The Hindu : POTA is a national necessity: A-G

Online edition of India's National Newspaper
Wednesday, Apr 23, 2003

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POTA is a national necessity: A-G

By J. Venkatesan

NEW DELHI April 22. The Attorney-General, Soli Sorabjee, today asserted in the Supreme Court that the Prevention of Terrorism Act (POTA) was a national necessity to deal effectively with terrorism which had acquired a global dimension and endangered every part of India.

Making his submissions before a Bench, comprising Justice S. Rajendra Babu and Justice G.P. Mathur, hearing a batch of petitions challenging the constitutional validity of POTA, the A-G said the law had several safeguards built into it and was an improved version of TADA.

He said merely because there was a possibility of abuse of power in a statute, it could not be struck down. But only the resultant action of such abuse could be struck down.

Referring to the petitioner's contention that only the States were competent to enact such a law, the A-G said, "our country has been the victim of an undeclared war by epicentres of terrorism with the aid of well-knit and resourceful terrorist organisations engaged in terrorist activities''.

He said particularly after the September 11, 2001 attack in the U.S., Indian Parliament was attacked on December 13, 2001, followed by attacks in U.S. embassy in Kolkata, Akshardham temple in Gujarat and bus bomb attack in Mumbai.

Giving statistics of the menace of terrorism, he said that 2002 witnessed 4,038 terrorist related violent incidents in Jammu and Kashmir, in which 1,008 civilians and 453 security personnel were killed. Out of 1,707 terrorists killed, 508 were foreigners.

He said in this backdrop, POTA was necessary to tackle cross-border terrorism which had wider ramifications and to safeguard the sovereignty and integrity of the country.

Mr. Sorabjee said terrorist acts could not at all be equated with breaches of law and order or disturbances of public order and public safety which could be dealt with by State laws. He said the Union Government was competent to enact POTA under its residual powers in the Constitution.

Asserting that POTA was a valid piece of legislation, the A-G said, "there is always a presumption in favour of the constitutionality of an enactment''. He drew the attention of the court to similar terrorism laws enacted in the U.S., the United Kingdom, Canada and Australia and the highest courts in these countries had upheld the legislations.

Coming to the provisions of POTA, the A-G referred to Sec. 4 relating to possession of unauthorised arms in a notified area and said the expression "knowingly'' should be read into it to mitigate the rigour of this section.

Explaining further, he said mere possession of unauthorised arms was not enough to attract this provision. The person must "knowingly'' possess arms capable of mass destruction. He said a mere possession of unauthorised arms without an awareness of the nature and consequences shall not be construed an offence, otherwise this section would become too harsh.

Describing funding and financing as the "oxygen'' of terrorism, he said they played a vital role in fostering and promoting terrorism. The object of Sections 6, 7 and 8 of POTA was to choke this "oxygen'' and hence seizing, freezing and forfeiture of proceeds of terrorism were essential to effectively contain terrorism.

The Bench asked Mr. Sorabjee to address tomorrow the points relating to harsh bail provisions, confession made to a police officer, what types of support would attract Sec. 21 and protection of the identity of witnesses.

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