# PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANR v. UNION OF INDIA

- **Citation:** [2003] Supp. 6 S.C.R. 860
- **Court:** Supreme Court of India
- **Decided:** 2003-12-16
- **Bench:** S. Rajendra Babu, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/people-s-union-for-civil-liberties-and-anr-v-union-of-india-19567
- **Pages:** 44

## Headnote

Prevention of Terrorist Act, 2002; Sections 4, 18, 19, 20, 21, 27, 30,
32 & 49/Constitution of India 1950; Article 19 and List I & List II to
Seventh Schedule/Code of Criminal Procedure, 1974; Section 91:
C Constitutional validity of provision of POT A-Challenge to-Held: POTA
has been enacted after taking into consideration well-established legal
principles-Mere Possibility of abuse cannot be construed as ground for
declaring the Statute unconstitutional.
D
State List-Subjects-Public Order-Terrorism-Held: Terrorism
cannot be brought under the Entry 'Public Order' by any stretch of
imagination since subjects dealt with in POTA could not be covered under
any Entry/Entries in List II.
Provisions of seizure/forfeiture/attachment of properties-Necessity
E of-Held: Necessary since funding and financing play a vital role on
fostering/promoting terrorism-Necessary safeguard to accused have been
provided for as forfeiture could be effected by the order of the CourtPrinciples of natural justice duly observed-Right to appeal available to
accused.
F
G
Power of the Investigating Officer to elicit information-Right to
privacy-Effect on-Held: Since power is necessary in detection of terrorist activities/terrorists-Even Journalist/Lawyers could not withhold such
information under the guise of professional ethics-However, in case of
violation of any right, recourse to legal remedies available.
Declaring an organization as a terrorist organization-Restriction on
fundamental right of freedom to speech and expression-Held, Central
Government empowered to take such action based on material factsRemedial measures provided under POTA whjch satisfies requirements of
H audi alteram partem-Hence, restriction not unreasonable.
860
•
.,._
..
,'
I
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I.
861
Special Penal Provisions-Constitutional validity of-Special pro- A
visions contemplated in the Act to combat the new threat of terrorismHence valid.
Production of documents-Discretionary power of the Court-Valiclity of-Held valid, since it does not fix a blanket responsibility upon the B
Court to grant permission-Moreover, it resembles with the analogous
provision under Section 91 Cr. P.C.
Discretion of the Court in keeping the identity of witness secretValidity of-Held: Identity of witness to be witlifield only in exceptional
circt~mstances only when the life of the witness is in danger-However, it C
would be necessary for the Special Court to evolve a mechanism to, ~atisfy
itself about truthfulness and reliability of the witness to safeguard th~ right
of an accused to a fair trial.
Special provisions of recording of confession-Held: Adequate safo- D
guards in tune with the guidelines/legal principles to be taken into
consideration before recording confession.
Accused booked under POTA-Bail-Additional conditions-Validity of-Held : Extended period of detention is reasonably required to
complete investigation of overt and covert act of terrorism-After expiry E
of one year of detention, the accused could be released on bail after
hearing the Public Prosecutor under ordinary law-Additional conditions
included for prevention of terrorism and also taking into account complexities
of terrorist relaled offences-Hence reasonable.
Words and Phrases:
'mens rea'-Meaning of in the context of criminal jurisprudence;
'terrorism;, 'terrorist acts '-Meaning of in the context of Prevention of
Terrorist Act.
In the batch of writ petitions, petitioners challenged the constitutional validity of various provisions of the Prevention of Terrorist
Act, 2002.
F
G
It was contended for the petitioners that since some provisions of H'
862
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A POT A, in pith and substance, fall under Entry I (Public Order) of List
II, Parliament lacks legislative competence to enact the law.
On behalf of Union· of India, it was submitted that acts of
terrorists are aimed at weakening the sovereignty and integrity of the
B country and could not be equated with mere br

## Text

_Characters 0–39,882 of 105,050. This is a partial read: ask again with offset=39882 for what follows._

A
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANR.
B
v.
UNION OF INDIA
DECEMBER 16, 2003
[S. RAJENDRA BABU AND G.P. MATHUR, JJ.]
