People'S Union For Civil Liberties & Anr vs Union Of India
- Neutral2003 INSC 721
- SCR[2003] Supp (6) SCR 860
Ratio decidendi
The rule this decision rests on
Where terrorism is transnational in character and threatens the sovereignty and integrity of the nation as a whole, Parliament has legislative competence to enact laws against terrorism under Article 248 read with Entry 97 of List I of the Seventh Schedule, or alternatively under Entry 1 of List I (Defence of India), notwithstanding that terrorism may in some contexts fall within Entry 1 of List II (Public Order), because activities threatening national security are qualitatively distinct from mere disturbances of public order affecting a particular State and are outside the legislative field assigned to the States.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
CASE NO.:Writ Petition (civil) 389 of 2002
PETITIONER:People's Union for Civil Liberties & Anr.
RESPONDENT:Union of India
DATE OF JUDGMENT: 16/12/2003
BENCH:S. RAJENDRA BABU & G.P. MATHUR
JUDGMENT:
J U D G M E N T
[WithW.P.(Crl.) 89/2002, W.P.(Crl.)129/2002, W.P.(Crl.) 28/2003 &W.P.(Crl.) 48/2003]
RAJENDRA BABU, J. :
W.P.(C) No. 389/2002 & W.P.(Crl) No.89/2002 :
In this batch of Writ Petitions before us theConstitutional validity of various provisions of thePrevention of Terrorism Act, 2002 (hereinafterPOTA) is in challenge.
The Petitioners' contended before us thatsince the provisions of POTA, in pith andsubstance, fall under the Entry 1 (Public Order) ofList II Parliament lacks legislative competence. Toauthenticate this contention, the decision inRehman Shagoo & others V. State of JammuKashmir, 1960 (1) SCR 680, is relied upon.According to them, the menace of terrorism iscovered by the Entry "Public Order" and to explainthe meaning thereof, our attention is invited todecisions in Romesh Thaper V. State ofMadras, 1950 SCR 594, Dr. Ram ManoharLohia V. State of Bihar, 1966 (1) SCR 709, andMadhu Limaye V. SDM, Monghyr, (1970) 3 SCC
746. The Petitioners thus submitted that terroristactivity is confined only to State(s) and thereforeState(s) only have the competence to enact alegislation.
The learned Attorney General refuting thiscontention submitted that acts of terrorism, whichare aimed at weakening the sovereignty andintegrity of the country cannot be equated withmere breaches of law and order and disturbancesof public order or public safety. He argued that theconcept of "sovereignty and integrity of India" isdistinct and separate from the concepts of "publicorder" or "security of State" which fall under ListII enabling States to enact legislation relating topublic order or safety affecting or relating to aparticular State. Therefore, the legislativecompetence of a State to enact laws for itssecurity cannot denude Parliament of itscompetence under List I to enact laws tosafeguard national security and sovereignty ofIndia by preventing and punishing acts ofterrorism. Learned Attorney General distinguishedthe decision in Rehman Shagoo and submittedthat the legislation dealt with therein isfundamentally and qualitatively different fromPOTA. He also argued before us that RehmanShagoo cannot mitigate the binding ratio andunanimous conclusion reached by this Court onthe point of legislative competence in KartarSingh V. State of Punjab, 1994 (3) SCC 569 =1994 (2) SCR 375, that Parliament can enact suchlaw.
In deciding the point of legislativecompetence, it is necessary to understand thecontextual backdrop that led to the enactment ofPOTA, which aims to combat terrorism. Terrorismhas become the most worrying feature of thecontemporary life. Though violent behavior is notnew, the present day 'terrorism' in its fullincarnation has obtained a different character andposes extraordinary challenges to the civilizedworld. The basic edifices of a modern State, like -democracy, state security, rule of law, sovereigntyand integrity, basic human rights etc are underthe attack of terrorism. Though the phenomenonof terrorism is complex, a 'terrorist act' is easilyidentifiable when it does occur. The core meaningof the term is clear even if its exact frontiers arenot. That is why the anti-terrorist statutes - theearlier Terrorism and Disruptive Activities(Prevention) Act, 1987 (TADA) and now POTA donot define 'terrorism' but only 'terrorist acts.' (See: Hitendra Vishnu Thakur V. State ofMaharashtra, (1994) 4 SCC 602).
Paul Wilkinson, an authority on terrorismrelated works, culled out five major characteristicsof terrorism. They are:
1. It is premeditated and aims to create a climateof extreme fear or terror.
2. It is directed at a wider audience or target thanthe immediate victims of violence.
3. It inherently involves attacks on random andsymbolic targets, including civilians.
4. The acts of violence committed are seen by thesociety in which they occur as extra-normal, inliteral sense that they breach the social norms,thus causing a sense of outrage; and
5. Terrorism is used to influence political behaviorin some way - for example to force opponents intoconceding some or all of the perpetratorsdemands, to provoke an over-reaction, to serve asa catalysis for more general conflict, or topublicize a political cause.
In all acts of terrorism, it is mainly thepsychological element that distinguishes it fromother political offences, which are invariablyaccompanied with violence and disorder. Fear isinduced not merely by making civilians the directtarget of violence but also by exposing them to asense of insecurity. It is in this context that thisCourt held in Mohd. Iqbal M. Shaikh V. Stateof Maharashtra, (1998) 4 SCC 494, that:
"...it is not possible to give a precise definitionof terrorism or to lay down what constitutesterrorism. But... it may be possible to describeit as a use of violence when its most importantresult is not merely the physical and mentaldamage of the victim but the prolongedpsychological effect it produces or has thepotential of producing on the society as awhole. ... if the object of the activity is todisturb harmony of the society or to terrorizepeople and the society, with a view to disturbeven tempo, tranquility of the society, and asense of fear and insecurity is created in theminds of a section of society at large, then itwill, undoubtedly be held to be terrorist act..."
Our country has been the victim of anundeclared war by the epicenters of terrorism withthe aid of well-knit and resourceful terroristorganizations engaged in terrorist activities indifferent States such as Jammu & Kashmir, North-East States, Delhi, West Bengal, Maharashtra,Gujarat, Tamilnadu, Andhra Pradesh. The learnedAttorney General placed material to point out thatthe year 2002 witnessed 4038 terrorist relatedviolent incidents in J&K in which 1008 civilians and453 security personnel were killed. The number ofterrorist killed in 2002 was 1707 out of which 508were foreigners. In the year 2001 there were asmany as 28 suicide attacks while there were over10 suicide attacks in 2002 in which innocentpersons and a large number of women andchildren were killed. The major terrorist incidentsin the recent past includes attack on IndianParliament on 13th December 2001, attack onJammu & Kashmir Assembly on 1st October, 2001,attack on Akshardham temple on 24th September2002, attack on US Information Center at Kolkattaon 22nd January 2002, Srinagar CRPF Camp attackon 22nd November 2002, IED blast near JawaharTunnel on 23rd November 2002, attack onRaghunath Mandir on 24th November 2002, busbomb blast at Ghatkopar in Mumbai on 2ndDecember 2002, attack on villagers in Nadimarg inPulwama District in Jammu Kashmir on the nightof 23rd-24th March 2003 etc. There were attacksin Red Fort and on several GovernmentInstallations, security forces' camps and in publicplaces. Gujarat witnessed gruesome carnage ofinnocent people by unleashing unprecedentedorgy of terror. People in Bihar, Andhra Pradesh,and Maharashtra etc have also experienced theterror trauma. The latest addition to this long listof terror is the recent twin blast at Mumbai thatclaimed about 50 lives. It is not necessary to swellthis opinion by narrating all the sad episodes ofterrorist activities that the country has witnessed.All these terrorist strikes have certaincommon features. It could be very broadlygrouped into three.
1. Attack on the institution of democracy,which is the very basis of our country. (Byattacking Parliament, Legislative Assembly etc).And the attack on economic system by targetingeconomic nerve centers.
2. Attack on symbols of national pride andon security / strategic installations. (eg. Red Fort,Military installations and camps, Radio stationsetc.)
3. Attack on civilians to generate terrorand fear psychosis among the general populace.The attack at worshipping places to injuresentiments and to whip communal passions. Theseare designed to position the people against thegovernment by creating a feeling of insecurity.
Terrorist acts are meant to destabilize thenation by challenging its sovereignty and integrity,to raze the constitutional principles that we holddear, to create a psyche of fear and anarchismamong common people, to tear apart the secularfabric, to overthrow democratically electedgovernment, to promote prejudice and bigotry, todemoralize the security forces, to thwart theeconomic progress and development and so on.This cannot be equated with a usual law and orderproblem within a State. On the other hand, it isinter-state, inter-national or cross-border incharacter. Fight against the overt and covert actsof terrorism is not a regular criminal justiceendeavor. Rather it is defence of our nation andits citizens. It is a challenge to the whole nationand invisible force of Indianness that binds thisgreat nation together. Therefore, terrorism is anew challenge for law enforcement. By indulgingin terrorist activities organized groups orindividuals, trained, inspired and supported byfundamentalists and anti-Indian elements weretrying to destabilize the country. This new breedof menace was hitherto unheard of. Terrorism isdefinitely a criminal act, but it is much more thanmere criminality. Today, the government ischarged with the duty of protecting the unity,integrity, secularism and sovereignty of India fromterrorists, both from outside and within borders.To face terrorism we need new approaches,techniques, weapons, expertise and of course newlaws. In the above said circumstances Parliamentfelt that a new anti-terrorism law is necessary fora better future. This parliamentary resolve isepitomized in POTA.
