Terrorism and Human Rights

One of the main issue faced by the world is terrorism. We see the terrorists taking innocent lives live on our television. So do we really need to have a case going on for years? That part would come under fair trial. But do those same terrorists who kill so many innocent people, deserve any human rights? Why should they be given those rights, which they stole from others? Don’t the people who die deserve human rights, or are they in force just to prolong the lives of those terrorists that later they hijack a plane to free their counterparts. So should they even enter the part of litigation where they fight for their lives and deny any involvement in any terrorist activity, whereas we see it live of television, the same face killed all the innocent people in front of them and spared none. So this paper would basically deal with those issues whether terrorists deserve Human rights or not. This paper will first deal with the issue of confession in the trial of a terrorist and also deal with the problems under the Unlawful Activities (Prevention) Amendment Act, 2008 and the National Investigation Agency Act.

Introduction

What can amount to confession?

Evidence by way of confessions, is looked upon with suspicion by courts. Confessions can be judicial or extra-judicial. While judicial confessions are those which are made before the judge or court or in due course of judicial proceedings, extra-judicial confessions are those which are voluntary confessions of guilt made by an accused, of a crime in the course of a conversation with persons other than the aforesaid. The nature of confession as in the query falls within the category of extra judicial confessions.

An extra judicial confession is often looked upon as a weak piece of evidence. It is looked upon with suspicion only in order to safeguard an accused, who may have made a particular statement under coercion or inducement of any kind. An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime. However, an extra-judicial confession must be judged in the background of attending circumstances and it must be considered if the same is voluntary and free of suspicion. There should be cogent evidence on record about the attending circumstances as well as the exact words used by the accused to judge whether the extra-judicial confession is not only true but also voluntary. If the Court believes the witness before whom the confession is made and is satisfied that it is true and made voluntarily, then conviction can be founded on such evidence alone.

A statement in order to amount to a ‘confession’ must either admit in terms of offence, or at any rate substantially all the facts which constitute the offence. The said confession by the two accused does not come under the ambit of a confession. In the case of Pakala Narayana Swami v. Emperor [1] Lord Atkin had elucidated the meaning and purport of the expression “confession” in the following words:

“confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession…”

RETRACTED CONFESSION

A retracted confession is a confession of a weak type and must be corroborated with other material facts. Court while relying on such retracted confession must satisfy itself that same is truthful and trustworthy. Evidences brought on records by way of judicial confession which stood retracted should be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to court that it may seek to rely thereupon. [2]

In a decision of the Supreme Court, Govinda Menon T. drew a distinction between the standards of corroboration required in the case of evidence of an accomplice and a retracted confession. The learned Judge observed :

“In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice’s evidence should be corroborated in material particulars. Though the earlier decisions of the Supreme Court cited above are not referred to in the judgment, the principles governing the two sets of cases are clearly and unequivocally laid down. It is settled law that in the case of an accomplice’s evidence, the corroboration should be in material particulars. But. in regard to the nature of corroboration required in the case of a retracted confession, there is, as already set out, a divergence of opinion in the decisions of the Supreme Court. Even applying the stricter standard laid down in the earlier decisions of the Supreme Court, and followed by me in R.T. No. 62 of 1954 (AP) and Criminal Appeals Nos. 325 and 326 of 1954 (AP) sitting along with Subba Rao C.J., (as he then was), that a corroboration in material particulars (and not a general corroboration) is necessary, I uphold the conviction. In deciding the case, I am fully alive to the rule of caution sounded by Sir John Beaumont in AIR 1945 PC 181 that confessions are not always true and that they must be checked, more particularly in a murder case, in the light of the whole evidence on the record in order to see if they carry conviction. [3]

In the case of The State v. Debnu and ors. [4] the Hon’ble judges of the court held that:

I find, that the confession was retracted by Debnu in the Court of the Committing Magistrate on 28-5-54. According to him, he had made that, confession at. the instance of the police. Mr. Sita Ram argued, that this was an after-thought, since no steps were taken by Debnu to retract the confession from the jail. Mr. S.N. Bali, for the respondents, argued that no adverse presumption can be drawn against Debnu, because, he failed to retract the confession from the jail. He contended, that the earliest opportunity to retract the confession came when Debnu was questioned by the Committing Magistrate. Reliance was placed on Pangamban Kalanjoy Singh v. State of Manipur, AIR 1956 SC 9, where their Lordships of the Supreme Court observed that a confession, retracted before the Committing Magistrate, would be deemed to have been retracted, at the earliest opportunity.

