The Hindu : BAIL, BUT TO WHAT AVAIL?

Online edition of India's National Newspaper
Wednesday, Feb 04, 2004

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BAIL, BUT TO WHAT AVAIL?

IT IS DISTURBING that a man unjustly charged and kept in detention for 18 long months, under a section of the law that is no longer applicable to the case, should be subject to conditions that severely restrict his liberty when he is finally let off on bail. Under such circumstances, the Marumalarchi Dravida Munnetra Kazhagam leader, Vaiko, has every reason to feel that the conditional bail granted by a Prevention of Terrorism Act court in Chennai offers little by way of relief from the enormous injustice inflicted on him and his party. With a general election round the corner, the curbs on Mr. Vaiko's physical movement are tantamount to a form of political immobilisation. The bail order prevents Mr. Vaiko from moving outside the city limits of Chennai and nearby Poonamallee, where his case is being heard, without written permission from the court. An additional restriction is that he should present himself before the metropolitan magistrate on all holidays and on those days when the POTA court cannot take up the trial proceedings on account of some contingency. Significantly, the court has made it clear that it will not adjourn proceedings for the reason that Mr. Vaiko needs to perform his "political and public duty."

Such restrictions on personal liberty may be justifiable, even necessary, in certain criminal cases. But when they are imposed in connection with a case that is no longer legally sustainable in the light of a Supreme Court judgment, the principles of natural justice stand sacrificed. Mr. Vaiko was arrested and detained for making "pro-LTTE statements" under Section 21 of POTA, which deals with offences relating to support of terrorist organisations. Two months ago, the apex court held that Section 21 cannot be applied to cases where there is no mens rea or criminal intent, a position vigorously canvassed by Attorney General Soli Sorabjee. In adopting such an interpretation, the Court drew a vital distinction — between merely expressing sympathy or verbal support for a terrorist organisation and doing so with the intention of inviting support for it and its activities. In effect, the Court's ruling on the applicability of Section 21 has nullified the Tamil Nadu Government's case against Mr. Vaiko, essentially for repeating in public certain pro-LTTE statements he had made in Parliament.

In the same judgment, the Supreme Court clarified that those held under POTA could be released on bail under ordinary criminal law if they had been detained for more than a year. In consequence, it became possible for others arrested under Section 21 of the anti-terrorist law — for example, eight other MDMK members and the leader of the Tamil National Movement, P. Nedumaran — to be freed on bail. All these cases are now under review by a non-judicial committee that has been constituted to examine specific cases in which POTA has possibly been misused. As a practical measure, such a committee can at best serve as a check against the misuse of this draconian law under certain circumstances. But what about the draconian law itself? What is highlighted by the travails of men such as Mr. Vaiko is that POTA — with its sweeping definition of what constitutes terrorism and the extraordinary powers it places in the hands of the authorities — is asking to be misused. It is unfortunate that the Supreme Court has upheld the constitutional validity of the law. But before deeper damage is done to the fundamental rights to freedom, political India must act on the realisation that the best safeguard against the misuse of POTA is its abrogation. Political parties that place a value on democratic freedoms would do well to make such a commitment in their election manifestoes.

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