Monthly Archives: June 2015

Guest Post: The NJAC and an unconventional constitutional convention

(In this guest post, Akhil Deo argues that the Second Judges Case got it wrong in treating judicial primacy over judicial appointments as a binding constitutional convention, and part of the basic structure.)

The Groundwork

The Supreme Court of India (SC) is currently hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC), and replaces the existing collegium system. One of the issues for consideration, which this essay will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

In what is popularly referred to as the Second Judges Case, where the Court held that primacy must be given to the Chief Justice in the matter of appointments, the SC expressed the following view on constitutional conventions: (at paragraph 449)

 “Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

The text of Article 124 of the Constitution of India, before the amendment, provided that the President appoints every judge of the Supreme Court, and that while appointing judges other than the Chief Justice he shall ‘consult’ the Chief Justice.

In paragraphs 469 and 470 the Court found that by 1948, a convention had been established that the appointment of a judge could only be made with the concurrence of the Chief Justice. Further, it found that almost all subsequent appointments were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three step test in determining the existence of a convention – i.e., (i) the availability of precedents, (ii) that the actors feel bound by the rule and (iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph 474);

 “…the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive…”

In paragraph 473, as a justification the Court stated that the independence of the judiciary is a basic feature of the constitution and that the exclusion of the final say of the executive in the matter of appointment of judges is the only way to maintain the independence of the judiciary. Further the Court opined that the judiciary itself will be more well informed compared to the executive when it comes to judges suitability. Therefore the court interpreted the word ‘consultation’ in Article 124 to mean ‘concurrence’

The 99th Amendment introduces Article 124A which lists the composition of the NJAC as the Chief Justice, the next two most senior Judges of the SC, the Law Minister and two eminent persons nominated by the Prime Minister, the Leader of Opposition and the Chief Justice. Critiques of the Amendment argue that this clearly violates the basic feature of independence of the judiciary-by not giving primacy to the opinion of the Judicial members.

The crux of the present debate before the Court is that if it has already been held that the exclusion of an executive voice, as a matter of convention, in the matter of appointment is the only way to maintain the independence of the judiciary (which is part of the basic structure), the 99th Amendment is void for violating the basic structure. This position is aggravated by the fact that the Court in the NJAC case refused to refer the issue to a larger bench, meaning that it is bound by the ratio in the Second Judges Case.

Is the 99th Amendment already doomed?

There are three reasons why the constitutional convention argument is not tenable. First, the text of the Constitution never suggested that primacy of the judiciary was required in the matter of appointments. In Mahesh Chandra Gupta v. Union of India the SC had itself held that the appointment of a judge is an executive function of the President (even the smallest discretion in the exercise of this function, however, was wrestled away by the Court in the earlier Second Judges case). During the Course of the Constituent Assembly Debates, Dr. BR Ambedkar stated– “I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” Even Justice Ahmadi in his dissenting opinion in the Second Judges case(supra, at paragraph 395, 403) argued that the original intent of the framers did not support an interpretation of the constitution that conferred primacy on the Chief Justice and that such a change would require a constitutional amendment.

Second, reliance on English authorities on the subject of constitutional conventions is questionable with respect to India insofar as the English constitution is unwritten. Scholarly work on conventions in England primarily dealt with codes of political behavior and not express constitutional provisions. Therefore, Jennings’ enquiry was often with respect to political behavior, and not justiciable or even express codes of conduct. Consequently, its application to a written constitution should be, at most, limited to governing unwritten codes of behavior and not those which are explicitly and clearly provided for by the constitution. A similar view was adopted by The Calcutta high Court in Ashok Sengupta v. Union of India(1996 SCC Online Cal 234), where despite the existence of an English convention that the Prime Minister is generally appointed by the elected members of parliament, the Court refused to interfere if an appointment is made otherwise by the President in light of textual Constitutional provisions, opining that- “A third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention.”

Third, the convention in the second judges case was unconventional insofar as it was held to be binding, because constitutional conventions are ordinarily regarded as not being enforceable in Court. There is some precedent in India that accepts the proposition that constitutional conventions are part of constitutional law, for example most recently in the Madras Bar Association case, where the Supreme Court held that the National Tax tribunal(NTT) was unconstitutional. In paragraph 131 of the judgment the Court held as follows:

 “This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature.”

