IMPORTANT POINT
Constitutional validity of various provisions of the Prevention of Terrorism Act, 2002, has been upheld by the Supreme Court.

Headnote:(i) Prevention of Terrorism Act, 2002-Constitution of India-Entry 1, List II of Seventh Schedule-Legislative competence of Parliament challenged-Petitioners case that provisions of POTA, in pith and substance, fall under Entry 1 (Public Order) of List-II-Meaning of term Public Order -Present day problem of terrorism affecting security and sovereignty of the nation-It is not State specific but trans-national-Entry Public Order or any other Entries in List II do not cover the situation dealt with in POTA-Whether legislative competence of Parliament can be challenged-(No).
       Held : The terrorist threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is therefore difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. (Para 9)
       Parliament has passed POTA by taking all these aspects into account. The terrorism is not confined to the borders of the country. Cross-border terrorism is also threatening the country. To meet such a situation, a law can be enacted only by Parliament and not by a State Legislature. (Para 12)
       The present day problem of terrorism is affecting the security and sovereignty of the nation. It is not State specific but trans-national. Only Parliament can make a legislation to meet its challenge. Moreover, the entry Public Order in the State List only empowers the States to enact a legislation relating to public order or security in so far as it affects or relates to a particular State. How so ever wide a meaning is assigned to the Entry Public Order , the present day problem of terrorism cannot be brought under the same by any stretch of imagination. Since the Entry Public Order or any other Entries in List II do not cover the situation dealt with in POTA, the legislative competence of Parliament cannot be challenged. (Para 17)
       (ii) Prevention of Terrorism Act, 2002-Section 3(3)-Word abets -Meaning-Requirement of mens rea element-Whether Section 3(3) is prone to misuse, therefore liable to be quashed-(No).
       Held : Under POTA the word "abets" is not defined at all. Section 2(1)(i) of POTA says "words and expressions used but not defined in this Act and defined in the Code shall have the meaning respectively assigned to them in the Code." According to Section 2(1)(a) of POTA "Code" means Code of Criminal Procedure, 1973 (2 of 1974) . Whereas, Section 2(y) Cr.P.C. refers to Indian Penal Code for meaning of the word abets . Therefore, the definition of abets as appears in the IPC will apply in a case under POTA. In order to bring a person abetting the commission of an offence, under the provisions of IPC it is necessary to prove that such person has been connected with those steps of the transactions that are criminal. Mens rea element is sine qua non for offences under IPC. Learned Attorney General does not dispute this position. Therefore, the argument advanced pertaining to the validity of Section 3(3) citing the reason of the absence of mens rea element stands rejected. (Para 24)
       (iii) Prevention of Terrorism Act, 2002-Sections 4, 6, 7, 8, 10, 11, 15, 16 and 17-Constitutional validity-Provisions relating to seizure, attachment and forfeiture of proceeds of terrorism-Whether the provisions are valid-(Yes).
       Held : Funding and financing play a vital role in fostering and promoting terrorism and it is only with such funds terrorists are able to recruit persons for their activities and make payments to them and their family to obtain arms and ammunition for furthering terrorist activities and to sustain the campaign of terrorism. Therefore, seizure, forfeiture and attachment of properties are essential in order to contain terrorism and is not unrelated to the same. Indeed, it is relevant to notice a resolution passed by the United Nations Security Council [Resolution No. 1373 dated 28.9.2001] which emphasized the need to curb terrorist activities by freezing and forfeiture of funds and financial assets employed to further terrorist activities. It will also be interesting to notice the United Nations International Convention for the Suppression of the Financing of Terrorism but at the same time it is not necessary to go into those details in the present context. The scheme of the provisions indicate that the principles of natural justice are duly observed and they do not confer any arbitrary power and forfeiture can only be made by an order of the court against which an appeal is also provided to the High Court and the rights of bona fide transferee are not affected. Therefore, for the present, it is not necessary to pronounce the constitutional validity of these provisions and we proceed on the basis that they are valid. (Para 31)
       (iv) Prevention of Terrorism Act, 2002-Section 14-Criminal Procedure Code, 1973-Section 39-Constitutional validity of Section 14 challenged alleging that it gives unbridled powers to investigating officer-Whether the provision is without checks and amenable to misuse-(No)-Validity of Section 14 upheld.
       Held : Section 14 confers power to the investigating officer to ask for furnishing information that will be useful for or relevant to the purpose of the Act. Further more such information could be asked only after obtaining a written approval from an officer not below the rank of a Superintendent of Police. Such power to the investigating officers is quiet necessary in the detection of terrorist activities or terrorist.
       It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over professional communication beyond what is permitted under Section 126 of the Evidence Act. There is also no law that permits a newspaper or journalist to withhold relevant information from Courts though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against Press Council (Paras 36 and 37)