The terrorist threat that we are facing is nowon an unprecedented global scale. Terrorism hasbecome a global threat with global effects. It hasbecome a challenge to the whole community ofcivilized nations. Terrorist activities in one countrymay take on a transnational character, carryingout attacks across one border, receiving fundingfrom private parties or a government acrossanother, and procuring arms from multiplesources. Terrorism in a single country can readilybecome a threat to regional peace and securityowing to its spillover effects. It is thereforedifficult in the present context to draw sharpdistinctions between domestic and internationalterrorism. Many happenings in the recent pastcaused the international community to focus onthe issue of terrorism with renewed intensity. TheSecurity Council unanimously passed resolutions1368 (2001) and 1373 (2001); the GeneralAssembly adopted resolution 56/1 by consensus,and convened a special session. All theseresolutions and declarations inter alia call uponMember States to take necessary steps to 'preventand suppress terrorist acts' and also to 'preventand suppress the financing of terrorist acts.' Indiais a party to all these resolves. Anti-terrorismactivities in the global level are mainly carried outthrough bilateral and multilateral cooperationamong nations. It has thus become ourinternational obligation also to pass necessarylaws to fight terrorism.
The attempts by the State to preventterrorism should be based on well-establishedlegal principles. The 'Report of the Policy WorkingGroup of the United Nations and Terrorism' urgedthe global community to concentrate on a triplestrategy to fight against terrorism. They are:
a). Dissuade disaffected groups fromembracing terrorism;
b). Deny groups or individuals the means tocarry out acts of terrorism; and
c). Sustain broad-based internationalcooperation in the struggle against terrorism.
Therefore, the anti-terrorism laws should becapable of dissuading individuals or groups fromresorting to terrorism, denying the opportunitiesfor the commission of acts of terrorism by creatinginhospitable environments for terrorism and alsoleading the struggle against terrorism. Anti -terrorism law is not only a penal statue but alsofocuses on pre-emptive rather than defensiveState action. At the same time in the light ofglobal terrorist threats, collective global action isnecessary. Lord Woolf CJ in A, X and Y, andanother V. Secretary of the State for theHome Department (Neutral Citation Number:
[2002] EWCA Civ. 1502) has pointed out that"...Where international terrorists are operatingglobally and committing acts designed to terrorizethe population in one country, that can haveimplications which threaten the life of another.This is why a collective approach to terrorism isimportant."
Parliament has passed POTA by taking allthese aspects into account. The terrorism is notconfined to the borders of the country. Cross-border terrorism is also threatening the country.To meet such a situation, a law can be enactedonly by Parliament and not by a State Legislature.Piloting the Prevention of Terrorism Bill in the jointsession of Parliament on March 26, 2002 Hon'bleHome Minister said:
"...The Government of India has beenconvinced for the last four years that we havebeen here and I am sure even the earlierGovernments held that terrorism and moreparticularly, State-sponsored cross borderterrorism is a kind of war. It is not just a lawand order problem. This is the first factor,which has been responsible for Governmentthinking in terms of an extraordinary law likePOTO.
...So, first of all, the question that I would liketo pose to all of you and which we have posedto the nation is: 'Is it just in Jammu andKashmir an aggravated law and order situationthat we are facing or is it really when we say ita proxy war, do we really believe that it is aproxy war?'...But when you have terroristorganizations being trained, financed by aState and it becomes State-sponsoredterrorism and all of them are enabled toinfiltrate into our country, it becomes achallenge of a qualitatively different nature..."
(Emphasis supplied)
From this it could be gathered thatParliament has explored the possibility ofemploying the existing laws to tackle terrorismand arrived at the conclusion that the existinglaws are not capable. It is also clear to Parliamentthat terrorism is not a usual law and orderproblem.
The protection and promotion of humanrights under the rule of law is essential in theprevention of terrorism. Here comes the role oflaw and Court's responsibility. If human rights areviolated in the process of combating terrorism, itwill be self-defeating. Terrorism often thriveswhere human rights are violated, which adds tothe need to strengthen action to combat violationsof human rights. The lack of hope for justiceprovides breeding grounds for terrorism.Terrorism itself should also be understood as anassault on basic rights. In all cases, the fightagainst terrorism must be respectful to the humanrights. Our Constitution laid down clear limitationson the State actions within the context of the fightagainst terrorism. To maintain this delicatebalance by protecting 'core' Human Rights is theresponsibility of Court in a matter like this.Constitutional soundness of POTA needs to bejudged by keeping these aspects in mind.Now, we will revert to the issue of legislativecompetence. Relying on Rehman ShagooPetitioners argued that Parliament lackscompetence since the 'terrorism' in pith andsubstance covered under the Entry 1 (PublicOrder) of List II. Conclusion of this contentiondepends upon the true meaning of the Entry -'Public Order'.
A constitution Bench of this Court in RehmanShagoo examined the constitutionality of theEnemy Agents (Ordinance), No. VIII of S. 2005promulgated by His Highness the Maharaja underSection 5 of Jammu Kashmir Constitution Act, S.1996. For a proper understanding of the ratio inRehman Shagoo, it is necessary to understand thebackground in which the impugned Ordinance waspromulgated. (See : Prem Nath Kaul V. TheState of Jammu & Kashmir, 1959 Supp. (2)SCR 270, to understand the background thatprevailed in the then Kashmir). Because anyinterpretation divorced from the context andpurpose will lead to bad conclusions. It is a well-established canon of interpretation that themeaning of a word should be understood andapplied in accordance with the context of time,social and conditional needs. Rehman Shagoowas concerned with the interpretation ofInstrument of Accession and the power ofMaharaja to issue the impugned Ordinancetherein. The same was promulgated to protect thestate of Kashmir from external raiders and topunish them and those who assist them. Thesituation that prevailed during the latter half of1940s is fundamentally different form today. Thecircumstances of independence, partition, statere-organization, and the peculiar situationprevailing in the then Kashmir etc. need to betaken into account. It is only in that context thisCourt said in Rehman Shagoo that the impugnedOrdinance:
" ...In pith and substance deals with publicorder and criminal law procedure; the merefact that there is an indirect impact on armedforces in s. 3 of the Ordinance will not make itin pith and substance a law covered by item(1) under the head 'Defence' in the Schedule."
Therefore, Rehman Shagoo isdistinguishable and cannot be used as an authorityto challenge the competence of Parliament to passPOTA. The problems that prevailed in Indiaimmediately after independence cannot becompared with the menace of terrorism that weare facing in the twenty first century. As we havealready discussed above, the present day problemof terrorism is affecting the security andsovereignty of the nation. It is not State specificbut trans-national. Only Parliament can make alegislation to meet its challenge. Moreover, theentry 'Public Order' in the State List onlyempowers the States to enact a legislation relatingto public order or security in so far as it affects orrelates to a particular State. How so ever wide ameaning is assigned to the Entry 'Public Order',the present day problem of terrorism cannot bebrought under the same by any stretch ofimagination. Thus, Romesh Thaper, Dr. RamManohar Lohia and Madhu Limaye (all citedearlier) cannot be resorted to read 'terrorism' into'Public Order'. Since the Entry Public Order or anyother Entries in List II do not cover the situationdealt with in POTA, the legislative competence ofParliament cannot be challenged.
Earlier a Constitution Bench of this Court,while dealing with the very same argument, heldin Kartar Singh's case (supra) as follows:
"Having regard to the limitation placed byArticle 245 (1) on the legislative power of theLegislature of the State in the matter ofenactment of laws having application withinthe territorial limits of the State only, theambit of the field of legislation with respect to'public order' under Entry 1 in the State Listhas to be confined to disorders of lessergravity having an impact within the boundariesof the State. Activities of a more serious naturewhich threaten the security and integrity of thecountry as a whole would not be within thelegislative field assigned to the States underEntry 1 of the State List but would fall withinthe ambit of Entry 1 of the Union List relatingto defence of India and in any event under theresiduary power conferred on Parliament underArticle 248 read with Entry 97 of the UnionList.
...
The terrorism, the Act (TADA) contemplates,cannot be classified as mere disturbances of'public order' disturbing the 'even tempo of thelife of community of any specified locality' - inthe words of Hidayathulla, C J in Arun Ghosh v.State of West Bengal (1970) 1 SCC 98 but it ismuch more, rather a grave emergent situationcreated either by external forces particularly atthe frontiers of this country or by anti-nationals throwing a challenge to the veryexistence and sovereignty of the country in itsdemocratic polity.
...