However, there is sufficient authority that contradicts this position. For example, the Canadian Supreme Court in the case of Amendment of the Constitution of Canada, Re , refused to enforce a convention that state consensus must be obtained before enacting a law that concerns them, finding that “What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” The Indian Supreme Court had also recognized as much in the 1977 case of State of Rajasthan v. Union of India, finding that “… it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be.” Again in the Judicial Accountability case, the Supreme Court refused to interdict a member of the Judiciary from continuing to perform judicial functions pending an inquiry into alleged misbehavior. In paragraph 62, the Court rejects the argument that convention requires him to do so and held as follows:

“It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose.”

The collegium system versus the constitutionality of the NJAC

While the above analysis is critical of the Courts’ application of constitutional conventions, the larger question with respect to the Second Judges case and its impact on the NJAC is whether or not the convention of giving primacy to the opinion of the Chief Justice forms a part of the basic structure of the constitution, thereby making it impervious to an amendment.

In light of my arguments above, I suggest that ultimately, what is undoubtedly a part of the basic structure, is the independence of the judiciary. Consequently, both the seemingly binding conventions in is the second judges case and even in the NTT judgment should only be seem as supplementing the independence of the judiciary and not a part of the basic structure in their own right. Therefore, if following a particular convention is not the only way to ensure the independence of the judiciary, then (even if binding) it should be amenable to amendment under Article 368.

With respect to the NJAC there are two reasons why the convention of giving primacy to the Chief Justice is no longer tenable. First, an executive role in only the appointment process does not imply a disregard for the independence of the Judiciary as a whole. Other facets of an independent judiciary, for example, include a fixed tenure and salary, difficult impeachment procedure etc. Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of appointments is not a predominant constitutional feature in other parts of the world, for example, The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman.

Second, the final rule of Jennings’ three-pronged test for determining whether a convention exists is the necessity of a reason for its existence. The reason for the collegium system, where judges appoint judges, according to the Court in the Second Judges Case was the ability of the judiciary to better determine the suitability of their peers. Arguably, this no longer stands true with respect to the collegium. Several prominent jurists and academicians have criticized the collegium system for being opaque with no sense of accountability (see generally here, here and here), and further, as an extra constitutional system that finds no support from the text of the constitution leading to an erosion in the quality of judges that it produced.

Conclusion

These arguments present two propositions:

  • Conventions should not be considered binding by Courts and that the courts must refrain from both formulating and enforcing them, and
  • The convention of judicial ‘primacy’ was linked to the basic structure in the Second Judges case. However, separated from its nexus with the basic structure, such a convention giving primacy to the judiciary in the matter of appointment, even if accepted as binding, becomes part of ordinary constitutional law, meaning that it is amenable to the amendment process under Article 368 of the Constitution and no longer acts as a deterrent to the validity of the 99th Amendment

 

(Akhil Deo is a third-year student at the Hidayatullah National Law University.)

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Guest Post: Admissibility of Confessions to the Police: Normalising a State of Exception – II

(In this second post in a two-part series, Manasa Sundar Raman examines how, true to Agamben’s thesis, the “exceptional” remedy of making confessions to the police admissible has spilled over into “normal” judicial practice.)

In the previous post, the scope of right against self-incrimination and its dilution by Kartar Singh and PUCL were discussed. In this post, we will examine how the guidelines issued in Kartar Singh were inadequate to protect the right against self-incrimination resulting in police confessions increasingly becoming a norm.

Dilution subsequent to Kartar Singh

The guidelines suggested to the government in Kartar Singh were without adequate clarity on their applicability to future cases or even their rationale. Predictably, they have suffered dilution by subsequent Supreme Court judgments which condone non-compliance with them and the rules framed under Section 15 of the TADA.

S.N. Dube v. N.B. Bhoir, for instance, held that even if the Kartar Singh guidelines were not strictly adhered to, it would not affect the admissibility of the evidence. Shockingly, even though the accused had alleged coercion by the police officer, the plea was rejected since no specific instance of coercion was alleged against the concerned police officer. Thus, not only does the court discard the importance of the guidelines, it places the burden on the accused to show his confession was recorded in an atmosphere that was not free.

