POTA and some dilemmas

Print edition : August 03, 2002

MDMK leader Vaiko's arrest under POTA has occasioned some political contortions in the National Democratic Alliance.

THE arrest and incarceration of Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader Vaiko, a Member of Parliament, by the Tamil Nadu Police under the Prevention of Terrorism Act (POTA) for his open support of the banned Liberation Tigers of Tamil Eelam (LTTE) has evoked interesting reactions. While Vaiko's friends in the National Democratic Alliance (NDA) and some parties in the Opposition have suggested that this is a classic instance of abuse of POTA for political purposes, some of POTA's erstwhile critics, including the Congress(I), have argued that the Tamil Nadu government did the right thing in invoking POTA against Vaiko and that as long as the law remains on the statute book, despite all its objectionable features, its application cannot be termed abuse.

Under POTA, an accused cannot be released on bail unless the Special Court constituted under the Act gives the Public Prosecutor an opportunity to be heard. If the Public Prosecutor opposes the application for grant of bail, the court cannot release the accused unless it is satisfied that there are grounds to believe that the person concerned is not guilty of such offence. Even so, the court can release the accused only after the completion of one year from the date of detention. Vaiko's friends in the NDA initially explored the scope for seeking bail for him so that he could attend the monsoon session of Parliament. The effort was given up in view of the stringent provisions for bail under POTA. A suggestion to move the Supreme Court to challenge the arrest was also not pursued seriously because of the risks involved; it was felt that if the Supreme Court passed any strictures against Vaiko by way of obiter dicta, it could influence the case in the trial court.

Deputy Prime Minister L.K. Advani response to the issue was indicative of the dilemmas of the Central government. Although the Bharatiya Janata Party and other NDA constituents had expressed disapproval of Vaiko's arrest, Advani himself did not condemn the arrest. When asked how the Home Ministry would deal with Chief Minister Jayalalithaa's official communication explaining Vaiko's arrest and her demand that the MDMK be banned, Advani simply said that the Ministry would "think" about it.

Law Minister Jana Krishnamurthi said he did not envisage any role for the Centre in the matter as law and order was a State subject, but he made it clear that the State government had no power to ban a political party. "Only the Centre can do so under the Unlawful Activities (Prevention) Act. If she recommends such a ban, we will look into it," he said.

The former Law Minister and BJP general secretary, Arun Jaitley, was a little more vocal than the former party president. But he seemed to concede that Jayalalithaa's bold action forced the MDMK to eschew violence publicly as a means to secure justice for Sri Lankan Tamils.

Indeed, Vaiko's arrest has made NDA leaders look sheepish, considering how stoutly they defended POTA when the Bill was debated in Parliament. Jaitley, who piloted the Bill in the joint session of the two Houses on March 26, has now discovered to his dismay that there are several grey areas in the Act. Having refused to consider the Opposition's well-meaning arguments against many of the offensive features of POTA during the debate in Parliament, BJP and other NDA leaders are now reluctant even to propose any amendments to the Act in order to secure Vaiko's release as it would expose the government's dual approach. When asked about Fernandes' suggestion that the government could consider amendments to POTA in the wake of Vaiko's arrest, Jana Krishnamurthi said that there was no proposal before the government to amend POTA. Vaiko could make use of the legal options available under POTA, he said.

The Atal Behari Vajpayee government's strategy of maintaining a tactical distance from Vaiko contrasts sharply with the manner in which it intervened when the Tamil Nadu police arrested the Dravida Munnetra Kazhagam (DMK) leader M. Karunanidhi and two Union Ministers belonging to the DMK, Murasoli Maran and T.R. Baalu, in July 2001. At that time, the Centre not only recalled Tamil Nadu Governor M. Fathima Beevi for her failure to report to the Centre the gravity of the situation in the State following the arrests, but sent a "warning" to the Tamil Nadu government under Jayalalithaa. Vaiko's arrest, however, caused no ripples.

However, even while maintaining that the case against Vaiko is weak, the BJP has taken care to imply that its stand on the misuse of POTA in the case of Vaiko should not be construed as support to the MDMK's stand on the LTTE. "We don't agree with our allies on many issues, and they don't agree with ours on some," explained Jaitley. But it was clear that the issue was not just one of mutual agreement to disagree on certain issues. The LTTE is banned under the Unlawful Activities (Prevention) Act, 1967, and is included as one of the 25 terrorist organisations under POTA's Schedule.

ALL this, however, does not detract from the elements of illegality in the action of the Tamil Nadu Police. First, action under POTA has been taken against Vaiko without first issuing the requisite notification to create the post of a special judge to deal with the accused who had been taken into custody. (A special court has now been constituted at Poonamallee, Chennai, to try the case against Vaiko.) The jurisdiction of the Judicial Magistrate-in-charge, Thirumangalam, who remanded Vaiko to judicial custody until August 7, has been questioned as he is not a special judge appointed under POTA. The Special Court may decide whether it is just a technical flaw or a serious violation of procedures prescribed under POTA.

Secondly, the question whether POTA could be invoked against an individual for merely talking in favour of a terrorist organisation will have to be resolved judicially, even though such an interpretation would be in conflict with the right to the freedom of expression, a fundamental right guaranteed under the Constitution.

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