In our view, the impugned legislation does notfall under Entry 1 of List II, namely, PublicOrder. No other Entry in List II has beeninvoked. The impugned Act, therefore, fallswithin the legislative competence of Parliamentin view of Article 248 read with Entry 97 of ListI and it is not necessary to consider whether itfalls under any of the entries in List I or ListIII. We are, however, of the opinion that theimpugned Act could fall within the ambit ofEntry 1 of List I, namely, 'Defence of India'."
[pp. 633, 634, 635]
While this is the view of the majority ofJudges in Kartar Singh's case (supra), K.Ramaswamy,J. held that Parliament does possesspower under Article 248 and Entry 97 of List I ofthe Seventh Schedule and could also come withinthe ambit of Entry 1 of List III. Sahai,J. heldthat the legislation could be upheld under Entry 1of List III. Thus, all the Judges are of theunanimous opinion that Parliament had legislativecompetence though for different reasons.
Considering all the above said aspects, thechallenge advanced by Petitioners of want oflegislative competence of Parliament to enactPOTA is not tenable.
Another issue that the Petitioner has raisedat the threshold is the alleged misuse of TADA andthe large number of acquittals of the accusedcharged under TADA. Here we would like to pointout that this Court cannot go into and examine the'need' of POTA. It is a matter of policy. Oncelegislation is passed the Government has anobligation to exercise all available options toprevent terrorism within the bounds of theConstitution. Moreover, we would like to point outthat this Court has repeatedly held that merepossibility of abuse cannot be counted as a groundfor denying the vesting of powers or for declaringa statute unconstitutional. (See: State ofRajasthan V. Union of India, (1978) 1 SCR 1,Collector of Customs V. Nathella SampathuChetty, AIR 1962 SC 316, KeshavanandaBharati V. State of Kerala, 1973 (4) SCC 225;Mafatlal Industries V. Union of India, (1997) 5SCC 536 etc).
Meaning of the word 'abets' in the context ofPOTA:
Pertaining to the validity of individualsections, petitioners primarily contended thatSection 3(3) of POTA provides that whoever'abets' a terrorist act or any preparatory act to aterrorist act shall be punishable and this provision,fails to address the requirement of 'mens rea'element. They added that this provision has beenincorporated in POTA in spite of the contraryobservation of this Court in Kartar Singh,wherein it was held that the word 'abets' need tohave the requisites of intention or knowledge.Consequently, they want us to strike down Section3(3) as the same is prone to misuse.
In Kartar Singh, this Court was concernedwith the expression "abet" as defined underSection 2(1)(a) of TADA and hence considered theeffect of different provisions of the TADA toascertain true meaning thereof. As the meaningof the word "abet" as defined therein is vague andin precise, actual knowledge or reason to believeon the part of the person to be brought within thedefinition should be brought into that provisioninstead of reading down that provision. That kindof exercise is not necessary in POTA.
Under POTA the word "abets" is not definedat all. Section 2(1)(i) of POTA says "words andexpressions used but not defined in this Act anddefined in the Code shall have the meaningrespectively assigned to them in the Code."According to Section 2(1)(a) of POTA "Code"means 'Code of Criminal Procedure, 1973 (2 of1974).' Whereas, Section 2(y) Cr.P.C. refers toIndian Penal Code for meaning of the word 'abets'.
Therefore, the definition of 'abets' as appears inthe IPC will apply in a case under POTA. In orderto bring a person abetting the commission of anoffence, under the provisions of IPC it is necessaryto prove that such person has been connectedwith those steps of the transactions that arecriminal. 'Mens rea' element is sine qua non foroffences under IPC. Learned Attorney Generaldoes not dispute this position. Therefore, theargument advanced pertaining to the validity ofSection 3(3) citing the reason of the absence ofmens rea element stands rejected.
Section 4:
Section 4 provides for punishing a personwho is in 'unauthorised possession' of arms orother weapons. The petitioners argued thatsince the knowledge element is absent theprovision is bad in law. A similar issue was raisedbefore a Constitution Bench of this Court inSanjay Dutt V. State (II), (1994) 5 SCC 410.Here this Court in Para 19 observed that:
"... Even though the word 'possession' is notpreceded by any adjective like 'knowingly', yetit is common ground that in the context theword 'possession' must mean possession withthe requisite mental element, that is, consciouspossession and not mere custody without theawareness of the nature of such possession.There is a mental element in the concept ofpossession. Accordingly, the ingredient of'possession' in Section 5 of the TADA Actmeans conscious possession. This is how theingredient of possession in similar context ofstatutory offence importing strict liability onaccount of mere possession of an unauthorisedsubstance has been understood."
The finding of this Court squarely to theeffect that there exists a mental element in theword possession itself answers the Petitionersargument. The learned Attorney General alsomaintains the stand that Section 4 presupposesconscious possession. Another aspect pointed outby the petitioners is about the 'unauthorized'possession of arms and argued that unauthorizedpossession could even happen; for example, bynon-renewal of license etc. In the light of SanjayDutt's case (supra) this Section presupposesknowledge of terrorist act for possession. There isno question of innocent persons getting punished.Therefore, we hold that there is no infirmity inSection 4.
Sections 6, 7, 8, 10, 11, 15, 16 and 17:
Contentions have been raised in regard toprovisions relating to seizure, attachment andforfeiture of proceeds of terrorism.Provisions relating to seizure, attachmentand forfeiture have to be read together. Section2(c) of POTA sets out the meaning of 'proceeds ofterrorism' and reads as follows:
" 'proceeds of terrorism' shall mean allkinds of properties which have beenderived or obtained from commission ofany terrorist act or have been acquiredthrough funds traceable to a terrorist act,and shall include cash irrespective ofperson in whose name such proceeds arestanding or in whose possession they arefound."
Explanation to Section 3 gives the meaningof 'a terrorist act' in the context of sub-section (1)of Section 3 so as to include the act of raisingfunds intended for the purpose of terrorism.Section 6 debars a person from holding orpossessing any proceeds of terrorism and alsomakes it clear that it is liable to be forfeited.Section 7 authorises an investigating officer, notbelow the rank of Superintendent of Police withthe prior approval in writing of the DirectorGeneral of Police of the State, to seize suchproperty or attach the same and serve a copy ofsuch an order on the person concerned, if he hasreason to believe that any property in relation towhich an investigation is being conductedrepresents proceeds of terrorism. Section 8provides for forfeiture of the proceeds of terrorismby a court irrespective of the fact whether or notthe person from whose possession it is seized orattached is prosecuted in a Special Court for anoffence under POTA. Section 9 provides for issueof show cause notice before forfeiture of proceedsof terrorism and an order for forfeiture cannot bemade if such person establishes that he is a bonafide transferee of such proceeds for value withoutknowing that they represent proceeds ofterrorism. Under Section 10, an appeal liesagainst an order made under Section 8 of POTA.Sub-section (2) thereof states that where an ordermade under Section 8 is modified or annulled bythe High Court, the person against whom an orderof forfeiture has been made under Section 8 isacquitted, such property shall be returned to himand in either case if it is not possible for anyreason to return the forfeited property, adequatecompensation should be paid to him, which will beequivalent to the price and interest from the dateof seizure of the property. Although thepetitioners have challenged the various provisionsof POTA relating to seizure, forfeiture andattachment of the property, ultimately they didnot pursue with that argument and submitted thatthe various facets of challenge to the aforesaidprovisions can only be examined in the context ofan actual fact situation and for the present theywanted an interpretation of the expressions usedin Section 10(2) to apply even to a case offorfeiture of the proceeds of terrorism against aperson who is prosecuted under POTA. Even thataspect can only be considered when an actualsituation arises and not in the abstract.Therefore, we need not examine in detail theseprovisions except to notice the background inwhich these provisions have been enacted.
The order of forfeiture, by reason of Section11, has been made independent of imposition ofother punishments to which a person may beliable. Under Section 12, Designated Authorityhas been permitted to investigate the claims madeby a third party. These provisions have to be seenas against Section 16, which provides forforfeiture of property of any person prosecutedand ultimately convicted. Here only on conviction,forfeiture of property can take place. In thisconnection, it is relevant to take note of theprovisions of Sections 15, 16 and 17. Section 15renders certain transfers to be null and void incases where after the issue of an order underSection 7 or notice under Section 9 any propertyis transferred by any mode whatsoever, suchtransfer shall for the purpose of the Act be ignoredand if such property is subsequently forfeited, thetransfer of such property shall be deemed to benull and void. Section 16 enables a special courttrying a person for an offence under the Act topass an order that all or any of the properties,movable or immovable or both belonging to him,during the period of such trial, be attached, if notalready attached under the Act. On conviction ofsuch person, the special court may, by an order,declare that any property, movable or immovableor both belonging to the accused and specified inthe order, shall stand forfeited to the CentralGovernment or the State Government, as the casemay be. Section 17 provides that in cases whereany share of a company shall stand forfeited,then, the company shall, on receipt of the order ofthe special court, notwithstanding anythingcontained in the Companies Act, 1956 or thearticles of association of the company, forthwithregister the Central Government or the StateGovernment, as the case may be, as thetransferee of such shares.