The fact, however, remains, that the confession was retracted. If the confession be deemed to have been made voluntarily, then, having been retracted, it would require independent corroboration on material particulars, before it can form the basis of conviction. On the other hand, if it was not voluntary, it would be irrelevant and inadmissible. I agree with the view of the learned Sessions Judge, that the circumstances of the case tend to show, that the confession was not voluntary.

In the case of Aloke Nath Dutta and Ors. v. State of West Bengal [5] while dealing with the evidences found in relation to a murder case stated that:

“There is no eye-witness to occurrence – Nobody has noticed any suspicious conduct on part of Appellants-co-accused indicating their role in committing murder or disposing dead body – While dealing with case of grave nature like present one, there is always danger that conjectures and suspicion may take place of legal truth.”

In the case of Bishnu Prasad Sinha and Anr. v. State of Assam [6] it was held that

“In absence of substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a coaccused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession. ”

The effect of Vinod Solanki v. UOI [7] is that in criminal or quasi criminal proceedings, a person accused of commission of offence under FERA has not to prove to the hilt that confession has been obtained from him by inducement or threat by the person in authority. However, when confession had been retracted, the Court must bear in mind the attending circumstances and other relevant factors to come to conclusion whether the confession was voluntary and was not obtained by any inducement, threat or force. At the same time, mere retraction of the confession may not be sufficient to make confessional statement irrelevant for the purpose of quasi criminal proceedings and the Court is obligated to take into consideration the pros and cons of confession and retraction made by the accused.

The effect of K.I. Pavunny vs. AC [8] is that if a confessional statement is retracted, the Court is required to examine whether it was obtained by threat, duress or promise and also whether the confession is truthful. If it is found to be voluntary and truthful inculpatory portion of the retracted confession can be acted and even conviction can be based upon the same. However, prudence and practice require that in case of retracted confession Court should seek assurance by way of corroboration from other evidence adduced. A general corroboration is sufficient.

Vinod Solanki v. Union of India

Where during FERA search proceedings the accused-appellant allegedly confessed to violations of the law and later filed an affidavit retracting his confession and the Tribunal and the High Court rejected the retraction on the basis that the onus was on the accused to show that the confession was obtained from him by threat, coercion or force, HELD reversing the lower authorities that:

(i) It is trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon;

(ii) The initial burden to prove that the confession was voluntary in nature would be on the Department. The special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It may only alleviate that burden to discharge and very slight evidence may suffice;

(iii) A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction.

(iv) With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such.

THE STATEMENT AS A WHOLE AS CONFESSION.

If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part in- culpatory the prosecution is not at liberty to use in evidence the in-culpatory part only. If the statement contains some exculpatory fact which if accepted, would negative his guilt that would not amount to confession.

PRESUMPTION OF CERTAIN FACTS

Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. “Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law”.

In the case of Sitaram Sao v. State of Jharkhand [9] it was held that “Section 133 of the Act relates to the evidence of an accomplice which expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice – Provision has to be read along with Section 114(b) which empowers Court to presume existence of certain facts.”

Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this Section has to be read along with Section 114, illustration (b). The latter section empowers the Court to presume the existence of certain facts and the illustration elucidates what the Court may presume and make clear by means of examples as to what facts the Court shall have regard in considering whether or not maxims illustrated apply to a given case. Illustration (b) in express terms says that accomplice is unworthy of credit unless he is corroborated in material particulars. The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge. In the case of In Rex v. Baskerville [10] , it was observed that the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if there is merely a circumstantial evidence of his connection with a crime.

CONFESSION CORROBORATED WITH THE FACTS OF THE CASE

The word ‘corroboration’ means not mere evidence tending to confirm other evidence. In DPP v. Hester [11] , Lord Morris said: “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible….” and then in the case of In D.P.P. v. Kilbourne [12] , it was observed thus: “There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.”

185th Report of the Law Commission of India

Unable to consider its 69th Report, the Central Government re-entrusted the task of reviewing the Indian Evidence Act, 1872 to the Law Commission. The reason, though not satisfactory in any circumstances, assigned was that there had been many developments upon the law of evidence. However, the earlier identified changes were not sought to be incorporated prior to the present reference. Thus the fate of the present review could certainly be anticipated even prior to any review exercise was undertaken

Assigned the task to incorporate the change in the position of law, the Law Commission in the present report claims to have examined, in detail, the 69th report and other related reports of the Commission.

