Revisiting Kartar Singh v. State of Punjab: Procedural Exceptions and Fair Trial under Anti-Terror Laws | Radhika Chitkara
June 21, 2022
Radhika Chitkara’s article “Revisiting Kartar Singh v. State of Punjab: Procedural Exceptions and Fair Trial under Anti-Terror Laws,” has been published in the current special issue of the Jindal Global Law Review on Law/ Crisis.
Radhika, NLS ‘LLB 2013, is currently pursuing her PhD at NLSIU and is also serving as Assistant Professor of Legal Practice at the Jindal Global Law School. Her primary areas of teaching are Constitutional Law and Legal Methods. Her research at NLSIU is proposed as an empirical study of prosecutions under Unlawful Activities(Prevention) Act 1967 (UAPA) for their compliance with the right to fair trial. Specifically, she is focusing on the operation of special procedures under the law, their impact on the right of the accused to defend themselves, and the efficacy of democratic and judicial oversight. She will also be a visiting faculty at NLS in the upcoming July 2023 term.
Read more about Radhika in our feature here.
India’s lineage of anti-terror laws—TADA, POTA, and UAPA—create wide exceptions to cardinal principles of fair trial recognised under common law, statute, and the Constitution. These were enacted as exceptional legislations to deal with national security concerns, thus justifying enhanced legal powers of coercion over investigation and prosecution. The source of these extraordinary powers is not the Emergency Provisions under Part XVIII of the Constitution, or preventive detention under Article 22, but reasonable restrictions under Articles 19(2) and (4). Without constitutional and legislative safeguards, UAPA permanently entrenches coercive State power. Unless expressly repealed by Parliament or struck down by judicial review, non-derogable Article 21 guarantees and democratic opposition remain at present the best defence of liberty. As established constitutional and statutory principles of fair trial stand abrogated in anti-terror laws, how may judges protect due process under special procedures? How may the accused effectively defend their liberty? And as members of the democratic republic, how may we evaluate whether the criminal justice system is fairly administering justice in practice? To answer these questions, this article turns to Kartar Singh v State of Punjab, one of the first Supreme Court decisions to consider the constitutionality of procedural exceptions under TADA. The article proposes an alternative orientation of the principles of fair trial, towards a theory that is rooted in separation of powers and frameworks of checks and balances within procedural law. The first section describes the right to fair trial, its relationship with ordinary procedures, and derogation under special procedures. The second section identifies a theory of fair trial through an analysis of Ramaswamy J’s dissent under Kartar Singh. The final section follows the ramifications of this theory for contemporary bail jurisprudence under UAPA.
Read the full article here.