Prevention of Terrorist Act, 2002; Sections 4, 18, 19, 20, 21, 27, 30,
32 & 49/Constitution of India 1950; Article 19 and List I & List II to
Seventh Schedule/Code of Criminal Procedure, 1974; Section 91:
C Constitutional validity of provision of POT A-Challenge to-Held: POTA
has been enacted after taking into consideration well-established legal
principles-Mere Possibility of abuse cannot be construed as ground for
declaring the Statute unconstitutional.
D
State List-Subjects-Public Order-Terrorism-Held: Terrorism
cannot be brought under the Entry 'Public Order' by any stretch of
imagination since subjects dealt with in POTA could not be covered under
any Entry/Entries in List II.
Provisions of seizure/forfeiture/attachment of properties-Necessity
E of-Held: Necessary since funding and financing play a vital role on
fostering/promoting terrorism-Necessary safeguard to accused have been
provided for as forfeiture could be effected by the order of the CourtPrinciples of natural justice duly observed-Right to appeal available to
accused.
F
G
Power of the Investigating Officer to elicit information-Right to
privacy-Effect on-Held: Since power is necessary in detection of terrorist activities/terrorists-Even Journalist/Lawyers could not withhold such
information under the guise of professional ethics-However, in case of
violation of any right, recourse to legal remedies available.
Declaring an organization as a terrorist organization-Restriction on
fundamental right of freedom to speech and expression-Held, Central
Government empowered to take such action based on material factsRemedial measures provided under POTA whjch satisfies requirements of
H audi alteram partem-Hence, restriction not unreasonable.
860
•
.,._
..
,'
I
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I.
861
Special Penal Provisions-Constitutional validity of-Special pro- A
visions contemplated in the Act to combat the new threat of terrorismHence valid.
Production of documents-Discretionary power of the Court-Valiclity of-Held valid, since it does not fix a blanket responsibility upon the B
Court to grant permission-Moreover, it resembles with the analogous
provision under Section 91 Cr. P.C.
Discretion of the Court in keeping the identity of witness secretValidity of-Held: Identity of witness to be witlifield only in exceptional
circt~mstances only when the life of the witness is in danger-However, it C
would be necessary for the Special Court to evolve a mechanism to, ~atisfy
itself about truthfulness and reliability of the witness to safeguard th~ right
of an accused to a fair trial.
Special provisions of recording of confession-Held: Adequate safo- D
guards in tune with the guidelines/legal principles to be taken into
consideration before recording confession.
Accused booked under POTA-Bail-Additional conditions-Validity of-Held : Extended period of detention is reasonably required to
complete investigation of overt and covert act of terrorism-After expiry E
of one year of detention, the accused could be released on bail after
hearing the Public Prosecutor under ordinary law-Additional conditions
included for prevention of terrorism and also taking into account complexities
of terrorist relaled offences-Hence reasonable.
Words and Phrases:
'mens rea'-Meaning of in the context of criminal jurisprudence;
'terrorism;, 'terrorist acts '-Meaning of in the context of Prevention of
Terrorist Act.
In the batch of writ petitions, petitioners challenged the constitutional validity of various provisions of the Prevention of Terrorist
Act, 2002.
F
G
It was contended for the petitioners that since some provisions of H'
862
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A POT A, in pith and substance, fall under Entry I (Public Order) of List
II, Parliament lacks legislative competence to enact the law.
On behalf of Union· of India, it was submitted that acts of
terrorists are aimed at weakening the sovereignty and integrity of the
B country and could not be equated with mere breaches of law and order
and disturbances of public order or public safety; that 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.
c
Dismissing the writ petitions except W.P. (Crt.) No. 48 of 2003,
to be heard separately, the Court
HELD 1.1. Terrorism has become the most worrying feature of
D the contemporary life. Though violent behavior is.not new, the present
day 'terrorism' in its full incarnation has obtained a different cha~
acter and poses extraordinary challenges to the civilized world. The
basic edifices of a modern State are under the attack of terrorism.
E
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'. [872-A-B-C)
F
Hitendra Vishnu Thakur v. State of Maharashtra, 11994) 4 sec 602
and Mohd. Iqbal M Shaikh v. State of Maharshtra, [1998) 4 SCC 494,
referred to.
Terrorism related works by Paul Wilkinson, referred to.
