Prachi Pinglay

Defence counsel wants proceedings in TADA court stayed

Apex court had opined that the trial must not continue

Legal experts are divided on the issue

MUMBAI: When defence counsel Farhana Shah, representing over 80 accused in the 1993 serial blasts case, recently filed an application urging the designated TADA court to stay the proceedings based on a Supreme Court Judge’s opinion, she led the way for a rethink on several other trials involving the repealed Terrorism and Disruptive Activities Act.

The apex court opined in May 2007 that section 1 (4) of TADA, which allowed the trials to continue despite the Act being repealed, was unconstitutional and fit to be struck down. Advocate Shah relied on this opinion and wanted the sentencing to be stayed till there was clarity on the subject.

POTA cases

A similar application followed in another ongoing blasts trial, this time under the Prevention of Terrorism Act (POTA). Advocate Sushan Kunjuraman applied for a stay in the twin blasts case where the accused were charged under the now repealed POTA. From 2002 to 2004, the city witnessed six blasts and all the accused were booked under POTA. The only concluded trial related to the Ghatkopar blasts, where all the eight accused were acquitted due to lack of evidence.

Legal experts in the city are divided about the consequences of the comments of Justice Markendeya Katju. However, it is clear that defence counsel will use this as a tool to question trials, seek a stay and urge that the matter be referred to a higher bench.

Advocate Farhana Shah while filing her application said, “After a Supreme Court Judge has expressed his opinion, one must refer the matter to a higher bench to have clarity on the subject. It will affect all the accused who have been tried under TADA in this case.”

To quote Justice Katju, “...Supposing a law is made which makes an act committed by a person a crime one day, but the same law says that the same act will not be a crime if committed the next day. Surely such a law will be violative of article 14, unless there is a very strong and rational basis for such classification and differentiation.” The section 1 (4) of TADA was liable to be struck down as unconstitutional, he said.

He clarified that the point was not raised in the appeal and it was not his final opinion. “This opinion can be considered in other cases where prosecutions under TADA are going on or where convictions have been made in relation to the offences under section 3 alleged to have been committed before 24-5-1995.”

The Acts were repealed following allegations of human rights violations such as custodial torture, forced confessions and extended police custody. Activists noted that admissibility of confessions in these Acts made it simpler for the prosecution to secure convictions and corroborative evidence was often overlooked. Moreover, the punishments under TADA were more stringent. For example, offences under Section 3 of TADA attracted either life imprisonment or death.

“Not binding”

Advocate Mubin Solkar, who represented the accused charged under POTA in the Ghatkopar blasts case, said an opinion was not binding on trial courts. “There are several Supreme Court decisions holding up Section 1 (4) in TADA or Section 1 (6) in POTA. So there is nothing much anyone can do as far as trials under these acts are concerned.”

Larger debate

While the application could spur a larger debate on the constitutional validity of sections which protect a repealed Act several years after it is abolished, it has further delayed the delivery of judgment in the 14-year-old trial. Special Judge P D Kode has sentenced 76 of the 100 convicted. The remaining 24 include the Memon family members, planters convicted under section 3 (2) (i) punishable with life or death sentences, and film actor Sanjay Dutt.

He has heard arguments on the application and is now on medical leave. Accused on bail have been summoned on July 10.