The Cases that India Forgot: How TADA legitimised police excesses as the Supreme Court stood by silently

The Terrorists and Disruptive Activities Act – better known as TADA – was enacted in 1985 in the backdrop of militant groups engaging in guerrilla-style conflict in Punjab, Kashmir, Andhra Pradesh and parts of the Northeast. However, the immediate catalyst for TADA was the assassination of Indira Gandhi by her Sikh bodyguards in October 1984.

The parliamentary debates leading up to the enactment of TADA were high on histrionics. One Congress MP observed,

"In the rivers of Punjab milk used to flow but they are now drenched with blood. There is hatred all over."

Another warned the house that terrorism was not a problem restricted to Punjab – it had "spread to every corner of the country". And yet another cautioned, as if to sum up the situation:

"We are not dealing with normal peaceful times. We are dealing with extraordinary times."

Initially enacted as a temporary measure for a period of two years, TADA was re-enacted in 1987 – once again for a two-year period. TADA originally applied only to Punjab and its neighbouring states. Thereafter, it was periodically extended both in time (from two years to four, four to six, and six to eight) and in its geographical breadth of application.

By the mid-1990s, TADA had been in force for nearly a decade and applied to twenty-three states and two union territories. More than ninety-five per cent of the citizens now came within its purview.

TADA set up, in effect, a parallel criminal justice process and special courts for the speedy trial of those accused of terrorism. Some of its provisions were especially draconian.

Under criminal law, it is the prosecution’s burden to prove its case against the defendant. TADA reversed the burden of proof on to defendants in certain cases. With a view to safeguarding against custodial torture, the rules of evidence did not allow confessions procured in police custody to be admitted as evidence.

TADA altered existing procedural safeguards by making confessions to senior police officers admissible. Defendants anticipating arrest could ordinarily apply for ‘anticipatory bail’ (a direction for release of the person on bail even before they are arrested). TADA not only negated the right to apply for anticipatory bail, but also made it more difficult to secure bail after arrest.

Criminal appeals would normally proceed from the subordinate criminal courts to the state high court, with a further appeal to the Supreme Court. TADA eliminated one layer of appeal, by denying rights of appeal to state high courts and providing for direct appeal to the Supreme Court.

In the years after it was enacted, TADA became an instrument of oppression in the hands of the police and state authorities. A disproportionate number of those charged with offences under TADA were Muslims and Sikhs. TADA was also frequently invoked in states that lacked a consistent history of terrorist violence, including Gujarat and Maharashtra.

Despite the odds being stacked against the accused, conviction rates were embarrassingly low, with estimates ranging from 1 per cent to 4 per cent. This implied that only a small minority of those detained under TADA were ever proven, on evidence, to be terrorists. Especially because of its strict provisions on bail, under TADA, the process was the punishment. Those that were ultimately acquitted had often spent many years in prison, sacrificing their family lives, reputations and careers.

Newspaper reports were replete with examples of frivolous or inappropriate cases filed under TADA. In one case, two men were charged under TADA for creating a ruckus at Byculla market in Bombay by wielding a gun, which turned out to be a toy gun. They were detained for two years before they could secure bail.

In another instance, three boys were arrested for possessing ‘sutli’ bombs – commonly used as firecrackers – and spent four years in prison. A series of cases where TADA was applied to gangsters or ordinary criminals (including a garment exporter suspected of tax evasion) in Maharashtra compelled the additional public prosecutor, in 1991, to concede that TADA was being misapplied.

Since TADA made it harder to secure bail than the ordinary criminal law, it also became a trend for the police to bring TADA charges to keep a defendant in prison when he secured bail. The Maharashtra Police, for instance, charged a man accused of threatening and chasing a driver with a knife under TADA after they were incensed by the success of his bail application.

The Punjab Director General of Police, in 1987, virtually admitted that TADA was used as a tool for preventive detention. As one scholar put it, TADA "enabled pervasive use of preventive detention and a variety of abuses by the police, including extortion and torture."

Together with the frivolous and inappropriate, there were also the politically motivated. A journalist was arrested for writing about militants attaching posters to village walls in Assam. In another case, the leader of a Muslim women’s organization was incarcerated with her one-year-old son.

Those with access to the corridors of power managed to escape more quickly. Shabnam Lone, the daughter of Abdul Ghani Lone (the founder of the People’s Conference in Kashmir) and a junior in the chambers of prominent Senior Advocate KK Venugopal, was arrested under TADA. She secured bail within hours by filing a petition directly in the Supreme Court. The unconnected weren’t quite so lucky.

Soon after TADA was implemented, petitions challenging its validity on constitutional grounds began to be filed in the Supreme Court. The number of petitions challenging TADA increased over time, some reports suggesting that over a thousand petitions had been filed by 1991.

Even as tens of thousands of people were charged under TADA, these petitions gathered dust in the Supreme Court’s roster. In an interview a full seven years after the first petitions were filed, RS Sodhi (a leading criminal lawyer who represented several TADA defendants in the Supreme Court) lamented the delay and said that he did not expect the Court to decide the petitions any time soon.

The case only ultimately arose for hearing at the Supreme Court in 1994, almost a decade after TADA was first enacted. The judgment was not worth the wait, with the Supreme Court upholding most provisions of TADA.

This is an extract from “The Cases that India Forgot” by Chintan Chandrachud, which releases on February 1, 2020. The extract has been published with the permission of the author.