       In as much as the main purpose of Section 14 of POTA is only to allow the investigating officers to procure certain information that is necessary to proceed with the further investigation we find there is no merit in the argument of the petitioners and we uphold the validity of Section 14. (Para 38)
       (v) Prevention of Terrorism Act, 2002-Sections 18 and 19-Validity challenged-Powers of notification and denotification of terrorist organizations-Whether can be challenged as arbitrary-(No).
       Held : As regards the reasonableness of the restriction provided under Section 18, it has to be noted that the factum of declaration of an organization as a terrorist organization depends upon the belief of Central Government. The reasonableness of the Central Government s action has to be justified based on material facts upon which it formed the opinion. Moreover the Central Government is bound by the order of the Review Committee. Considering the nature of legislation and magnitude or presence of terrorism, it cannot be said that Section 18 of POTA imposes unreasonable restrictions on fundamental right guaranteed under Article 19(1)(c) of the Constitution. We uphold the validity of Sections 18 and 19. (Para 44)
       (vi) Prevention of Terrorism Act, 2002-Sections 20, 21 and 22-Validity-Whether these sections exclude mens rea element for constituting offences-(No)-Provisions held valid.
       Held : It is the cardinal principle of criminal jurisprudence that mens rea element is necessary to constitute a crime. It is the general rule that a penal statute presupposes mens rea element. It will be excluded only if the legislature expressly postulate otherwise. (Para 47)
       Mens rea by necessary implication could be excluded from a statue only where it is absolutely clear that the implementation of the object of the Statue would otherwise be defeated. Here we need to find out whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule regarding mens rea element. (Para 48)
       The offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these Sections are understood in this way, there cannot be any misuse. With this clarification we uphold the constitutional validity of Sections 20, 21 and 22. (Para 48)
       (vii) Prevention of Terrorism Act, 2002-Sections 27, 30, 32 and 49-Validity of the provisions challenged-Whether Section 27 is violative of Articles 14, 20(3) and 21 of the Constitution-(No)-Whether Section 30 is violative of principles of natural justice-(No)-Whether provision of Section 32 regarding admissibility of confession can be challenged as illegal-(No)-Whether Section 49, provision regarding bail is stringent provision-(No).
       Held : Under Section 27, a police officer investigating a case can seek a direction through the Court of Chief Judicial Magistrate or the Court of a Chief Metropolitan Magistrate for obtaining samples of handwriting, finger prints, foot-prints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of an offence under the Act. The Court can also draw adverse inference if an accused refuses to do so. (Para 49)
       We do not think, as feared by the Petitioner, that this Section fixes a blanket responsibility upon the Court to grant permission immediately upon the receipt of a request. Upon a close reading of the Section it will become clear that upon a request by an investigating police officer it shall only be lawful for the Court to grant permission. Nowhere it is stated that the Court will have to positively grant permission upon a request. It is very well within the ambit of Court s discretion. If the request is based on wrong premise, the Court is free to refuse the request. This discretionary power granted to the Court presupposes that the Court will have to record its reasoning for allowing or refusing a request. Pertaining to the argument that the Section per se violates Article 20(3). (Para 51)
       Section 30 contains provision for the protection of witness. It gives powers to the Special Court to hold proceedings in camera and to taking measures for keeping the identity of witness secret. (Para 53)
       The necessity to protect the identity of the witness is not a factor that can be determined by a general principle. It is dependent on several factors and circumstances arising in a case and, therefore, the Act has left the determination of such question to an appropriate case. Keeping secret the identity of witness, though in the larger interest of public, is a deviation from the usual mode of trial. In extraordinary circumstances we are bound to take this path, which is less travelled. Here the Special Courts will have to exercise utmost care and caution to ensure fair trial. The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned Courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30.(Paras 59 and 60)
       If the recording of confession by police is found to be necessary by Parliament and if it is in tune with the scheme of law, then an additional safeguard under Section 32 (4) and (5) is a fortiori legal. In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate s responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer. It will deter the police officers from obtaining a confession from an accused by subjecting him to torture. It is also worthwhile to note that an officer who is below the rank of a Superintendent of Police cannot record the confession statement. It is a settled position that if a confession was forcibly extracted, it is a nullity in law. Non-inclusion of this obvious and settled principle does not make the Section invalid. (Para 63)
       Section 49 mainly deals with procedure for obtaining bail for an accused under POTA. (Para 64)
       The offences under POTA are more complex than that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with anti-national elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49(6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we do not think the unreasonableness attributed to Section 49(7) is fair. (Para 66)

