Reform without rationale

The hasty promulgation of the Prevention of Terrorism (Amendment) Ordinance making the decisions of the Review Committees on POTA cases binding on the Central and State governments is inexplicable, especially when it will not help to stop any immediate misuse of the law.

in New Delhi

THE Atal Bihari Vajpayee Government at the Centre, in a display of its brute numerical strength in Parliament, secured the passage of the Prevention of Terrorism Bill in a joint session of Parliament on March 26, 2002, overruling reasonable apprehensions expressed from many quarters that its provisions are liable to be abused to suit the political interests of ruling parties. The use of the Prevention of Terrorism Act (POTA) since then by various State governments against political opponents, and innocent persons, as revealed by many reports in the media, has only served to vindicate these fears.

It is tempting to see a tacit admission by the Centre that these fears are genuine when it decided to amend POTA to confer more powers on the Central and State review committees to make their decisions binding on the Central and State governments and the police officers investigating POTA cases. Information and Broadcasting Minister Sushma Swaraj, who briefed the media on the Union Cabinet's decision to amend the Act on October 21 said: "The law was intended only to tackle terrorism effectively. However, as several complaints of `misuse' of POTA in various States had come to its notice, it was decided to provide for an individual redress mechanism in the Act by conferring more powers on the Review Committees."

Implicit in Swaraj's claim was that individuals booked under POTA had so far no "redress mechanism", in case the Act was misused. Section 60 of POTA, which has now been expanded under the Ordinance, was earlier silent on the powers and functions of the Review Committees to be constituted by the Central government and the State governments whenever necessary for the purposes of the Act.

The Act envisages only two purposes for the Review Committees. Under Section 19(1), an application may be made to the Central Government for the exercise of its power to remove an organisation from the Schedule of organisations notified as terrorist organisations under the Act. Where such an application has been refused, the applicant may apply for a review to the Review Committee constituted by the Central government within one month from the date of receipt of the order by the applicant. It was claimed in the wake of the promulgation of the Ordinance that the Review Committee's role hitherto was only advisory. However, Section 19(7) makes it clear that an order of the Review Committee removing an organisation from the list of terrorist organisations so notified in the schedule will be binding on the government.

The second purpose is that the Review Committee constituted by the Central government or the State government shall review every order passed by the competent authority under Section 39, on an application by a police officer seeking approval for the interception of wire, electronic or oral communication in connection with his investigation into a terrorist act. The decision of the Review Committee, either approving or disapproving such an order, will be binding under Section 46(4) of the Act.

The Ordinance inserts three Sub-sections in Section 60, the provision under which the Central and State Review Committees are constituted. The new sub-section 4 enables the Review Committee to review, on an application by any aggrieved person, whether there is a prima facie case for proceeding against the accused under this Act, and issue directions accordingly. Sub-section 5 says that any such direction issued by the Central Review Committee shall be binding on the Central and State governments and the police officer investigating the case. Similarly, the direction issued by the State Review Committee will be binding on the State government and the police officer investigating the case. Sub-section 6 makes it clear that if there are two directions pertaining to the same offence, one by the Central Review Committee and the other by the State Review Committee, the direction issued by the former will prevail over that of the latter.

Obviously, the new sub-sections of Section 60, as inserted by the Ordinance, have considerably expanded the powers and functions of the Review Committees, which were not envisaged under Section 60(1). The two purposes envisaged under the Act would clearly involve the review of administrative decisions in two specific situations, that is, one when an organisation is wrongfully notified by the Central government as a terrorist outfit and the other when the competent authority wrongfully approves an application for the interception of communication by an investigating official.

