G.N. Das, Member P. Satyanarayana Rao, Member
N.C. Sen Gupta, Member
V.K.T. Chari, Member
D. Narasa Raju, Member
S.M. Sikri, Member
G.S. Pathak, Member
G.N. Joshi, Member
K. Srinivasan
Durga Das Basu,
Joint Secretaries

New Delhi.
Dated. 11th May, 1956.

APPENDIX I

The State was held not liable for torts arising out of:
(1) Commandeering goods during war.1

(2) Making or repairing a military road.2

(3) Administration of Justice.3

(4) Improper arrest, negligence or trespass by police officers:4

(5) Removal of an agent by a labour supply association under an ordinance.5

(6) Wrongful refusal to issue a licence to sell ganja under excise law.6

(7) Negligence of officers of the court of wards in the administration of estate in their charge.7

(8) Negligence of officers in the discharge of statutory duties.8

(9) Loss of movable property in the custody of government.9

(10) Payment of money to a person other than the rightful owner by government servants.10

(11) Negligent acts of servants of the Government. The Crown was not liable for negligent or tortuous acts of its officers done in the course of their official duties imposed by statute except where it could be proved that the impugned act was authorised by the Crown or that it had profited by its performance.11

(12) Removal of a child by the negligence of the authorities of a Hospital maintained out of the revenues of the State.12

(13) Negligence of the Chief constable who seized hay under statutory authority. 13

1. 54 Cal 969.
2. 39 Mad 351.
3. 5 Luck 157.
4. 9 Rang 375.
5. 37 Mad 55 (reviews all the decision English and Indian).
6. I Call II.
7. 36 CWN 606.
8. 37 CWN 957.
9. 1950 All 56.
10. (1942) 2 Cal 141: 1950 All 206: 1934 Cal 7 (128): 37 CWN 957.
11. 38 Cal 797; 51 CWN 534.
12. AIR 1939 Mad 663.
13. 28 Bom 314.

APPENDIX II

Federal Tort Claims Act (America)

Sub-chapter I.–Administrative adjustment of tort claims against the United States
921. Settlement of claims of $ 1,000 or less; conclusiveness; appropriations:
(a) Subject to the limitation of this chapter, authority is conferred upon the head of each Federal Agency or his designee for the purpose, acting on behalf of the United States, to consider, ascertain, adjust, determine, and settle any claim against the United States for money only, accruing on and after January 1, 1945 on account of damage to or loss of property or on account of personal injury or death, where the total amount of the claim does not exceed $ 1,000, caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred.

(b) Subject to the provisions of sub-chapter II of this chapter, any such award or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud, notwithstanding any other provision of law to the contrary.

(c) Any award made to any claimant pursuant to this section, and any award, Compromise, or settlement of any claim cognizable under this chapter made by the Attorney General pursuant to section 934 of this title, shall be paid by the head of the Federal agency concerned out of appropriations that may be made therefor, which appropriation are hereby authorised.

(d) The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release by the claimant of any claim against the United. States and against the employee of the Government whose act or omission gave rise to the claim, by reason of the same subject-matter.

922. Reports to Congress.—The head of each Federal agency shall annually make a report to the Congress of all claims paid by such Federal agency under this sub-chapter. Such report shall include the name of each claimant, a statement of the amount claimed and the amount awarded, and a brief description of the claim.
Sub-chapter II.—Suits on tort claims against the United States

931. Jurisdiction; liability of United States; judgment; election by claimant; amount of suit; administrative disposition as evidence:
(a) Subject to the provisions of this Chapter, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States, district courts for . the territories and possessions of the United States, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where. the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this chapter, the United States shall be liable in respect of such claims to the same claimants, in the same manner and to the same extent as a private individual under like circumstances except that the United States shall not be liable for interest prior to judgment, or for punitive damages. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorney’s fees.

(b) The judgment in such an action shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim. No suit shall be instituted pursuant to this section upon a claim presented to any Federal agency pursuant to sub-chapter I of this chapter unless such Federal agency has made final imposition of the claim: Provided, that the claimant may, upon fifteen days’ notice given in writing withdraw the claim from consideration of the Federal agency and commence suit thereon pursuant to this section: Provided further, that as to any claim so disposed of or so withdrawn, no suit shall be instituted pursuant to this section for any sum in excess of the amount of the claim presented to the Federal agency, except where the increased amount of the claim is shown to be based upon newly discovered evidence not reasonably discoverable at the time of presentation of the claim to the Federal agency or upon evidence of intervening facts, relating to the amount of the claim. Disposition of any claim made pursuant to said sub-chapter shall not be competent evidence of liability or amount of damages in proceedings on such claim pursuant to this section.