In Jameel Ahmed v. State of Rajasthan, the confessional statements so recorded by the police were not sent to the CMM or the CJM as required under Rule 15(5) of the Rules, and as per the Kartar Singh guidelines. However, the Court underplays the importance of the Magistrate and the guidelines by stating the CJM or CMM has to merely forward the confessional statement and, hence, the procedural lapse may be overlooked. It goes on to describe the Rules and guidelines as being “only directory and not mandatory.” This way, an important safeguard against the police extrapolating the confession was diluted.

Finally, in Gurdeep Singh v. The State (Delhi Admn.), one can clearly notice the kind of coercive and intimidating circumstances that can be wrought by the preceding rulings. Even though the accused was handcuffed with a policeman holding him in chains and armed guards surrounding the room, the Court dismissed the contention of a confession being non-voluntary stating that these measures were intended and essential for security purposes. As a way of justification, once again, the Court relies on the objects for the enactment of TADA and the necessity of having stringent provisions to assist the prosecution.

From the above case-laws we see how the courts in their enthusiasm to convict terror-suspects, dispense with crucial guidelines issued by Kartar Singh and Rules under TADA. Thereby, even if the ratio in Kartar Singh read with the guidelines have the effect of securing a meagre right against self-incrimination (in reality, it did not), the rhetoric of terrorism has undermined even this.

Characterising the Judicial Response

In most of the above cases, the rhetoric that is used prominently includes the image of the innocent victim of terror. This way the Court is able to depart from the traditional paradigm of a trial where the accused stands against the overwhelming might of the state machinery (and therefore has certain rights such as right against self-incrimination, right to silence, presumption of innocence) to a different paradigm where the accused has wronged the several innocent victims. The role of the trial process under the new paradigm is to strike a balance between the rights of these two individuals. By portraying the State’s citizens as victims of terror, the Court is able to turn a blind eye to his presumption of innocence or right against self-incrimination.

Moreover, this has changed the role of the higher judiciary. As pointed out by Prof. Mrinal Satish and Prof. Aparna Chandra, the judiciary has shifted from being the “sentinel on the qui vive” (as famously observed in State of Madras v. V.G. Row), duty-bound to zealously guard fundamental rights, to a pragmatic mediator that balances competing claims of ‘national security’ and ‘fundamental rights’. The pragmatic mediator attitude can once again be seen when the Court endorses appeals to observe human rights during the investigation and trial stages. This is not done as a reiteration of the State’s legal or moral duty but for instrumental reasons of preventing further terrorism. As a consequence, even in cases where the violations are blatant, there is a tendency for judges to defer to the legislature as it concerns ‘terrorism’ and prescribe guidelines, without actually striking it down.

Admittedly, the judiciary may not possess the same expertise as the legislature or the executive in evaluating counter-terror measures. However, it would be far more respectable and healthy for the rule of law if the judiciary candidly conceded that it is ill-equipped to deal with the problem of terror and, thus, give a wide leeway or ‘margin of appreciation’ to the State in such cases. Accordingly, it could have formulated a lower level of review when the object of the statute was to counter terrorism or read in a national-security exception to Article 20(3). However, we see no such admission of its inadequacy or a well-defined exception to terror-cases. In contrast, in their eagerness to uphold the statute, the judgments simply refer to the legislative competence of the state, echo the State’s high-pitch alarmist attitude to terror and dilute the entirety of the Article 20(3) guarantee.

The above argument can also be illustrated using Article 14 analysis used in Kartar Singh. In evaluating whether it was open for the legislature to make confessions before the police admissible, the judges reduce the issue to one where ‘different mode of proof’ is prescribed by the legislature for a certain class of offences. The rationality behind legislative classification is not questioned at all, instead the analysis is limited to the competence of the legislature to make such a classification without evaluating the rational nexus of such a classification to the object sought to be achieved. In not doing so, the judges leave open the question of whether it would be open for the legislature to make classifications such as ‘sexual offenders’ and ‘other offenders’; ‘white-collar crimes’ and ‘other crimes’ and make confessions before the police selectively admissible for one set? Can different classes of crimes have ‘different modes of proof’? The judgment reduces it to a question of legislative competence.