The power to examine whether there is a prima facie case for proceeding against an accused should in the normal course be with the Special Courts constituted under the Act, as it is a judicial power. Entrusting the Review Committees headed by retired or sitting High Court Judges with this power is bound to influence the trial of POTA cases before the Special Courts. Will a Review Committee's finding, if it is announced before a POTA Court delivers its verdict, make the trial before the court redundant? Or, is a POTA trial not supposed to start until the Review Committee releases its finding? What if a POTA court and the Review Committee reach different conclusions? Answers to these questions - not readily available now - would determine the effectiveness of the new sub-sections to Section 60. Tamil Nadu Chief Minister Jayalalithaa has expressed the apprehension that the Review Committees would interfere with the functioning of the Special Courts set up by the State governments under the Act and call for records of ongoing trials. She believes that this would amount to demeaning the independence of the judiciary and interfering with the due process of law.

The Review Committee's decision, however, is not binding on the POTA courts if a charge-sheet has been filed by the police in a case. The continued detention of Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader Vaiko - a key partner in the ruling National Democratic Alliance (NDA) at the Centre - under POTA may have been a factor that tilted the scales in favour of giving a greater role for the Central Review Committee under the Ordinance. But with the filing of a charge-sheet against Vaiko in January, the role of the investigating officer is over, leaving the POTA court in Chennai seized of the matter. The Central Review Committee has been insisting upon the State government to furnish facts regarding Vaiko's detention so as to decide the complaints it has received in this connection, even though the committee's finding is unlikely to give him freedom from detention.

Apart from this inherent procedural flaw, the new sub-sections to Section 60 are bound to conflict with Section 60(1), which envisages Review Committees only for certain specific purposes as mentioned elsewhere in the Act. To avoid such a conflict, it may be necessary to amend Section 60(1) itself, to expand the scope of the Review Committees.

The notification issued by the Union government on April 4 to constitute the Central Review Committee implicitly acknowledges that there is a need to go beyond what was envisaged under POTA for the Review Committees. It asks the Central Review Committee to take a comprehensive view of the use of POTA in various States. It would be empowered to entertain complaints or grievances with regard to the enforcement of POTA and give its findings and suggestions for removing shortcomings, if any, in the implementation of the Act. The committee would suggest measures to ensure that the provisions of POTA were invoked only for combating terrorism. The Central Review Committee is, therefore, expected to function as a super watchdog over the State governments in the implementation of the Act, and to that extent, is likely to bring Centre-State relations in tackling terrorism under considerable strain. Ironically, while the notification seems to envisage an academic role for the Central Review Committee, the Ordinance aims to give more teeth to it, without giving it sufficient food in terms of infrastructure and information.

For exercising its comprehensive function, the Central Review Committee would obviously require cooperation from the State governments, in enlisting their responses to the individual grievances and complaints against instances of abuse of POTA within a specific time-frame. That is why the Ordinance, lacking any provision to make such cooperation from the State governments mandatory, has failed to enthuse the Chairman of the Central Review Committee Justice Arun B. Saharya. He is reportedly of the view that it would have been ideal if the law helps the Review Committees reach their decisions faster, with the guaranteed cooperation of all the States and the Central government. The ordinance is relevant only after the Review Committees take a decision with regard to a wrongful arrest under POTA. As the ordinance mentions no time-limit within which the Review Committees ought to take a decision, the governments concerned may withhold the essential information and facilities to the Review Committee, or simply delay a response to the Committee's queries, making it difficult for it to come to a conclusion in time. The fate of the Ordinance, to be replaced by an Act during the winter session of Parliament, hinges on the Supreme Court's verdict on a public interest petition challenging the constitutional validity of POTA. The petition has alleged that the Act lacks legislative competence, besides being violative of Articles 14, 19, 20, 21 and 22 of the Constitution. It argues that POTA falls, in its pith and substance, under Entry I of List-II (States' List), namely, `Public Order' on which only States, and not the Centre, are competent to legislate (Frontline, February 14, 2003). The Supreme Court has reserved its judgment, after hearing arguments. The Central government's haste in promulgating the Ordinance before the winter session of Parliament begins and the Supreme Court delivers its verdict in the case is inexplicable, especially when the Ordinance will not help to stop any immediate abuse of the law by the State governments.