"Petitioners assailed Sections 20, 21 and 22, mainly on the ground that no requirement of mens rea for offences is provided in these Sections and the same is liable to misuse, therefore it has to be declared unconstitutional. The Learned Attorney General argued that Section 21 and its various sub-sections are penal provisions and should be strictly construed both in their interpretation and application; that on a true interpretation of the Act having regard to the well settled principles of interpretation Section 21 would not cover any expression or activity which does not have the element or consequence of furthering or encouraging terrorist activity or facilitating its commission; that 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 and hence is valid...

"Here the only point to be considered is whether these Sections exclude mens rea element for constituting offences or not. At the outset it has to be noted that Sections 20, 21 and 22 of POTA is similar to that of Sections 11, 12 and 15 of the Terrorism Act, 2000 of United Kingdom. Such provisions are found to be quite necessary all over the world in anti-terrorism efforts. Sections 20, 21 and 22 are penal in nature that demand strict construction. These provisions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effective to deal with the threat of terrorism. Moreover, the crime referred to herein under POTA is aggravated in nature. Hence special provisions are contemplated to combat the new threat of terrorism. Support either verbal or monetary, with a view to nurture terrorism and terrorist activities is causing new challenges. Therefore Parliament finds that such support to terrorist organizations or terrorist activities need to be made punishable. Viewing the legislation, in its totality it cannot be said that these provisions are obnoxious...

"But the petitioners' apprehension regarding the absence of mens rea in these Sections and the possibility of consequent misuse needs our elucidation. It is the cardinal principle of criminal jurisprudence that mens rea element is necessary to constitute a crime it is the general rule that a penal statute presupposes mens rea element. It will be excluded only if the legislature expressly postulate otherwise. It is in this context that this Court said in Kartar Singh's case (supra) (at page 645 para 115 of SCC) that: "Unless a statute either expressly or by necessary implication rules out 'mens rea ' in case of this kind, the element of mens rea must be read into the provision of the statute...

"Mens rea by necessary implication could be excluded from a statue only where it is absolutely dear that the implementation of the object of the Statue would otherwise be defeated. Here we need to find out whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule regarding mens res element. (See: State of Maharashtra v. M.H. George, MANU/SC/0194/1964, Nathulal v. State of MP, AIR 1965 SC 43, Inder Sain v. State of Punjab, MANU/SC/0113/1973, for the general principles concerning the exclusion or inclusion of mens rea element vis-à-vis a given statute). The prominent method of understanding the legislative intention, in a matter of this nature, is to see whether the substantive provisions of the Act requires mens rea element as a constituent ingredient for an offence. Offence under Section 3(1) of POTA will be constituted only if it is done with an -'intent'. If Parliament stipulates that the 'terrorist act' itself has to be committed with the criminal intention, can it be said that a person who 'professes' (as under Section 20) or 'invites support' or 'arranges, manages, or assists in arranging or managing a meeting' or 'addresses a meeting' (as under Section 21) has committed the offence if he does not have an intention or design to further the activities of any terrorist organization or the commission of terrorist acts? We are clear that it is not. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these Sections are understood in this way, there cannot be any misuse. With this clarification we uphold the constitutional validity of Sections 20 or 21 or 22.

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