TMI Blog2003 (12) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning thereof, our attention is invited to decisions in Romesh Thaper V. State of Madras, 1950 SCR 594, Dr. Ram Manohar Lohia V. State of Bihar, 1966 (1) SCR 709, and Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC 746. The Petitioners thus submitted that terrorist activity is confined only to State(s) and therefore State(s) only have the competence to enact a legislation. The learned Attorney General refuting this contention submitted that acts of terrorism, which are aimed at weakening the sovereignty and integrity of the country cannot be equated with mere breaches of law and order and disturbances of public order or public safety. He argued that the concept of sovereignty and integrity of India is distinct and separate from the concepts of public order or security of State which fall under List II enabling States to enact legislation relating to public order or safety affecting or relating to a particular State. Therefore, the legislative competence of a State to enact laws for its security cannot denude Parliament of its competence under List I to enact laws to safeguard national security and sovereignty of India by preventing and punishing acts of terrorism. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical element that distinguishes it from other political offences, which are invariably accompanied 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 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 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... Our country has been the victim of an undeclared war by the epicenters of terrorism with the aid of well-knit and resour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the government by creating a feeling of insecurity. Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear 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 be equated with a usual law and order problem within a State. On the other hand, it is inter-state, inter-national or cross-border in character. Fight against the overt 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 nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organized groups or individuals, trained, inspired and supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). Dissuade disaffected groups from embracing terrorism; 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. 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 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. Secretary 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 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 POTA b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain this delicate balance by protecting core Human Rights is the responsibility of Court in a matter like this. Constitutional soundness of POTA needs to be judged by keeping these aspects in mind. Now, we will revert to the issue of legislative competence. Relying on Rehman Shagoo Petitioners argued that Parliament lacks competence since the terrorism in pith and substance covered under the Entry 1 (Public Order) of List II. Conclusion of this contention depends upon the true meaning of the Entry - Public Order . A constitution Bench of this Court in Rehman Shagoo examined the constitutionality of the Enemy Agents (Ordinance), No. VIII of S. 2005 promulgated by His Highness the Maharaja under Section 5 of Jammu Kashmir Constitution Act, S. 1996. For a proper understanding of the ratio in Rehman Shagoo, it is necessary to understand the background in which the impugned Ordinance was promulgated. (See : Prem Nath Kaul V. The State of Jammu Kashmir, 1959 Supp. (2) SCR 270, to understand the background that prevailed in the then Kashmir). Because any interpretation divorced from the context and purpose will lead to bad conclusions. It is a wellestablished canon of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: Having regard to the limitation placed by Article 245 (1) on the legislative power of the Legislature of the State in the matter of enactment of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to public order under Entry 1 in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the State. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List. .. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbances of public order disturbing the even tempo of the life of community of any specified locality - in the words of Hidayathulla, C J in Arun Ghosh v. State of West Bengal (1970) 1 SCC 98 but it is much more, rather a grave emergent situation created eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly contended that Section 3(3) of POTA provides that whoever abets a terrorist act or any preparatory act to a terrorist act shall be punishable and this provision, fails to address the requirement of mens rea element. They added that this provision has been incorporated in POTA in spite of the contrary observation of this Court in Kartar Singh, wherein it was held that the word abets need to have the requisites of intention or knowledge. Consequently, they want us to strike down Section 3(3) as the same is prone to misuse. In Kartar Singh, this Court was concerned with the expression abet as defined under Section 2(1)(a) of TADA and hence considered the effect of different provisions of the TADA to ascertain true meaning thereof. As the meaning of the word abet as defined therein is vague and in precise, actual knowledge or reason to believe on the part of the person to be brought within the definition should be brought into that provision instead of reading down that provision. That kind of exercise is not necessary in POTA. Under POTA the word abets is not defined at all. Section 2(1)(i) of POTA says words and expressions used but not defined in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) this Section presupposes knowledge of terrorist act for possession. There is no question of innocent persons getting punished. Therefore, we hold that there is no infirmity in Section 4. Sections 6, 7, 8, 10, 11, 15, 16 and 17: Contentions have been raised in regard to provisions relating to seizure, attachment and forfeiture of proceeds of terrorism. Provisions relating to seizure, attachment and forfeiture have to be read together. Section 2(c) of POTA sets out the meaning of proceeds of terrorism and reads as follows: proceeds of terrorism shall mean all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, and shall include cash irrespective of person in whose name such proceeds are standing or in whose possession they are found. Explanation to Section 3 gives the meaning of a terrorist act in the context of sub-section (1) of Section 3 so as to include the act of raising funds intended for the purpose of terrorism. Section 6 debars a person from holding or possessing any proceeds of terrorism and also makes it clear that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a person may be liable. Under Section 12, Designated Authority has been permitted to investigate the