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Supreme Court upholds POTA, Vaiko may get some relief

By Our Legal Correspondent

New Delhi Dec. 16. The Supreme Court today upheld the constitutional validity of the Prevention of Terrorism Act (POTA), observing that "terrorism is affecting the security and sovereignty of the nation. It is not State-specific but trans-national." The Court also held that Parliament, and not the State Legislatures, was competent to enact such a law to counter terrorism.

Dismissing a batch of writ petitions, a Bench of Justice S. Rajendra Babu and Justice G. P. Mathur in its 87-page judgment said that Parliament had explored the possibility of employing the existing laws to tackle terrorism and concluded that they were not capable of effectively dealing with the menace.

The Bench noted that Parliament had enacted POTA after taking all aspects into account. Rejecting the argument that to meet such a situation a law could be enacted only by a State Legislature, the Bench said that terrorism could not be equated with a usual law and order problem within a State and hence Parliament alone was competent to enact a law on it.

Upholding Section 21 under which the MDMK leader, Vaiko, was arrested last year for supporting the banned Liberation Tigers of Tamil Eelam, the judges clarified that for attracting this Section there must be a positive inference that a person "has acted with intent of furthering or encouraging terrorist activity or facilitating its commission."

And a mere expression of sympathy or verbal support would not fall within the mischief of Section 21.

The Bench concurred with the stand taken by the Attorney-General, Soli Sorabjee, that Section 21 being a penal provision it should be strictly construed both in its interpretation and application; a true interpretation of Section 21 would not cover any expression or activity "which does not have the element or consequences of furthering or encouraging terrorist activity or facilitating its commission and support per se or mere expression of sympathy or arrangement of a meeting which is not intended or designed and which does not have the effect to further the activities of any terrorist organisation or the commission of terrorist acts are not within the mischief of Section 21."

The Bench rejected Mr. Vaiko's petition assailing Section 21 and said that since a case had already been lodged and the same was pending consideration before a special court "it would not be appropriate for us to express our views on the question of facts arising in this case. We are sure that the special court will decide the matter in the light of the decision pronounced by us."

The Bench said that a similar application of criminal intent was necessary for invoking Sections 20 (a person who professes or invites support... " and 22 (fund raising for a banned organisation) and that if these sections were understood properly there could not be any misuse.

Writing the judgment for the Bench, Mr. Justice Rajendra Babu said the Court could not go into the need for 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," they said.

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