G
1.2. The attempts by the State to prevent terrorism should be based
on welt established legal principles. The anti-terrorism laws should be
capable of dissuading individuals or groups from resorting to terrorism,
denying the opportunities for the commission of act of terrorism by
creating inhospitable environments for terrorism and also leading the
H struggle agaipst terrorism. Anti-terrorism law is not only a penat statue
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I.
863
but also focuses on pre-emptive rather than defensive State action. At A
the same time in the light of global terrorist threats, collective global
action is necessary. Pa-rliament has passed POTA by taking the relevant
aspects into account. [875-G; 876-B-C; 876-E)
A, X· and Y, and Another v. Secretary of the State for the Home B
Department, (Neutral Citation Number : (2002) EWCA Civ. 1502),
referred to.
1.3. The protection and promotion of human rights under the rule
of law is essential in the prevention of terrorism. If human rights are
violated in the process of combating terrorism, it will be self-defeating. C
Terrorism often thrives where human rights are violated, which adds
to the need to strengthen action to combat violations of human rights. ·
The lack of hope for justice provides breeding grounds for terrorism.
Terrorism itself should also be understood as an assault on basic rights.
The Constitution of India laid down clear limitations on the State D
actions within the context of the fight against terrorism. To maintain ·
this delicate balance by protecting 'core' Human Rights is the responsibility of Court in such a matter. Constitutional soundness of POTA
has to be judged by keeping these aspects in mind. [877-C-D-E)
1.4. The entry 'Public Order' in the State List only empowers the E
States to enact a legislation relating to public order or security in so
far as it affects or relates to a particular State. Howsoever 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 F
List II do not cover the situation dealt with in POT A, the legislative
competence of Parliament cannot be challenged. [878-G-H; 879-A] ·
Kartar Singh v. State of Punjab, [1994] 3 SCC 569 = [1994] 2 SCR
375, followed.
Prem Nath Kaul v. The State of Jammu & Kashmir, [1959] Supp. 2
SCR 270; Rehman Shagoo & Ors. v. State of Jammu & Kashmir, (1960]
l SCR 680; Romesh Thaper v. State of Madras, [1950] SCR 594; Dr. Ram
Manohar Lohia v. State of Bihar, [19661 1 SCR 709 and Madhu Limaye
v. SDM, Monghyr, [1970) .3 SCC 746, distinguished.
G
H
864
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
1.5. The Court can riot go into and examine. the 'need' of POT A.
It is a matter of policy. Once legislation is passed the Government has
an obligation to exercise all available options to prevent terrorism
within the bounds of the Constitution. Mere possibility of abuse cannot
be counted as a ground for denying the vesting of powers or for
B · declaring a statute unconstitutional. [880-D-E]
c
State of Rajasthan v. Union of India. 11978) 1 SCR 1; Collector of
Customs v. Nc:thella Sampathu Chetty, AIR (1962) SC 316; Keshavananda
Bharati v. State of Kerala, [1973] 4 SCC 225 and Mafatlal Industries v.
[J_nion of India, [1997] 5 SCC 536, relied on.
1.6. The provisions in Section 4 of POT A presupposes ·knowledge
of terrorist act for possession. There is no .question of innocent persons
getting [lUnished. Hence, there is no infirmity in Section 4 of POTA.
[882-D]
D
Sanjay Dutt v. State (II), (1994) 5 sec 410, relied on.
1.7. 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
E activities and to sustain the campaign ofterrorism. Therefor, seizure,
forfeiture and attachment of prope~ties are essential in order to
contain terrorism and is not unrelated to the same. The scheme of the
provisions under POTA indicate that the principles of natural justice
are duly observed and they do not confer any arbitrary power and
F forfeiture can only be made by an order of the court again.~t which an
appeal is also provided to the High Court and the rights ·of bona fide
transferee are not .affected. [884-E-F, G; 885-A]
G·
United Nations Security Council:Resolution No. 1373 dated 28.9.2001,
I
referred to.
1.8. Cl."iminal justice system cannot function without the cooperation of people. Rather.-it is the duty of every ·body to assist the State
in detection of the cr_ime and bringing criminal .to justice. Withholding
such information cannot be traced to right to .privacy, which itself is
not an absolute right~ Section l4 of POT A .cenfers power to the
H investigating officer to ask for furnishing information that will be
(
-·
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I.
