The erstwhile territory of ’British India’ was divided, and under the provisions of the Indian Independence Act, 1947, passed by the British Parliament, India and Pakistan were established. The said Act, under Section 7 (1) (b), also terminated the treaties or agreements ending British Paramountcy over the Native Indian States namely Kashmir, Mysore, Hyderabad, etc.
In pursuance of the end of British Paramountcy, the Maharaja of Kashmir acceded to India; Pakistan, however, contested the accession. The resulting hostility between the two nations led predictably to the wars of 1948, 1965, and 1971. In a bid to resolve issues peacefully, the Shimla Accord of 1972 was signed.
Subsequently, terrorists started attacking India and during the last two decades, about 20,000 people were killed and large numbers were injured. The arrest of a number of these terrorists and other information collected by the intelligence agencies indicated that these terrorists were trained in Pakistan. India protested against such trainings and requested Pakistan, through diplomatic channels, to deal with the perpetrators of the crime. However, terrorist activities remained unabated. The most dastardly was the terrorist strike on November X, 2008 in Mumbai which killed more than 200 people and maimed and injured several others.
Responding to the huge public out cry and detailed coverage in the media, the Indian Parliament debated the matter extensively. The US response to 9/11 incident was considered. It was finally decided to pass the Trial of Cross-Border Terrorists Act, 2008 [Act no X of 2008].
Section 2 declared ‘cross-border terrorist acts’ as ‘acts of war’ and such a terrorist, as an ‘enemy alien’. Section 3 defined a ‘cross-border terrorist’ as a person coming from Pakistan who commits an act of terrorism killing or injuring persons intentionally. Section 4 provided for the appointment of an ‘Investigating Officer’. Section 5 enumerated the powers of the investigating officer, which, inter alia included detention of suspected cross-border terrorists in their custody or camp till the end of their trial. Section 6 made confessions as admissible evidence. Section 7 placed the onus of proving his innocence on the accused cross-border terrorist. Section 8 provided for the establishment of a Special Security Tribunal headed by the Judge Advocate General to try the accused cross-border terrorist. Section 9 permitted legal representation for the accused cross border terrorist. Section 10 mandated full opportunity to the accused cross border terrorist to defend his innocence. Section 11 mandated the holding of proceedings in camera and completion of the trial within 3 months from the date of framing of charges or transfer. Section 12 prescribed minimum punishments which included life sentence. Section 13 barred the jurisdiction of the Supreme Court or any other Court against the conviction or sentence passed by the Special Security Tribunal. Section 12 mandated that the orders of the Tribunal be made public. Section 14 required transfer of all pending cases relating to the cross-border terrorists to the Special Security Tribunal. Sec.15 empowered the Central Government to make rules regulating the procedure of trial and incidental matters.
The Human Rights International headed by an Indian challenged the constitutional validity of the Act of 2008 under Article 32 of the Constitution before the Supreme Court. The division bench of the Court issued notice and referred the matter to the Constitution Bench to decide the question as to whether the Trial of the Cross Border Terrorists Act, 2008 is constitutionally valid.
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