Funding and financing play a vital role infostering and promoting terrorism and it is onlywith such funds terrorists are able to recruitpersons for their activities and make payments tothem and their family to obtain arms andammunition for furthering terrorist activities andto sustain the campaign of terrorism. Therefore,seizure, forfeiture and attachment of propertiesare essential in order to contain terrorism and isnot unrelated to the same. Indeed, it is relevantto notice a resolution passed by the UnitedNations Security Council [Resolution No.1373dated 28.9.2001] which emphasized the need tocurb terrorist activities by freezing and forfeitureof funds and financial assets employed to furtherterrorist activities. It will also be interesting tonotice the United Nations International Conventionfor the Suppression of the Financing of Terrorismbut at the same time it is not necessary to go intothose details in the present context. The schemeof the provisions indicate that the principles ofnatural justice are duly observed and they do notconfer any arbitrary power and forfeiture can onlybe made by an order of the court against which anappeal is also provided to the High Court and therights of bona fide transferee are not affected.Therefore, for the present, it is not necessary topronounce the constitutional validity of theseprovisions and we proceed on the basis that theyare valid.
Number of changes have been made in theprovisions which existed in TADA and which existin POTA. The relevant discussion in the challengeto Section 8 of TADA by majority in Kartar Singhis contained in paras 149-157 and para 452 byJustice Sahai who has concurred with themajority. The validity of Section 8 of TADA wasupheld, only if it was applied in the mannerindicated in Para 156 of the judgment which is asunder :-
"The discretionary power given to theDesignated Court under Section 8(1) and (2)is to be exercised under strict contingencies,namely, that (1) there must be an order offorfeiture and that order must be in writing;(2) the property either movable or immovableor both must belong to the accused convictedof any offence of TADA Act or rule thereunder;(3) the property should be specified in theorder; (4) even though attachment can bemade under Section 8(2) during the trial of thecase, the forfeiture can be ordered only incase of conviction and not otherwise."
However, ultimately, they do not press thesecontentions to be considered in these proceedingsby stating that the various facets as set above canreally be seen in actual fact situation and for thepresent, they call upon the Court to clarify thatthe expression "modified" or "annulled" used inSection 10(2) shall apply even in a case offorfeiture of the proceeds of terrorism against aperson who is not prosecuted under POTA.
It is not necessary to interpret theseexpressions and as and when an appropriate casearises, appropriate interpretation can be given onthe said expressions. There is a scheme forforfeiture of the proceeds of terrorism followed bya show cause notice to be issued and thereafteron a decision being made, an appeal lies theretoand the order of forfeiture, by itself, will notprevent the court from inflicting any otherpunishment for which the person may be liableunder the Act. The effect of modification andannulment of an order made by court underSection 8 of the Act is set out in sub-section (2) ofSection 10. Therefore, as rightly submitted onbehalf of the petitioners, these aspects canappropriately be dealt with depending upon thefact situation arising in a given case. Therefore,it is not necessary to express any opinion on theseaspects of the matter.
Section 14:
The constitutional validity of Section 14 ischallenged by advancing the argument that itgives unbridled powers to the investigating officerto compel any person to furnish information if theinvestigating officer has reason to believe thatsuch information will be useful or relevant to thepurpose of the Act. It is pointed out that theprovision is without any checks and is amenable tomisuse by the investigating officers. It is alsoargued that it does not exclude lawyers orjournalists who are bound by their professionalethics to keep the information rendered by theirclients as privileged communication. Therefore,the Petitioners submitted that Section 14 isviolative of Articles 14, 19, 20(3) and 21 of theConstitution. Learned Attorney General maintainedthat the Act does not confer any arbitrary orunguided powers; that such power is restricted tofurnish information in one's possession in relationto terrorist offence 'on points or matters wherethe investigating officer has reason to believe (notsuspect) that such information would be useful foror relevant to the purposes of the Act'; that thisprovision is essential for the detection andprosecution of terrorist offences; and that theunderlying rationale of the obligation to furnishinformation is the salutary duty of every citizen.
Section 39 of the Code of Criminal Procedure,1973 casts a duty upon every person to furnishinformation regarding offences. Criminal justicesystem cannot function without the cooperation ofpeople. Rather it is the duty of every body toassist the State in detection of the crime andbringing criminal to justice. Withholding suchinformation cannot be traced to right to privacy,which itself is not an absolute right (See : ShardaV. Dharmpal, 2003 (4) SCC 493). Right toprivacy is subservient to that of security of State.Highlighting the necessity of people's assistance indetection of crime this Court observed in State ofGujarat V. Anirudhsing, 1997 (6) SCC 514,that:
"...It is the salutary duty of every witness whohas the knowledge of the commission of thecrime, to assist the State in giving evidence..."
Section 14 confers power to the investigatingofficer to ask for furnishing information that will beuseful for or relevant to the purpose of the Act.Further more such information could be askedonly after obtaining a written approval from anofficer not below the rank of a Superintendent ofPolice. Such power to the investigating officers isquiet necessary in the detection of terroristactivities or terrorist.
It is settled position of law that a journalist orlawyer does not have a sacrosanct right towithhold information regarding crime under theguise of professional ethics. A lawyer cannot claima right over professional communication beyondwhat is permitted under Section 126 of theEvidence Act. There is also no law that permits anewspaper or journalist to withhold relevantinformation from Courts though they have beengiven such power by virtue of Section 15(2) of thePress Council Act, 1978 as against Press Council.(See also : Pandit M.S.M Sharma V. Shri SriKrishan Sinha, 1959 Supp (1) SCR 806, andSewakram Sobhani V. R.K Karanjia, 1981 (3)SCC 208, which quoted Arnold V. King Emperor1913-14 (41) IA 149, with approval and alsoB.S.C V. Granada Television, 1981 (1) All E.R417 (HL) and Branzburg V. Hayes, 1972 (408)US 665). Of course the investigating officers willbe circumspect and cautious in requiring them todisclose information. In the process of obtaininginformation, if any right of citizen is violated,nothing prevents him from resorting to other legalremedies.
In as much as the main purpose of Section14of POTA is only to allow the investigating officersto procure certain information that is necessary toproceed with the further investigation we findthere is no merit in the argument of thepetitioners and we uphold the validity of Section
14.
Sections 18 & 19:
Sections 18 and 19 deals with the notificationand de-notification of terrorist organizations.Petitioners submitted that under Section 18(1) ofPOTA a schedule has been provided giving thenames of terrorist organization without anylegislative declaration; that there is nothingprovided in the Act for declaring organizations asterrorist organization; that this provision istherefore, unconstitutional as it takes away thefundamental rights of an organization underArticles 14, 19(1)(a) and 19(1)(c) of theConstitution; that under Section 18(2) of the Act,the Central Government has been givenunchecked and arbitrary powers to 'add' or'remove' or 'amend' the Schedule pertaining toterrorist organizations; that under the UnlawfulActivities (Prevention) Act, 1967 an organizationcould have been declared unlawful only after theCentral Government has sufficient material toform an opinion and such declaration has to bemade by a Notification wherein grounds have tobe specified for making such declaration: thattherefore such arbitrary power is violative ofArticles 14, 19 and 21 of the Constitution.Pertaining to Section 19 the main allegation is thatit excessively delegates power to CentralGovernment in the appointment of members tothe Review Committee and they also pointed outthat the inadequate representation of judicialmembers will affect the decision-making andconsequently it may affect the fair judicialscrutiny; that therefore Section 19 is notconstitutionally valid.
The Learned Attorney General contended thatthere is no requirement of natural justice whichmandates that before a statutory declaration ismade in respect of an organization which is listedin the schedule a prior opportunity of hearing orrepresentation should be given to the affectedorganization or its members: that the rule of audialteram partem is not absolute and is subject tomodification; that in light of post-decisionalhearing remedy provided under Section 19 andsince the aggrieved persons could approach theReview Committee there is nothing illegal in theSection; that furthermore the constitutionalremedy under Articles 226 and 227 is alsoavailable; that therefore, having regard to thenature of the legislation and the magnitude andprevalence of the evil of terrorism cannot be saidto impose unreasonable restrictions on theFundamental Rights under Article 19(1)(c) of theConstitution.
The right of citizens to form association orunion that is guaranteed by Article 19(1)(c) of theConstitution is subject to the restriction providedunder Article 19(4) of the Constitution. UnderArticle 19(4) of the Constitution the State canimpose reasonable restrictions, inter alia, in theinterest of sovereignty and integrity of thecountry. POTA is enacted to protect sovereigntyand integrity of India from the menace ofterrorism. Imposing restriction under Article 19(4)of the Constitution also includes declaring anorganization as a terrorist organization asprovided under POTA. Hence Section 18 is notunconstitutional.
It is contended that before making thenotification whereby an organization is declared asa terrorist organization there is no provision forpre-decisional hearing. But this cannot beconsidered as a violation of audi alteram partemprinciple, which itself is not absolute. Because inthe peculiar background of terrorism it may benecessary for the Central Government to declarean organization as terrorist organization evenwithout hearing that organization. At the sametime under Section 19 of POTA the aggrievedpersons can approach the Central Governmentitself for reviewing its decision. If they are notsatisfied by the decision of the CentralGovernment they can subsequently approachReview Committee and they are also free toexercise their Constitutional remedies. The post-decisional remedy provided under POTA satisfiesthe audi alteram partem requirement in thematter of declaring an organization as a terroristorganization. (See: Mohinder Singh Gill V. ChiefElection Commissioner, 1978 (1) SCC 405;Swadeshi Cotton Mills V. Union of India, 1981(1) SCC 664; Olga Tellis V. Bombay MunicipalCorporation, 1985 (3) SCC 545; Union of IndiaV. Tulsiram Patel, 1985 (3) SCC 398).