865
useful for or relevant to the purpose of the Act. Furthermore such A
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 quite 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 B
information regarding crime under the guise of professional ethics. Of
course the investigating officers will be cirC;umspect and cautious in
requiring them to disclose information. In the process of obtaining
information, if any right of citizen is violated, nothing prevents him
from resorting to other legal remedies. In as much as the main purpose
of Section 14 of POTA is only to allow the investigating officers to C
procure certain information that is necessary to proceed with the
further investigation. [886-F-G; 887-A, B-C-D-E)
Sharda v. Dharmpal, [2003} 4 SCC 493; State of Gujarat v ..
Anirudhsing, [1997) 6 SCC 514; Pandit MS.M Sharma v. Shri Krishan D
Sinha, [1959] Supp. I SCR 806 and Sewakaram Sobhani v. R.K Karanjia,
[1981] 3 sec 208, relied on.
1.9. POTA is enacted to protect sovereignty and integrity of India
from the menace of terrorism. Imposing restriction under Article 19(4)
of the Constitution also includes declaring an organization as a . E
terrorist organization as provided under POTA. Hence Section 18 of
POT A deals with notification/de-notification of terrorist organs is not
unconstitutional. The post-decisional remedy provided under POTA
satisfies the audi u/term partem requirement in the matter of declaring
an organization as a terrorist organization. Therefore, the absence of F
pre-decisional hearing cannot be treated as a ground for declaring
Section 18 of POT A as invalid. As regards the reasonableness of the
restriction provided under Section 18 of POT A, it has to be noted that
the factum of declaration of an organization as a terrorist organization
depends upon the 'belier of Central Government. The reasonableness
of the Central Government's action has to be justified based on G
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 of fundamental right guaranteed under H
866
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Article 19(t)(c) of the Constitution. [888-G; 889-C-D; F-GI
Mohinder Singh Gill v. Chief Election Commissioner, [19781 1 SCC
405; Swadeshi Cotton Mills v. Union of India, [1981) 1 SCC 664; Olga
Tellis v. Bombay Municipal Corporation, [19851 3 SCC 545 and Union
B of.IJ?dia v. Tulsiram Patel, [1985]? sec 398, relied on.
1.1 0. The mere presence of non-judicial members in the review
Committee by itself cannot be treated as a ground to invalidate Section
19 of POTA. [889-EI
C
Kartar Singh v. State of Punjab, (1994] 3 SCC 589 = [1994] 2 SCR
375, relied on.
1.11. Sections 20, 21 and 22 of POT A is similar to that of Sections
11, 12 and 15 of the Terrorism .Act, 2000 of United Kingdom. Such
D Provisions are found to be quite necessary all over the world in antiterrorism effects. Sections 20, 21 and 22 are penal in nature that
demand strict construction. These provisions are a departure from the
ordinary law since the said law was found to be inadequate and not
sufficiently effective to deal with the threat of terrorism. Moreover, the
crime referred to herein under POT A is aggravated in nature. Hence
E special provisions are contemplated to combat the new threat of
terrorism. Support, either verbal or monetary, with a view to nurture
terrorism and terrorist activities is causing new challenges. Therefore
Parliament finds that such support to terrorist organizations o.r
terrorist. activities need to be made punishable. Viewing the legislation
F in its totality it cannot be said that these provisions are obnoxious. The
provisions under Sections 20, 21 and 22 of POT A are limited only to
those ac-tivities 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 the constitutional validity of Sections 20, 21 and 22
G is upheld. [890-D-E-F; 891-F]
1.12. 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
H excluded only if the legislature expressly postulate otherwise. [890•GI
-
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.l.
867
Kartar Singh v. State of Punjab, [1994) 3 SCC 589 = [1994) 2 SCR A
375; State of Maharashtra v. MH George, AIR (1965) SC 722; Nathulal
v. State of MP, AIR (1966) SC 43 and Inder Sain v. State of Punjab,
[1973) 2 sec 372, referred to.
