The Hindu : Tamil Nadu's objections fallacious, says POTA review panel

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Saturday, Jan 24, 2004

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Tamil Nadu's objections fallacious, says POTA review panel

By J. Venkatesan

NEW DELHI, JAN. 23. The Central Review Committee set up under the Prevention of Terrorism Act today rejected the "preliminary objections" raised by the Tamil Nadu Government that the committee had no jurisdiction to go into the cases of the incarcerated MDMK leader, Vaiko, eight others and the Nakkeeran Editor, R.R. Gopal.

The committee, headed by Justice A.B. Saharya, described as "fallacious" the objections and said they were devoid of substance and merit. It made it clear that their cases would be taken up for further consideration and final hearing on the basis of the available material on February 4, 5 and 6.

Responding to the notice, the State Government without furnishing the relevant materials sought by the Committee, contended that the panel had no "jurisdiction" to interfere with matters pending before the courts. Rejecting the contention, the committee in its order said the judicial proceedings in a court of law and a review by an administrative authority were independent of each other and the Committee's review must precede the final disposal of the case in court. "The argument that administrative review cannot be made in cases that are sub judice is fallacious," it said.

The powers conferred on the committee under Sec. 60 of POTA were for the limited purpose of finding whether or not, in a given case, "there is prima facie case for proceeding against the accused under POTA. And for purposes of such review, the Review Committee would proceed to examine the material available to form an opinion. Such review would not be interfering with the proceedings pending in court. Rather, its opinion would become an input for purposes, inter alia of Sec. 33 of POTA and its role would be complementary in the cause of justice."

Referring to the argument that the committee could go only into cases where FIRs had been registered and not after the court had taken cognisance of the cases, the Committee said that "the review is on the basis of the material existing at the time of review, irrespective of the stage of the case."

Under Sec. 60 (4) of POTA, the committee's directions had been binding on the State Government's and the police officer investigating the offence. The matter of withdrawal from prosecution [on the basis of committee's direction] involved administrative action by a functionary of the State Government and it was not precluded by any law merely on account of the earlier grant of sanction for prosecution by the State.

The committee noted that Parliament had enacted POTA to combat terrorism. The object of setting up of the Review Committee was to prevent the possibility of misuse of POTA. Though enforcement of the law had been entrusted to the State Governments, this did not absolve the Central Government of its duty to ensure that the law was enforced for achieving the intended objective of combating terrorism.

The Supreme Court had upheld the mechanism of administrative review, and therefore, the scope and ambit of review entrusted to the committee was much larger. Having regard to the nature of inquiry required needed, the committee must approach each case judiciously and follow a quasi-judicial process. The committee had given the Tamil Nadu Government sufficient opportunity so that it might show the relevant records and, prima facie, justify its action POTA but it had questioned the committee's jurisdiction to go into the cases.

"A remedy against unjustified prosecution under a more onerous and rigorous law, as compared to ordinary law," had been conferred on the committee and the apex court judgment upholding POTA had not precluded the committee from administrative review of the State's action, it said and rejected the Tamil Nadu's petition.

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