VAIKO, general secretary of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), was released on bail from the Central Prison, Vellore, on February 7 after 19 months of detention under the Prevention of Terrorism Act (POTA). Leaders from the Dravida Munnetra Kazhagam (DMK), the Pattali Makkal Katchi (PMK) and the Congress(I) as well as thousands of his supporters were present outside the prison to welcome him. Vaiko went straight to "Thayagam", his party's headquarters in Chennai. He latter called on DMK president and former Chief Minister M. Karunanidhi at the DMK headquarters. The All India Anna Dravida Munnetra Kazhagam (AIADMK) government headed by Jayalalithaa invoked POTA against Vaiko in July 2002 for making a speech in support of the banned Liberation Tigers of Tamil Eelam (LTTE) (Frontline, August 2, 2002).
A Special (POTA) Court headed by Judge L. Rajendran granted bail to Vaiko on February 3, with stringent conditions. The Madras High Court relaxed some of these "onerous conditions" the next day. The court wanted Vaiko to appear before the Special Court on all working days and help conduct the trial on a day-to-day basis so that the trial could be completed by June 30, which a High Court order has entailed; to sign the register at the Special Court at Poonamalee on all working days and at the court of the magistrate in-charge in Chennai on holidays; to not leave the city limits beyond Poonamalee "on any account without obtaining due orders in writing" from the court; and not to ask for adjournments in his case, whatever be his situation. Vaiko was also asked not to refer to, express or publish in any manner anything about the case or its proceedings to any visual or press media or at any meeting whatsoever under any circumstances; not to give interviews or issue press statements on the case (even his party cadre should not pass comments on his case); not to absent himself from appearing in the court on the grounds that he had to "perform his political and public duty"; and execute a bond for Rs.50,000 with two sureties each for a similar amount. Vaiko was warned that if any of the conditions was violated, the investigating agency could take steps to revoke his bail order as per law.
On February 4 separate orders were passed by the Madras High Court. In one, the Bench comprising Justices V.S. Sirpurkar and F.M. Ibrahim Khalifullah relaxed the "onerous conditions" set by the Special (POTA) Court. Justice Sirpurkar remarked that Vaiko was the leader of a political party, and "not a common criminal" who is required to sign in the courts every day. The Bench also permitted Vaiko to travel beyond Chennai limits during the pendency of the trial but with prior intimation to the investigating officer.
However, within hours of Vaiko's release, the State government appealed in the High Court, seeking the cancellation of the conditional bail. The petition, filed by the Deputy Superintendent of Police, `Q' branch, Madurai, said the Special Court had failed to note that the accused was an ardent supporter of the proscribed LTTE. He had proclaimed that he would continue to support the LTTE in future and such an attitude expressed in open court disentitled him to any relief of bail, the petitioner said.
Justices Sirpurkar and Khalifullah admitted this appeal on February 9. The judges dismissed the interim prayer for a stay on the operation of the Special Judge's order enlarging Vaiko on bail because the Public Prosecutor did not press for such a stay. The Bench posted the appeal for further hearing along with a petition filed by Vaiko seeking to set aside some of the conditions imposed by the Special Judge in his bail order.
IN another development, the first Bench comprising Chief Justice B. Subhashan Reddy and Justice S. Sardar Zackria Hussain upheld the setting of the Central Review Committee (CRC) under the Prevention of Terrorism (Amendment) Act. The setting up of the CRC was "perfectly in consonance with the law laid down by the Supreme Court and cannot be found fault with", the ruling states. The CRC, constituted to review specific cases of misuse of POTA, is hearing whether there was a wrongful application of POTA in Vaiko's arrest. The Bench upheld the amendments to POTA, which gave powers to the CRC to override the decisions of the State governments, the State Review Committees, the investigating officers and even the Special Courts.
The Bench was disposing of three petitions from the Tamil Nadu government challenging the constitutional validity of the amended sections of POTA and an order of the CRC rejecting the preliminary objection of the State government in the cases of Vaiko, eight other MDMK leaders, and "Nakkheeran' editor R.R. Gopal. The CRC had earlier rejected the government's objection that it had no jurisdiction to decide POTA cases already pending in courts. On February 4, the government assured the CRC that it would produce the documents on February 16 in connection with the cases. It gave this undertaking after the first Bench had ruled earlier in the day that the CRC could go into the arrests of Vaiko and others under POTA.
THE Tamil Nadu Police arrested Vaiko and eight MDMK leaders under Section 21(3) of POTA in July 2002 for making speeches in support of the LTTE at Tirumangalam, about 30 km from Madurai. Section 21(3) says: "A person commits an offence if he addresses a meeting for the purpose of encouraging support for a terrorist organisation or to further its activities." Vaiko challenged in the Supreme Court the constitutional validity of Section 21.
On December 16, 2003, the Supreme Court ruled that a mere expression of sympathy or verbal support to a terrorist organisation would not attract the provisions of Section 21. The Judges said that in order to attract the provisions of Section 21, there must be a positive inference that a person "has acted with intent of furthering or encouraging terrorist activity or facilitating its commission." Upholding the Section's constitutional validity, the court said that an accused under POTA could seek bail under its Section 49(7) even before the one-year detention period expired. After the expiry of the period, the accused could be released on bail under ordinary law without the rigour of Section 49(7).
After the Supreme Court's ruling, the Madras High Court discharged the eight MDMK leaders, Nedumaran and his associates on bail (Frontline, January 16 and 30, 2004). The eight MDMK leaders were let on bail on January 12. Vaiko declined to seek bail, as a matter of principle. Karunanidhi and senior MDMK leaders prevailed on Vaiko to apply for bail and he relented.
T.S. SubramanianCOMMents
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