Implementation of domestic law on Prevention of Terrorism – Constitutional Validity of the Prevention of Terrorism Act – Scope and definition of 'Terrorism' -Terrorism and Human Rights – Security Council Resolutions 1368 and 1373
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER v. UNION OF INDIA
Supreme Court of India, 16 December 2003 AIR 2004 Supreme Court 456
The Petitioners challenged the constitutional validity of certain provisions of the Prevention of Terrorism Act, 2002 contending that the provisions of the Indian Constitution and accordingly the Indian Parliament lacked the legislative competence; that terrorist activity and its regulation was within the realm of a state, and therefore state only had the competence to enact legislation. The primary issue was whether acts of terrorism aimed at weakening the sovereignty and integrity of the country could be equated with mere breaches of public order or public safety.
"Terrorist acts", the Court noted, were
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 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 usual law and order problems within a state.
Referring to the character of terrorism as "inter-state, inter-national or crossborder", the Court stated that it was not "a regular criminal justice endeavor". "Terrorism", it noted, "is definitely a criminal act, but it is much more than mere criminality."
Recognizing terrorism as a challenge to the whole community of civilized nations, the Court noted that terrorist activities in one country might take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a Government across another, and procuring arms from multiple sources. Referring to domestic and international aspects of terrorism, the Court noted:
Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is, therefore, difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. All these resolutions and declarations, inter alia, call upon Member States to take necessary steps to 'prevent and suppress the financing of terrorist acts'. India is a party to all these resolutions. Anti-terrorism activities at the global level are mainly carried out through bilateral and multilateral co-operation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism.
The Court also referred to the Report of the Policy Working Group on the United Nations and Terrorism which urged the global community to concentrate on a triple strategy to fight terrorism. These strategies, as noted by the Court, were to dissuade disaffected groups from embracing terrorism; to deny groups or individuals the means to carry out acts of terrorism, and to sustain broad-based international cooperation in the struggle against terrorism. Based on these, the Court averred:
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 an inhospitable environment for terrorism and also leading the struggle against terrorism. Anti-terrorism law is not only a penal statute but also focuses on pre-emptive rather than defensive State action.
On the issue of balancing the protection and promotion of human rights, on the one hand, with the combating of terrorism within the Constitutional mandate, the Court stated:
The protection and promotion of human rights under the rule of law are essential in the prevention of terrorism. Here comes the role of law and Court's responsibility. If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides [the] breeding grounds for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to human rights. 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 the Court in a matter like this. The constitutional soundness of the POTA needs to be judged by keeping these aspects in mind.
The Court also had to deal with the legality and constitutional validity of the POTA provisions relating to the forfeiture of property of any person prosecuted and ultimately convicted. On this issue, the Court noted that:
Funding and financing play a vital role in fostering and promoting terrorism, and it is only with such funds that terrorists are able to recruit persons for their activities and make payments to them and their family to obtain arms and ammunition for furthering terrorist activities and to sustain the campaign of terrorism. Therefore, seizure, forfeiture and attachment of properties are essential in order to contain terrorism and are not unrelated to the same. Indeed, it is relevant to notice a resolution passed by the United Nations Security Council which emphasized the need to curb terrorist activities by freezing and forfeiture of funds and financial assets employed to further terrorist activities. It will also be interesting to notice the United Nations International Convention for the Suppression of the Financing of Terrorism but at the same time it is not necessary to go into those details in the present context. The scheme of the provisions indicates that the principles of natural justice are duly observed and they do not confer any arbitrary power, and forfeiture can only be made by an order of the court against which an appeal is also provided to the high court and the rights of the bona fide transferee are not affected. Therefore, for the present, it is not necessary to pronounce on the constitutional validity of these provisions and we proceed on the basis that they are valid.
The Court upheld the constitutional validity of the POTA and the provisions which were specifically challenged.
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