The Hindu : National : Repeal of POTA has legal implications

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Wednesday, Jun 09, 2004

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National

Repeal of POTA has legal implications

By J. Venkatesan

NEW DELHI, JUNE 8. The announcement by the United Progressive Alliance Government that the Prevention of Terrorism Act (POTA) will be repealed as reflected in the President, A.P.J. Abdul Kalam's address in Parliament on Monday has been welcomed by human rights activists who have been concerned about the misuse of the law for nearly three years.

But one thing is not clear— whether the Act, which has been upheld by the Supreme Court, will be repealed with retrospective effect or whether it will have only a prospective effect. If it is given retrospective effect, all the existing cases will go. If the repeal is made prospective, the existing cases will continue even after the repeal.

The POTA, 2002 has replaced the Prevention of Terrorism (second) ordinance, 2001 and it was specifically mentioned that the Act shall be deemed to have come into force from October 24, 2001 and remain in force for three years. Another option is to allow the law to lapse after the expiry of three years on October 23.

The normal effect of repealing a legislation is to obliterate it from the statute book as if it had never been passed.

According to senior advocate, K. Subramanian, "repeal is not a mere form, but one of substance depending upon the intention of the Legislature. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow, unless, as the Section itself says, a different intention appears. It has to be tested whether the repealing Act evinces any intention to destroy the liability under the old Act".

Mr. Subramanian said that Section 1 (6) of POTA states that its expiry shall not affect the previous operation of or anything duly done or suffered under this Act or shall not affect any investigation, legal proceedings, obligation or remedy or cases instituted, continued or enforced.

He feels that if pending proceedings against the MDMK General Secretary, Vaiko, Tamil Desiya Iyakkam leader, P. Nedumaran and journalist, R.R. Gopal have to abate, a clear intention to that effect must be incorporated in the repealing Act. A mere repeal in the absence of a clear intention to the above effect may not put an end to the pending proceedings.

A senior lawyer and Rajya Sabha Member, Fali Nariman is of the view that the "clock cannot be put back".

Since POTA was passed pursuant to a U.N. resolution to deal with terrorism, doing away with such a law will be difficult. Certain provisions like interception of communication of terrorists, freezing the assets of terrorists or terrorist organisation are welcome.

When asked about the abuse of POTA in many States, he says "the best thing would be to strengthen the review mechanism by giving statutory powers to the Review Committee and make its decisions binding on everyone."

He does not agree with the discretion being vested with Public Prosecutors on withdrawal of POTA cases after the Review Committee renders its decision. "Since Public Prosecutors are appointed by the State Governments, understandably you cannot expect them to be independent", says Mr. Nariman.

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