932. Procedure.—In actions under this sub-chapter, the forms of process, writs, pleadings, and motions, and the practice and procedure, shall be in accordance with the rules promulgated by the Supreme Court pursuant to sections 723b and 723c of this title; and the same provisions for counter-claim and set-off, for interest upon judgments, and for payment of judgments, shall be applicable as in cases brought in the United States district courts under sections 41(20), 250(1), (2), 251, 254, 257, 258, 287, 289, 292, 761-765 of this title.

933. Review.—(a) Final judgments in the district courts in cases under this sub-chapter shall be subject to review by appeal—
(1) in the circuit courts of appeals in the same manner and to the same extent as other judgments of the district courts; or

(2) in the Court of Claims of the United States: Provided, that the notice of appeal filed in the district court under rule 73 of the Rules of Civil Procedure following section 723c of this title shall have affixed, thereto the written consent on behalf of all the appellees that the appeal be taken to the Court of Claims of the United States. Such appeals to the Court of Claims of the United States shall be taken within three months after the entry of the judgment of the district court, and shall he governed by the rules relating to appeals from a district court to a circuit court of appeals adopted by the Supreme Court pursuant to sections 723b and 723c of this title. In such appeals the Court of the Claims of the United States shall have the same powers and duties as those conferred on a circuit court of appeal in respect to appeals under section 226 of this title.

(b) Sections 346 and 347 of this title, shall apply to cases under this part in the circuit court of appeals and in the Court of Claims of the United States to the same extent as to cases in a circuit court of appeals therein referred to.
934. Compromise and settlement of suits.—With a view to doing substantial justice, the Attorney General is authorised to arbitrate, compromise, or settle any claim cognizable under this sub-chapter, after the institution of any suit thereon, with the approval of the Court in which such suit is pending.

Sub-chapter 111.—Miscellaneous provisions.

941. Definitions.—As used in this chapter, the term—

(a) “Federal agency” includes the executive departments and independent establishments of the United States, and corporations whose primary function is to act as, and while acting as, instrumentalities or agencies of the United States, whether or not authorized to sue and be sued in their own names: Provided, that this shall not be construed to include any contractor with the United States.

(b) “Employee of the Government” includes officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a Federal agency in any official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

(c) “Acting within the scope of his office or employment”, in the case of a member of the military or naval forces of the United States, means acting in line of duty.

942. Statute of limitations.—Every claim against the United States cognizable under this chapter shall be for ever barred, unless within one year after such claim accrued or within one year after August 2, 1946 whichever is later, it is presented in writing to the Federal agency out of whose activities it arises, if such claim is for a sum not exceeding $ 1,000; or unless within one year after such claim accrued or within one year after August 2, 1946, whichever is later, an action is begun pursuant to sub-chapter II of this chapter. In the event that a claim for a sum not exceeding $ 1,000 is presented to a Federal agency as aforesaid, the time to institute a suit pursuant to sub-chapter II of this chapter shall be extended for a period of six months from the date of mailing of notice to the claimant by such Federal agency as to the final disposition of the claim or from the date of withdrawal of the claim from such Federal agency pursuant to section 931 of this title, if it would otherwise expire before the end of such period.
943. Claims exempted from operation of chapter.—The provisions of this chapter shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government exercising due care, in the execution of a statute or relation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government whether or not the discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.

(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer.

(d) Any claim for which a remedy is provided by sections 741-752 or 781-790 of Title 46, relating to claims or suits in admiralty against the United States.

(e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1-38 of Appendix to Title 50. (Trading with Enemy Acts).

(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.

(g) Any claim arising from injury to vessels, or to the cargo, crew, or passengers of vessels, while passing through the looks of the Panama Canal or while in Canal Zone waters.

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.

(j) Any claim arising out of the combatant activities of the military or naval forces,. or the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

(1) Any claim arising from the activity of the Tennessee Valley Authority.

944. Attorney’s fees; penalties.—The court rendering a judgment for the plaintiff pursuant to sub-chapter II of this chapter, or the head of the Federal agency or his designee making an award pursuant to sub-chapter I of this chapter, or the. Attorney General making a disposition pursuant to section 934 of this title, as the case may be, may, as a part of the judgment, award or settlement, determine and allow reasonable attorney’s fees, which if the recovery is $ 500 or more shall not exceed 10 per centum of the amount recovered under sub-chapter I of this chapter, or 20 per centum of the amount recovered under sub-chapter 11 of this chapter, to be paid out of but not in addition to the amount of judgment, award, or settlement recovered, to the attorneys representing the claimant. Any attorney who charges, demands, receives or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be guilty of misdemeanor, and shall, upon conviction liereof, be subject to a fine of not more than $2,000 or imprisonment for not more than one year, or both.
945. Exclusiveness of chapter.
946. Laws Unaffected.