1.13. Section 27 of POTA does not fix a blanket responsibility B
upon the Court to grant permission immediately •-tlO·• the receipt of ·
a request. Upon a 'request' by an investigating police officer is shall
only 'be lawful' for the Court to grant permission. It is very well within
the ambit of Court's discretion. If the request is based on wrong
premises_, the Court is free to refuse the request. This discretionary
power granted to the Court presupposes that the Court will have to C
record its reasoning for allowing or refusing a request. The argument
of the Petitioners pertaining to the violation of Article 20(3) of the
Constitution is not sustainable. It is meaningful to look into Section 91
· Cr.P.C. that empowers a criminal court as also a police officer to order
any person to produce a document or other thing in his possession for D
the purpose of any inquiry or trial. Moreover,. Section 27 of POT A is
only a step in aid for further investigation and the samples so obtained
can never be considered as conclusive proof for conviction."Jience, the
constitutional validity of Section 27 is upheld. [892-D-E; 893-C-D-E)
Shyamlal Mohanlal v. State ofGujarat, AIR (1961) SC 1808 and E
State of Bombay v. Kathi Kalu Oghad, [1962) 3 SCR 10, relied on.
1.14. Section 30 of POT A only confers discretion to the concerned
Court to ke~p th~ identity of witness secret if the life of such witness is
in danger; that often witnesses do not come forward to depose before F
Court even in serious cases. This precarious situation creates challenges
to criminal justice administration in general and terrorism related cases
in particular. Witnesses do not volunteer to give evidence mainly due to
fear of their life. Ultimately, the non-conviction affects the larger interest
of community, which lies in ensuring that the executors of heinous
offences like terrorist acts are effectively prosecuted and punished. G
Legislature drafted Section 30 by taking all these factors into account.
Hence, a fair balance between the rights and interest of witness, rights
of accused and larger public interest has been maintained under Section
30. It is also aimed to assist the State in justice administration and
encourage others to do the same under the given circumstances. H
,.
868
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Anonymity of witness is not general rule under Section 30. Identity will
b_e withheld only in exceptional circumstances when the Special Court
is satisfied that the life of witness is in jeopardy. In order to safeguard
the rig-ht of ~n accused to a fair tri-al and basic requirements of the due
process a mechanism can be evolved whereby the special court is obligated
to satisfy itself about the truthfulness and reliability of the statement or
B dis.pos.ition of the witness whose identity is sought to be protected. It is
not appropriate 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 in to account all the factual
circumstances of individual cases and to forge appropriate methods to
C ensure the safety of individual witness. Hence, the validity of Section 30
is upheld. [894-E-F-G-H; 895-A, H; 896-A, H; 897-A}
Kartar Singh v. State of Punjab, [1994) 3 SCC 589 = [19941 2 SCR
375; Gurbachan Singh v. State of Bombay, (19521 SCR 737; Hira Nath
D Mishra v. Principal, Rajendra Medical College, [1973) I SCC 805; A.K.
Roy v. Union of India, (1982) 1 SCC 271 and Jamaat-e-Islami v. Union
of India, (19951 1 SCC 428, relied on.
1.15. :While enacting Section 32 of POTA Parliament has taken
into account all the guidelines, which were suggested by this Court in
E Kartar Singh's case. 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 ad~itional safeguard under Section 32(4) and (5) is a
fortiori legal. The provision that requires producing such a person
before the Magistrate is an additional safeguard. It gives that person
F 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
G
worthwhile to note that an officer who is· below tlte 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
nuility in law. Non-inclusion of this obvious and settled principle does
not make the Section invalid. Judicial wisdom will surely prevail over
irregularity, if any in the process of recording confessional statement.
H Hence, the safeguards provided by the Act and under the law is
' .
, .
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I.
869
adequate in the given circumstances. Consequently the validity of A
Section 32 is upheld. (898-A; C-D-E-F]
Kartar Singh v. State of Punjab, [1994]3 SCC 589 = {1994) 2 SCR
375, relied on.
1.16. By virtue of Section 49(8) of POT A, the powers under · B
Section 49(6) and (7) pertaining to bail is in addition to and not in
derogation to the powers under the provisions of Cr.P.C. or any other
law for the time being in force on granting of bail. The offences under
POTA are more complex than that of ordinary offences. Usually the
overt and covet ·acts of terrorism are executed in a chillingly efficient C
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 D
accused for a longer period. Consequently, Section 49(6) and (7) are
not unreasonable. However, 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 E
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 ha\'e been 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 F
the satisfaction of the Court under Section 49(7) has to be arrived
based on the particular facts and after considering the above mentioned
aspects, provision under Section 49(7) is not unreasonable. Sections
49(6) and 49(7) of POTA have to be read together and the effect of
combined reading is that Public Prosecutor has been given an opportunity of being heard before releasing the accused on baH and if he G
opposes the application, the court will have to be satisfied that there
are grounds for believing that he is not guilty of having committed such
offence. It is by way of exception to Section 49(7) that proviso is added
which means that after the expiry of one year after the detention of
the accused for offences under POT A, the accused can be released on H
870
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A bail after hearing· the Public Prosecutor under ordinary law without
applying the rigour of Section 49(7) of POT A. Proviso to Section 49(7)
provides that the condition enumerated in sub-section (6) will apply
after the expiry of one year. There appears to be an accidenta_l omission
or the mistake 9f not including the word 'not' after the word 'shall'
B and bef?re the word 'apply'. Unless such a word is included, the
provision will lead to an absurdity or become meaningless. Even
.
