The Hindu : POTA panel's verdict on January 23

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Wednesday, Jan 21, 2004

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POTA panel's verdict on January 23

By Our Legal Correspondent

NEW DELHI, JAN. 20. The Central Review Committee on Prevention of Terrorism Act, headed by Justice A.B. Saharya, will give its verdict on January 23 on the preliminary objections raised by Tamil Nadu on the committee's jurisdiction to go into the arrests of the MDMK leader, Vaiko, eight party men and R.R. Gopal, editor, Nakkheeran.

The committee reserved orders at the end of four-day arguments from senior counsel for Tamil Nadu, C.S. Vaidyanathan, R. Shanmugasundaram for Mr. Gopal, V. Ramasubramaniam for Mr. Vaiko and K.N. Bhat for the Central Government. Mr. Bhat submitted that the preliminary objections had no merit in the light of the new amendment to the POTA Act, viz. "if the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused and issues directions then the proceedings against the accused shall be deemed to have been withdrawn from the date of such direction." Mr. Bhat said there was no reason why the State Government should withhold the documents pertaining to Mr. Vaiko and Mr. Gopal on that ground.

He maintained that once a complaint was received by the committee and a notice issued, Tamil Nadu or for that matter any other State, was bound to provide materials to the panel. If the Government did not rebut the averments in the complaint, then the committee could decide whether POTA had been properly invoked in that particular case and the State Government could not complain that no opportunity was given because it had failed to respond.

To a question from Mr. Justice Saharya whether the committee could draw any "adverse inference" if the State Government did not furnish the relevant materials, Mr. Bhat said "adverse inference" had a higher connotation and unless there was a specific provision in the statute no "adverse inference" could be drawn. He, however, said that for deciding whether POTA had been abused or misused these terms need not be discussed.

Mr. Vaidyanathan reiterated that once a case was taken cognisance of, it was for the court to decide the merits and no committee could interfere with its judicial functions. Section 60 of POTA under which the Review Committee had been constituted was not competent to traverse upon matters pending in judicial forums. This was especially so when the nature of powers and the jurisdiction that could be exercised by the committee were not spelt out either expressly or impliedly in POTA.

He reminded the panel that it was not a superior authority or an ombudsman to go into the correctness or otherwise of an executive action of the State government when specifically such a power had not been provided in the statute. He also said that once a State Government accorded sanction for prosecution of a case under POTA, the committee could not review the correctness of the sanction. At the end of the arguments, L. Ganesan, Chairman of the MDMK Presidium, requested Mr. Justice Saharya to pronounce the orders on Vaiko's case at the earliest considering the fact that the POTA court was proceeding with the case expeditiously. He charged the Tamil Nadu Government with trying to get a verdict quickly to disqualify Mr. Vaiko from contesting the elections. Mr.Vaidyanathan took exception to this and said Mr. Vaiko himself had stated that POTA was going to be an election issue. Mr. Justice Saharya then asked Mr. Ganesan not to make it a political platform.

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