APPENDIX III

Judiciary Acts 1903-1950 (Australia)

Part IX.—Suits by and against the Commonwealth and the States

56. Suits against the Commonwealth.—Any person making any claim against the Commonwealth whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose.
57. Suits by a State against the Commonwealth.—Any State making any claim, against the Commonwealth whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court.
58. Suits against a State in matters of federal jurisdiction.—Any person making any claim against a State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has original jurisdiction in the matter) in the High Court.
59. Suits between States.—Any State making any claim against another State may in respect of the claim bring a suit against that State in the High Court.
60. Injunction against one State its Officers.—In a suit against a State brought in the High Court, the High Court may grant an injunction against the State and against all officers of the State and persons acting under the authority of the State, and may enforce the injunction against all such officers and persons.
61. Suits by Commonwealth.—Suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney-General or by any person appointed by him in that behalf.
62. Suits by a State.—Suits on behalf of a State may be brought in the name of the State by the Attorney-General of the State, or by any person appointed by him in that behalf.
63. Service of process when Commonwealth or State is party.—Where the Commonwealth or a State is a party to a suit, all process in the suit required to be served upon that party shall be served upon the Attorney-General of the Commonwealth or of the State, as the case may be, or upon some person appointed by him to receive service.
64. Rights of parties.—In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.
65. No execution against Commonwealth or a State.—No execution or attachment, or process in the nature thereof, shall be issued against the property or revenues of the Commonwealth or a State in any such suit; but when any judgment is given against the Commonwealth or a State, the Registrar shall give to the party in whose favour the judgment is given a certificate in the form of the Schedule to this Act, or to a like effect.
66. Performance by Commonwealth or State.—On receipt of the Certificate of a judgment against the Commonwealth or a State the Treasurer of the Commonwealth or of the State, as the case may be, shall satisfy the judgment out of moneys legally available.
67. Execution by Commonwealth or State.—When in any such suit a judgment is given in favour of the Commonwealth or of a State and against any person, the Commonwealth or the State, as the case may be, may enforce the judgment against that person by process of extent, or by such execution, attachment, or other process as could be had in a suit between subject and subject.

APPENDIX IV

Public Corporations Created By Statutes In India

(1) Reserve Bank of India Act II of 1934.

(2) Coffee Market Expansion Act VII of 1942.

(3) Cocoanut Committee Act X of 1944.

(4) Rubber (Production and Marketing) Act XXIV of 1947.

(5) Central Silk Board Act LXI of 1948.

(6) Damodar Valley Corporation Act XIV of 1948.

(7) Industrial Finance Corporation Act XV of 1948.

(8) Rehabilitation Finance Administration Act XII of 1948.

(9) Electricity (Supply) Act LIV of 1948.

(10) Road Transport Corporation Act LXIV of 1950.

(11) Delhi Road Transport Act XIII of 1950.

(12) State Financial Corporation Act LXIII of 1951.

(13) Air Corporations Act XXVII of 1953.

(14) Tea Act XXIX of 1953.

(15) State Bank of India Act XXIII of 1955.

APPENDIX V

Protection Clauses In Indian Acts Giving Immunity To The State

(1) The Bengal Alluvion and Diluvion Act IX of 1847, Section 9.

(2) Judicial Officers Protection Act XVIII of 1850, Section 1.

(3) Shore-nuisances (Bombay and Kolaba) Act XI of 1853, Section 5.

(4) Police Act V of 1861, Section 43.

(5) Bombay Revenue Jurisdiction Act X of 1876, Section 6.

(6) Chota Nagpur Encumbered Estates Act VI of 1876, Section 22.

(7) Treasure Trove Act VI of 1878, Section 17.

(8) Sea Customs Act VIII of 1878, Sections 181(c) and 187.

(9) Indian Telegraph Act XIII of 1885, Section 9.

(10) Prevention of Cruelty to Animals Act XI of 1890, Section 17.

(11) Indian Railways Act IX of 1890, Sections 82(1) and 82 (A).

(12) The Charitable Endowments Act VI of 1890, Section 14.

(13) Epidemic Diseases Act III of 1897, Section 4.

(14) Livestock Importation Act IX of 1898, Section 5.

(15) Indian Post Office Act VI of 1898, Sections 6, 27 (D) and 48.

