Wednesday, May 22, 2002, Chandigarh, India


M A I N   N E W S

POTA is need of the hour: HC
Tribune News Service

Chandigarh, May 21
In the first-ever judgement of its kind in the country on a petition challenging the constitutional validity of the Prevention of Terrorism Act, Mr Justice Jawahar Lal Gupta and Mr Justice N.K. Sud of the Punjab and Haryana High Court today held that the “Act rightly aimed at reducing the procedural tangles and armed the Court with the power to impose effective penalties on the terrorist as well as on those who were his partners in the commitment of the heinous crime against man and his kind”.

Dismissing in limine the petition filed by former IPS officer-cum-member of Parliament Simranjit Singh Mann after “finding no constitutional or legal infirmity in the impugned provisions”, the Judges further held that the danger of losing ill-gotten property could also be a definite deterrent. They added that the prevailing circumstances in the country were posing a threat to the nation’s integrity and sovereignty and as such a law to protect the people and their property was necessary.

“The enactment of the impugned Act was a national imperative”, the Judges further added. Giving details, they asserted: “The upsurge of terrorist activities, intensification of cross-border terrorism, violence perpetrated by the insurgent groups are an existing reality and a global phenomenon. The modern means of communication and other facilities enable the terrorists to strike and create terror at will. The existing justice delivery system was not equipped to deal with heinous crimes. Thus, there was an imperative need to make provisions for the prevention of and for dealing with terrorist activities and for matters connected therewith. The aims and objectives disclosed at the time of introduction of the Bill and the preamble provide a clear answer and the real rational for the promulgation of the Act by the Parliament”.

In their detailed 40-page judgement, the Judges ruled: “The government did not rush. The Act was not promulgated in haste. However, the situation in the country showed no signs of improvement. In fact, the acts of violence were on the increase. The attack on the World Trade Center on the morning of September 11, 2001, bears a testimony to the fears expressed by the protagonists of a law for the prevention of terrorism. The senseless attack on the Indian Parliament could have reinforced the view.... Organised acts of terrorism are no longer confined to a particular place or country. The threat is global. And is on the increase. Despite, the fact that America has attacked Afghanistan with the most effective means of destruction. Thus, there was a need for the impugned Act”.

Going into the background, the Judges further ruled: “Terrorism and violence are not a recent phenomenon. We live in a world that has crucified Christ, assassinated Abraham Lincoln, killed Kennedy and murdered Mahatma Gandhi. In India, different parts of the country have continued to remain disturbed for a long time. The states in the North, North-East and South are still witnessing violence against men and materials. Thousands of innocent men and women have been murdered. Tons of arms and ammunition have been recovered. The states and the centre have periodically promulgated various statutes. Yet, the evil has not been eradicated. The situation continues to be bad. It is a matter of concern for the citizen and the society. In view of the prevailing security situation in the country, it was not surprising that the Government of India requested the Law Commission to `undertake a fresh examination of the issue of a suitable legislation for combating terrorism and other anti-national activities....’”

Regarding Mr Mann’s contention “that such laws have never proved productive”, the Judges held: “It is true that the Acts for preventive detention, maintenance of internal security and curbing terrorism have been periodically promulgated. Despite that, the evil has not been eradicated. Still, we cannot raise our hands in despair. The country cannot give up. If various countries have felt a need for statutes to combat terrorism, there appears to be no reason to accept the contention that India could have done without it. There is a clear rationale for the Act. Efforts to control the menace have to continue. The impugned legislation is a step in that direction”.

As far as its sweeping powers were concerned, the Judges further held: “The statute is undoubtedly wide in its sweep. But that is the need. Stringent provisions are necessary to meet the menace. The issue is — do the provisions impinge upon the constitutional mandate? The Act has to be primarily tested on the touchstone of Articles 14 and 21. The state is under a duty to protect the people, their person and property. This is as sacred and sacrosanct as the guarantee of a person’s right to equality, life and liberty. And then, every right carries with it a duty. The need to synthesise right with duty so as to achieve the objective of a cohesive community has been historically recognised....

“Every right rests upon some degree of restriction. Social obligations limit the individual’s liberty. The society has its own science. Liberty can never mean license. It does not mean doing what one likes. Nor can it lie in destroying the rights of others. In a civilised society, liberty should only ensure that a person is able to do what he ought to be doing. Every man has to respect the rights of others before he can justifiably assert his own. Liberty has to be earned before it can be enjoyed. Men of intemperate habits cannot be free. Their passion forge their fetters. While advocating the cause of human rights, this basis truth has to be remembered”.

Speaking for the Bench, Mr Justice Jawahar Lal Gupta added: “The terrorist causes a terrible trauma to the innocent. His acts pose a threat to the human society. A person who threatens the sovereignty and integrity of the country is certainly different from a person who merely threatens an individual. The two are not similarly situated. Unequals cannot complain of inequality. In the present case, the differential treatment rests upon a valid foundation. The provisions of the Act do not suffer from the vice of discrimination as envisaged under Article 14 of the Constitution. It guarantees an individual’s liberty. No one can be deprived of his life or liberty except in accordance with the procedure prescribed by the law. The prescribed procedure must not be arbitrary, fanciful, unfair, unjust or whimsical. It must be reasonable. This is the mandate of Articles 14 and 21. It has to be scrupulously followed in letter and spirit. But in its search for fairness, the Court can not ignore the policy behind the law”.

After considering Mr Mann’s contention that the police could use a confession made by an accused against him in an unfair manner, Mr Justice Gupta observed: “People criticise the police everyday. In one voice. At all levels. The chorus is — it does not have a licence to kill. Police needs paradigm-shift. The Bench and the Bar, the citizen and the criminal, the press and the politician, the rogue and the reformist denounce the police. The chant of criticism is continuous. Is it fair? No one can please everyone. Such an attempt shall spell a formula for failure. No one can be perfect. Perfection is still an enigma. A few aberrations shall occur everywhere. But a few black sheep, who may exist in all the sections of society cannot blacken the face of the whole force. Nor can individual error justify a generalisation.

“In a society governed by the rule of law, the policeman plays an important role. The car driver does not see the red light till there is a cop. No body observes any speed limit when there is no patrol car. The burglar is kept at bay, even if there is a retired old man in uniform. The policeman is the guardian of the individual’s person and property. He is the guarantor of the citizen’s freedom. The presence of the policeman is essential to maintain law and order. Today, the human society faces a devaluation of values. A spiritual impoverishment. A social collapse. Criminality. Whatever be the cause, we are all a part of the system, Everyone of us is a product of the society that we live in. When the wood is crooked, the furniture cannot be straight.... Distrust of the policeman can only destroy the fading morale of the force. We need to change our perception. The present provision appears to be a step in that direction.”

Regarding safeguards, Mr Justice Gupta said: “There are definite safeguards in the statute. The mere possibility of the power being abused is not enough to annul the Act. The door has to be kept open for trial and error”.

On the issue of punishment under the Act, Mr Justice Gupta observed: “Laws are made to protect the innocent and to punish the wicked. These are a bad man’s danger and a gentleman’s safety. The good have nothing to fear. The tyrant should have no reason to complaint of tyranny.... The criminal should have no cause for complaint against the punishment. His sin is the seed. Punishment is for prevention. Certainty and speed are essential for ensuring the efficacy of punishment. Crime is reduced not by making punishment familiar, but formidable. Death penalty may not correct the man who is hanged. But it provides a deterrent for others like him. And for the unjust, strict punishment is the justice”.

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