Therefore, the absence of pre-decisional hearingcannot be treated as a ground for declaringSection 18 as invalid.
It is urged that Section 18 or 19 is invalidbased on the inadequacy of judicial members, inthe Review Committee. As per Section 60,Chairperson of the Review Committee will be aperson who is or has been a Judge of High Court.The mere presence of non-judicial members byitself cannot be treated as a ground to invalidateSection 19. (See: Kartar Singh' case (supra) atpage 683, para 265 of SCC).
As regards the reasonableness of therestriction provided under Section 18, it has to benoted that the factum of declaration of anorganization as a terrorist organization dependsupon the 'belief' of Central Government. Thereasonableness of the Central Government'saction has to be justified based on material factsupon which it formed the opinion. Moreover theCentral Government is bound by the order of theReview Committee. Considering the nature oflegislation and magnitude or presence ofterrorism, it cannot be said that Section 18 ofPOTA imposes unreasonable restrictions onfundamental right guaranteed under Article19(1)(c) of the Constitution. We uphold thevalidity of Sections 18 and 19.
Sections 20, 21 & 22:
Petitioners assailed Sections 20, 21 and 22mainly on the ground that no requirement of mensrea for offences is provided in these Sections andthe same is liable to misuse therefore it has to bedeclared unconstitutional. The Learned AttorneyGeneral argued that Section 21 and its varioussub-sections are penal provisions and should bestrictly construed both in their interpretation andapplication; that on a true interpretation of the Acthaving regard to the well settled principles ofinterpretation Section 21 would not cover anyexpression or activity which does not have theelement or consequence of furthering orencouraging terrorist activity or facilitating itscommission; that support per se or mereexpression of sympathy or arrangement of ameeting which is not intended or designed andwhich does not have the effect to further theactivities of any terrorist organization or thecommission of terrorist acts are not within themischief of Section 21 and hence is valid.
Here the only point to be considered iswhether these Sections exclude mens rea elementfor constituting offences or not. At the outset ithas to be noted that Sections 20, 21 and 22 ofPOTA is similar to that of Sections 11, 12 and 15of the Terrorism Act, 2000 of United Kingdom.Such provisions are found to be quite necessaryall over the world in anti-terrorism efforts.Sections 20, 21 and 22 are penal in nature thatdemand strict construction. These provisions are adeparture from the ordinary law since the said lawwas found to be inadequate and not sufficientlyeffective to deal with the threat of terrorism.Moreover, the crime referred to herein underPOTA is aggravated in nature. Hence specialprovisions are contemplated to combat the newthreat of terrorism. Support either verbal ormonetary, with a view to nurture terrorism andterrorist activities is causing new challenges.Therefore Parliament finds that such support toterrorist organizations or terrorist activities needto be made punishable. Viewing the legislation inits totality it cannot be said that these provisionsare obnoxious.
But the Petitioners apprehension regardingthe absence of mens rea in these Sections and thepossibility of consequent misuse needs ourelucidation. It is the cardinal principle of criminaljurisprudence that mens rea element is necessaryto constitute a crime. It is the general rule that apenal statute presupposes mens rea element. Itwill be excluded only if the legislature expresslypostulate otherwise. It is in this context that thisCourt said in Kartar Singh's case (supra) (atpage 645 para 115 of SCC) that:
"Unless a statue either expressly or bynecessary implication rules out 'mens rea' incase of this kind, the element of mens reamust be read into the provision of the statute."
Mens rea by necessary implication could beexcluded from a statue only where it is absolutelyclear that the implementation of the object of theStatue would otherwise be defeated. Here weneed to find out whether there are sufficientgrounds for inferring that Parliament intended toexclude the general rule regarding mens reaelement. (See: State of Maharashtra V. M HGeorge, AIR 1965 SC 722, Nathulal V. State ofMP, AIR 1966 SC 43, Inder Sain V. State ofPunjab, (1973) 2 SCC 372, for the generalprinciples concerning the exclusion or inclusion ofmens rea element vis-`-vis a given statute). Theprominent method of understanding the legislativeintention, in a matter of this nature, is to seewhether the substantive provisions of the Actrequires mens rea element as a constituentingredient for an offence. Offence under Section3(1) of POTA will be constituted only if it is donewith an -'intent'. If Parliament stipulates that the'terrorist act' itself has to be committed with thecriminal intention, can it be said that a person who'profess' (as under Section 20) or 'invites support'or 'arranges, manages, or assist in arranging ormanaging a meeting' or 'addresses a meeting' (asunder Section 21) has committed the offence if hedoes not have an intention or design to further theactivities of any terrorist organization or thecommission of terrorist acts? We are clear that itis not. Therefore, it is obvious that the offenceunder Section 20 or 21 or 22 needs positiveinference that a person has acted with intent offurthering or encouraging terrorist activity orfacilitating its commission. In other words, theseSections are limited only to those activities thathave the intent of encouraging or furthering orpromoting or facilitating the commission ofterrorist activities. If these Sections areunderstood in this way, there cannot be anymisuse. With this clarification we uphold theconstitutional validity of Sections 20, 21 and 22.
Section 27:
Under Section 27, a police officerinvestigating a case can seek a direction throughthe Court of Chief Judicial Magistrate or the Courtof a Chief Metropolitan Magistrate for obtainingsamples of handwriting, finger prints, foot-prints,photographs, blood, saliva, semen, hair, voice ofany accused person reasonably suspected to beinvolved in the commission of an offence underthe Act. The Court can also draw adverseinference if an accused refuses to do so.Petitioners argued that this Section falls foulof Articles 14, 20(3) and 21 of the Constitution forthe reason: that no power has been left with theCourt to decide whether the request for samplesfrom a suspect person sought for by investigatingoffice is reasonable or not; that no power hasbeen given to the Court to refuse the request ofthe investigating officer; that it is not obligatoryfor the Court to record any reason while allowingthe request; and that the Section is a grossviolation of Article 20(3) because it amounts tocompel a person to give evidence against himself.Relying mainly on State of Bombay V. KathiKalu Oghad, 1962 (3) SCR 10, learned AttorneyGeneral submitted that the argument pertaining tothe violation of Article 20(3) is not sustainable.We do not think, as feared by the Petitioner,that this Section fixes a blanket responsibilityupon the Court to grant permission immediatelyupon the receipt of a request. Upon a closereading of the Section it will become clear thatupon a 'request' by an investigating police officerit shall only 'be lawful' for the Court to grantpermission. Nowhere it is stated that the Court willhave to positively grant permission upon arequest. It is very well within the ambit of Court'sdiscretion. If the request is based on wrongpremise, the Court is free to refuse the request.This discretionary power granted to the Courtpresupposes that the Court will have to record itsreasoning for allowing or refusing a request.Pertaining to the argument that the Section per seviolates Article 20(3), it has to be noted that abench consisting of 11 judges in Kathi KaluOghad's case (supra) have looked into a similarsituation and it is ruled therein (at pages 30 -32)that:
"...The giving of finger impression or ofspecimen signature or of handwriting, strictlyspeaking, is not 'to be a witness'...when anaccused person is called upon by the Court orany other authority holding an investigation togive his finger impression or signature or anyspecimen of his handwriting, he is not givingany testimony to the nature of a personaltestimony. The giving of a personal testimonymust depend upon his volition. He can makeany kind of statement or may refuse to makeany statement. But his finger impressions orhis handwriting, in spite of efforts at concealingthe true nature of it by dissimulation cannotchange their intrinsic character. Thus thegiving of finger impression or of specimenwriting or of signatures by an accused person,though it may amount to furnishing evidence inthe larger sense, is not included within theexpression 'to be a witness'...
...They are only materials for comparison inorder to lend assurance to the Court that itsinference based on other pieces of evidence isreliable..."
(Emphasis Supplied)
This being the position in law, the argumentof the Petitioners pertaining to the violation ofArticle 20(3) is not sustainable. It is meaningful tolook into Section 91 of Cr. PC that empowers acriminal court as also a police officer to order anyperson to produce a document or other thing inhis possession for the purpose of any inquiry ortrial. (See: Shyamlal Mohanlal V. State ofGujarat, AIR 1961 SC 1808, in this regard).Moreover, this Section is only a step in aid forfurther investigation and the samples so obtainedcan never be considered as conclusive proof forconviction. Consequently we uphold theconstitutional validity of Section 27.
Section 30:
Section 30 contains provision for theprotection of witness. It gives powers to theSpecial Court to hold proceedings in camera andto taking measures for keeping the identity ofwitness secret.