claims made by a third party. These provisions have to be seen as against Section 16, which provides for forfeiture of property of any person prosecuted and ultimately convicted. Here only on conviction, forfeiture of property can take place. In this connection, it is relevant to take note of the provisions of Sections 15, 16 and 17. Section 15 renders certain transfers to be null and void in cases where after the issue of an order under Section 7 or notice under Section 9 any property is transferred by any mode whatsoever, such transfer shall for the purpose of the Act be ignored and if such property is subsequently forfeited, the transfer of such property shall be deemed to be null and void. Section 16 enables a special court trying a person for an offence under the Act to pass 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 not already attached under the Act. On conviction of such person, the special court may, by an order, declare that any property, movable or immovable or both belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The discretionary power given to the Designated Court under Section 8(1) and (2) is to be exercised under strict contingencies, namely, that (1) there must be an order of forfeiture and that order must be in writing; (2) the property either movable or immovable or both must belong to the accused convicted of any offence of TADA Act or rule thereunder; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise. However, ultimately, they do not press these contentions to be considered in these proceedings by stating that the various facets as set above can really be seen in actual fact situation and for the present, they call upon the Court to clarify that the expression modified or annulled used in Section 10(2) shall apply even in a case of forfeiture of the proceeds of terrorism against a person who is not prosecuted under POTA. It is not necessary to interpret these expressions and as and when an appropriate case arises, appropriate interpretation can be given on the said expressions. There is a scheme for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to right to privacy, which itself is not an absolute right (See : Sharda V. Dharmpal, 2003 (4) SCC 493). Right to privacy is subservient to that of security of State. Highlighting the necessity of people s assistance in detection of crime this Court observed in State of Gujarat V. Anirudhsing, 1997 (6) SCC 514, that: ...It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence... Section 14 confers power to the investigating officer to ask for furnishing information that will be useful for or relevant to the purpose of the Act. Further more such information could be asked only after obtaining a written approval from an officer not below the rank of a Superintendent of Police. Such power to the investigating officers is quiet necessary in the detection of terrorist activities or terrorist. It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over professional communication beyond what is permitted under Section 126 of the Evidence Act. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and they also pointed out that the inadequate representation of judicial members will affect the decision-making and consequently it may affect the fair judicial scrutiny; that therefore Section 19 is not constitutionally valid. The Learned Attorney General contended that there is no requirement of natural justice which mandates that before a statutory declaration is made in respect of an organization which is listed in the schedule a prior opportunity of hearing or representation should be given to the affected organization or its members: that the rule of audi alteram partem is not absolute and is subject to modification; that in light of post-decisional hearing remedy provided under Section 19 and since the aggrieved persons could approach the Review Committee there is nothing illegal in the Section; that furthermore the constitutional remedy under Articles 226 and 227 is also available; that therefore, having regard to the nature of the legislation and the magnitude and prevalence of the evil of terrorism cannot be said to impose unreasonable restrictions on the Fundamental Rights under Article 19(1)(c) of the Constitution. The right of citizens to form association ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18, it has to be noted that the factum of declaration of an organization as a terrorist organization depends upon the belief of Central Government. The reasonableness of the Central Government s action has to be justified based on material facts upon which it formed the opinion. Moreover the Central Government is bound by the order of the Review Committee. Considering the nature of legislation and magnitude or presence of terrorism, it cannot be said that Section 18 of POTA imposes unreasonable restrictions on fundamental right guaranteed under Article 19(1)(c) of the Constitution. We uphold the validity of Sections 18 and 19. Sections 20, 21 22: Petitioners assailed Sections 20, 21 and 22 mainly on the ground that no requirement of mens rea for offences is provided in these Sections and the same is liable to misuse therefore it has to be declared unconstitutional. The Learned Attorney General argued that Section 21 and its various sub-sections are penal provisions and should be strictly construed both in their interpretation and application; that on a true interpretation of the Act having regard to the well settled principles of interpretation Section 21 would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lutely clear that the implementation of the object of the Statue would otherwise be defeated. Here we need to find out whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule regarding mens rea element. (See: State of Maharashtra V. M H George, AIR 1965 SC 722, Nathulal V. State of MP, AIR 1966 SC 43, Inder Sain V. State of Punjab, (1973) 2 SCC 372, for the general principles concerning the exclusion or inclusion of mens rea element vis- -vis a given statute). The prominent method of understanding the legislative intention, in a matter of this nature, is to see whether the substantive provisions of the Act requires mens rea element as a constituent ingredient for an offence. Offence under Section 3(1) of POTA will be constituted only if it is done with an - intent . If Parliament stipulates that the terrorist act itself has to be committed with the criminal intention, can it be said that a person who profess (as under Section 20) or invites support or arranges, manages, or assist in arranging or managing a meeting or addresses a meeting (as under Section 21) has committed the offence if he does not have an intention or desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest. It is very well within the ambit of Court s discretion. If the request is based on wrong premise, the Court is free to refuse the request. This discretionary power granted to the Court presupposes that the Court will have to record its reasoning