Bail in Tamil Nadu

`Nakkheeran' Gopal, when he was released on bail from the Central Prison in Chennai. - V. GANESAN

The Supreme Court ruling that the mere expression of sympathy to terrorist organisations would not attract POTA enables detenus in Tamil Nadu to secure bail.

THE Jayalalithaa government in Tamil Nadu received a legal blow when the Supreme Court observed on December 16 that a mere expression of sympathy or verbal support to a terrorist organisation would not attract the provisions of Section 21 of the Prevention of Terrorism Act (POTA). While upholding the validity of Section 21, Justices S. Rajendra Babu and G.P. Mathur, said that in order to attract its provisions there must be a positive inference that a person "has acted with intent of furthering or encouraging terrorist activity or facilitating its commission". In a significant ruling, they 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).

In view of the apex court's observations, the Madras High Court on December 18 granted conditional bail to Tamil Nationalist Movement founder P. Nedumaran and his associates Suba. Veerapandian, Pudukottai Paavanan and Dr. Thayappan. The Tamil Nadu Police had arrested them under Section 21 for making speeches in support of the banned Liberation Tigers of Tamil Eelam (LTTE). The LTTE has been categorised as a terrorist organisation under POTA. It was banned in May 1992 under the Unlawful Activities (Prevention) Act after it assassinated former Prime Minister Rajiv Gandhi in 1991.

Nedumaran was arrested on August 1, 2002, for his speech at a public meeting in Chennai on April 13. The others were arrested subsequently (Frontline, August 30, 2002).

Justices V.S. Sirpurkar and M. Thanikachalam of the High Court minced no words against the prosecution when they granted bail to Nedumaran and his associates. They said: "We have scanned the whole charges only to find that the complaint is only against the speeches." Not one of the four was found possessing explosives. The prosecution (police) had neither seized any explosive substances from them nor established any nexus between them and terrorist activities. They had not taken part in any activity that would disentitle them to bail, the Judges said. The charges contained nothing about the nexus of the accused with the banned organisation. "Unless such a nexus resulted in the intent of terrorist activities, it would be difficult to refuse bail to the accused," they said, adding that "in the absence of any terrorist activity attributable to the accused, it would be difficult to ask them to remain behind bars for more than 17 months." As the four accused had been in prison for more than a year, their pleas for bail, therefore, could be considered to their advantage, the Judges ruled.

Declining to go into the merits of the case, the Judges made it clear that "in the view of the authoritative pronouncement by the Supreme Court in respect of Sections 49(6), 49(7) and 21 of POTA, it will not be necessary for us to examine the nature of offences in the light of submissions made before us".

R.R. Gopal, Editor of the Tamil magazine Nakkheeran, received conditional bail from the High Court on December 19. The court allowed a habeas corpus petition from his brother R. Gurusamy. The Crime Branch-Criminal Investigation Department (CB-CID) first arrested Gopal on April 11, 2003, as an accused in the case relating to the murder of a police informant, Rajamani, by the forest brigand Veerappan in 1998. Later, it filed another case against Gopal under the Arms Act and under Section 124-A (sedition) of the Indian Penal Code (IPC). On April 16, it invoked Section 4(a) of POTA for allegedly possessing an unauthorised firearm in a notified area. Gopal, who came out of the Central Prison in Chennai on December 19 to a rousing reception from his colleagues and friends in the media, declared that "dharma and justice will triumph". He said the High Court had given him the first victory and that he was confident of getting justice in the other cases filed against him as well.

The spotlight has now turned on Vaiko and eight other leaders of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), who had been arrested under Section 21 in July 2002 for making speeches in support of the LTTE at a public meeting at Tirumanagalam near Madurai. While Vaiko has firmly refused to seek bail, the other MDMK leaders have approached the High Court for bail.

Vaiko said that the Supreme Court's observations on Section 21 were "a personal success" and "victory for the right to freedom of speech and expression". He pointed out that the court had accepted Attorney-General Soli Sorabjee's argument that a mere expression of sympathy or verbal support for a banned organisation would not fall within the ambit of Section 21.

Section 21 titled "Offence relating to support given to a terrorist organisation", says: (1) "A person commits an offence if - (a) he invites support for a terrorist organisation and (b) the support is not, or is not restricted to, the provision of money or other property within the meaning of Section 22.

(2) A person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is - (a) to support a terrorist organisation; or (b) to further the activities of a terrorist organisation; or (c) to be addressed by a person who belongs or professes to belong to a terrorist organisation.

(3) 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.

(4) A person guilty of an offence under this section shall be liable on conviction, to imprisonment for a term not exceeding ten years or with fine or with both."

ALTHOUGH the High Court granted bail to Nedumaran, he has not been released from the Central Prison in Cuddalore since he has not been granted bail in one of the two other cases filed against him. The police had filed a case against him about 10 years ago for making a speech in Kodaikanal in support of the LTTE. Another case was booked against him for writing the book entitled Kaviya Nayagan Kittu" (Epic hero, Kittu), in Tamil dealing with top LTTE leader Sathasivam Krishnakumar, alias Kittu, who died in January 1993 after the Indian Navy intercepted his vessel. In the earlier case, the Judicial Magistrate in Dindigul granted Nedumaran bail on December 22, 2003. In the case relating to the book, the Magistrate at Alandur, Chennai, was to pronounce his orders on the bail application on December 24. He proceeded for training the previous day. So a bail application was preferred before the Judicial Magistrate (II), Poonamalee, who dismissed the application. Nedumaran's advocates plan to press for bail before the Sessions Court in Chengalpattu.

In `Nakkheeran' Gopal's case, the High Court took into account the "initial illegality" in his arrest and granted him conditional bail. A Bench comprising Justices P. Shanmugam and A.K. Rajan said the police had failed to comply with the requirements listed under Article 22(1) of the Constitution and that this would make the arrest illegal. It would give rise to the consequential right of the detenu (Gopal) to get released by filing a habeas corpus petition. So the Judges allowed the habeas corpus petition in his case.

The Judges said: "Article 22(1), in clear and categorical terms, mandates that no person, who is arrested, shall be detained in custody without being informed, as soon as may be, of the grounds of arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice." They said that it was clear that Gopal was taken into custody first at 8-40 p.m. on April 11, and that he was not informed of the grounds of his arrest. When he was arrested again at the CB-CID office relating to another case, he was not given the reasons for his detention. "The photocopies of arrest memos, three in number, have different serial numbers and therefore, prima facie, we have our own doubts as to the arrest memos," the Judges said. The court had a duty to restore the fundamental rights of persons deprived of them, they said. "In this case, since the provisions of Article 22(1) have been violated, Mr. Gopal is entitled to be released from detention," the Judges ruled.

The Tamil Nadu government appealed to the Supreme Court, which declined to stay the order. Justices R.C. Lahoti and Brijesh Kumar of the court said on December 20 that "a case for the ex-parte suspension of the impugned order and cancellation of the bail is not made out."