Case: People'S Union For Civil Liberties &amp;Anr Vs. Union Of India

2. The Petitioners contended before us that since the provisions of POTA, in pith and substance, fall under the Entry 1 (Public Order) of List II Parliament lacks legislative competence. To authenticate this contention, the decision in Rehman Shagoo & others V. State of Jammu Kashmir, 1960 (1) SCR 680 , is relied upon. According to them, the menace of terrorism is covered by the Entry "Public Order" and to explain the meaning thereof, our attention is invited to decisions in Romesh Thaper V. State of Madras, 1950 SCR 594, Dr. Ram Manohar Lohia V. State of Bihar, 1966 (1) SCR 709 , and Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC 746. The Petitioners thus submitted that terrorist activity is confined only to State(s) and therefore State(s) only have the competence to enact a legislation.3. The learned Attorney General refuting this contention submitted that acts of terrorism, which are aimed at weakening the sovereignty and integrity of the country cannot be equated with mere breaches of law and order and disturbances of public order or public safety. He argued that the concept of "sovereignty and integrity of India" is distinct and separate from the concepts of "public order" or "security of State" which fall under List II enabling States to enact legislation relating to public order or safety affecting or relating to a particular State. Therefore, the legislative competence of a State to enact laws for its security cannot denude Parliament of its competence under List I to enact laws to safeguard national security and sovereignty of India by preventing and punishing acts of terrorism. Learned Attorney General distinguished the decision in Rehman Shagoo and submitted that the legislation dealt with therein is fundamentally and qualitatively different from POTA. He also argued before us that Rehman Shagoo cannot mitigate the binding ratio and unanimous conclusion reached by this Court on the point of legislative competence in Kartar Singh V. State of Punjab, 1994 (3) SCC 569 = 1994 (2) SCR 375 , that Parliament can enact such law.4. In deciding the point of legislative competence, it is necessary to understand the contextual backdrop that led to the enactment of POTA, which aims to combat terrorism. Terrorism has become the most worrying feature of the contemporary life. Though violent behavior is not new, the present day terrorism in its full incarnation has obtained a different character and poses extraordinary challenges to the civilized world. The basic edifices of a modern State, likedemocracy, state security, rule of law, sovereignty and integrity, basic human rights etc are under the attack of terrorism. Though the phenomenon of terrorism is complex, a terrorist act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not. That is why thethe earlier Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) and now POTA do not define terrorism but only terrorist acts. (See : Hitendra Vishnu Thakur V. State of Maharashtra, (1994) 4 SCC 602 ).5. Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. TheyIt is premeditated and aims to create a climate of extreme fear or terror.2. It is directed at a wider audience or target than the immediate victims of violence.3. It inherently involves attacks on random and symbolic targets, including civilians.4. The acts of violence committed are seen by the society in which they occur asin literal sense that they breach the social norms, thus causing a sense of outrage; and5. Terrorism is used to influence political behavior in some wayfor example to force opponents into conceding some or all of the perpetrators demands, to provoke anto serve as a catalysis for more general conflict, or to publicize a political cause.In all acts of terrorism, it is mainly the psychological 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 ,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 ofand resourceful terrorist organizations engaged in terrorist activities in different States such as Jammu & Kashmir, NorthEast States, Delhi, West Bengal, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh. The learned Attorney General placed material to point out that the year 2002 witnessed 4038 terrorist related violent incidents in J&K in which 1008 civilians and 453 security personnel were killed. The number of terrorist killed in 2002 was 1707 out of which 508 were foreigners. In the year 2001 there were as many as 28 suicide attacks while there were over 10 suicide attacks in 2002 in which innocent persons and a large number of women and children were killed. The major terrorist incidents in the recent past includes attack on Indian Parliament on 13th December 2001, attack on Jammu & Kashmir Assembly on 1st October, 2001, attack on Akshardham temple on 24th September 2002, attack on US Information Center at Kolkatta on 22nd January 2002, Srinagar CRPF Camp attack on 22nd November 2002, IED blast near Jawahar Tunnel on 23rd November 2002, attack on Raghunath Mandir on 24th November 2002, bus bomb blast at Ghatkopar in Mumbai on 2nd December 2002, attack on villagers in Nadimarg in Pulwama District in Jammu Kashmir on the night ofMarch 2003 etc. There were attacks in Red Fort and on several Government Installations, security forces camps and in public places. Gujarat witnessed gruesome carnage of innocent people by unleashing unprecedented orgy of terror. People in Bihar, Andhra Pradesh, and Maharashtra etc have also experienced the terror trauma. The latest addition to this long list of terror is the recent twin blast at Mumbai that claimed about 50 lives. It is not necessary to swell this opinion by narrating all the sad episodes of terrorist activities that the country has witnessed.8. All these terrorist strikes have certain common features. It could be very broadly grouped into three.Attack on the institution of democracy, which is the very basis of our country. (By attacking Parliament, Legislative Assembly etc). And the attack on economic system by targeting economic nerve centers.2. Attack on symbols of national pride and on security / strategic installations. (eg. Red Fort, Military installations and camps, Radio stations etc.)3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the 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 iser 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 by fundamentalists andelements were trying to destabilize the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today, the government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the above said circumstances Parliament felt that a newlaw is necessary for a better future. This parliamentary resolve is epitomized in POTA.

