Report No. 173
Suggestions for Inclusion of Certain Additional Provisions in the Bill
(a) It was suggested by Mr. Prashant Bhushan, Advocate, Supreme Court that there should be a provision for appeal against an order refusing bail. We are inclined to agree with this plea. But the appeal should be not only against an order refusing bail but also against an order granting bail. Accordingly, it is recommended that the following provision be inserted as sub-section (5) in section 17 of the Act:
"(5) Notwithstanding anything contained in the Code, an appeal shall be to the High Court, against an order of the Special Court granting or refusing bail."
(b) Mr. P.S. Rao, Joint Secretary in the Ministry of External Affairs, Government of India mentioned during his presentation that the foreign governments, especially Western governments, were objecting to special courts and special laws to deal with terrorism in India and that this factor was giving rise to complications in the matter of extradition requests from India. So far as the special law is concerned, we do not see how it can constitute a ground for objection when western democracies like U.S. and U.K. too have enacted (and are enacting) anti-terrorism laws.
So far as special courts are concerned, their creation has become necessary because of the extraordinary heavy load upon our criminal courts and the delays endemic to our criminal judicial system. It may, however, be seen that there is no qualitative difference between the general criminal procedure applicable to ordinary criminal courts and the criminal procedure applicable to special courts. The principle and perhaps the sole object behind creation of special courts is the anxiety to have these cases disposed of expeditiously.
We cannot, therefore, see any valid ground for objection on this score. It is of course a matter of policy for the government to decide whether they wish to dispense with the special courts, while retaining the procedural changes provided by this Act and invest the jurisdiction to try these offences on ordinary criminal courts with a direction to give precedence to the trial of offences under this Act.
Some participants suggested that a new chapter be included in this Act itself providing for banning of terrorist organisations. If the Government accepts this proposal, a new chapter may be introduced providing for banning of terrorist organisations and making their membership an offence. It should also be provided that any person rendering any assistance to such banned organisations including raising of funds shall be an offence.
In this context, the provision of Unlawful Activities (Prevention) Act, 1967 may be kept in view, which Act does provide for declaring an association unlawful and the consequences flowing therefrom. It is because of the existence of the said Act that we have not ourselves suggested a new chapter providing for banning of terrorist organisations. But inasmuch as certain participants felt that the said 1967 Act is not adequate, we are mentioning the said fact here. Sub-section (5) of Section 3 has also to be kept in view in this behalf as also Clause (b) of sub-section (1) of Section 3, suggested by us.
Shri Prashant Bhushan, Advocate was of the view that special training should be imparted to investigators, prosecutors and special judges without which terrorist activities cannot be countered. Further, for effective implementation of these suggestions sufficient finance must also be provided. It is for the government to take a decision in this matter.
Brig. Satbir Singh, Institute of Defence Studies also projected his experience in North East, J & K and Punjab. He was of the view that special courts should be constituted in North-Eastern States to deal with terrorist activities. Besides, there should be speedy trial of such cases. He suggested that defence personnel and para-military forces personnel should also be empowered to investigate the cases dealing with terrorist activities. It is for the Government to take a decision in these matters. We recommend accordingly. Besides the other measures recommended, for the sake of convenience, we are appending the `Prevention of Terrorism Bill, 2000' (Annexure II) which also incorporates the recommendations set out above.
Mr.Justice B.P.Jeevan Reddy (Retd.)
Ms.Justice Leila Seth (Retd)