No analysis is presented with respect to Article 20(3). While the intention may have been to dilute the standards for terror-related cases alone, the judgment by not making that intention explicit jeopardises the right as a whole. Even if the Court had chosen to explicitly hold ‘terror cases’ as an exception where it is acceptable for confessions made to the police to be admissible, the substantial dilution of Article 20(3) could have been prevented. The result is that the diluted right to self-incrimination has now become the normalised standard under the Constitution.

Normalisation of police-recorded confessional statements

Over the years, we see that the Courts have become oblivious to the so called “terrorism” exception. Thus, evidence obtained under such exceptional statutes are being used for the trial of regular offences.

In State v. Nalini, the accused was charged with offences both under TADA and IPC. The Court, in paragraph 81 of the judgement held that confessional statements recorded under Section 15 of TADA would apply and become admissible as substantive evidence for all offences including the non-TADA ones. In holding this, it specifically overruled another SC decision (Bilal Ahmed Kaloo v. State of Andhra Pradesh) on point. Further, the evidence so recorded could also be used against the co-accused.

In view of the conflict between the above two cases, the issue was referred to a constitutional bench in State of Gujarat v. Prakash Kumar which upheld the Nalini rationale. It said that the confession statement recorded under Section 15 of TADA is admissible for the offences under any other law which were tried along with TADA offences notwithstanding the fact that the accused was acquitted of offences under TADA in the same trial.

In State of Gujarat v. Mohammad Atik, the issue was whether a confessional statement recorded by a police during investigation under TADA could be used for a completely different trial where investigation was done by a different set of police officers against the same accused. The Court held that in the absence of any statutory inhibition, there is no need to introduce a further fetter against the admissibility of the confessional statement. Thus, there is no cognisance of the fact that a police-recorded confession is admissible in only very exceptional cases. Once admissible, it is treated on par with any other evidence and there is no re-examination of the voluntariness of that evidence in consideration of the circumstances under which it was recorded.

From the above line of cases, we notice a disturbing trend where the Courts adopt a dangerous and cavalier approach to confessional statements recorded by the police. They are unmindful of the exceptional circumstances under which this exception was sought to be created and constitutionally justified. Instead, there is an increasing trend to issue guidelines to be complied with. These too are not rigorously enforced. This way, the extraordinary standards which are judicially condoned for addressing ‘terrorism’ slowly seep into the ordinary criminal justice system, and are normalised.

The blame for this undoubtedly falls on the majority opinion in Kartar Singh. Not only does it depart from the progressive interpretation given to the rights of the accused in Nandini Satpathy, it does not adequately frame admissibility of confessions recorded by the police as a strict exception for terror-cases. Indeed, by making it wholly a question of legislative competence, the legal position is such that if Section 25 and 26 of the Evidence Act were replaced completely by a provision akin to Section 32 of POTA, the existing precedent would make it wholly constitutional. Fortunately, the POTA has been repealed and the legislation which replaces it – the Unlawful Activities (Prevention) Act, 2008 contains no such provision. However, the constitutional guarantee has been undoubtedly diluted.

Concluding Remarks

In view of the progressive interpretation given to the right of accused against self-incrimination at the interrogation stage in Nandini Satpathy, and the absence of any exception to Article 20(3), the judgment of Kartar Singh was grossly regressive. It can even be argued that the judicially created exception for admissibility of confessions made before the police is unconstitutional.

However, even assuming it is constitutional, Kartar Singh, by not carving out a specific and deliberate exception for terror cases and by employing vague rhetoric about the necessity felt by the Parliament has severely diluted the right as a whole. Read with subsequent judgments where confessional statements made in coercive atmospheres have been held to be admissible, it is safe to say that guarantee against self-incrimination has virtually become meaningless.

More alarmingly, Courts show no hesitancy in applying confessions obtained under such extra-ordinary statutes designed to meet exceptional ends in normal criminal justice administration. This results in a normalisation of these standards.

