Judicial approval

Print edition : January 16, 2004

The Supreme Court upholds the constitutionality of the Prevention of Terrorism Act, but several questions about the law remain unanswered.

in New Delhi

THE controversial Prevention of Terrorism Act (POTA), enacted at a joint sitting of both Houses of Parliament on March 26, 2002, secured judicial approval on December 16, 2003, when a Supreme Court Bench comprising Justices S. Rajendra Babu and G.P. Mathur dismissed the writ petitions challenging its constitutional validity. In its judgment, the Bench expressed its agreement with all the contentions of the Union of India in defence of the law and found little substance in the petitioners' fears that it posed a grave threat to individual freedom and liberty. The judgment has evoked considerable interest as the political class was intensely divided over the provisions of the Bill.

The legality of a preventive or pre-trial detention law can be tested for whether it has reasonable checks and balances, in conformity with constitutional safeguards and as laid down by earlier judgments of the Supreme Court in related cases, so as to provide little scope for its abuse by the law-enforcing authorities.

The Bench, before examining the specific grounds against POTA, made it clear that it could not examine the "need" for POTA. "It is a matter of policy. Once a piece of legislation is passed, the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution," it said. The Bench found that Parliament concluded that the existing laws were not capable of tackling terrorism, and that terrorism is not a usual law and order problem. It referred to the statement of Home Minister L.K. Advani, made while piloting the Bill, and underlined his claim that cross-border state-sponsored terrorism was the reason for the enactment of POTA.

Advani's claim could perhaps indicate the government's intention in enacting the law. However, there could be serious disagreement over whether Parliament agreed collectively with this perception. Having failed to secure the passage of the law in the Rajya Sabha, the government used the provision enabling the holding of a joint session of Parliament to pass the Bill. A bitter debate over the substantial provisions of the law preceded its passage. Yet, law-makers had no clue about how the existing laws were not capable of tackling terrorism. It is curious that the Bench ignored this contextual backdrop to the enactment of POTA, although it dealt at length with the modern aspects of terrorism and its growing challenge to the civilised world, while justifying the legislative competence of Parliament to enact such a law.

The contextual backdrop is important to understand why there are such grave complaints that POTA is a serious threat to human rights. The Bench justified its intervention in these words: "The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism... . If human rights are violated in the process of combating terrorism, it will be self-defeating.... Our Constitution laid down clear limitations on state actions within the context of the fight against terrorism. To maintain this delicate balance by protecting `core' human rights is the responsibility of court in a matter like this. Constitutional soundness of POTA needs to be judged by keeping these aspects in mind." It is, however, debatable whether the Bench could achieve this balance in the judgment.

The petitioner, the People's Union for Civil Liberties (PUCL), pointed out that Section 3(3) of POTA, which provides that whoever "abets" a terrorist act shall be punishable, fails to address the requisites of mens rea. This provision was incorporated in POTA in spite of an observation by the Constitution Bench in the Kartar Singh case in 1994 that the word `abet' as used in the Terrorist and Disruptive Activities (Prevention) Act (TADA) was vague and so had to have the requisites of intention or knowledge. The PUCL's petition argued that the vagueness in the POTA provision would lead to its abuse and therefore urged the Bench to strike it down. The Bench did not agree with the view that mens rea is absent in Section 3(3) of POTA and held that in order to bring a person abetting the commission of an offence, it is necessary to prove that such a person has been connected with those steps of the transactions that are criminal.

The Bench refused to strike down Section 4 of POTA, providing for punishment for unauthorised possession of arms or other lethal weapons, on the grounds that it presupposes "conscious" possession, that is, the accused should have the knowledge of the terrorist act for which the possession is intended. The Bench based its observation on the Supreme Court's judgment in the Sanjay Dutt case in 1994. In that case, a presumption against the accused, Sanjay Dutt, under TADA arose on the basis of the fact of a mere possession of a firearm by him in a notified area. The Supreme Court in its judgment had said the police should prove "conscious possession" of the firearm by the accused.

The Bench also rejected the petitioners' challenge to Section 21 of POTA. Under this Section, a person commits an offence if he arranges or addresses a meeting, which he knows is meant to support a terrorist organisation or to further its activities. Vaiko, general secretary of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), who has been in detention under POTA under this Section, had in his petition urged the Bench to strike down this provision.

The Bench clarified that the offence under Section 20 (membership of a terrorist organisation) or 21 or 22 (fund-raising for a terrorist organisation) needs positive inference that a person has acted with the intent of furthering or encouraging terrorist activity or facilitating its commission. As Section 3(1) of POTA stipulates that offence will be constituted only if it is done with an intent, can it be said that a person who professes to belong to a terrorist organisation (Section 20) or invites support or addresses a meeting (Section 21) has committed the offence if he does not have an intention or design to further the activities of any terrorist organisation or the commission of terrorist acts, the Bench asked.

"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," the Bench said. Even as the Bench left it to the Special Court in Chennai to determine the guilt or otherwise of Vaiko under POTA in the light of what it has said in its judgment, it suffers from lack of clarity. Vaiko has admitted that he had referred at a public meeting to his statement supporting the LTTE, made in the course of a debate in the Lok Sabha. The Bench said that support, either verbal or monetary, with a view to nurturing terrorism caused new challenges, and therefore the provision seeking to punish such support was not obnoxious.

As the Vaiko case shows, the trial court may find him innocent. But the burden of proving that he did not have the intention to further the activities of the LTTE even while supporting the banned organisation is upon him. The Bench has no answer to the grievance that POTA's process itself is a punishment, and there is no apparent remedy under the Act. Even if POTA has better safeguards than what TADA had with regard to seeking remedies against wrongful detention, - as the Bench appears to believe - why should anyone undergo pre-trial detention in the first place and abdicate his freedom for an offence he has not committed?

The fact of exoneration later is of no consequence to the accused, says columnist and senior advocate of the Supreme Court Rajeev Dhavan. He feels that the Bench did not deal with the issue from the point of civil liberties.

Advani, the author of POTA, could not miss the coincidence of the judgment while replying to the discussion in the Lok Sabha on the Bill to replace the Ordinance to confer more powers on the Review Committee constituted under the Act on December 16. The purpose of the Bill, Advani claimed, was to prevent the abuse of POTA, and described Vaiko's arrest as an instance of such an abuse.

The Prevention of Terrorism (Amendment) Bill was passed in both Houses of Parliament although during the debate many members pleaded for the total repeal of the Act. Replying to the debate, Advani claimed that if POTA was used merely against terrorists then whatever the Supreme Court said would be applicable. "Mens rea is necessary in any penal law. If mens rea is not there, then POTA, cannot be used. We have tried to make this provision. I hope that the Review Committee would take this fact into consideration," he said.

As the nation's experience with TADA, and now POTA shows, it is not just intentions that make or unmake a law; the enforcement of anti-terror laws has left deeper scars on the polity than what the government or judiciary has imagined.

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