The Hindu : POTA provisions `draconian, unconstitutional'

Online edition of India's National Newspaper
Friday, Apr 04, 2003

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POTA provisions `draconian, unconstitutional'

By Our Legal Correspondent

NEW DELHI APRIL 3. The People's Union for Civil Liberties (PUCL) today assailed the provisions of the Prevention of Terrorism Act, describing them as not only "draconian" but also unconstitutional. Resuming his arguments before a Bench comprising Justice S. Rajendra Babu and Justice G.P. Mathur, senior counsel, Rajinder Sachar, also said that the Parliament lacked the legislative competence to enact POTA.

The object of the law being maintenance of public order, only the State Legislatures were competent to enact such a legislation. As the Act did not contain adequate safeguards, it was being misused in some States, he said. The Bench said: "any law can be misused."

When the counsel asked whether or not we are making a mockery of the law stating that two-thirds of the States had refused to implement the Act, the Bench responded: "Are we not making security of the state a mockery?'' When the Bench said "a State which repeatedly said that it was not going to implement the Act, is now invoking the same'' the counsel admitted that it was Maharashtra.

The Bench told the counsel that the threat perception was different in the States bordering Pakistan and China than other States. Therefore the security of the country as a whole should be taken into consideration rather than individual States.

Mr. Sachar quoted from various judgments to explain how provisions such as keeping the identity of the witnesses secret, confession made to a police officer, possession of arms and holding the proceeds of terrorism were so draconian that they did not have any safeguards and were liable to be misused. He will continue his arguments on April 8.

Meanwhile, another writ petition filed by J. Shahul Hameed, who organised a public meeting at Anand theatre complex in Chennai on April 13 last year questioning the validity of Sec. 21 (2) of POTA, would also be heard with the one filed by the MDMK leader, Vaiko, and two others.

Mr. Hameed said he being a publisher organised a meeting for the purpose of making an analytical and critical study regarding the peace talks in Sri Lanka. He was arrested on April 12, a day before the meeting. P. Nedumaran, S.P. Veerapandian, Thayappan and a few others who participated in the meeting were subsequently arrested under POTA and the petitioner charged with having committed an offence for organising the meeting.

His petition sought to quash Sec. 21 (2) of POTA and also Section 49 (6) and 49 (7) relating to bail as they "violated the fundamental rights" as enshrined in the Constitution.

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