.
othenvise, read appropriately, the meaning of the proviso to Section
49(7) is that an accused can resort to ordinary bail procedure under
the Cr.P.C. after the period of one year. At the same time, the proviso
C does not. prevent StiCh· an accused to approach the Court for bail in
accoi"danc~ with the provisions of POT A under Section 49(6) and (7)
thereof. Taking into account of the complexities of the terrorism
related offences and intention of Parliament in enacting a special law
.. for its prevention, the additional conditions regarding bail under
D POT A are not unreasonable. Hence, the validity of Section 49 is also
upheld. (899-G-H; 900-A-B-C-D, G-H; 901-B-C-D-EJ
Kartar Singh v. State of Punjab, (1994) 3 SCC 589 = (1994] 2 SCR
.
.
.
375, relied on.
£
CIVIL ORIGINAL JURISDICTION : Writ petition (C) No. 389 of
F
2002.
Under Article 32 of the Constitution of India.
WITH
W.P. (Crl.) Nos. 89, 129/2002, 28 and 48 of 2003.
Soli J. Sorabjee, Attorney General, Rajinder Sachhar, Anil a. Divan,
B.S. Mallik, P.P. Rao, Sanjay Parikh, A.K. Mishra, A.N. Singh, V.Sudan,
G T. Harish Kumar, P.R. Kovllan, V. Krishna Murthy, Dr. R.G. Prakash, Dr.
N.A. Siddiqui, G. Devadoss, V.Ramasubramanian,. Trideep Pals, K.J. John,
Parineswaran, Dhruv Mehta, Prateek Jalan, Preetesh Kapur, A.D.N. Rao,
Mahish Singhvi, Aman Sinha, Anand Misra, Ashim Sood, Sunil Mathews
and P.N. Ramalingam for the appearing parties.
H
The Judgment of the Court was delivered by
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I. [RAJENDRA BABU, J.] 871
RAJENDRA BABU, J.: WP. (C) No. 38912002 & WP.(Crl) No. A
89/2002 :
In this batch of Writ Petitions before us the Constitutional validity of
various provisions of the Prevention of Terrorism Act, 2002 (hereinafter
POT A) is in challenge.
B
. 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] I SCR 680, is relied upon. According to them, the menace of C
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 lvfanohar Lohia v. State of
Bihar, (1966] 1 SCR 709 and Madhu Limaye v. SDM, Monghyr, [1970]
3 sec 746. The Petitioners thus submitted that terrorist activity is confined D
only te State(s) and therefore State(s) only have the competence to enact
a legislation.
The learned Attorney General refuting this contention submitted that
acts of terrorism, which are aimed at weakening the sovereignty and E
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"pubiic 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 F
competence of a State to enact laws for its security cannot denude
Parliame.nt of its competence under List I to enact laws to safeguard
national security and sovereignty oflndia by preventing and punishing acts
of terrorism. Learned Attorney General distinguished the decision in
Rehman Shagoo and submitted 6at the legislation dealt with therein is G
fundamentally and qualitatively different from POT A. 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.
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A
In deciding the point of legislative competence, it is necessary to
understand the contextual backdrop that led to the enactment of POT A,
which aims to combat terr.orism. 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
·B character and poses extraordinary challenges to the civitized world. The
basic edifices of a modern 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 ofthe term
is clear even if its exact frontiers are not. That is why the anti-"terrorist
C statutes- the earlier Terrorism and Disruptive Activities (Prevention) Act,
1987 (T ADA) and now POT A do not define 'terrorism' but only 'terrorist
acts.' (See : Hitendra Vishnu Thakur v. State of Maharashtra, [1994] 4
sec 602).
