Terror bogey

The Supreme Court forces the Gujarat government to drop the charges made under POTA against the accused in the Godhra fire case.

ON October 21, the Supreme Court passed a judgment that underlined the binding nature of the decision rendered by the Central Review Committee on the Prevention of Terrorism Act (POTA) in the Godhra train fire case of 2002. Delivered by a three-Judge Bench comprising Chief Justice of India K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari in the case of Mahmadhusan Abdulrahim Kalota Shaikh vs Union of India, the judgment has forced the Narendra Modi government and the trial court to comply with the committees decision. In 2005, the Gujarat government refused to be bound by its decision and drop the charges under POTA against the accused.

The judgment throws light on the competence of Parliament to legislate on terrorism and review cases registered under the Central law and on the extent of judicial review in such matters. The Central Review Committee was set up in accordance with the provisions of POTA, which was enacted in 2002 by the National Democratic Alliance (NDA) government. The committee was intended to be a safeguard against arbitrary use of the Act.

On May 16, 2005, Justice S.C. Jain, the committees chairman, ruled in State vs Mohammad Ansari Kutbuddin Ansari & Others relating to the burning of the Sabarmati Express in Godhra on February 27, 2002, that POTA charges were inadmissible.

Following the Godhra incident, the Gujarat government filed its first charge sheet in the trial court on May 22, 2002. After further investigation and the arrest of some accused persons, supplementary charge sheets were filed. In these, 90 persons were named as accused. While in the first charge sheet they were charged with offences under the Indian Penal Code, the Indian Railways Act, the Prevention of Damage of Public Properties Act and the Bombay Police Act, in the supplementary charge sheets the prosecution invoked POTA and claimed that a conspiracy had been hatched on the night before the incident. The prosecution theory ran as follows:

On learning about the return of kar sevaks from Ayodhya by train, a core group of conspirators purchased petrol in 20-litre-carboys from a petrol pump (which is named) at about 9 p.m. on February 26, 2002, and kept the vehicle carrying the petrol behind a guest house. Later, these carboys were shifted to the home of one of the accused. Late in the night, these conspirators met their co-accused and claimed that they had already met Maulavi Hussain Hazi Ibrahim Umerji, a local businessman and social worker, who ordered that coach S6 of the Sabarmati Express coming from Ayodhya be set on fire.

The prosecution further claimed that the following morning, when the train arrived at Godhra at 7-43 a.m., kar sevaks raised slogans while alighting from the train to have breakfast and had altercations with tea vendors. One of them tried to tease a Muslim girl who, along with her mother and sister, ran to the booking office situated nearby. One of the accused, Salim Panwala, raised the alarm with a view to getting the train stopped for more time, and he gathered Muslim hawkers, the prosecution claimed. It said that as another accused ran towards the end of the platform and shouted, more people from his community gathered at the station and near the parcel office.

The prosecution added: Meanwhile, the train started. Panwala falsely shouted that kar sevaks were beating the people of his community and were abducting a Muslim girl inside the train. With a mala fide intention, he incited, misled and pressured three hawkers, got the emergency chain pulled by them and got the train stopped on the platform.

According to the prosecution, Muslim mobs from Signal Falia and surrounding areas then formed an unlawful assembly and started pelting the stationary train with stones. The train began moving again. Panwala and others again incited three hawkers to board the running train and pull the emergency chain near A cabin.

As the train stopped, they ran to the home of another accused and picked up the carboys filled with petrol, went inside S6, poured the petrol from the carboys into the coach, and went out through the door. Some people made a hole near the lid on the upper side of the carboy from outside and poured petrol through the broken windows. One person lit rags, pushed them inside the coach by means of a stick and thereby set the coach on fire. Others chased passengers who escaped from the burning coach and even intercepted and stopped the firefighters of the Godhra Municipality, the prosecution said.

