The Hindu : 'POTA accused can seek bail within a year'

Online edition of India's National Newspaper
Wednesday, Dec 17, 2003

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National

'POTA accused can seek bail within a year'

By J. Venkatesan

New Delhi Dec. 16. The Supreme Court has held that an accused under the Prevention of Terrorism Act (POTA) could seek bail under Section 49 (7) even before the expiry of the one-year period. And, on the expiry of the detention period under POTA, the accused could be released on bail under the ordinary law without the rigour of Section 49 (7).

Dismissing petitions challenging POTA today, a Bench of Justice S. Rajendra Babu and Justice G.P. Mathur held that taking into account the complexities of terrorism-related offences and Parliament's intention in enacting a special law for its prevention "we do not think that the additional conditions regarding bail under POTA are unreasonable." [Section 49 (7) of POTA says that a court could grant bail only if it is satisfied that there are grounds for believing that an accused is not guilty of committing such an offence].

Regarding witness protection under Section 30, the Bench said it was a "necessary evil" as more and more witnesses were shying away from deposing the truth fearing harm to them and their relatives from the accused. "We cannot shy away from the unpleasant reality that often witnesses do not come forward to depose before court even in serious cases," it said.

The judges said: "Anonymity of witness is not a general rule under Section 30. Identity will be withheld only in exceptional circumstances when the Special Court is satisfied that the life of the witness is in jeopardy." Upholding the validity of Section 30, they said that "in our view, a fair balance between the rights and interest of the witness, the rights of the accused and the larger public interest has been maintained under Section 30."

The Bench also upheld provisions relating to abetment, possession of arms in a notified area, forfeiture of proceeds of terrorism and notification and de-notification of terrorist organisations. There was nothing illegal in declaring an organisation a banned organisation since the aggrieved persons could approach the Review Committee and the High Court for remedy, it said. "Having regard to the nature of legislation and the magnitude and prevalence of the evil of terrorism," it could not be said that unreasonable restrictions had been imposed on the fundamental rights as contemplated under Article 19 (1) c (right to form association or union) of the Constitution.

Regarding Sections 20, 21 and 22 relating to organising meeting and extending support to banned terrorist organisation, the Bench said that "support either verbal or monetary, with a view to nurturing terrorism and terrorist activities is causing new challenges Therefore, Parliament finds that such support to terrorist organisations or terrorist activities in its totality it cannot be said that these provisions are obnoxious."

Of the five petitions — two by the People's Union for Civil Liberties and the All-India Human Rights and Social Justice Front, and one each by Mr. Vaiko, Shahul Hameed and P. Nedumaran — the Bench de-linked Mr. Nedumaran's petition as it was not argued, and dismissed the other four petitions.

In respect of the petition of the Editor of Nakkheeran, R.R. Gopal, challenging certain provisions of POTA, it would be taken up later as another Bench had passed an order restraining the Tamil Nadu Government from filing the chargesheet. The State Government is seeking the Court's permission tomorrow for dismissal of Mr. Gopal's petition in the light of today's verdict.

Highlights

All provisions of POTA constitutionally valid.

Terrorism not a mere State law and order problem.

Parliament alone competent to enact law to fight terrorism.

No immunity to journalists and lawyers to withhold terrorist information.

Mere support to banned terrorist organisation not sufficient for prosecution under POTA. Criminal intention must be proved.

Special court to dispose of Vaiko's case based on Supreme Court clarification

Protection of identity of witnesses necessary for prosecuting offenders.

Bail can be sought even before the expiry of one year.

Normal bail provisions will apply after the expiry of one year.

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