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PUNJAB & HARYANA HIGH COURT
D.S.Tewatia, S.S.Kang and M.R.Agnihotri JJ.
Bimal Kaur Khalsa
Versus
Union Of India
Civil Writ Petition No. 3761 of 1986,
Decided On : OCTOBER 20, 1987
The judgment deals with the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the Act of 1985) and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the Act of 1987). The challenge was mounted on the basis of various provisions of the Constitution of India, including Articles 14, 19, and 21. The Court upheld the constitutional validity of most of the provisions of the Acts, but struck down a few provisions as unconstitutional.
Fact of the Case:
The petitioners, who were accused of various offenses under the Acts, filed writ petitions challenging the constitutional validity of certain provisions of the Acts. The main contentions of the petitioners were that the provisions violated their fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution.
Finding of the Court:
The Court held that the following provisions of the Acts were unconstitutional: * Section 16(1) of the Act of 1985, which mandated that all proceedings before a Designated Court be conducted in camera. * Clause (a) of Sub-Section (4) of Section 20 of the Act of 1985, which allowed the production of an accused person before an Executive Magistrate for remand purposes, even in the absence of a Judicial Magistrate. * The last portion of Clause (b) of Sub-Section (8) of Section 20 of the Act of 1985, which required the court to be satisfied that the accused was not likely to commit any offense while on bail, as a condition for granting bail. The Court upheld the constitutional validity of the remaining provisions of the Acts, including the provisions relating to the establishment of Designated Courts, the conferment of exclusive appellate jurisdiction on the Supreme Court, and the modified application of certain provisions of the Code of Criminal Procedure.
Issues: The main issues considered by the Court were: * Whether the provisions of the Acts violated the fundamental rights of the accused, including the right to a fair trial, the right to equality before the law, and the right to personal liberty. * Whether the Acts were a reasonable and proportionate response to the threat of terrorism and disruptive activities.
Ratio Decidendi: The Court held that the impugned provisions of the Acts were unconstitutional because they were arbitrary, unreasonable, and violative of the fundamental rights of the accused. The Court reasoned that: * The requirement of conducting all proceedings in camera violated the principle of open justice and the right of the accused to a fair trial. * The provision allowing the production of an accused person before an Executive Magistrate for remand purposes was arbitrary and violated the principle of separation of powers. * The requirement that the court be satisfied that the accused was not likely to commit any offense while on bail was an impossible demand and violated the right to personal liberty. The Court also held that the Acts were a reasonable and proportionate response to the threat of terrorism and disruptive activities, and that the restrictions imposed by the Acts were necessary to protect the public interest.
Final Decision: The Court allowed the writ petitions in part and struck down the impugned provisions of the Acts. The Court directed that the cases of the petitioners be tried by the appropriate criminal courts, rather than by the Designated Courts established under the Acts.
D.S.TEWATIA, J.
1. Petitioner Smt. Bimal Kaur Khalsa wife of Sardar Beant Singh, deceased, has through Civil Writ Petition No. 3761 of 1986, question the vires of some of the provisions of the Terrorist and Disruptive Activities (Prevention)Act, 1985.
2. The vires of some of the provisions of the said Act have similarly been challenged through Civil Writ Petitions Nos. 1629 and 4074 of 1986 and Criminal Writ Petitions Nos. 827, 884 and 888 of 1986.
3. The provisions of the said Act, the vires whereof had been challenged are - Section 3(2)(i), S.7, S.8, Sub-Sec. (2) of S.9, Sub-Sec. (1), Sub-Sec. (2) and Sub-Section (3) of Sec.13, Sec.16 and cls. (a) and (b) of Sub-Sec. (2), Sub-Sec. (3), Sub-Sec. (4) and cl.(b) of Sub-Sec. (5) of Sec.17 of the Act.
4. Soon after the judgement in this case was reserved, the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (Hereinafter referred to as the Ordinance of 1987 ) was promulgated, which came into force w.e.f. 24th May, 1987. This was brought to our notice. The case was relisted for hearing. The petitioner expressed desire to amend the petition, so as to bring to challenge the relevant provisions of the Ordinance of 1987. The petitioner was permitted to file an amended petition, which she did and the respondent-Union of India put in reply thereto.
5. The parties re-argued the case and the judgement was reserved. Before the reserved judgement in the amended petition could be announced, the Ordinance of 1987 came to be repealed and replaced by the Terrorist and Disruptive Activities (Prevention) Act, 1987. Smt. Bimal Kaur Khalsa (the petitioner in Civil Writ Petition No. 3761 of 1986) through Civil Misc. Application No. 3332 1987 filed under Sec.151, Civil P.C., sought to effect certain amendments in the earlier amended petition.
6. In para 6 of the said application, it has been mentioned that the submissions advanced on her (petitioner) behalf at the Bar by her counsel, regarding the constitutional validity of some of the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985, and the corresponding provisions of the Ordinance of 1987 remain the same. In para 7 of the application, she further mentions that the submissions advanced on her behalf at the Bar by her counsel in regard to the provisions of the Ordinance of 1987 as mentioned in para 6 be taken to be reiterated qua the corresponding provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and for the same reasons the said parallel provisions of this Act may be struck down. Under para 6 of the application, the entire provisions of the Ordinance of 1987 and the corresponding provisions of the entire Terrorist and Disruptive Activities (Prevention) Act, 1987 have been enumerated.
7. Since the attack to the vires of the Ordinance of 1987 was limited in regard to only some of its provisions and the challenge thus did not extend to all the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987, so, Mr. B.S. Khoji, the learned counsel for the petitioner, by way of clarification made a statement at the Bar and identified the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the challenge to the validity whereof would be directed. These provisions of this Act are - Sections 9, 10, 11(2), 16, 19 and Sec.20, Sub-Sections (4)(7) and (8).
8. Mr. Khoji also reiterated that on an earlier occasion in the wake of the Ordinance of 1987, the arguments were advanced regarding only such of the provisions of the said Ordinance, as corresponded to the aforementioned provisions of Ss.9, 10, 16, 19 and Sec.20, Sub-Secs. (4), (7) and (8). He further stated at the Bar that the provisions of these very Sections of the Terrorist and Disruptive Activities (Prevention) Act, 1987 be read in the petition for the corresponding provisions of Sections of the Ordinance of 1987 and that the writ petition be treated to be amended as such and only to the
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