The committee noted that the root cause of the incident was an altercation that the kar sevaks had with a tea vendor who belonged to the Muslim community. The theory of conspiracy was added in the supplementary charge sheet. The committee pointed out that some of the accused were members of the core group, which allegedly hatched the conspiracy, while the other accused were members of the mob that had collected spontaneously on hearing that persons from the Muslim community were beaten up and that a Muslim girl was being abducted.

It held that on the basis of the prosecutions own version, it was quite clear that the crowd had assembled in the first instance in response to the panic cry and not as part of a conspiracy. The committee further found that weapons such as rods and dharias had been recovered from the members of the mob but that no attempt had been made by them to use the weapons to kill passengers, which indicated that the mob was not part of the alleged conspiracy to set coach S6 on fire and kill passengers.

In the absence of any evidence and inference that the mob was privy to the alleged conspiracy and it acted to further its objective, it cannot be said that the mob members are liable to be proceeded against under the provisions of POTA, it held. The committee then demolished the very theory of conspiracy among the core accused on the basis of the prosecutions case itself:

Had there been any conspiracy in existence, the passengers travelling in coach S6 would not have been allowed to disembark the compartment for taking tea and breakfast. The crowd along with inflammable material, which was to be used for burning coach S6, would have been present at the platform itself in front of coach S6, keeping in view the short duration of the halt of the train at Godhra railway station. The assembly of the crowd, which according to the prosecution itself were members of the conspiracy, was initially in front of coach S2 and not in front of S6, which was conspired to be burnt. Had there been any prior conspiracy to burn coach S6, the said coach would have been surrounded by the conspirators from all the sides but the prosecution version itself shows otherwise. The offside of the coach was left open and the passengers alighted from that side of the compartment.

The committee found that there was no evidence to suggest that the so-called conspiracy was hatched with an intent to threaten the unity, integrity, security or sovereignty of India or to strike terror among the people or any section of the people. Therefore, it did not qualify as a terrorist act as defined under Subsection 1(a) of Section 3 of POTA.

The committee thus directed the public prosecutor representing the State of Gujarat in the trial court to file the appropriate application before the court seeking withdrawal of the POTA charges against the accused. The State governments refusal to withdraw the POTA charges, in compliance with the Prevention of Terrorism (Repeal) Act, 2004, enacted by the United Progressive Alliance government, led to the litigation before the Supreme Court.

Under Section 2(3) of this Act, if the review committee is of the opinion that there is no prima facie case for proceeding against the accused, then the cases in which cognisance has been taken by the trial court shall be deemed to have been withdrawn, and in cases in which investigations are pending, the investigations shall be closed forthwith. This was a significant clause because the repeal of POTA did not affect any pending investigation or legal proceeding under the repealed Act, and the review committee was asked to review all pending cases within one year of the passage of the Repeal Act. This one year was to be over on September 21, 2005, after which no fresh offence punishable under POTA could be taken cognisance of by the Court.

In its October 21 judgment, the Supreme Court held that the review committee had the power of a civil court and it had to review all cases registered under the POTA. The court held that the trial court would not examine the correctness or propriety of the opinion, nor exercise any supervisory jurisdiction in regard to the review committees decision. If the committee did not find any prima facie case for proceeding against the accused, then the case stood withdrawn by virtue of Section 2(3) of the Repeal Act, the court said. The court, however, added that the Repeal Act did not oust judicial review completely: if anyone is aggrieved with the review committees decision, there is scope for appeal to the High Court under Article 226 of the Constitution.

The judgment is important because it reiterates two key principles. First, it is Parliament that has the exclusive competence to legislate on terrorism, which threatens the security, integrity and sovereignty of the country.

Second, Parliaments decision to repeal POTA, with a direction to the review committee to review all pending cases, through a law, could not be challenged as it did not violate any fundamental rights or other constitutional provisions. Those who argue in favour of the return of a POTA-like law to tackle terrorism, or urge the Centre to give presidential assent to State-enacted laws to control organised crime, so as to fight terrorism in reality, therefore, must understand the relevance of these principles. With the October 21 judgment, it is hoped that the long-pending bail applications of the 80-odd accused, who have been languishing in Gujarats jails, will now be heard on their merits.