(1.)Notwithstanding my profound respect of Brother Shah's erudition, I am unable to agree with his conclusions. While dealing with an accused tried under the TADA, certain special features of the said Statute need to be focussed. It is also necessary to find out the legislative intent for enacting it. It defines "terrorist acts" in S. 2(h) with reference to S. 3(1) and in that context defines a terrorist. It is not possible to define the expression 'terrorism' in precise terms. It is derived from the word 'terror.' As the Statement of Objects and Reasons leading to enactment of the TADA is concerned, reference to the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the 'old Act') is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the country. It was expected that it would be possible to control the menace within a period of two years, and life of the Act was restricted to the period of two years from the date of its commencement. But noticing the continuance of menace, that too on a larger scale TADA has been enacted. Menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Centre and other places on 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is. TADA is applied as an extreme measure when police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was committed with an intention to strike terror in the people or section of people would depend upon the facts of each case. As was noted in Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc. (2001 AIR SCW 4717), for finding out the intention of the accused, there would hardly be a few cases where there would be direct evidence. It has to be mainly inferred from the circumstances of each case.
(2.)In Hitendra Vishnu Thakur and others v. State of Maharashtra and others (1994 (4) SCC 602), this Court observed that "the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under Act or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc. A 'terrorist' activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity is to be one that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. It is in essence a deliberate and systematic use of coercive intimidation." As was noted in the said case, it is a common feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society; because in different parts of the country affected by militancy, a terrorist is projected as a hero by a group and often even by many misguided youth. As noted at the outset, it is not possible to precisely define "terrorism." Finding a definition of "terrorism" has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present 12 piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's "terrorist" is another State's "freedom fighter." If terrorism is defined strictly in terms of attacks on non-military targets, a number of attacks on military installations and soldiers' residences could not be included in the statistics. In order to cut through the Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing consensus on what constitutes a "war crime" as a point of departure. If the core of war crimes - deliberate attacks on civilians, hostage taking and the killing of prisoners - is extended to peacetime, we could simply define acts of terrorism as "peacetime equivalents of war crimes."
1. League of Nations Convention (1937) :
"All criminal acts directed against a State along with intended or calculated to create a statute of terror in the minds of particular persons or a group of persons or the general public."
(GA Res. 51/210 measures to eliminate international terrorism)
"1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them."
3. Short legal definition proposed by A. P. Schmid to United Nations Crime Branch (1992) :
Act of Terrorism - Peacetime Equivalent of War Crime
4. Academic Consensus Definition :
"Terrorism is an anxiety inspiring of repeated violent action, employed by (semi-)clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought" (Schmid, 1988).
Terrorism by nature is difficult to define. Acts of terrorism conjure emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the U.S. Government cannot agree on one single definition. The old adage, "one man's terrorist is another man's freedom fighter" is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation.
Terrorism is the use or threatened use of force designed to bring about political change. -Brian Jenkins
Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted. -Walter Laqueur
Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. -James M. Poland
Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a Government, individuals or groups, or to modify their behaviour or politics. -Vice-President's Task Force, 1986
Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives. -FBI Definition
(3.)The main plea of accused-appellant is that there was no corroboration to the alleged confessional statement. Various circumstances, according to him, clearly show that it was not voluntary. Strong reliance is placed in State v. Nalini and others (1999 (5) SCC 253) to contend that corroboration is necessary. It is to be noted that Legislature has set different standards of admissibility of a confessional statement made by an accused under the TADA from those made in other criminal proceedings. A confessional statement recorded by a Police Officer not below the rank of Superintendent of Police under S. 15 of the TADA is admissible, while it is not so admissible unless made to the Magistrate under S. 25 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It appears consideration of a confessional statement of an accused to a police officer except to the extent permitted under S. 27 of the Evidence Act is not permissible. These aspects are noted by this Court in Sahib Singh v. State of Haryana (1997 (7) SCC 231) and Gurdeep Singh's case (supra). There is one common feature, both in S. 15 of the TADA and S. 24 of the Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the Court to the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. Section 15 of the TADA also requires the confession to be voluntary. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. As per Stroud's Judicial Dictionary, 5th Edn. at p. 2633, threat means :
"It is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed (per Lush, J., Wood v. Bowron (1866) 2 QB 21) cited Intimidate)."
Words and Phrases, Permanent Edition, Vol. 44, p. 622, defines "voluntary" as :
" 'Voluntary' means a statement made of the free will and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or any hope of reward State v. Mullin (85 NW 2d 598, 600, 249 lown 10)."
At p. 629, "confession" is defined as :
"where used in connection with statements by accused, words 'voluntary' and 'involuntary' import statements made without constraint or compulsion by others and the contrary. Commonwealth v. Chin Kee (186 NE 253, 260, 283 Mass 248)."
In Words and Phrases by John B. Saunders, 3rd Edn., Vol. 4, p. 401, "voluntary" is defined as :
". . . . . . . . .The classic statement of the principle is that Lord Sumner in Ibraim v. Regem (1914 AC 599) (at p. 609) where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale." However, in five of the eleven textbooks cited to us. . . . . . support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view "voluntary" means merely that the statement has not been made in consequence of (i) some promise of advantage or some threat (ii) of a temporal character (iii) held out or made by a person in authority, and (iv) relating to the charge in the sense that it implies that the accused's position in the contemplated proceedings will or may be better or worse according to whether or not the statement is made." R. v. Harz, R. v. Power (1966) 3 All ER 433 (at pp. 454, 455) per Cantley, V."
So the crux of making a statement voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one's own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart.