Today's Paper

POTA ordinance empowers Review Committees

New Delhi Oct. 28. The ordinance promulgated by the President, A.P.J. Abdul Kalam, on Tuesday to amend the Prevention of Terrorism Act, 2002 (POTA) empowers the Central and State Review Committees to decide "whether there is a prima facie case for proceeding against the accused arrested under this Act and issue directions accordingly." For such a review, there must be an application by an aggrieved person.

This is a substantive function not envisaged when POTA was enacted in March 2002. The amendment also makes the directions issued by the Review Committees "binding" on the Governments and investigating police officers concerned, and gives the Central Review Committee overriding powers.

The ordinance, which comes into immediate effect, inserts three sub-sections in Section 60 of the Act, the provision under which the Central and State Review Committees are constituted. The new sub-sections are intended to give the committees teeth and the accused a grievance redressal mechanism.

The new sub-section 4 reads: "Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly."

The new sub-section 5 says: "Any direction issued under sub-section (4), (i) by the Review Committee constituted by the Central Government shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government shall be binding on the State Government and the police officer investigating the offence.''

The new sub-section 6 reads: "Where the reviews under sub-section (4) relating to the same offence under this Act have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail."

The notification issued by the Union Government on April 4 to constitute the Central Review Committee said it would 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 for combating terrorism only.

The Chairman of the Central Review Committee, Justice Arun B. Saharya, told The Hindu that the ordinance would help the committee to function effectively. Asked what would be the position if the committee were to come to a finding of "malicious prosecution" in a particular POTA case, he said any proceeding in a court of law based on "malicious prosecution" would be null and void. However, he explained, "we are not going into the judicial domain. We are only going into the administrative action of the State in each case to determine whether POTA has been invoked correctly or otherwise and render our findings."

Highly placed official sources told The Hindu that the Government was receptive to suggestions for further strengthening the redressal mechanism. If Justice Saharya identifies further requirements, "they can be incorporated in the Bill to be introduced during the winter session of Parliament to replace the Ordinance."

A gimmick: Nariman

Asked for his comment on the ordinance to amend POTA, the eminent senior lawyer, Fali S. Nariman, characterised it as a "gimmick". He explained: "Unless the power of arrest is taken away from the States, you can't prevent misuse of POTA." Mr. Nariman added: "There is no complaint against the Centre that it is misusing the Act. The problem lies only with the States. Therefore don't give them the power of arrest under POTA." He was of the view that the Act should be amended in such a way that before any arrest was to be made, the name of the person with details of the offence committed should be forwarded either to the Union Home Ministry or to the Central Review Committee. Only if the Home Ministry or the committee was satisfied that there was prima facie material for invoking POTA could the State concerned go ahead with the arrest.

Asked whether such a requirement would not impinge on the powers of States to maintain law and order, Mr. Nariman said "the States can't have any grievance over this proposal as terrorism is a Central subject and not a mere law and order problem." He was of the view that this amendment would not work if a POTA court were to give its verdict before the Review Committee came out with its findings.

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