TADA Valid; Section 15 Police Confessions Upheld With Safeguards, Photo Identification Clause Struck Down: Supreme Court

For the petitioners. Parliament lacked competence because the Acts dealt with public order, a State subject (para 44). Under the guise of speedy trial the Acts denied the procedural safeguards that Article 21 requires (paras 80-81). Section 15 overrode sections 25 and 26 of the Evidence Act and sections 162 and 164 of the Code, and recordings on mechanical devices could be tampered with (para 193). The definition of abet was vague enough to catch innocent persons (para 99), and section 20(8) made bail impossible even for a person falsely charged (paras 339-340).

For the Union and the States. Terrorism encouraged from across the borders threatened the sovereignty of India, so the Acts related to the defence of India and not to public order (paras 54-55). Vesting the power to record confessions in a superior police officer was itself a safeguard, and the probative value of a confession was left to the court in each case (paras 198-199). The bail conditions were in line with section 437 of the Code (para 341).

Parliament was competent

Terrorism under the Acts is not a mere disturbance of public order but a grave emergent situation that challenges the existence and sovereignty of the country (para 68). The Acts do not fall under Entry 1 of List II, and no other State entry was invoked, so they are within Parliament's competence under Article 248 read with Entry 97 of List I; they could also fall under Entry 1 of List I, Defence of India (para 73).

Speedy trial is part of Article 21

Speedy trial is read into Article 21 as an essential part of the right to life and liberty, running from arrest through investigation, inquiry, trial, appeal and revision (para 86). Designated Courts were directed to avoid unreasonable delay, and Governments to fill vacancies and constitute more courts (para 369).

Section 15 survives, with guidelines

Treating terrorists and disruptionists as a separate class has a rational nexus with the object of the Acts; Anwar Ali Sarkar did not apply, because the Acts themselves classify the offenders and the offences (paras 243-244). Having regard to the competence of Parliament, the gravity of terrorism and the reluctance of witnesses to depose, the majority held section 15 valid under Articles 14 and 21 (paras 253, 260); recording by a Magistrate under section 164 remained available (paras 261-262). The Court laid down guidelines: a free atmosphere, prompt production before the Chief Metropolitan or Chief Judicial Magistrate, medical examination on any complaint of torture, investigation only by senior officers, and respect for the right to silence (para 263). The trial court must be satisfied that there was no trap and that all conditions were fulfilled (para 264).

Bail limits upheld

Excluding section 438 by section 20(7) does not deprive personal liberty under Article 21, and the Uttar Pradesh deletion of section 438 is valid (paras 330, 334). Section 20(8) bars bail unless the Public Prosecutor is heard and, if he opposes, the court is satisfied that there are reasonable grounds for believing the accused not guilty and not likely to offend on bail (para 342). These conditions mirror section 437 of the Code and are not unreasonable (para 349); the contrary view in Bimal Kaur was set aside (para 350). Courts must still guard liberty and resist the Act being invoked only to defeat bail (paras 351-352).

Article 226 only in rare cases

The High Courts retain jurisdiction, but the scheme of the Act, with appeals to the Supreme Court, requires that it be used most sparingly, only in rare and appropriate cases in extreme circumstances, and judicial discipline requires the High Courts to refrain (para 359).

Read in, qualified, struck down

Actual knowledge or reason to believe was read into clause (i) of the definition of abet (paras 133-134). Witnesses' identities should be disclosed before trial unless the court, for weighty reasons, protects witnesses whose lives may be in danger (para 290). Section 22 was struck down because treating identification from a photograph like a test identification parade could cause gross injustice (para 361).