Petitioners challenged the constitutionalvalidity of this Section by leveling the argument;that the right to cross-examine is an importantpart of fair trial and principles of natural justicewhich is guaranteed under Article 21; that evenduring emergency fundamental rights underArticle 20 and 21 cannot be taken away; thatSection 30 is in violation of the dictum in KartarSingh's case (supra) because it does not containthe provision of disclosure of names and identitiesof the witness before commencement of trial; thatfair trial includes the right for the defence toascertain the true identity of an accuser; thattherefore the same has to be declaredunconstitutional. Learned Attorney Generalsubmitted that such provisions or exercise of suchpowers are enacted to protect the life and libertyof a person who is able and willing to giveevidence in prosecution of grave criminal offences;that the Section is not only in the interest ofwitness whose life is in danger but also in theinterest of community which lies in ensuring thatheinous offences like terrorist acts are effectivelyprosecuted and punished; that if the witnesses arenot given immunity they would not come forwardto give evidence and there would be no effectiveprosecution of terrorist offences and the entireobject of the Act would be frustrated; that cross-examination is not a universal or indispensablerequirement of natural justice and fair trial; thatunder compelling circumstances it can bedispensed with natural justice and fair trial can beevolved; that the Section requires the Court to besatisfied that the life of witness is in danger andthe reasons for keeping the identity of the witnesssecret are required to be recorded in writing; that,therefore, it is reasonable to hold that the Sectionis necessary for the operation of the Act.Section 30 of POTA is similar to Section 16 ofTADA, the constitutional validity of which wasupheld by this Court in Kartar Singh's case(supra) (see pages 683 - 689 of SCC). In order todecide the constitutional validity of Section 30 wedon't think it is necessary to go into the largerdebate, which learned Counsel for both sides haveargued, that whether right to cross-examine iscentral to fair trial or not. Because right to cross-
examination per se is not taken away by Section
30. This Section only confers discretion to theconcerned Court to keep the identity of witnesssecret if the life of such witness is in danger. Wecannot shy away from the unpleasant reality thatoften witnesses do not come forward to deposebefore Court even in serious cases. Thisprecarious situation creates challenges to ourcriminal justice administration in general andterrorism related cases in particular. Witnesses donot volunteer to give evidence mainly due to thefear of their life. Ultimately, the non-convictionaffects the larger interest of community, which liesin ensuring that the executors of heinous offenceslike terrorist acts are effectively prosecuted andpunished. Legislature drafted Section 30 by takingall these factors into account. In our view a fairbalance between the rights and interest ofwitness, rights of accused and larger publicinterest has been maintained under Section 30. Itis also aimed to assist the State in justiceadministration and encourage others to do thesame under the given circumstances. Anonymityof witness is not general rule under Section 30.Identity will be withheld only in exceptionalcircumstance when the Special Court is satisfiedthat the life of witness is in jeopardy. Earlier thisCourt has endorsed similar procedure. (See:Gurbachan Singh V. State of Bombay, 1952SCR 737, Hira Nath Mishra V. Principal,Rajendra Medical College, 1973 (1) SCC 805,A. K. Roy V. Union of India, 1982 (1) SCC 271).While deciding the validity of Section 16 of TADA,this Court quoted all these cases with approval.(See also the subsequent decision in Jamaat-e-Islami Hind V. Union of India, 1995 (1) SCC
428.
The need for the existence and exercise ofpower to grant protection to a witness andpreserve his or her anonymity in a criminal trialhas been universally recognised. Provisions ofsuch nature have been enacted to protect the lifeand liberty of the person who is able and willing togive evidence in support of the prosecution ingrave criminal cases. A provision of this natureshould not be looked at merely from the angle ofprotection of the witness whose life may be indanger if his or her identity is disclosed but also inthe interest of the community to ensure thatheinous offences like terrorist acts are effectivelyprosecuted and punished. It is a notorious factthat a witness who gives evidence which isunfavourable to an accused in a trial for terroristoffence would expose himself to severe reprisalswhich could result in death or severe bodily injuryor that of his family members. If such witnessesare not given appropriate protection, they wouldnot come forward to give evidence and therewould be no effective prosecution of terroristoffences and the entire object of the enactmentmay possibly be frustrated. Under compellingcircumstances this can be dispensed with byevolving such other mechanism, which complieswith natural justice and thus ensures a fair trial.
The observations made in this regard by thisCourt in the decisions to which we have advertedto earlier have been noticed by this Court inKartar Singh's case (supra) and has upheld thevalidity of a similar provision subject, of course, tocertain conditions which form part of Section 30now. The present position is that Section 30(2)requires the court to be satisfied that the life of awitness is in danger to invoke a provision of thisnature. Furthermore, reasons for keeping theidentity and address of a witness secret arerequired to be recorded in writing and suchreasons should be weighty. In order to safeguardthe right of an accused to a fair trial and basicrequirements of the due process a mechanism canbe evolved whereby the special court is obligatedto satisfy itself about the truthfulness andreliability of the statement or disposition of thewitness whose identity is sought to be protected.
Our attention has been drawn to legalposition in USA, Canada, New Zealand, Australiaand UK as well as the view expressed in theEuropean Court of Human Rights in variousdecisions. However, it is not necessary to referany of them because the legal position has beenfully set out and explained in Kartar Singh andprovision of POTA in Section 30 clause (2) hasbeen modelled on the guidelines set out therein.We may further notice that the effort of the courthas been to balance the right of the witness as tohis life and liberty and the right of community ineffective prosecution of heinous criminal offenceswith the right of the accused to a fair trial. This isdone by devising a mechanism or arrangement topreserve anonymity of the witness when there isan identifiable threat to the life or physical safetyof the witness or others whereby the courtsatisfies itself about the weight to be attached tothe evidence of the witness. In some jurisdictionsan independent counsel has been appointed forthe purpose to act as amicus curie and after goingthrough the deposition evidence assist the court informing an opinion about the weight of theevidence in a given case or in appropriate cases tobe cross-examined on the basis of the questionsformulated and given to him by either of theparties. Useful reference may be made in thiscontext to the recommendations of the LawCommission of New Zealand.
The necessity to protect the identity of thewitness is not a factor that can be determined bya general principle. It is dependent on severalfactors and circumstances arising in a case and,therefore, the Act has left the determination ofsuch question to an appropriate case.
Keeping secret the identity of witness,though in the larger interest of public, is adeviation from the usual mode of trial. Inextraordinary circumstances we are bound to takethis path, which is less travelled. Here the SpecialCourts will have to exercise utmost care andcaution to ensure fair trial. The reason for keepingidentity of the witness has to be wellsubstantiated. It is not feasible for us to suggestthe procedure that has to be adopted by theSpecial Courts for keeping the identity of witnesssecret. It shall be appropriate for the concernedCourts to take into account all the factualcircumstances of individual cases and to forgeappropriate methods to ensure the safety ofindividual witness. With these observations weuphold the validity of Section 30.
Section 32:
This Section made it lawful of certainconfessions made to police officers to be takeninto consideration.
Concerning the validity and proceduraldifficulties that could arise during the process ofrecording confessions the Petitioners submittedthat there is no need to empower the police torecord confession since the accused has to beproduced before the Magistrate within forty-eighthours, in that case magistrate himself could recordthe confession; that there is no justification forextended time limit of forty eight hours forproducing the person before Magistrate; that it isnot clear in the Section whether the confessionrecorded by the police officer will have the validityafter Magistrate has recorded the fact of tortureand has sent the accused for medicalexamination; that it is not clear as to whetherboth the confession before the police officer aswell as confession statement before the Magistrateshall be used in evidence; that the Magistratescannot be used for mechanically putting seal ofapproval on the confessional statements by thepolice; that, therefore, the Section has to benullified. Validity of this Section was defended bythe learned Attorney General by forwarding thearguments that the provisions relating to theadmissibility of confessional statements, which issimilar to that of Section 32 in POTA was upheld inKartar Singh's case (supra); that the provisionsof POTA are an improvement of TADA by virtue ofenactment of Section 32(3) to 32(5); that thegeneral principles of law regarding theadmissibility of a confessional statement isapplicable under POTA; that the provision whichentails the Magistrate to test and examine thevoluntariness of a confession and complaint oftorture is an additional safeguard and does not inany manner inject any constitutional infirmity;that there cannot be perennial distrust of thepolice; that Parliament has taken into account allthe relevant factors in its totality and same is notunjust or unreasonable.