Reasoning:
50. Mens rea by necessary implication could be excluded from a statue only where it is absolutely clear that the implementation of the object of the Statue would otherwise be defeated. Here we need to find out whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule regarding mens rea element. (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 elementa 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 anintent. 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 design to further the activities of any terrorist organization or the commission of terrorist acts? We are clear that it is not. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these Sections are understood in this way, there cannot be any misuse. With this clarification we uphold the constitutional validity of Sections 20, 21 and 22.We do not think, as feared by the Petitioner, that this Section fixes a blanket responsibility upon the Court to grant permission immediately upon the receipt of a request. Upon a close reading of the Section it will become clear that upon a request by an investigating police officer it shall only be lawful for the Court to grant permission. Nowhere it is stated that the Court will have to positively grant permission upon a request. It is very well within the ambit of Courts 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 aThis being the position in law, the argument of the Petitioners pertaining to the violation of Article 20(3) is not sustainable. It is meaningful to look into Section 91 of Cr. PC that empowers a criminal court as also a police officer to order any person to produce a document or other thing in his possession for the purpose of any inquiry or trial. (See: Shyamlal Mohanlal V. State of Gujarat, AIR 1961 SC 1808 , in this regard). Moreover, this Section is only a step in aid for further investigation and the samples so obtained can never be considered as conclusive proof for conviction. Consequently we uphold the constitutional validity of Section 27.Petitioners challenged the constitutional validity of this Section by leveling the argument; that the right tois an important part of fair trial and principles of natural justice which is guaranteed under Article 21; that even during emergency fundamental rights under Article 20 and 21 cannot be taken away; that Section 30 is in violation of the dictum in Kartar Singhs case (supra) because it does not contain the provision of disclosure of names and identities of the witness before commencement of trial; that fair trial includes the right for the defence to ascertain the true identity of an accuser; that therefore the same has to be declared unconstitutional. Learned Attorney General submitted that such provisions or exercise of such powers are enacted to protect the life and liberty of a person who is able and willing to give evidence in prosecution of grave criminal offences; that the Section is not only in the interest of witness whose life is in danger but also in the interest of community which lies in ensuring that heinous offences like terrorist 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.57. Section 30 of POTA is similar to Section 16 of TADA, the constitutional validity of which was upheld by this Court in Kartar Singhs case (supra) (see pages 683689 of SCC). In order to decide the constitutional validity of Section 30 we dont think it is necessary to go into the larger debate, which learned Counsel for both sides have argued, that whether right tois central to fair trial or not. Because right to crossexamination per se is not taken away by Section 30. This Section only confers discretion to the concerned Court to keep the identity of witness secret if the life of such witness is in danger. We cannot shy away from the unpleasant reality that often witnesses do not come forward to depose before Court even in serious cases. This precarious situation creates challenges to our criminal justice administration in general and terrorism related cases in particular. Witnesses do not volunteer to give evidence mainly due to the fear of their life. Ultimately, theaffects the larger interest of community, which lies in ensuring that the executors of heinous offences like terrorist acts are effectively prosecuted and punished. Legislature drafted Section 30 by taking all these factors into account. In our view a fair balance between the rights and interest of witness, rights of accused and larger public interest has been maintained under Section 30. It is also aimed to assist the State in justice administration and encourage others to do the same under the given circumstances. Anonymity of witness is not general rule under Section 30. Identity will be withheld only in exceptional circumstance when the Special Court is satisfied that the life of witness is in jeopardy. Earlier this Court has endorsed similar procedure. (See: Gurbachan Singh V. State of Bombay, 1952 SCR 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 inIslami Hind V. Union of India, 1995 (1) SCC 428. 58. The need for the existence and exercise of power to grant protection to a witness and preserve his or her anonymity in a criminal trial has been universally recognised. Provisions of such nature have been enacted to protect the life and liberty of the person who is able and willing to give evidence in support of the prosecution in grave criminal cases. A provision of this nature should not be looked at merely from the angle of protection of the witness whose life may be in danger if his or her identity is disclosed but also in the interest of the community to ensure that heinous offences like terrorist acts are effectively prosecuted and punished. 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.59. 