A Mumbai special court on Tuesday adjourned till June 21 sentencing of convicts in the 1993 serial blasts case after they moved the court citing remarks by Justice Markandey Katju of the Supreme Court.
In their application, the convicts cited a judgment of Justice Katju in which he had stated that punishing TADA accused even when the Act has expired could be a violation of Article 14 of the Constitution (right to equality).
According to Section 1(4) of the Terrorist and Disruptive Activities (Prevention), Act 1987, the offence will be punishable as a crime if the act was committed on or before May 24, 1995 but the same act committed after that date would not be a crime.
Justice Katju had said, "To my mind this is ex-facie violation of Article 14 of the Constitution (right to equality) and hence Section 1(4) of Act to the extent it says that acts committed on or before May 24, 1995 can still be treated as a crime and punished under the TADA, though the same act committed after May 24, 1995 cannot, is…liable to be struck down as unconstitutional."
However, he had said: "Since this point has not been raised in the appeal I am not giving any final opinion in the matter, but because it is of a vital and wide constitutional importance I thought it right to express my opinion on the same, so that this opinion can be considered in other cases where prosecutions under TADA are going on or where offences have been committed before May 24, 1995."
However, legal experts were of the opinion that the judge's observation was of no avail for it was contrary to a constitution bench verdict.
Senior advocate KTS Tulsi said, "Observations, if contrary to Constitution Bench judgments, are of no avail… A Constitution Bench had held in Kartar Singh's case that the saving clause saves all pending prosecutions under TADA. So there is no point in saying that the prosecution can't continue."
Former Law Minister Shanti Bhushan agrees: "Every observation of the Supreme Court is entitled to respect. But I don't agree with Justice Katju's views. This is not the correct position of law…Even the judge himself has said that it is his opinion and that he had not heard the parties on this question."
Bhushan added, "Even if an Act expires, prosecution can take place for the offences committed during its subsistence." He pointed out that very TADA offence was also an offence under the Indian Penal Code. The only difference was that TADA prescribed a different procedure, rules of evidence, bail and sentence.