At the outset it has to be noted that theSection 15 of TADA that was similar to this Sectionwas upheld in Kartar Singh's case (supra) (pages664-683 of SCC). While enacting this SectionParliament has taken into account of all theguidelines, which were suggested by this Court inKartar Singh's case (supra). Main allegation ofthe Petitioners is that there is no need to empowerthe police to record confession since the accusedhas to be produced before the Magistrate withinforty-eight hours in which case the Magistratehimself could record the statement or confession.In the context of terrorism the need for makingsuch a provision so as to enable Police officers torecord the confession was explained and upheldby this Court in Kartar Singh's case (supra)(page 680 para 253 of SCC). We need not go intothat question at this stage. If the recording ofconfession by police is found to be necessary byParliament and if it is in tune with the scheme oflaw, then an additional safeguard under Section32 (4) and (5) is a fortiori legal. In our consideredopinion the provision that requires producing sucha person before the Magistrate is an additionalsafeguard. It gives that person an opportunity torethink over his confession. Moreover, theMagistrate's responsibility to record the statementand the enquiry about the torture and provisionfor subsequent medical treatment makes theprovision safer. It will deter the police officersfrom obtaining a confession from an accused bysubjecting him to torture. It is also worthwhile tonote that an officer who is below the rank of aSuperintendent of Police cannot record theconfession statement. It is a settled position thatif a confession was forcibly extracted, it is a nullityin law. Non-inclusion of this obvious and settledprinciple does not make the Section invalid. (See :
Kartar Singh's case (supra) page 678, para 248
- 249 of SCC). Ultimately, it is for the concernedCourt to decide the admissibility of the confessionstatement. (See : Kartar Singh's case (supra)page 683, para 264 of SCC). Judicial wisdom willsurely prevail over irregularity, if any in theprocess of recording confessional statement.Therefore we are satisfied that the safeguardsprovided by the Act and under the law is adequatein the given circumstances and we don't think it isnecessary to look more into this matter.Consequently we uphold the validity of Section 32.
Section 49:
Section 49 mainly deals with procedure forobtaining bail for an accused under POTA.Petitioners' main grievance about this Sectionis that under Section 49(7) a Court could grantbail only if it is satisfied that there are grounds forbelieving that an accused 'is not guilty ofcommitting such offence', since such a satisfactioncould be attained only after recording of evidencethere is every chance that the accused will begranted bail only after minimum one year ofdetention; that the proviso to Section 49(7),which is not there under TADA, makes it clear thatfor one year from the date of detention no bailcould be granted; that this Section has notincorporated the principles laid down by this Courtin Sanjay Dutt's case (supra) (at page 439 para43-48 of SCC) wherein it is held that if a challan isnot filed after expiry of 180 days or extendedperiod, the indefeasible right of an accused to bereleased on bail is ensured, provided that thesame is exercised before filing of challan; that theprosecution is curtailing even this right underPOTA. Therefore, the petitioners want us to makethe Section less stringent according to the settledprinciples of law. Learned Attorney Generalsubmitted that the provisions regarding bail arenot onerous nor do they impose any excessiveburden or restriction on the right of the accused;that similar provisions are found in Section 37 ofthe NDPS Act 1985 and in Section 10 of the UPDacoity Affected Areas Act; that on a trueconstruction of Section 49(6) and (7) it is notcorrect to conclude that the accused cannot applyfor bail at all for a period of one year; that theright of the accused to apply for bail during theperiod of one year is not completely taken away;that the stringent provision of bail under Section49(7) would apply only for the first one year ofdetention and after its expiry the normal bailprovisions under Cr.P.C. would apply; that there isno dispute that the principle laid down by thisCourt in D.K Basu V. State of West Bengal,1997 (1) SCC 416, will apply; that in the light ofeffective safeguards provided in the Act andeffective remedies against adverse orders there isno frailty in Section 49.
Section 49 of the Act is similar to that ofSection 20 of TADA, constitutional validity ofwhich has been upheld by this Court in KartarSingh's case (supra) (pages 691-710 of SCC).Challenge before us is limited to the interpretationof Section 49(6) and (7). By virtue of Section49(8), the powers under Section 49 (6) and (7)pertaining to bail is in addition to and not inderogation to the powers under the Code or anyother law for the time being in force on granting ofbail. The offences under POTA are more complexthan that of ordinary offences. Usually the overtand covert acts of terrorism are executed in achillingly efficient manner as a result of highconspiracy, which is invariably linked with anti-national elements both inside and outside thecountry. So an expanded period of detention isrequired to complete the investigation. Such acomparatively long period for solving the case isquite justifiable. Therefore, the investigatingagencies may need the custody of accused for alonger period. Consequently, Section 49 (6) and(7) are not unreasonable. In spite of this, bailcould be obtained for an accused booked underPOTA if the 'court is satisfied that there aregrounds for believing that he is not guilty ofcommitting such offence' after hearing the PublicProsecutor. It is the general law that beforegranting the bail the conduct of accused seekingbail has to be taken into account and evaluated inthe background of nature of crime said to havecommitted by him. That evaluation shall be basedon the possibility of his likelihood of eithertampering with the evidence or committing theoffence again or creating threat to the society.
Since the satisfaction of the Court under Section49(7) has to be arrived based on the particularfacts and after considering the abovementionedaspects, we don not think the unreasonablenessattributed to Section 49(7) is fair. (See: KartarSingh's case (supra) page 707, para 349-352 ofSCC).
Proviso to Section 49(7) reads as under:
"Provided that after the expiry of a period ofone year from the date of detention of theaccused for an offence under this Act, theprovisions of sub-section (6) of this Sectionshall apply."
It is contended that this proviso to Section49(7) of POTA is read by some of the courts as arestriction on exercise of power for grant of bailunder Section 49(6) of POTA and such powercould be exercised only after the expiry of theperiod of one year from the date of detention ofthe accused for offences under POTA. If theintention of the legislature is that an applicationfor bail cannot be made prior to expiry of one yearafter detention for offences under POTA, it wouldhave been clearly spelt out in that manner inSection 49(6) itself. Sections 49(6) and 49(7) ofPOTA have to be read together and the combinedreading of these two sections is to the effect thatPublic Prosecutor has to be given an opportunityof being heard before releasing the accused onbail and if he opposes the application, the courtwill have to be satisfied that there are grounds forbelieving that he is not guilty of having committedsuch offence. It is by way of exception to Section49(7) that proviso is added which means thatafter the expiry of one year after the detention ofthe accused for offences under POTA, the accusedcan be released on bail after hearing the PublicProsecutor under ordinary law without applyingthe rigour of Section 49(7) of POTA. It alsomeans that the accused can approach the courtfor bail subject to conditions of Section 49(7) ofPOTA within a period of one year after thedetention for offences under POTA.
Proviso to Section 49(7) provides that thecondition enumerated in sub-section (6) will applyafter the expiry of one-year. There appears to bean accidental omission or mistake of not includingthe word 'not' after the word 'shall' and before theword 'apply'. Unless such a word is included, theprovision will lead to an absurdity or becomemeaningless. Even otherwise, read appropriately,the meaning of the proviso to Section 49(7) is thatan accused can resort to ordinary bail procedureunder the Code after that period of one year. Atthe same time, proviso does not prevent such anaccused to approach the Court for bail inaccordance with the provisions of POTA underSection 49(6) and (7) thereof. This interpretationis not disputed by the learned Attorney General.Taking into account of the complexities of theterrorism related offences and intention ofParliament in enacting a special law for itsprevention, we do not think that the additionalconditions regarding bail under POTA areunreasonable. We uphold the validity of Section
49.There is no challenge to any other provisionsof the Act.
In the result, these petitions stand dismissedsubject, however, to the clarifications that wehave set out above on the interpretation of theprovisions of the enactment while dealing with theconstitutionality thereof.
W.P.(Crl.) 129/2002 :
A case was registered against the petitionerunder Section 13(1)(a) of the Unlawful ActivitiesPrevention Act, 1967, Section 21(2) and (3) of thePrevention of Terrorism Act, 2002 (POTA) readwith Sections 109 and 120B of the Indian PenalCode on 4.7.2002. When the petitioner returnedto Chennai from Chicago on 11.7.2002, he wasarrested at the Chennai Airport and was producedbefore a Judicial Magistrate, Madurai on12.7.2002. He had been remanded. He has beendetained in jail since then pursuant to the remandorder of the Judicial Magistrate, Madurai. Anotification was issued constituting Special Court,Chennai at Poonamallee for trial of the offencesunder POTA. The petitioner was produced beforethe Special Court on 7.8.2002 and he has beencontinued to be remanded to jail from time totime. On 9.10.2002, his remand has beenextended beyond the period of 90 days.
In this case, though several questions havebeen raised, two questions have been specificallyurged, namely :
(1) Whether Section 21(1) and (3) of thePrevention of Terrorism Act, 2002 areoffending Article 19(1)(a) and 19(1)(c) of theConstitution of India and thereforeunconstitutional?
(2) Does the mere expression of sympathy forTamils in Sri Lanka for whom the Liberationof Tigers of Tamil Eelam has become thesole-representative recognised by theInternational Community amount to supportto a terrorist organisation under thePrevention of Terrorism Act, 2002 therebyempower the State to curtail the personalliberty?
We have upheld the constitutional validity ofSection 21 of POTA in the decision pronounced byus in Writ Petition (C) No. 389 of 2002 above and,therefore, the first question does not survive forconsideration.
