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In deciding the point of legislative competence, it is necessary to understand the contextual backdrop that led to the enactment of POTA, which aims to combat terrorism. Terrorism has become the most worrying feature of the contemporary life. Though violent behavior is not new, the present day 'terrorism' in its full incarnation has obtained a different character and poses extraordinary challenges to the civilized world. The basic edifices of a modern State, like - democracy, state security, rule of law, sovereignty and integrity, basic human rights etc are under the attack of terrorism. Though the phenomenon of terrorism is complex, a 'terrorist act' is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not. That is why the anti-terrorist statutes - the earlier Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) and now POTA do not define 'terrorism' but only 'terrorist acts.' (See : Hitendra Vishnu Thakur V. State of Maharashtra, (1994) 4 SCC 602).

The terrorist threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is therefore difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. The Security Council unanimously passed resolutions 1368 (2001) and 1373 (2001); the General Assembly adopted resolution 56/1 by consensus, and convened a special session. All these resolutions and declarations inter alia call upon Member States to take necessary steps to 'prevent and suppress terrorist acts' and also to 'prevent and suppress the financing of terrorist acts.' India is a party to all these resolves. Anti-terrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism.

Meaning of the word 'abets' in the context of POTA:

Pertaining to the validity of individual sections, petitioners primarily contended that Section 3(3) of POTA provides that whoever 'abets' a terrorist act or any preparatory act to a terrorist act shall be punishable and this provision, fails to address the requirement of 'mens rea' element. They added that this provision has been incorporated in POTA in spite of the contrary observation of this Court in Kartar Singh, wherein it was held that the word 'abets' need to have the requisites of intention or knowledge. Consequently, they want us to strike down Section 3(3) as the same is prone to misuse.

"Unless a statue 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 clear 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 rea element. (See: State of Maharashtra V. M H George, AIR 1965 SC 722, Nathulal V. State of MP, AIR 1966 SC 43, Inder Sain V. State of Punjab, (1973) 2 SCC 372, for the general principles concerning the exclusion or inclusion of mens rea element vis-`-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 'profess' (as under Section 20) or 'invites support' or 'arranges, manages, or assist 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, 21 and 22.