The Hindu : <I>Nakkeeran</I> Gopal's bail plea hearing today

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Monday, Feb 09, 2004

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Nakkeeran Gopal's bail plea hearing today

By Our Legal Correspondent

NEW DELHI, FEB. 8. The Supreme Court will hear tomorrow an application from the Nakkeeran Editor, R.R. Gopal, seeking to quash the notification issued by the Tamil Nadu Government declaring the entire State as a `notified area' under the Prevention of Terrorism Act (POTA) for unauthorised possession of arms.

The Court, while dismissing a batch of petitions challenging the constitutional validity of POTA, had de-linked the petitions filed by Mr. Gopal and the Tamil Nationalist Movement leader, Nedumaran, and Mr. Gopal's petition comes up for hearing tomorrow.

In that petition, the Court had, by an interim order, restrained the State Government from filing the charge-sheet in the case. Mr. Gopal filed an application challenging the notification dated December 24, 2002. Mr. Gopal submitted that he had challenged Section 4 of POTA but inadvertently omitted to challenge the notification of the State Government for the purposes of this section.

He contended that the notification had been issued without application of mind and without following the law declared by the Court in the Kartar Singh and Sanjay Dutt cases that the power of the State Government to declare any area as a `notified area' must be based on the subjective satisfaction regarding the proneness of the area to terrorist and disruptive activities and the existence of the factual basis for declaring it as a notified area. Otherwise, the State Government's power would be unfettered and unguided which would render the said power vulnerable.

The application said that the Madras High Court while ordering his release on bail on a habeas corpus petition did not go into the issue of the validity of the notification as there was no necessity and no arguments were made on that ground.

It said that in the whole of Tamil Nadu, there was no occasion of any wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to committing any of the offences enumerated under POTA. Therefore, the notification declaring the entire State of Tamil Nadu as a notified area was arbitrary and unreasonable.

The petitioner submitted that after the notification, no periodical review of terrorist and disruptive activity in the area had been undertaken by the State Government as laid down by the apex court.

He said since this notification had a vital bearing on the merit of the main petition, he might be permitted to raise this additional ground.

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