(Manasa is a Vth Year student at the National Law School of India University)

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Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

(Previously on this blog, we have discussed Giorgio Agamben’s theory of the state of exception, according to which “extraordinary laws” ostensibly meant for “extraordinary times”, characterised by concentration of power in the executive, bypassing of parliamentary oversight, and incremental erosion of procedural safeguards, gradually become “normalised” parts of the existing legal landscape. In a two-part series, Manasa Sundar Raman discusses the use of extraordinary law to achieve the gradual normalisation of confessions made to police officers, that were originally considered inadmissible under the Indian Evidence Act.)

One of the chief goals of any liberal democratic Constitution, including India’s, is to guard against the growth and abuse of police power of the state and corrosion of civil liberties. Yet, it is no secret that in the recent decades, basic constitutional guarantees have increasingly come under threat and have been justified in the name of counter-terrorism. Despite struggling to define “terrorism”, most counter-terror legislations and judgments that interpret them, comfortably place terrorism as an exceptional or extraordinary crime that justifies infringements on civil liberties that are otherwise prohibited.

Characteristically, counter-terrorism legislations give enormous and overriding powers to the executive. Further, in accordance with the extraordinary concern that is sought to be addressed by such laws, they also have extraordinary provisions in procedural aspects such as bail, arrest, detention, confessions, sentencing etc. A recurring ‘extraordinary’ feature in these statutes is the admissibility of confessions made to police during interrogation.

Such extraordinary provisions inevitably lead to constitutional concerns. However, over the years, it can be observed that the judiciary is inclined to save them, paying undue deference to the government rather than declaring them as being unconstitutional. The judgments in this regard invoke the stereotypical imagery of brutalities, fear psychosis and loss of life inflicted by terrorism. This is used as a ground in itself to undermine constitutional guarantees.

In this context, one can consider the extent of deference given to legislative wisdom by the judiciary when these statutes permit confessions made to police as being admissible in trial and are challenged for being violative of Article 20(3). It is my thesis that the judiciary, by allowing for the so-called extraordinary statutes to undermine the right under Article 20(3) without constitutional basis, has gradually aided in the erosion of the right for ‘ordinary’ situations, as well. Therefore, admissibility of confession to police officer is no longer a shocking exception, but well on its way to becoming the norm.

Right against Self-Incrimination in India

Prohibition against self-incrimination is undoubtedly one the cardinal principles of criminal law. Under Article 20(3) of the Indian Constitution, the safeguard, framed as a right, extends to all accused persons to not be compelled to be a witness against themselves.

The Article 20(3) guarantee is further codified under Sections 161, 162, 163 and 164 of the Criminal Procedure Code, 1973 and such guarantees are also present in statutes pre-dating the Constitution in the form of Section 25 and Section 26 of the Indian Evidence Act, 1872. Additionally, India has also, without any reservations, ratified the ICCPR which under Article 14 provides for the right against self-incrimination “in full equality”.

The extent of the right against self-incrimination was fully recognized by the Supreme Court in Nandini Satpathy v. P L Dani. In this case, the court relied on Miranda v. Arizona, to extend the embargo against compulsion in testimony to the investigation stage as well. Further, the judgment recognises that compulsion may come in many forms i.e. not just by way of physical torture, but also in the form of psychic pressure or a coercive atmosphere. Most importantly, the decision holds the right under Article 20(3) and under the Criminal Procedure Code to be co-terminus in their protection. Thus, such strong language used by Nandini Satpathy was merely one step behind holding that provisions enabling the admissibility of confessions recorded by the police would be unconstitutional. However, we notice that subsequent judgements on Article 20(3) regress from this holding and dilute the protection altogether.

Judicial Response to Art. 20(3) challenges to Extraordinary statutes

The Terrorists and Disruptive Activities (Prevention) Act, 1987 (“TADA”) was introduced in May, 1985 as a temporary and extraordinary measure to deal with insurgent movements felt in several areas in India. However, over the years, it was notified in almost all states and became infamous as one the most abused laws.

Many provisions of the TADA, including Section 15 were challenged before a constitutional bench in Kartar Singh v. State of Punjab. Section 15 of the TADA provided that a confessional statement recorded by a police officer is admissible as evidence. In a 3-2 split, the Court upheld the section.