So far as the second question is concerned,we have heard Shri F.S. Nariman and Shri Anil B.Divan, learned senior counsel appearing for thepetitioner, apart from Shri Rajinder Sachhar andShri B.S. Malik, the learned senior counselappearing for the petitioner in connected matters,on the interpretation of Section 21 of POTA. ShriP.P. Rao, appearing for the State of Tamil Nadu,has made elaborate submissions and adverted tovarious affidavits filed by the Union of India.However, it is not necessary for us to examine anyof these aspects in these proceedings. We havecarefully considered the arguments advanced bythe learned counsel and that of the learnedAttorney General for India on this aspect of thematter. We think, the proper course that has tobe adopted in a case of this nature where acriminal case has already been lodged and thesame is pending consideration before the SpecialCourt, it would not be appropriate for us toexpress our views on the question of facts arisingin this case. We are sure that the Special Courtwill decide the matter in the light of decisionpronounced by us in Writ Petition (C) No. 389 of2002 above.
The writ petition is disposed of with aforesaidobservations.
W.P.(Crl.) 28/2003 :
The petitioner in this writ petition seeks fordeclaration that Section 21(2) and the proviso toSection 49(6) and 49(7) of POTA are illegal andultra vires the Constitution of India.Inasmuch as we have upheld theconstitutional validity of Section 21(2) and provisoto Section 49(6) and 49(7) of POTA in thejudgment pronounced by us in Writ Petition (C)No. 389 of 2002 above, this writ petition isdismissed.
W.P.(Crl.) 48/2003 :
In this writ petition, apart from challengingthe constitutional validity of Sections 1(4), 3 to 9,14, 18 to 24, 26, 27, 29 to 33, 36 to 53 which hasbeen upheld by us in the judgment pronounced byus in Writ Petition (C) No. 389 of 2002 above, theconstitutional validity of Entry 21 of the Scheduleto POTA is also challenged.
On that aspect no specific arguments havebeen addressed by any of the parties. This matterwill have to be heard separately and hence, thiswrit petition is de-linked from other matters.
Appeal (civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited #Collector of Central Excise, Chandigarh #2003-11-25#25622# 4051#P. VENKATARAMA REDDI # Dr. AR. LAKSHMANAN. ### Appeal (crl.)#Appeal (crl.) 104-106 of 2003#2003#Bikau Pandey and Ors. #State of Bihar #2003-11-25#25623# 104-106#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (civil)#Appeal (civil) 10906 of 1996#1996#Shanti Kumar Panda #Shakutala Devi #2003-11-03#25624# 10906#R.C. LAHOTI # ASHOK BHAN. ### Appeal (civil)#Appeal (civil) 11483 of 1996#1996#Amrendra Pratap Singh #Tej Bahadur Prajapati & Ors.
#2003-11-21#25625# 11483#R.C. LAHOTI # ASHOK BHAN. ### Appeal (civil)#Appeal (civil) 9130 of 2003#2003#Ameer Trading Corporation Ltd. #Shapoorji Data Processing Ltd.
#2003-11-18#25626# 9130#CJI# S.B. Sinha # AR. Lakshmanan. ## Appeal (civil)#Appeal (civil) 14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.Rs., etc. etc. #State of Uttar Pradesh #2003-11-28#25627# 14178-14184#Doraiswamy Raju # Arijit Pasayat. ### Appeal (crl.)#Appeal (crl.) 1968 of 1996#1996#Goa Plast (P) Ltd. #Chico Ursula D'Souza #2003-11-20#25628# 1968#B.P. Singh # Dr. AR. Lakshmanan ### Writ Petition (crl.)#Writ Petition (crl.) 199 of 2003#2003#Ashok Kumar Pandey #The State of West Bengal #2003-11-18#25629# 199#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (crl.)#Appeal (crl.) 20 of 2003#2003#Surendra Paswan #State of Jharkhand #2003-11-28#25630# 20#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (crl.)#Appeal (crl.) 278 of 1997#1997#Vidyadharan #State of Kerala #2003-11-14#25631# 278#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (crl.)#Appeal (crl.) 292 of 1997#1997#State of Madhya Pradesh. #Awadh Kishore Gupta and Ors.
#2003-11-18#25632# 292#DORAISWAMY RAJU # ARIJIT PASAYAT. ### ###State of Punjab & Anr.
#M/s Devans Modern Brewaries Ltd. & Anr. #2003-11-20#25633##CJI.# R.C. Lahoti # Dr. AR. Lakshmanan. ## Appeal (crl.)#Appeal (crl.) 331 of 1997#1997#Shriram #State of Madhya Pradesh #2003-11-24#25634# 331#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P. & Ors. #Toddy Tappers Coop. Society, Marredpally & Ors. #2003-11-17#25635# 3630-3631#CJI.#Dr. AR. Lakshmanan ### Appeal (crl.)#Appeal (crl.) 371-372 of 2003#2003#Ram Dular Rai & Ors. #State of Bihar #2003-11-27#25636# 371-372#S.B. Sinha. #### Appeal (civil)#Appeal (civil) 4075-4081 of 1998#1998#Nair Service Society #Dist. Officer, Kerala Public Service Commission & Ors. #2003-11-17#25637# 4075-4081#CJI. # Dr. AR. Lakshmanan. ### Appeal (civil)#Appeal (civil) 4698-4700 of 1994#1994#State of U.P. & Ors. #Lalji Tandon (Dead) #2003-11-03#25638# 4698-4700#R.C. LAHOTI # ASHOK BHAN ### Appeal (crl.)#Appeal (crl.) 506 of 1997#1997#State of Karnataka #Puttaraja #2003-11-27#25639# 506#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (crl.)#Appeal (crl.) 519-521 of 2003#2003#Goura Venkata Reddy Vs. #State of Andhra Pradesh #2003-11-19#25640# 519-521#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (crl.)#Appeal (crl.) 530-531 of 2003#2003#Bhargavan & Ors. #State of Kerala #2003-11-17#25641# 530-531#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Appeal (civil)#Appeal (civil) 7371 of 2002#2002#N.D. Thandani (Dead) By Lrs. #Arnavaz Rustom Printer & Anr.
#2003-11-24#25642# 7371#R.C. LAHOTI # ASHOK BHAN. ### Appeal (civil)#Appeal (civil) 9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad, District, Andhra Pradesh #Nookala Rajamallu and Ors.
#2003-11-21#25643# 9205-07#DORAISWAMY RAJU # ARIJIT PASAYAT. ### Transfer Petition (crl.)#Transfer Petition (crl.) 77-78 of 2003#2003#K. Anbazhagan #The Superintendent of Police & ors. #2003-11-18#25644# 77-78#S.N. VARIAVA # H.K. SEMA. ### Appeal (civil)#Appeal (civil) 7868 of 1995#1995#ITW Signode India Ltd. #Collector of Central Excise #2003-11-19#25645# 7868#CJI# S.B. Sinha # Dr. AR. Lakshmanan. ## Appeal (civil)#Appeal (civil) 857 of 1998#1998#Shyam Singh #Daryao Singh (dead) by Lrs. & Ors #2003-11-19#25646# 857#Shivaraj V. Patil # D.M. Dharmadhikari. ### Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#Prohibition & Excise Supdt. A.P. & Ors. #Toddy Tappers Coop. Society, Marredpally & Ors. #2003-11-17#25647# 3630-3631#S.B. Sinha #### Appeal (civil)#Appeal (civil) 62-65 of 1999#1999#Pramod K. Pankaj #State of Bihar and Ors.
#2003-11-20#25648# 62-65#CJI# # S.B. Sinha. ## Appeal (civil)#Appeal (civil) 8232 of 1996#1996#Hindustan Lever & Anr. #State of Maharashtra & Anr.
#2003-11-18#25649# 8232#R.C. Lahoti # Ashok Bhan. ### Appeal (civil)#Appeal (civil) 5337-5339 of 1999#1999#Manager, Nirmala Senior, Secondary School, Port Blair #N.I. Khan & Ors.
#2003-11-21#25650# 5337-5339#SHIVARAJ V. PATIL # ARIJIT PASAYAT. ### Appeal (civil)#Appeal (civil) 9131 of 2003#2003#Rekha Mukherjee #Ashish Kumar Das & Anr.
#2003-11-18#25651# 9131#CJI# S.B. Sinha # Dr. AR. Lakshmanan. ## Appeal (civil)#Appeal (civil) 3130 of 2002#2002#Ashan Devi & Anr. #Phulwasi Devi & Ors.
#2003-11-19#25652# 3130#Shivaraj V. Patil # D.M. Dharmadhikari. ### Appeal (civil)#Appeal (civil) 7096 of 2000#2000#Smt. Lila Ghosh (Dead) through LR, Shri Tapas Chandra Roy #The State of West Bengal #2003-11-18#25653# 7096#S. N. Variava # H. K. Sema. ### ###Harinagar Sugar Mills Ltd.
#State of Bihar & Ors.
#2003-11-19#25654##Brijesh Kumar # Arun Kumar. ### Appeal (crl.)#Appeal (crl.) 115-120 of 2002#2002#R. Sai Bharathi #J. Jayalalitha & Ors.
#2003-11-24#25655# 115-120#S. RAJENDRA BABU # P. VENKATARAMA REDDI ### Appeal (civil)#Appeal (civil) 9136-9137 of 2003#2003#M/s.Sathyanarayana Brothers (P) Ltd. #Tamil Nadu Water Supply & Drainage Board #2003-11-18#25656# 9136-9137#Brijesh Kumar # (Arun Kumar. ###
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