Seeking to resolve the controversy under section 10 of the Act as to admission of evidence in case of conspiracy, the Commission suggested important changes. A new section was proposed. The 69th Report concluded that there was a significant difference in this regard between the Indian position and the English law but because of the decision of Mirza Akbar vs. Emperor, which was subsequently affirmed by the Supreme Court in various cases. But in another judgment, namely, Bhagwan Swaroop v. State of Maharashtra,, Subba Rao J as he then was, adhered to the wider meaning of sec. 10 and observed that there were five conditions for the applicability of sec. 10, of which one viz., item (iv), covered actions, declarations or writings by one co-conspirator “whether it was said, done or written before he entered the conspiracy or after he left it”. It was held that the words were “designedly used to give a wider scope”

In order to further the spirit of section 24, dealing with confessions caused by inducement, threat or promise, the commission recommended the inclusion of certain more grounds and thus observed that coercion, violence and torture should also be included as grounds for rejection of such confession.

In the 69th Report, a provision namely section 26A was recommended wherein confessions made to senior police officer were made admissible subject to certain safeguards. Though the international situation wherein such confessions (made to police officials) are no longer inadmissible and the stigma that confession obtained during police custody was always not to be relied on, did no longer exist was analyzed, the Commission held that in the light of the earlier observations such a provision would be unconstitutional and opposed to the spirit of Article 14 and 21. This is a notable observation made by the Commission and the fact that it reconciled its earlier fallacy is recommending provisions like section 26A is far more appreciable.

ISSUES UNDER THE UAPA

No Precise definition of ‘Terrorism’ .

No clear definition of “terrorism” has been provided rather Sec.15 of the UAPA, gives a list of ‘terrorists activities’. And all the actions referred to are all offences under the regular law such as the IPC, Arms Act, Explosives Act etc. It is the discretion of the Authorities whom they want to book under the ordinary law or under UAPA. Even under the existing detention laws like the (NSA) or MISA or the NDPS Act, if there is any detention, the same can be challenged under Article 32 or Article 226. But, under UAPA these remedies are not available. This whole picking and choosing exercise is per se a blatant violation of the Art.14 of the Constitution.

Defining “terrorist act” is not possible, Sec. 15 is over-inclusive giving plural meanings making it arbitrary to stand the test of responsible restraint under articles 14, 19 and 21 of the Constitution. The tests and parameters of reasonableness as envisaged by the Maneka Gandhi Case [13] are grossly violated by such provisions in the Act.

The Supreme Court has interpreted the Constitution’s fundamental rights guarantees expansively. [14] The Constitution protects against arbitrariness or irrational state action. [15] Individuals arrested and taken into custody must be provided the basis for arrest “as soon as may be” and produced before a magistrate within 24 hours. [16] In a landmark case the Supreme Court laid down detailed guidelines requiring the police to follow for arrest and interrogation. [17] The Constitution also guarantees the right to counsel of the defendant’s choice, a right that attaches at the first appearance before a magistrate. [18] These guarantees do not apply to laws authorizing preventive detention, thus Constitution subjects to a more limited set of protections.

Due Process of Law Is not Abided.

The Constitution does not explicitly protect “due process of law,” it does prohibit deprivation of life or personal liberty for any person except according to “procedure established by law,” and the Court has interpreted this guarantee to include procedural and substantive rights that approximate the concept of “due process.” [19] Procedures must be “right, just and fair,” and not arbitrary, fanciful or oppressive. [20] The Constitution confers freedom from cruel, inhuman, or degrading treatment [21] , including the presumption of innocence; impartiality, knowledge by the accused of the accusations; presentation of evidence in defense [22] , a speedy trial, extending from the outset of an investigation through all stages of the criminal process. [23]

Statutes And Procedural Laws.

