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ILL-CONSIDERED DECISION

THE ORDER OF the designated POTA court in the case against Vaiko and eight Marumalarchi Dravida Munnetra Kazhagam (MDMK) partymen is astonishingly misguided and ill-considered. In dismissing the petition filed by the Tamil Nadu public prosecutor for withdrawal of the cases against the nine persons, the court has failed to appreciate — or more correctly, has ignored — the fact that the legal bottom of these cases had been knocked out last year. In December 2003, the Supreme Court unambiguously stated that a mere expression of verbal sympathy cannot be a ground for invoking Section 21 of the Prevention of Terrorism Act, a vague and mischievous provision that deals with offences relating to support given to terrorist organisations. The cases against Mr. Vaiko and others were spun almost entirely around certain "pro-LTTE" statements they were said to have made. There was not an iota of evidence to support the contention that the accused had the criminal intention of encouraging terrorist activity — a necessary condition for attracting Section 21 in the Supreme Court's view. Moreover, the Central Review Committee, which was constituted under Section 60 of POTA and was empowered to determine whether the draconian anti-terrorism law has been misused in particular cases, found there was no prima facie case against Mr. Vaiko and his partymen. This conclusion emerged from the fact that it found no evidence at all to suggest they were engaged in supporting terrorist activity in any form whatsoever.

Given such a legal history, there was only one conclusion that could have flowed reasonably from the circumstances: the withdrawal of the cases. Rather than do what was widely anticipated, the designated POTA judge, L. Rajendran, has bafflingly declined consent to the withdrawal — and for reasons that are far from convincing. The court's powers in arriving at such a decision are not in question. That a trial court is not obliged to go along with the decision of the prosecution to withdraw a criminal case is settled law. That the directives of the POTA review committees do not bind the court may also be accepted. The Madras High Court has ruled that orders issued by such committees are binding only on the relevant State Governments and not on public prosecutors or trial courts; and the ruling has been endorsed by the Supreme Court. The issue here is the validity of the trial court's basis for rejecting the withdrawal plea — the surmise that the Central Review Committee had arrived at its decision "prematurely" and without the aid of the complete evidentiary material relied upon by the prosecution. What is this material that has impressed the court? What are the case particulars that the Central Review Committee could have possibly overlooked?

It is on record that the prosecution's case against Mr. Vaiko and others hinged on the speeches they made on June 29, 2002; the supporting `evidence' was woefully weak and in the form of such material as party leaflets and newspaper clippings. How can this constitute a rational basis for proceeding with the trial in cases that sprung from political vendetta, on grounds that are legally unsustainable after the Supreme Court's December 2003 ruling? The Vaiko case is a shocking demonstration of the unending mischief that is POTA. Among other things, the process is the punishment. It is shocking that such a flimsy and insubstantial case has been kept alive at a time when POTA is in the process of being laid to rest by the UPA Government. As for the order of the trial court, it is extremely unlikely to survive an appeal in the light of the apex court's December 2003 judgment.

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