People’s Union for Civil Liberties and another V. Union of India

JUDICIAL DECISIONS

Application of national legislation on the prevention of terrorism – Constitutional validity of the Law on the prevention of terrorism – Scope and definition of ‘terrorism’ – Terrorism and human rights – Security Council Resolutions 1368 and 1373

POPULAR UNION FOR CIVIL AND OTHER LIBERTIES v. UNION OF INDIA

Supreme Court of India, December 16, 2003 AIR 2004 Supreme Court 456

Facts

The petitioners questioned the constitutional validity of certain provisions of the Prevention of Terrorism Act 2002, claiming that the provisions of the Indian Constitution and, consequently, the Indian Parliament lacked legislative competence; that terrorist activity and its regulation is within the scope of a State and, therefore, the State only has competence to enact legislation. The main question was whether acts of terrorism aimed at weakening the sovereignty and integrity of the country could be equated with mere violations of public order or public security.

The trial

The “terrorist acts,” the Court noted, were

It is intended to destabilize the nation by challenging its sovereignty and integrity, to sweep away the constitutional principles we hold dear, to create a psyche of fear and anarchism among ordinary people, to tear apart the secular fabric, to overthrow the democratically elected government, to promote the prejudice and bigotry, demoralizing security forces, thwarting economic progress and development, etc. This cannot be equated with the usual problems of public order within a State.

Referring to the character of terrorism as “interstate, international or cross-border”, the Court declared that it was not “an ordinary criminal justice effort”. “Terrorism,” he noted, “is definitely a criminal act, but it is much more than mere criminality.”

Recognizing that terrorism is a challenge for the entire community of civilized nations, the Court noted that terrorist activities in a country can acquire a transnational character, carry out attacks across a border, receive financing from private parties or from a government. to the other side of the other and acquire weapons. from multiple sources. Referring to the national and international aspects of terrorism, the Court noted:

Terrorism in a single country can easily become a threat to regional peace and security due to its secondary effects. Therefore, it is difficult in the current context to draw a clear distinction between national and international terrorism. Numerous events in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. All these resolutions and declarations, among other things, call on Member States to take the necessary measures to “prevent and suppress the financing of terrorist acts”. India is a party to all these resolutions. Global counter-terrorism activities are mainly carried out through bilateral and multilateral cooperation between nations. Therefore, it has also become our international obligation to pass the laws necessary to fight terrorism.

The Court also referred to the Report of the Policy Working Group on the United Nations and Terrorism, which urged the world community to focus on a three-pronged strategy to combat terrorism. These strategies, as the Court noted, were to deter disgruntled groups from embracing terrorism; denying groups or individuals the means to carry out acts of terrorism and maintaining broad-based international cooperation in the fight against terrorism. Based on these, the Court stated:

Therefore, anti-terrorism laws must be able to deter individuals or groups from resorting to terrorism, denying opportunities for the commission of terrorist acts by creating an inhospitable environment for terrorism and also leading the fight against terrorism. The anti-terrorism law is not only a criminal statute, but also focuses on preventive rather than defensive state action.

On the question of the balance between the protection and promotion of human rights, on the one hand, with the fight against terrorism within the constitutional mandate, the Court noted:

The protection and promotion of human rights within the framework of the rule of law are essential for the prevention of terrorism. Here comes the role of the law and the responsibility of the Court. If human rights are violated in the process of fighting terrorism, it will be counterproductive. Terrorism often thrives where human rights are violated, adding to the need to strengthen action to combat human rights violations. Lack of hope in justice provides [the] breeding ground for terrorism. Terrorism in itself must also be understood as an attack on basic rights. In all cases, the fight against terrorism must be respectful of human rights. Our Constitution established clear limitations to the actions of the State in the context of the fight against terrorism. Maintaining this delicate balance while protecting “fundamental” human rights is the responsibility of the Court in a matter such as this. The constitutional soundness of the POTA must be judged with 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 assets of any person prosecuted and ultimately convicted. On this issue, the Court noted that:

Financing and financing play a critical role in fostering and promoting terrorism, and only with these funds can terrorists recruit people for their activities and make payments to them and their families to obtain weapons and ammunition to further terrorist activities and maintain the campaign of terrorism. Therefore, the seizure, forfeiture and seizure of assets are essential to contain terrorism and are not unrelated to it. In fact, it is relevant to note a resolution passed by the United Nations Security Council that emphasized the need to stop terrorist activities by freezing and confiscating funds and financial assets used to promote terrorist activities. It will also be interesting to note 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 current context. The scheme of the provisions indicates that the principles of natural justice are duly observed and do not confer any arbitrary power, and confiscation can only be carried out by order of the Court against which an appeal is also presented to the Superior Court and the rights . of the assignee in good faith are not affected. Therefore, for the moment, 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 confirmed the constitutional validity of the POTA and the specifically challenged provisions.

Issues related to environmental protection and the right to development – Application of the precautionary principle in the context of large dams – Sustainable development – Disaster management.