The Constitution requires pre-trial detention to be as short as possible. [24] When the accused is initially produced before the magistrate, he must release the accused on bail unless the investigation cannot be completed within 24 hours and the accusation is well-founded – in which case the accused may be remanded to police custody for up to 15 days, although in principle remand is disfavored [25] . Bail is meant to be the rule and continued detention the exception [26] . Before ordering remand to police custody, the magistrate must record the reasons for continued detention. Upon finding “adequate grounds”, the magistrate may order detention beyond the fifteen day period for up to 60 or 90 days. This extended period of detention, must take place in judicial custody, rather than police custody. [27]

International Human Rights Norms and Indian Domestic Law

While international treaties do not automatically become part of domestic law upon ratification, [28] the Constitution provides, as a Directive Principle, that the government shall pay respect to international law and authorize the government to enact legislation implementing its international law obligations without regard to division of powers [29] . The Supreme Court of India emphasized that constitutional and statutory provisions should be interpreted in light of International law’s obligations [30] . India is a signatory to many international instruments protecting individuals from arbitrary & improper treatment under antiterrorism and other security laws, including the International Covenant on Civil and Political Rights. [31] India is bound by the U.N. Charter, and by the Universal Declaration of Human Rights, which protects the rights to liberty, freedom an effective remedy for acts violating fundamental rights, and a “fair and public hearing by an independent and impartial tribunal.” [32]

The prohibition against torture and cruel, inhuman, or degrading treatment also is found in the ICCPR from which no derogation is permitted and is bound by norms that have attained the status of jus cogens. [33]

Presumptions of Guilt

The Act requires the court to draw an adverse inference in prosecutions of offences u/s [34] which undermine the presumption of innocence protected by the Constitution and the ICCPR. [35] Moreover, given widespread concerns in India about the police, arms and other items might be found in the possession of accused individuals, or their fingerprints discovered at the scene of a crime, for reasons that are either completely innocent, or completely nefarious, but not their doing. [36]

ISSUES UNDER THE NIA ACT

The NIA ACT is breaching the Federal Structure of Constitution.

The distribution of legislative powers between the Centre and the State is the important characteristic & core of the Federal system which is the basic structure of the Constitution [37] . Any invasion of powers by one government on the other is a breach of Constitution. The impugned provisions have been enacted on the subject matter ‘Police’ enumerated in the List II by the Centre and hence breaching the Federal Structure also Basic structure of the Constitution.

The Rule Of Pith And Substance.

A law made by one which trespasses upon the field of the other is invalid, the courts should apply the rule of Pith and Substance. [38]

The NIA Act, in pith and substance falls under the Entry 2 (Police) of List II. Parliament lacks legislative competence. The NIA is entrusted upon the task & functions of the police. Sec. 3 of NIA Act provides for non obstinate clause which gives overriding power to the NIA for prosecution of some offences over the Police and also to have all powers, privileges and liabilities which the police officers have in connection with investigation of any offence. The police officer in charge on receipt of the report of the offence shall forward it to the state government which will send it to the Centre. Thus the NIA Act confers upon NIA, the power to override the State Police, and also entrusts upon the NIA the duties which are entrusted upon the local Police Forces.

The subject matter ‘Police’ falls under Entry 2 of List II. Applying the rule of Pith and substance the NIA is performing same functions as that of police.

NIA ACT is a Colourable Legislation.

Incoherent meaning of the word ‘investigation’ in the NIA.

Sec. 2 (1) (i) of the NIA Act, specifies that the words used in the Act will have same meaning as that of the CrPC, but ‘investigation’, in Section 2 (h) of the CrPC, is mainly police work and ‘Police’ is an item confined to the State list. That is why section 6 of the Delhi Special Police Act which governs the CBI prohibits its jurisdiction in a state without the consent of its government.

No Concurrent Jurisdiction between the States and the Centre.

The Object of NIA Act is to establish a agency in a “concurrent jurisdiction framework”.

Numerous expert bodies, like the National Human Rights Commission, the Soli Sorabjee committee, Padmanabahiah, Justice Malimath committee [39] and parliamentary standing committee of the ministry of home affairs have recommended , that while creating such a agency the aim should not be to usurp the powers of the State Government rather facilitate it. [40]

However, Sec. 6 of the Act requires the state government to inform the central government about the commission of a scheduled offence [41] .  It is for the central government to decide, whether it is a scheduled offence and if it is a fit case to be taken up for investigation by the agency.  It debars the state government to proceed with the investigation once the agency has taken up. [42] .  The overriding power to pick and choose the cases to investigate and prosecute, given creates concentration of power at the central level.

Hence it is a Colourable Legislation, in the garb of taking measures against the threat to National Security and Terrorism. [43]

CONCLUSION

We have seen through this project the development of the Indian Evidence Act through the Law Commission recommendations. We can also see how confession of a co-accused is a confession of a weak type which has to be corroborated with the facts of the case. Similarly, a retracted confession can be admitted as evidence after corroborated with the facts of the case. Few problems that arise during conf