LAW COMMISSION HOME PAGE
 
 
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 173^rd 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 43^rd 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.