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 Singhs 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 be recorded in writing and such reasons should be weighty. In order to safeguard the right of an accused to a fair trial and basic requirements of the due process a mechanism can be evolved whereby the special court is obligated to satisfy itself about the truthfulness and reliability of the statement or disposition of the witness whose identity is sought to be protected.60. Our attention has been drawn to legal position in USA, Canada, New Zealand, Australia and UK as well as the view expressed in the European Court of Human Rights in various decisions. However, it is not necessary to refer any of them because the legal position has been fully set out and explained in Kartar Singh and provision of POTA in Section 30 clause (2) has been modelled on the guidelines set out therein. We may further notice that the effort of the court has been to balance the right of the witness as to his life and liberty and the right of community in effective prosecution of heinous criminal offences with the right of the accused to a fair trial. This is done by devising a mechanism or arrangement to preserve anonymity of the witness when there is an identifiable threat to the life or physical safety of the witness or others whereby the court satisfies itself about the weight to be attached to the evidence of the witness. In some jurisdictions an independent counsel has been appointed for the purpose to act as amicus curie and after going through the deposition evidence assist the court in forming an opinion about the weight of the evidence in a given case or in appropriate cases to beon the basis of the questions formulated and given to him by either of the parties. Useful reference may be made in this context to the recommendations of the Law Commission of New Zealand.61. The necessity to protect the identity of the witness is not a factor that can be determined by a general principle. It is dependent on several factors and circumstances arising in a case and, therefore, the Act has left the determination of such question to an appropriate case.62. Keeping secret the identity of witness, though in the larger interest of public, is a deviation from the usual mode of trial. In extraordinary circumstances we are bound to take this path, which is less travelled. Here the Special Courts will have to exercise utmost care and caution to ensure fair trial. The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned Courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30.At the outset it has to be noted that the Section 15 of TADA that was similar to this Section was upheld in Kartar Singhs case (supra) (pagesof SCC). While enacting this Section Parliament has taken into account of all the guidelines, which were suggested by this Court in Kartar Singhs case (supra). Main allegation of the Petitioners is that there is no need to empower the police to record confession since the accused has to be produced before the Magistrate withinhours in which case the Magistrate himself could record the statement or confession. In the context of terrorism the need for making such a provision so as to enable Police officers to record the confession was explained and upheld by this Court in Kartar Singhs case (supra) (page 680 para 253 of SCC). We need not go into that question at this stage. If the recording of confession by police is found to be necessary by Parliament and if it is in tune with the scheme of law, then an additional safeguard under Section 32 (4) and (5) is a fortiori legal. In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrates 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.of this obvious and settled principle does not make the Section invalid. (See : Kartar Singhs case (supra) page 678, para 248249 of SCC). Ultimately, it is for the concerned Court to decide the admissibility of the confession statement. (See : Kartar Singhs 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 law is adequate in the given circumstances and we dont think it is necessary to look more into this matter. Consequently we uphold the validity of Section 32.Section 49 mainly deals with procedure for obtaining bail for an accused under POTA.67. Petitioners main grievance about this Section is that under Section 49(7) a Court could grant bail only if it is satisfied that there are grounds for believing that an accused is not guilty of committing such offence, since such a satisfaction could be attained only after recording of evidence there is every chance that the accused will be granted bail only after minimum one year of detention; that the proviso to Section 49(7), which is not there under TADA, makes it clear that for one year from the date of detention no bail could be granted; that this Section has not incorporated the principles laid down by this Court in Sanjay Dutts case (supra) (at page 439 paraof SCC) wherein it is held that if a challan is not filed after expiry of 180 days or extended period, the indefeasible right of an accused to be released on bail is ensured, provided that the same is exercised before filing of challan; that the prosecution is curtailing even this right under POTA. Therefore, the petitioners want us to make the Section less stringent according to the settled principles of law. Learned Attorney General submitted that the provisions regarding bail are not onerous nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act 1985 and in Section 10 of the UP Dacoity Affected Areas Act; that on a true construction of Section 49(6) and (7) it is not correct to conclude that the accused cannot apply for bail at all for a period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under Cr.P.C. would apply; that there is no dispute that the principle laid down by this Court in D.K Basu V. State of West Bengal, 1997 (1) SCC 416 , will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49.68. Section 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 Singhs case (supra) (pagesof 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 for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we don not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar Singhs case (supra) page 707, para0. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.71. Proviso to Section 49(7) provides that the condition enumerated in(6) will apply after the expiry ofThere 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 49.72. There is no challenge to any other provisions of the Act.We have upheld the constitutional validity of Section 21 of POTA in the decision pronounced by us in Writ Petition (C) No. 389 of 2002 above and, therefore, the first question does not survive for consideration.77. 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 the petitioner, apart from Shri Rajinder Sachhar and Shri B.S. Malik, the learned senior counsel appearing for the petitioner in connected matters, on the interpretation of Section 21 of POTA. Shri P.P. Rao, appearing for the State of Tamil Nadu, has made 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.