for allowing or refusing a request. Pertaining to the argument that the Section per se violates Article 20(3), it has to be noted that a bench consisting of 11 judges in Kathi Kalu Oghad s case (supra) have looked into a similar situation and it is ruled therein (at pages 30 -32) that: ...The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not to be a witness ...when an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or any specimen of his handwriting, he is not giving any testimony to the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t acts are effectively prosecuted and punished; that if the witnesses are not given immunity they would not come forward to give evidence and there would be no effective prosecution of terrorist offences and the entire object of the Act would be frustrated; that crossexamination is not a universal or indispensable requirement of natural justice and fair trial; that under compelling circumstances it can be dispensed with natural justice and fair trial can be evolved; that the Section requires the Court to be satisfied that the life of witness is in danger and the reasons for keeping the identity of the witness secret are required to be recorded in writing; that, therefore, it is reasonable to hold that the Section is necessary for the operation of the Act. Section 30 of POTA is similar to Section 16 of TADA, the constitutional validity of which was upheld by this Court in Kartar Singh s case (supra) (see pages 683 - 689 of SCC). In order to decide the constitutional validity of Section 30 we don t think it is necessary to go into the larger debate, which learned Counsel for both sides have argued, that whether right to cross-examine is central to fair trial or not. Because righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished. It is a notorious fact that a witness who gives evidence which is unfavourable to an accused in a trial for terrorist offence would expose himself to severe reprisals which could result in death or severe bodily injury or that of his family members. If such witnesses are not given appropriate protection, they would not come forward to give evidence and there would be no effective prosecution of terrorist offences and the entire object of the enactment may possibly be frustrated. Under compelling circumstances this can be dispensed with by evolving such other mechanism, which complies with natural justice and thus ensures a fair trial. The observations made in this regard by this Court in the decisions to which we have adverted to earlier have been noticed by this Court in Kartar Singh s case (supra) and has upheld the validity of a similar provision subject, of course, to certain conditions which form part of Section 30 now. The present position is that Section 30(2) requires the court to be satisfied that the life of a witness is in danger to invoke a provision of this nature. Furthermore, reasons for keeping the identity and address of a witness secret are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned Courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30. Section 32: This Section made it lawful of certain confessions made to police officers to be taken into consideration. Concerning the validity and procedural difficulties that could arise during the process of recording confessions the Petitioners submitted that there is no need to empower the police to record confession since the accused has to be produced before the Magistrate within forty-eight hours, in that case magistrate himself could record the confession; that there is no justification for extended time limit of forty eight hours for producing the person before Magistrate; that it is not clear in the Section whether the confession recorded by the police officer will have the validity after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate s responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer. It will deter the police officers from obtaining a confession from an accused by subjecting him to torture. It is also worthwhile to note that an officer who is below the rank of a Superintendent of Police cannot record the confession statement. It is a settled position that if a confession was forcibly extracted, it is a nullity in law. Non-inclusion of this obvious and settled principle does not make the Section invalid. (See : Kartar Singh s case (supra) page 678, para 248 - 249 of SCC). Ultimately, it is for the concerned Court to decide the admissibility of the confession statement. (See : Kartar Singh s case (supra) page 683, para 264 of SCC). Judicial wisdom will surely prevail over irregularity, if any in the process of recording confessional statement. Therefore we are satisfied that the safeguards provided by the Act and under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 49 of the Act is similar to that of Section 20 of TADA, constitutional validity of which has been upheld by this Court in Kartar Singh s case (supra) (pages 691-710 of SCC). Challenge before us is limited to the interpretation of Section 49(6) and (7). By virtue of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is in addition to and not in derogation to the powers under the Code 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 covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with antinational elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of one year after the detention for offences under POTA. 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 accidental omission or mistake of not including the word not after the word shall and before the word apply . Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49. There is no challenge to any other provisions of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaborate submissions and adverted to various affidavits filed by the Union of India. However, it is not necessary for us to examine any of these aspects in these proceedings. We have carefully considered the arguments advanced by the learned counsel and that of the learned Attorney General for India on this aspect of the matter. We think, the proper course that has to be adopted in a case of this nature where a criminal case has already been lodged and the same is pending consideration before the Special Court, it would not be appropriate for us to express our views on the question of facts arising in this case. We are sure that the Special Court will decide the matter in the light of decision pronounced by us in Writ Petition (C) No. 389 of 2002 above. The writ petition is disposed of with aforesaid observations. W.P.(Crl.) 28/2003 : The petitioner in this writ petition seeks for declaration that Section 21(2) and the proviso to Section 49(6) and 49(7) of POTA are illegal and ultra vires the Constitution of India. Inasmuch as we have upheld the constitutional validity of Section 21(2) and proviso to Section 49(6) and 49(7) of POTA in the judgment pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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