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Paul Wilkinson, an authority on terrorism related works, culled out
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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 th~y
breach the social norms, thus causing a sense of o~trage; and
5.
Terrorism is used to influence political behavior in some
way - for example to force opponents into conceding some
or all of the perpetrators demands, to provoke an overreaction, to serve as a catalysis for more general conflict, or
to publicize a political cause.
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In all acts of terrorism, it is mainly the psychological element that
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I. [RAJENDRA BABU, J.] 873
distinguishes it from other political offences, which are invariably accom- A
panied with violence and disorder. Fear is induced not merely by making
civilians the direct target of violence but also by exposing them to a sense
of insecurity. It is in this context that this Court held in Mohd. Iqbal M
Shaikh v. State of Maharashtra, [1998] 4 SCC 494, that:
" .. .it is not possible to give a precise definition of terrorism or to
lay down what constitutes terrorism. But...· it may be possible to
describe it as a use of violence when its most important result is
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not merely the physical and mental damage of the victim but the
prolonged psychological effect it produces or has the potential of
producing on the society as a whole .... if the object of the activity C
is to disturb harmony of the society or to terrorize people and the
society, with a view to disturb even tempo, tranquility of the
society, and a sense of fear and insecurity is created in the minds
of a section of society at large, then it will, undoubtedly be held
to be terrorist act..."
D
Our country has been the victim of an undeclared war by the
epicenters of terrorism with the aid of well-knit and resourceful terrorist
organizations engaged in terrorist activities in different States such as
Jammu & Kashmir, North-East States, Delhi, West Bengal, Maharashtra, E.
Gujarat, Tamilnadu, Andhra Pradesh. The learned Attorney General placed
material to point out that the year 2002 witnessed 4038 terrorist related
violent incidents in J&K in which 1008 civilians and 453 security
personnel were killed. The number of terrorist killed in 2002 was 1707 out
of which 508 were foreigners. In the year 2001 there were as many as 28
suicide attacks while there were over I 0 suicide attacks in 2002 in which F
innocent persons and a large number of women and children were killed.
The major terrorist incidents in the recent past includes attack on Indian
Par1iament on 13th December 200 I, attack on Jammu & Kashmir Assem-
. bly on 1st October, 2001, attack on Akshardham temple on 24th September
2002, attack on US Information Center at Kolkatta on 22nd January 2002, G
Srinagar CRPF Camp attack on 22nd November 2002, lED blast near
Jawahar Tunnel on 23rd November 2002, attack on Raghunath Mandir on
24th November 2002, bus bomb blast at Ghatkopar in Mumbai on 2nd
December 2002, attack on villagers in Nadimarg in Pulwama District in
Jammu Kashmir on the night of 23rd-24th March 2003 etc. There were H
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SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A attacks in Red Fort and on several Government Installations, security
forces' camps and in public places. Gujarat witnessed gruesome carnage
of innocent people by unleashing unprecedented orgy of terror. People in
Bihar, Andhra Pradesh, and. Maharashtra etc. have also experienced the
terror trauma. The latest addition to this long list of terror is the recent twin
B blast at Mumbai that claimed about 50 lives. It is not necessary to swell
this opinion by narrating all the sad episodes of terrorist activities that the
country has witnessed.
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All these terrorist strikes have certain common features. It could be
very broadly grouped into three.
1.
Attack on the institution of democracy, which is the very
basis of our country. (By attacking Parliament, Legislative
Assembly etc). And ·the attack on economic system by
targeting economic nerve centers.
2.
Attack on symbols of national pride and on security I
strategic installations. ( eg. Red Fort, Military installations
and camps, Radio stations etc.)
3.
Attack on civilians to generate terror and fear psychosis
among the general populace. The attack at worshipping
places to injure sentiments and to whip communal passions.
These are designed to position the peo!)le against the government by creating a feeling of insecurity.
.
.
