ON June 10, the Gujarat government rejected the Central Prevention of Terrorism Act Review Committee's recommendation dropping POTA charges against all 131 accused in the Godhra train burning case (Frontline, July 1). State government counsel H.M. Dhruv submitted before the designated POTA court in Ahmedabad that the State had ample evidence to charge the accused under the Act. The committee, Dhruv said, had not considered the confessional statements of some of the accused in the right perspective as per Section 32 of POTA. He added that the review committee could not interfere in the judicial process and its role was to find whether there was no prima facie case to proceed against the accused.
On June 21, the Union Ministry of Home Affairs pointed out the untenability of the State government's stand. Section 2 (3) of the POTA Repeal Act, 2004, the Ministry said, provided that when the Review Committee constituted by the Central government said that there was no prima facie ground for proceeding against the accused in a particular case under POTA, that case should be deemed to have been withdrawn even if it had been taken cognisance of by the court.
The Home Ministry reminded the Gujarat government that the question of constitutional validity of Sub-Sections 3 and 5 of Section 2 of the POTA Repeal Act was settled by the Gujarat High Court on April 13. Acting on the High Court's order, the Special Public Prosecutor placed the opinion of the POTA Review Committee before the POTA Special Court. "The matter is now before the Special Court for further appropriate action," the Home Ministry said.
The significance of the Home Ministry's intervention stems from its anxiety to put the facts in the controversy in the public domain. POTA has been repealed by an Act of Parliament. But cases registered under POTA before its repeal will continue to be considered on the basis of merits by the POTA Special Courts under the repealed Act. Hence it is imperative that the courts do so keeping in view the provisions of the POTA Repeal Act, which make the opinion of the POTA Review Committee binding on them.
In the case of the Godhra accused, there is one more reason why the Gujarat government should refrain from challenging the POTA Review Committee's opinion. The Review Committee, in paragraph 39 of its opinion delivered on May 16, held that while appreciating the special provisions of terrorist law, it was important to know whether the so-called members of the mob at the Godhra railway platform on February 27, 2002, had the requisite mens rea (intention) to set the Sabarmati Express on fire.
The Review Committee cited the Supreme Court's judgment in Hitendra Vishnu Thakur (1994) to explain why the Godhra incident could not qualify as a terrorist act. The Supreme Court said in that case: "A terrorist activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law... . Every `terrorist' may be a criminal, but every criminal cannot be given the label of a `terrorist' only to set in motion the more stringent provisions of TADA [Terrrorist and Disruptive Activities [Prevention] Act]." The Supreme Court concluded that in order to invoke TADA a criminal activity must be committed with the requisite intention stipulated by the Act.
V. VenkatesanCOMMents
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