The judgment is prefaced with the historical background and circumstances that led to the enactment of the TADA. For a large part, the Supreme Court dwells on the legislative competence of the State to enact such a law. It then proceeds to hold the section as valid under Article 14 on the basis of the legislative classification that differentiates between ‘terrorists and disruptionists’ and ‘ordinary criminals’. Rejecting the reliance on State of W.B. v. Anwar Ali Sarkar, it reasons that classification of offences is constitutional as long as they are legislatively defined and not left to the arbitrary and uncontrolled discretion of the executive. The issue with this reasoning is that the Court refuses to dig deeper into the rationality of the legislative classification itself. Even assuming that there is an intelligible differentia between the ‘terrorists and disruptionists’ as determined by the police and ‘ordinary criminals’, the Court fails to elaborate on the rational nexus between such a difference and lesser degree of constitutional protection against self-incrimination.

Further, it holds the procedure to be just and fair under Article 21. In the reasoning for this, the majority cite a National Police Commission report that recommends that confessions made to the police to be made admissible so that it will “remove the present feeling of the police that they have been unjustly discriminated against in law”! Thereafter, once again the Court invokes the spectre of terrorism. It paints terror and disruptions as those which endanger the sovereignty and integrity of the country, the normal life of the citizens, and by linking it to the difficulty in obtaining evidence, upholds it entirely.

There are several things that are inexplicable and downright absurd in the Court’s reasoning in saving Section 15. First, it is beyond comprehension why the entire reasoning is based on Article 14 and 21 even though the Court earlier admits that Article 20(3) concerns were implicated by such a provision. There is absolutely no analysis on the extent of protection guaranteed by Article 20(3) and to what degree can it be infringed, if at all. Admittedly, the Court issues guidelines for recording of a complaint of torture by Magistrate if the accused so complains. However, it omits to state the consequence of torture on the probative value of the ‘confession’. Further, the judges limit their understanding of involuntary confessions to those made under torture. There is no mention of other methods by which a confession may be extracted such as by inducement or threats. As rightly pointed out in Nandini Satpathy, compelled testimony is not limited to those made by “physical threats or violence” alone but also as a response to “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods” as well. Therefore, there is no way for the Court to determine if the accused did in fact make the confession freely and voluntarily. Second, the judges acknowledge truth of custodial torture to obtain evidence and then shockingly, in the same breath, turn a blind eye to it by invoking the imagery of terrorists being a threat to the nation’s sovereignty.

Thus, despite powerful dissents by Justice Ramaswamy and Justice Sahai, it is unfortunate that the majority chooses to substitute constitutional analysis with rhetoric on barbarity of terrorism. The saving grace of the majority judgment is the guidelines issued by the majority such as appearance of the accused before the Magistrate and forwarding the confessional statement recording. Ostensibly, the guidelines were aimed at ensuring the voluntariness of the confession and as a protection mechanism against torture. However, this rationale is not explicitly mentioned, perhaps because it would become an implicit admission of the constitutional infirmities of the section.

The TADA was subsequently repealed but was re-incarnated as the Prevention of Terrorism Act, 2002. Section 32 of the POTA, akin to Section 15 of the TADA, allowed for admissibility of confessions made to a police officer. However, Section 32 in sub-sections (2) to (5) statutorily incorporated the guidelines issued in Kartar Singh. In PUCL v. Union of India it was argued that the since the accused has to be produced before the Magistrate within forty-eight hours, there is no reason why the police are authorised to collect confessions. The Supreme Court rejected this contention stating that a similar provision was upheld in Kartar Singh and also pointed out that it incorporates the guidelines issued therein. Once again, the Court falls into the trap of excessive deference to the determination of “necessity” by Parliament, by characterising this encroachment of a fundamental right as an issue of policy rather than principle. Moreover, just as in Kartar Singh, the Court makes no reference to the fact that the recording of confession by the police is an exceptional case, departing from the well-established rules under Evidence Act, Criminal Procedure Code and norms under Article 20(3). Thus it is uncertain from the reasoning whether the Court does view Section 32 as a justified derogation from Article 20(3) in view of terrorism or if recording of confession by police is normally allowed even for regular offences under Article 20(3).

(Manasa is a Vth year student at the National Law School of India University)

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