(16) Glanders and Farcy Act XIII of 1899, Section 16.

(17) Ancient Monuments Preservation Act VII of 1904, Section 24.

(18) Coinage Act III of 1906, Section 22.

(19) Indian Ports Act XV of 1908, Section 18.

(20) Indian Electricity Act IX of 1910, Section 82.

(21) Indian Lunacy Act IV of 1912, Section 97.

(22) Identification of Prisoners Act XXXIII of 1920, Section 9.

(23) Income-tax Act XI of 1922, Section 67.

(24) Naval Armament Act VI of 1923, Section 14.

(25) Cotton Transport Act III of 1923, Section 9.

(26) Cantonments (House-Accommodation) Act VI of 1923, Section 38.

(27) Coal Grading Board Act XXX of 1925, Section 11.

(28) Provident Funds Act XIX of 1925, Section 7.

(29) Cotton Ginning and Pressing Factories Act XII of 1925, Section 15.

(30) Cotton Industry (Statistics) Act XX of 1926, Section 9.

(31) Indian Forest Act XVI of 1927, Section 74.

(32) Tea District Emigrant Labour Act XXII of 1932, Section 39.

(33) Murshidabad Estate Administration Act XXIII of 1933, Section 25.

(34) Indian Air Craft Act XXII of 1934, Section 18.

(35) Dock Labourers Act XIX of 1934, Section’ 12.

(36) Drugs Act XXIII of 1940, Section 37.

(37) Delhi Restriction of Uses of Land Act XII of 1941, Section 15.

(38) War . Injuries (Compensation Insurance) Act XXIII of 1943, Section 13, sub-section (1).

(39) Central Excise and Salt Act I of 1944, Section 41.

(40) Foreigners Act XXXI of 1946, Section 15.

(41) Foreign Exchange Regulation Act VII of 1947, Section 26.

(42) Industrial Disputes Act XIV of 1947, Section 37.

(43) Mines and Minerals (Regulation and Development) Act LIII of 1948, Section 14.

(44) Resettlement of Displaced persons (Land Acquisition) Act LX of 1948, Section 13.

(45) Electricity (Supply) Act LIV of 1948, Section 82. 46, Factories Act LXIII of 1948, Section 117.

(46) Delhi and Ajmer and Merwara Land Development Act LXVI of 1948, Section 33, sub-sections (1) and (2).

(47) Abducted Persons (Recovery and Restoration) Act LXV of 1949, Section 9.

(48) Banking Companies Act X of 1949, Section 54.

(49) Seaward Artillery Practice Act VIII of 1949, sub-sections (1) and (2) of Section 8.

(50) Delhi Hotels (Control of Accommodation) Act XXIV of 1949, sub-sections (1) and

(51) (2) of Section 11.

(52) Payment of Taxes (Transfer of Property) Act XXII of 1949, Section 7.

(53) Administration of Evacuee Property Act XXXI of 1950, Section 47.

(54) Displaced Persons (Claims) Act XLIV of 1950, Section 11.

(55) Government Premises (Eviction) Act XXVII of 1950, Section 7.

(56) Immigrants (Expulsion from Assam) Act X of 1950, Section 6.

(57) Drugs (ContrOl) Act XXVI of 1950, Section 18.

(58) Preventive Detention Act IV of 1950, Section 15.

(59) Press (Objectionable Matter) Act LVI of 1951, Section 33.

(60) Displaced PerSons (Debt Adjustment) Act LXX. of 1951, Section 55.

(61) Evacuee Interest (Separation) Act XIV of 1951, Section 22.

(62) Mines Act XXXV of 1952, Section 87.

(63) Inflammable Substances Act XX of 1952, Section 6.

(64) Commissions of Enquiry Act LX of 1952, Section 9.

(65) The Requisitioning and Acquisition of Immovable Property Act XXX of 1952, Section 19(1).

(66) Indian Standards Institution (Certification Marks) Act XXXVI of 1952, Section 16.

(67) Delhi and Ajmer Rent Control Act XXXVIII of 1952, Section 32.

(68) Employees Provident Funds Act XIX of 1952, Section 18.

(69) Essential Commodities Act 1955, Section 15.

(70) The Medicinal and Toilet Preparations (Excise Duties) Act XIV of 1955, sub­sections (1) and (2) of Section 20.

(71) The Prize Competitions Act XLII of 1955, Section 19.

(72) Spirituous Preparations (Inter-State Trade and Commerce) Control Act XXXIX of 1955, Section 15.