JUDGMENT

Rajendra Babu, J.-

W.P. (C) No. 389/2002 & W.P. (Crl.) No. 89/2002 :

In this batch of Writ Petitions before us the Constitutional validity of various provisions of the Prevention of Terrorism Act, 2002 (hereinafter POTA) is in challenge.

2. The Petitioners contended before us that since the provisions of POTA, in pith and substance, fall under the Entry 1 (Public Order) of List II Parliament lacks legislative competence. To authenticate this contention, the decision in Rehman Shagoo & others V. State of Jammu Kashmir, 1960 (1) SCR 680, is relied upon. According to them, the menace of terrorism is covered by the Entry "Public Order" and to explain the meaning thereof, our attention is invited to decisions in Romesh Thaper v. State of Madras, 1950 SCR 594, Dr. Ram Manohar Lohia V. State of Bihar, 1966 (1) SCR 709, and Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC 746. The Petitioners thus submitted that terrorist activity is confined only to State(s) and therefore State(s) only have the competence to enact a legislation.

3. The learned Attorney General refuting this contention submitted that acts of terrorism, which are aimed at weakening the sovereignty and integrity of the country cannot be equated with mere breaches of law and order and disturbances of public order or public safety. He argued that the concept of "sovereignty and integrity of India" is distinct and separate from the concepts of "public order" or "security of State" which fall under List II enabling States to enact legislation relating to public order or safety affecting or relating to a particular State. Therefore, the legislative competence of a State to enact laws for its security cannot denude Parliament of its competence under List I to enact laws to safeguard national security and sovereignty of India by preventing and punishing acts of terrorism. Learned Attorney General distinguished the decision in Rehman Shagoo and submitted that the legislation dealt with therein is fundamentally and qualitatively different from POTA. He also argued before us that Rehman Shagoo cannot mitigate the binding ratio and unanimous conclusion reached by this Court on the point of legislative competence in Kartar Singh V. State of Punjab, 1994 (3) SCC 569 = 1994 (2) SCR 375, that Parliament can enact such law.

4. In deciding the point of legislative competence, it is necessary to understand the contextual backdrop that led to the enactment of POTA, which aims to combat terrorism. Terrorism has become the most worrying feature of the contemporary life. Though violent behavior is not new, the present day terrorism in its full incarnation has obtained a different character and poses extraordinary challenges to the civilized world. The basic edifices of a modem State, like -democracy, state security, rule of law, sovereignty and integrity, basic human rights etc. are under the attack of terrorism. Though the phenomenon of terrorism is complex, a terrorist act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not. That is why the anti-terrorist statutes - the earlier Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) and now POTA do not define terrorism but only terrorist acts . (See : Hitendra Vishnu Thakur V. State of Maharashtra, (1994) 4 SCC 602).

5. Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. They are:

1. It is premeditated and aims to create a climate of extreme fear or terror.

2. It is directed at a wider audience or target than the immediate victims of violence.

3. It inherently involves attacks on random and symbolic targets, including civilians.

4. The acts of violence committed are seen by the society in which they occur as extra-normal, in literal sense that they breach the social norms, thus causing a sense of outrage; and

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2003 Supreme(SC) 1273

IMPORTANT POINTConstitutional validity of various provisions of the Prevention of Terrorism Act, 2002, has been upheld by the Supreme Court.

Cases Referred (30)

IMPORTANT POINT
Constitutional validity of various provisions of the Prevention of Terrorism Act, 2002, has been upheld by the Supreme Court.