TADA 87, POTA and UAPA 2004 have contained unique
provision of forfeiture of property free from encumbrance of persons who are convicted
for terrorist offences.[1]Forfeiture
of property is one of the recognized punishments in the legal system but used
seldom in traditional offence unless the accused has made illegal gains by
commission offence. Forfeiture of property is effectively employed in economic
offences where offender has made illegal gain which is justifiable. Fine is not
substantial amount that is common punishment sanctioned in general crimes which
is also justifiable because in default of fine, person generally undergoes
alternative punishment or it may be recovered from his property. Terrorist acts
are class by itself and aggravated from of crimes. Undoubtedly forfeiture of
property for terrorist offence works as additional deterrent factor. But the
manner in which Indian Anti-terrorist laws have adopted the forfeiture of
property raises concern about human rights. Supreme Court in Karatar Singh case
per curriam rejected the contention of petitioner that section 8 of TADA is
voilative of Art 14 and 21 of the Constitution because it has not provided any
guidelines for exercising the authority of forfeiture of property, it may
amount unmerited punishment on third party who are honest creditor of such
property and held that it intra virus.[2]However,
it said even though attachment of property is made under section 8(2) but order
of forfeiture of property has to be made in section 8(1). Thus, it has corrected
the anomaly existed in that section and made forfeiture of property is
discretionary. The Designated Court should forfeiture property of convicted
person only and give reasons for such order.
Yet certain
issues are unaddressed by the Court. Order of forfeiture of property would
vitally affect the interest of honest creditors and dependent of that property.
Such order should not be passed unless the interested parties are heard. Thus, the
provision of forfeiture of property should have accommodated rules of natural
justice.[3]Further,
provision should have been made in respect of honest creditors of property who
have no knowledge of terrorist act. POTA and UAPA 2004 have protected the interest
of honest, bona-fide purchaser of terrorism property.[4]When
such protection is given even in case of tainted terrorism property why not the
same yardstick to be applied in the personal property of terrorist which is
nothing to do commission of terrorist act. Forfeiture of property amounts double punishment for poor terrorist. Terrorist personally suffers imprisonment and forfeiture of property in fact punishes the dependent of the property who are innocents. Moreover the property in joint family always in the name of elder person and property is earned by common effort of family. Under such circumstances head family is proved to terrorist then it would be disaster for the rest of family members.
Secondly, putting
all the terrorist in one basket is the contravention of equality itself. Every
terrorist cannot be treated equally unless they are graded upon their role. Terrorists
who are abettor, conspirator, and harbors have to be treated differently from
the one who is hard core terrorist and played active role in the commission of offence.
Thirdly, provisions of forfeiture of property are silent on the matters of quantum
of property to be forfeited. It leaves no discretionary power to court
effectuate proportionate of forfeiture of property of terrorist upon the nature
of offence. The punishment should not be disproportionate to the corresponding
criminal act. Therefore, forfeiting entire property of terrorist including
movable and immovable irrespective of his nature of role played is arbitrary
and unjust. Fourthly, Supreme Court has already admitted that most of the
Indian population is poor, justice is dearer, and making appeal to Apex Court
is beyond the means of average Indian. Under such circumstances, how could a
poor terrorist effectively defend his case before Designated Court and Supreme
Court without means to afford it? Forfeiture of property would defiantly affects
terrorist’s right to be defended by lawyer of his choice and right to seek
qualitative justice which are considered to be integral part of Article 21 and
22.
[1]Section
8(1) of TADA 87 says that where any person is convicted for any offence under
this Act or rules, the Designated Court may in addition to awarding any
punishment; by order in writing declare that any movable or immovable property
of belonging to convicted person shall stands forfeited to the Government free
from all encumbrances. Further section 8(2) says that during the period of
trial of such accused, the Designated Court shall attach movable and immovable
property till trial is over and where such trial resulted into conviction, so
attached properties shall stands forfeited to the government free from all
encumbrance. The section 8(1) and (2) are not properly drafted because there is
apparent conflict between those two sections. Section 8(1) uses the word
“Designated Court may”, it means forfeiture of property of convicted person is
discretionary. Section 8(2) authorizes the Designated Court to attach the
property of accused during the period of trial. Further at the end of section,
it uses the words “where such trial ends in conviction, the properties so
attached shall stand forfeited to the Government free from all encumbrance.” It
means that attached property during the period of trial automatically forfeited
on result of conviction of accused even it is not necessary for the Designated
Court to pass express order to effect
that forfeiture. Therefore power of Designated Court to forfeiture of
property is not discretionary. Section 16(1) and (2) of POTA removes this
anomaly, says Special Court may attach property during the period of trial, and
on conviction it may order for forfeiture of property free from encumbrance.
Section 7 of UAPA 2004 which inserted section 33(1) and (2) to UAPA 1967
incorporated the same provision of POTA.
[2] Kartar
Singh v. State of Punjab, (1994) 3 SCC 569 at 656.
[3]
Section 9(1) of POTA obligates Special Court not to pass the order of
forfeiture of property of terrorism unless concerned parties are given an
opportunity of making representation in writing and also reasonable opportunity
of being heard orally. Same kind of provision should have accommodated even in
the section 7 of UAPA 2004.
[4]Section
9(2) of POTA says that no-order of forfeiture shall be made, if person establishes that he is a bona fide
transferee of such proceeds for value
without knowing that they (transferor) represents proceeds of terrorism,
section 27(2) of chapter V of UAPA 1967 which is interested by section 7 of
UAPA 2004, incorporates same provision of POTA.