APPENDIX VI

General Principles Of Tortious Liability As Referred To In The Proposals

A. Liability of master to third parties for torts committed by servant:

(1) A master is liable for—
(a) all acts done by a servant which are authorised by the master;

(b) all acts done by the servant in the execution of his authority, including an excessive or improper or mistaken execution thereof;

(c) all the necessary and natural consequences of the authorised acts;

(d) all acts which are ratified by the master.

(2) A master is liable for all acts done by a servant in the course of his employment or within the scope of his employment, including acts done improperly, negligently or fraudulently, whether the master is benefited by such acts or not; and acts done in violation of express prohibitions issued by the master; but not for acts which the master himself could not have lawfully done even though they have been done by the servant in good faith for the master’s interest.
B. Liability of an employer for torts committed by an independent contractor, his servants or agents:

Except in the cases mentioned below the employer of an independent contractor is not liable for torts committed by the contractor or his servants or agents.
The employer of an independent contractor shall be liable for torts committed by the contractor or his servants or agents in doing the act contracted for, as if they were committed by the employer himself or by his own servant or agent, in any of the following cases:
(a) where the employer assumes control as to the manner of performance of the work;

(b) where the wrongful act is specifically authorised or ratified by the employer;

(c) where the work contracted with the independent contractor is itself unlawful;

(d) where the work contracted to be done, though lawful in itself, is of such a nature that it is likely, in the ordinary course of events, to cause injury to another, unless care is taken or that the law imposes upon the employer an absolute duty to ensure the safety of others in the doing of the work;

(e) where the employer is under a legal obligation to do the work himself.

C. Liability of principal for torts of his agents:

A principal is liable for—
(a) torts committed by his agent in executing the specific orders of the principal or resulting in such necessary or natural consequences of the acts done in execution of such specific orders;

(b) torts committed by the agent within the scope of his authority including fraud;

(c) torts arising froth acts which are ratified by the principal after they are done, with full knowledge of all the facts or assuming, without enquiry, to take the risk of whatever has been done by the agent, provided the act was done by the agent on behalf of the principal.

D. Liability of master to servant:

(a) A master is liable to a servant for any injury caused by the failure of the master to take reasonable care—

(1) to provide adequate plant or plants for the work and to maintain them in proper condition;

(2) to provide and maintain a reasonably safe place of work;

(3) to provide a system of work which is reasonably safe;

(4) to provide competent staff.

E. Common law duties attaching to ownership, occupation, possession, or control of property:
A person who is the owner or occupier of land has got various duties not to harm others which may be classed under four general heads:—
(1) Not to commit trespass, which may be committed not only by physically entering into the neighbour’s land, but by directly causing any physical object or material from his own land to cross the boundary over his neighbour’s land.

(2) Not to commit nuisance, that is to say, interference with the neighbour’s enjoyment of property, by a wrongful use of own property.

(3) Not to injure any person towards whom the owner or occupier of property owes the duty of observing care by the failure to take such care the other has suffered injury to his person or property.

(4) Apart from the liability for negligence for failure to take reasonable care, where there is a duty to take care, there are certain other cases of absolute liability, where the owner or occupier of property has a duty to ensure safety to others and in such cases the owner or occupier is liable for the injury caused, whether or not, he has failed to take reasonable care. The principal classes of such cases are:—

(a) liability for the escape of deleterious thing from property or premises in one’s possession,

(b) liability for trespass by one’s cattle or by dangerous or mischievous animals straying on the highway or otherwise injuring others,

(c) liability for fire on one’s premises,

(d) liability for dangerous premises to persons who enter therein.

F. Absolute liability for inherently dangerous things:

(a) A person in the possession of an inherently dangerous thing is liable to the same extent as the owner or occupier of dangerous premises,

(b) If a person delivers an inherently dangerous thing to another without warning him of its dangerous character, he is liable for injury caused by the chattel not only to the deliveree but also any third person.

(c) If a person places an inherently dangerous chattel in a situation easily accessible to a third person who sustains damage from it, he is liable for the damage.

G. Things not inherently dangerous:

(i) Even though a chattel is not inherently dangerous, a person is liable if he supplied the chattel to another with knowledge that it is likely to cause damage, but without giving warning of its dangerous or defective condition or fraudulently representing it to be safe and damage is caused by it to any person who ought to have been in his contemplation as likely to see it.

(ii) A manufactuier or repairer of goods and persons in like position who disposes of the goods in such .a form as to show that he intends them to reach the ultimate consumer or user in the form in which the goods left him, with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in injury to the consumer’s life or property, will be liable for such injury caused to the ultimate consumer or user owing to the failure to take such care.