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Published in the 16-31 Mar 2004 print edition of MG; send me the print edition

POTA upheld in the Supreme Court
By Mushtaq Ahmad

A very important judgment was delivered by the Supreme Court on December, 16, 2003 in the PUCL and Another Versus the Union of India case. The constitutionality of various provisions of the Prevention of Terrorism Act, 2002 (POTA) was challenged in the apex court. The court has held that the whole Act is constitutional and falls within the legislative competence of the Central Government except diluting, to a very limited extent, the strict provisions relating to bail and reading the element of mens rea (intention to commit crime) into the Act. POTA was challenged on various grounds. 
The Constitutional validity of Section 14 was challenged by arguing that it gives unbridled powers to the investigating officer to compel any person to furnish information if the investigating officer has reason to believe that information will be useful or relevant to the purpose of the Act. 

The first was the lack of legislative jurisdiction of the Centre to enact this draconian law. It was contended by the petitioners that the Parliament had no legislative competence to enact this law as its provisions fall under the Entry (Public Order) of List II. Since the subject ‘Public Order’, falls under the State List (List II), hence, only a state or states are competent to pass such laws. On this count, the petitioners submitted that the whole Act should be declared ultra vires of the Constitution and hence struck down. The petitioners submitted that terrorism is actively confined only to the state(s) and therefore state(s) alone have the legislative competence to enact POTA.

Turning down the above contention, the Apex Court held that a terrorist act was not merely a law and order problem, but it affected the sovereignty and integrity of India, such an act cannot be equated with a usual law and order problem within a state; it is inter-state, international or cross border in character; fight against overt and covert acts of terrorism is not a regular criminal justice endeavour; rather it involves the defence of nation and its citizen; terrorism is definitely a criminal act, but it is much more than mere criminality; to face terrorism, we need new approaches, techniques, weapons expertise and of course new laws. In the above said circumstances, Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomised in POTA. The Apex Court, thus, held that there was no want of legislative competence of the Parliament to enact POTA.

Another ground of challenging POTA was its possible misuse as was the case with TADA cases. TADA was grossly misused and there were large numbers of acquittals. The Supreme Court turned down this contention by holding that the court cannot go into and examine the ‘need’ of POTA. It is a matter of policy. Once legislation is passed, the Government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. 
The first attack on its constitutionality was the lack of legislative jurisdiction of the Centre to enact this draconian law. It was contended by the petitioners that the Parliament had no legislative competence to enact this law as its provisions, in pith and substance, fall under the Entry (Public Order) of List II. 

The petitioners contended that Section 3(3) of POTA provides that whoever ‘abets’ 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 inspite of the contrary observation of this court in Kartar Singh, wherein it was held that the word ‘abets’ needs to have the requisites of intention or knowledge. It should, therefore, be struck down. But, this contention was not accepted.

The Constitutional validity of Section 14 was challenged by arguing that it gives unbridled powers to the investigating officer to compel any person to furnish information if the investigating officer has reason to believe that information will be useful or relevant to the purpose of the Act. It was argued that this provision is without any checks and is amenable to misuse by the investigating officer; it does not exclude even lawyers or journalists who are bound by their professional ethics to keep the information rendered by their clients as privileged information, hence Section 14 is violative of Articles 14, 19, 20 (3) and 21 of the Constitution. The Supreme Court turned down this contention.

Sections 18 and 19 deal with the notification and de-notification of terrorist organisations. It was submitted that under Section 18(1) of the POTA, a schedule has been provided giving the names of terrorist organisations without any legislative declaration; that there is nothing provided in the Act for declaring organisations as terrorist organisation; that under Section 18(2) of the Act, the Central Government has been given unchecked and arbitrary powers to add or remove or amend the schedule pertaining to terrorist organisations; that under the Unlawful Activities (Prevention) Act, 1967 an organisation could have been declared unlawful only after the Central Government has sufficient material to form an opinion and such declaration has to be made by Notification wherein grounds have to be specified for making such declaration, and that Section 19 excessively delegates power to Central Government in the appointment of members to the Review Committee and that inadequate representation of judicial officers will affect the decision making and consequently it may affect the fair judicial scrutiny. Hence, Section 18 and 19 are violative of Articles 14, 19 (1) (a), 19 (1) (C) and 21 of the Constitution.

Rejecting the above contentions, the Apex Court held these sections intra vires the Constitution on the following grounds: i) The right of citizens to form association or union that is guaranteed by Article 19(1)(c) of the Constitution is subject to the restriction provided under Article 19(4). Under Article 19(4) of the Constitution, the State can impose reasonable restrictions in the interest of sovereignty and integrity of India. POTA is enacted to protect the same imposing restrictions under Article 19(4) of the Constitution. Hence Section 18 is not unconstitutional. ii) The banned organisation can approach the Central Government and can prove that it is not a terrorist organisation and can subsequently approach the Central Review Committee and it is also free to exercise its Constitutional remedies. The post-decisional remedy provided under POTA satisfies the audi alteram partenu requirement in the matter of declaring an organisation as terrorist. Therefore, the absence of pre-decisional hearing cannot be treated as a ground for declaring Section 18 invalid. iii) As per Section 60, chairperson of the Review Committee will be a person who is or has been a judge of a High Court. The mere presence of non-judicial members by itself cannot be treated as a ground to invalidate section 19; and iv) As regards the reasonableness of the restriction provided under Section 18, it has to be noted that the facutm of declaration of an organisation as a terrorist organisation depends upon the ‘belief’ of the 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 implies unreasonable restriction on fundamental right guaranteed under Article 19(1)(c) of the constitution. Sections 20, 21 and 22 deal with situations where a person 'Professes’ (S-20) or ‘invites support’ ‘or arranges, manages, or assist in arranging or managing a meeting; or addressing a meeting’ (S-21). The Apex Court accepted the contention of the petitioners that mens rea is necessary for commission of offences under these Sections.

In respect of confessional statement made to police under Section 32 of POTA, the Apex Court held that there are proper safeguards, judicial wisdom will surely prevail over irregularity, if any, in the process of recording confessional statement. It is for the concerned court to decide the admissibility of the confessional statement.

Section 49 relates to bail. The provisions for bail are very strict. The petitioner’s main grievance about this Section was that under Section 49 (7) a Special POTA 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 a minimum of one year of detention etc. The Court found some incongruities in these provisions, but held them constitutional and proper. It diluted these provisions by holding that after one year of detention, the accused can resort to ordinary bail procedures under the Code.

The Apex Court held the whole POTA as constitutional and proper. It has read mens rea in Sections 20 and 21 where a person ‘professes or invites support’ or ‘arranges, manages or assists in arranging’ or ‘managing a meeting’ or addressing a meeting without knowledge or intention of encouraging or furthering or promoting or facilitating the commission of terrorism, he will not be guilty of committing the offence. On this interpretation, it was held by the Court in another case that mere expression of sympathy for the LTTE by Mr. Vaiko does not constitute an offence under POTA. Another reprieve for an accused under POTA is that he can seek bail under the provisions of the CrPC after one year of his arrest and in such situations the rigorous bail provisions of POTA shall not apply. 

MUSHTAQ AHMAD Alig is advocate-on-record at the Supreme Court. He is defending Moulvi Hussain Ibrahim Umerji of Godhra, who has been falsely implicated in POTA only because he was doing relief work on a large scale. He was arrested on 6 February 2003. His bail appeal is pending in the Supreme Court.

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