Revisiting Kartar Singh v State of Punjab: Procedural exceptions and fair trial in anti-terror laws

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 Unless expressly repealed by Parliament or struck down by judicial review, non-derogable Article 21 guarantees and democratic opposition remain at present the best defence of liberty.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.

     

Armenia-India partnership: geopolitical and geo-economic implications in the Eurasian context

Asia Europe Journal - In the twenty-first century, changing global power equations are impacting the dynamics of foreign and security policy choices of small states, as they seek to develop...     

Affirmative action,duality of error,and the consequences of mispredicting the academic performance of african american college applicants

The implications of different potential affirmative action policies depend on three factors: selection rate from the applicant pool, base rate of qualified applicants, and accuracy of performance predictions. A series of analyses was conducted under various assumptions concerning affirmative action plans, causes of racial differences in average college admissions test scores, and racial differences in accuracy of performance predictions. Evidence suggesting a lower level of predictive accuracy for African Americans implies that, under a program of affirmative action, both proportionately more false positives (matriculated students who do not succeed) and proportionately more false negatives (rejected applicants who could have succeeded) will be found among African American applicants. Unless equivalent levels of predictive accuracy are achieved for both groups, no admission policy can be fair simultaneously to majority group applicants and African American applicants. © 2002 by the Association for Public Policy Analysis and Management.