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Terrorist acts are meant to destabilize the nation by challenging its
sovereignty and integrity,' to raze the constihitional principles that we hold
dear, to create a psyche of f~ar and anarchism among common people, to
tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces,
to thwart the economic progress and development and so on. This cannot
G be equated with a usual law and order problem within a State. On the other
hand, it is inter-state, inter-national or ~ross-border in character. Fight
against the 9vert and covert acts of terrorism is not a regular criminal justice
endeavor. Rather it is defence of our nation and its citizens. It is a challenge
to the whole nation and invisible force of Indianness that binds this great
H nation togt:{ther; Therefore, terrorism is a new challenge for law enforce-
•
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PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I. [RAJENDRA BABU, J.] 875
ment. By indulging in terrorist activities organized groups or individuals, A
trained, inspired and supported by fundamentalists and anti-Indian elements were trying to destabilize the country. This new breed of menace
was hitherto unheard of. Terrorism is definitely a criminal act, but it is
much more than mere criminality. Today, the government is charged with
the duty of protecting the unity, integrity, secularism and sovereignty of B
India from terrorists, both from outside and within bor-ders. To face
terrorism we need new approaches, techniques, weapons, expertise and of
course new laws.
In the above said circumstances Parliament felt that a
new anti-terrorism law is necessary for a better futu_re. This parliamentary
resolve is epitomized in POT A.
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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 D
parties or a government across another, and procuring arms from multiple
sources. Terror~sm 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 E
international community to focus on the issue of terrorism with renewed
intensity. The Security Council unanimously passed resolutions 1368
(2001) and 1373 (2001); the General Assembly adopted resolution 56/1 by
consensus, and convened a special session. All these resolutions and
declarations inter alia call upon Member States to take necessary steps to
'prevent and suppress terrorist acts' and 3Jso to 'prevent and suppress the F
financing of terrorist acts.' India is a party to all these resolves. Antiterrorism activities in the global level are mainly carried out through
bilateral and multilateral cooperation among nations. It has thus become
our international obligation also to pass necessary laws to fight terrorism.
The attempts by the State to prevent terrorism should be based on G
well-established legal principles. The 'Report of the Policy Working Group
of the United Nations and Terrorism' urged the global community to
concentrate on a triple strategy to fight against terrorism. They are:
(a). Dissuade disaffected groups from embracing terrorism;
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A
(b). Deny groups or individuals the means to carry out acts of
terrorism; and
(c). Sustain broad-based international cooperation in the struggle
against terrorism.
B
Therefore, the anti-terrorism laws should be capable of dissuading
individuals or groups from resorting to terrorism, denying the opportunities
for the commission of acts of terrorism by creating inhospitable environments for terrorism and also leading the struggle against terrorism. Anti- .
terrorism law is not only a penal statue but also focuses on pre-emptive
C rather than defensive State action. At the same time in the light of global
terrorist threats, collective global action is necessary. Lord Woolf CJ in A,
X and Y, and Another v. Secreta~y of the State for· the Home Department
(Neutral Citation Number, [2002] EWCA Civ. 1502) has pointed out that
" ... Where international terrorists are operating globally and committing
D acts designed to terrorize the population in one country, that can have
implications which threaten the life of another. This is why a collective
approach to terrorism is important. "
Parliament has passed POT A by taking all these aspects into account.
The terrorism is not confined to the borders of the country. Cross-border
E 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. Piloting
the Prevention of Terrorism Bill in the joint session of Parliament on March
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26, 2002 Hon'ble ·Home Minister said:
" ... The Government of India has been convinced for the last
four years that we have been here and I am sure even the earlier
Governments held that terrorism and more particularly, Statesponsored cross border terrorism is a kind of war. It is not just
a law and order problem. This is the first factor, which has been
responsible for Government thinking in terms of an extraordinary
law like POTO.
... So, first of all, the question that I would like to pose to all of
you and which we have posed to the nation is: 'Is it just in Jammu
and Kashmir an aggravated law and order situation that we are
facing .or is it really when we say it a proxy war, do we really
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PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.I. [RAJENDRA BABU, J.] 877
believe that it is a proxy war?' ... But when you have terrorist A
organizations being trained, financed by a State and it becomes
State-sponsored terrorism and all of them are enabled to infiltrate
into our country, it becomes a challenge of a qualitatively
different nature ... "
(Emphasis supplied) B
From this it could be gathered that Parliament has explored the
possibility of employing the existing laws to tackle terrorism and arrived
at the conclusion that the existing laws are not capable. It is also clear to
Parliament that terrorism is not a usual law and order problem.
The protection and promotion of human rights under the rule of law
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is essential in the prevention of terrorism. Here comes the role of law and
Court's responsibility. If human rights are violated in the process of
combating terrorism, it will be self-defeating.