TERRORIST and DISRUPTIVE ACTIVITIES (Prevention) ACT 1987

India has the lengthiest constitution in the world, with a section on fundamental rights. It has a Supreme Court, which prides itself in influencing the transformation of a primitive society into a progressive one and which treats the constitution as a living organism rather than a rigid framework. It has made some landmark decisions in the protection of rights, which have attracted the admiration of leading jurists around the world.

The Constitution of India safeguards many fundamental rights (Part 3 articles 13 – 35 Indian Constitution). These include the life and liberty of the person (article 21) and the freedom of expression (article 19)

However, article 21 which insures that no person shall be deprived of there life or personal liberty except according to procedure established by law, was suspended during 1987 for a period of 2 years in the Punjab by the 59th amendment of the constitution. This was later repealed. During this period the Indian security services were deemed to have to have a ‘licence to kill’.

Thus it must be noted that provisions that provide for the government to suspend them, restrict them and even alter them, weaken the fundamental character of fundamental rights in the Indian Constitution.

From the outset of the rise of the modern movement of Sikh nationalists in the early 1980’s, the Indian state has sought to break such movements by any means and responded by introducing the Terrorist and Disruptive Activities Act 1987 (TADA). The Act established special courts or “designated courts” to try those arrested for terrorist acts and disruptive activities. It conferred broad discretion upon the authorities to arrest persons and to try them. One of the most important points about TADA was the effect it had on the population of Punjab, it erased the distinction between violent and peaceful protests.

Under the definition used in TADA, the state saw it self justified in ordering police forces to break up demonstrations and detain thousands of people, particularly those connected with political organisations, however weak those connections are. Under TADA a person could be detained, without charge or trial for suspicion of belonging to, supporting or having knowledge of militant groups.

The police were given strong search and seizure powers under the Act, they could indict any person on the basis of suspicion. Once indicted under TADA, the accused would be tried by a special court under extraordinary procedures. In such trials, protections normally available to an accused in a liberal society would be ignored. Once under trial the accused could be convicted on the basis of minimal evidence that would have been insufficient for conviction by an ordinary court under normal Indian law.

Under Section 15, a confession allegedly voluntarily made before a police officer, not lower in rank than a Superintendent of Police, and recorded by such police officer in writing or by using any mechanical device such as audio cassettes and video tapes, was admissible in court against an accused (or co-accused, abettor or conspirator) for an offence under this Act. There were widespread allegations that police routinely used torture to obtain confessions from detainees and/or planted evidence as a means of detaining them under TADA.

Preventative detention legislation facilitates custodial torture and places detainees at the risk of very serious harm. For example TADA permitted detention in judicial custody for up to a year (2 years in Punjab) without formal charges (s 20 (4)(b)). Bail was not allowed as of right; a magistrate had to be convinced of the innocence of the prisoner before it was granted and imposed a mandatory five-year sentence for those convicted of terrorist related activities in Camera (in private) trials and identity of witnesses was kept secret, so that no cross examination of them was allowed.

It is to be noted that ‘terrorism’ was defined very widely, including those who ‘conspire or attempt to commit or advocate, abet, advise, incite or knowingly facilitate the commission of a terrorist act or any act prepatory thereof’ (s 3) ‘or harbouring or conceal terrorists’ (s 4), were treated as such for the purpose of the Act. This included attending a meeting or participating in a peaceful demonstration that challenged the territorial integrity of India. disruptive activities are so broadly phrased that they encompass peaceful expression of political or other conscientiously held views.

The government used TADA as a tool to fight trade unions and to detain Muslims, Sikhs, Dalits, and political opponents. Over 76,000 people were arrested while TADA was in force from 1987 to 1995. The conviction rate for these arrests was less than two percent. In the period since 1987 to its repeal in 1995, some 17,544 (The Tribune 1.6.94) persons suspected of terrorist activities were detained in Punjab under its provisions. However, no one has ever been convicted under section 3, which defines a terrorist and only 1.8% of those detained under T.A.D.A have been convicted.

Although TADA lapsed in May 1995 after immense international pressure from the organs of the United Nations and non-governmental organisations, it has been given retroactive effect and people are still being charged and held according to its provisions. People in Punjab and other States of India continue to be charged under TADA retrospectively and continue to be harassed under it. In addition, the position is that those wanted in connection with offences committed whilst TADA was in operation are subject to its provisions.

In addition there are further legislation permitting pre-trial detention of those suspected of involvement with militant activities on very loosely defined grounds of national security. These include the Armed Forces (Special Powers) Act allowing the security forces wide powers of arrest, to conduct searches without warrant and prohibiting a detainee from being legally represented when an Advisory Board conducts review of the detention period. Reasons for the detention do not have to be disclosed if it is not in the “public interest” to do so.

Further, the Terrorist Affected Areas (Special Court) Act amends the Indian Evidence Act so that when a person accused of committing an offence can be shown to be in an area where firearms or explosives were used against the security forces, they are considered to be presumed guilty if an offence and must rebut the presumption at trial.

The majority of those detained under TADA were released on bail on the orders of the Supreme Court and cases were reviewed by the "Review Committees" which often recommended release. According to official figures, as of December 1999 TADA charges against almost 24,000 people had been dropped as a result of such reviews.

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