SC takes on Centre's additional affidavit

NEW DELHI April 9. The Supreme Court today took on record the Centre's additional affidavit clarifying that the speech delivered by the MDMK leader, Vaiko, on June 29, 2002, "if properly interpreted and read in the entire context of the speech and the surrounding circumstances, does not attract Sec. 21 of the Prevention of Terrorism Act (POTA).''

The two-page affidavit was presented by the Attorney General, Soli Sorabjee, to a Bench, comprising Justice S. Rajendra Babu and Justice G.P. Mathur, hearing a batch of petitions challenging the provisions of POTA.

The affidavit wanted deletion of paragraphs 12 and 13 of the earlier affidavit, which said "the petitioner has been drawing support for the LTTE, a banned terrorist organisation'' which was responsible for the assassination of the former Prime Minister, Rajiv Gandhi... And "the words flowing from the petitioner constitute an act of terrorism'' under POTA.

It clarified that paragraphs 12 and 13 of the earlier counter "are based on a misapprehension of the stand of the Government of India'' and should be treated as deleted.

Further, though the Centre fully supported the constitutionality of POTA, it was of the view that the speech delivered by Mr. Vaiko on June 29, 2002 would not attract Sec. 21 of POTA.

Appearing for Mr. Vaiko, senior counsel Fali S. Nariman argued that this provision, which had been abused and misused, should be declared unconstitutional. He wondered how could anyone making a speech without indulging in any support to the terrorist activity of a banned terrorist organisation could be arrested under this provision.

Mr. Nariman brought to the court's notice how the apex court, in a variety of cases, had held that if there was a probability of misuse of a provision, the law had been struck down.

Counsel said when there was a provision in the Act that an application could be made to the Centre to remove a banned organisation from the schedule, even arranging a meeting for preparing an application would be an offence. This provision could be invoked for having legal consultation by one or more persons and even lawyers would not be spared. Mr. Nariman said there could always be two views regarding banning an organisation. "One can support an organisation by legitimate means and may say that this organisation had not indulged in any terrorist activity and the ban should be lifted. But even this could be construed as extending support to a banned organisation.''

Referring to the amended affidavit of the Centre that the "speech of Mr. Vaiko in its entirety'' should be taken into consideration, Mr. Nariman said this defence was not available to him, as under this provision, there were no guidelines or safeguards to describe "which speech constituted an offence and which speech not an offence.''

Counsel drew the Court's attention to the fact that Sri Lanka had lifted the ban on the LTTE to pave the way for peace talks. He said there must be direct nexus between preaching of violence and public order undermining the security of the State.

If even an innocuous speech could be treated an offence, then it went beyond the scope of reasonable restriction to freedom of speech and expression and such a law was invalid, he said.

Senior counsel, Anil B. Divan, appearing for Shahul Hameed, who had been arrested for organising a meeting in which P. Nedumaran and others participated, said Sec. 21 (2) was a gag on public debate, intellectual discussion and academic activity and no meeting could be organised for this purpose.

He said as a publisher, the petitioner was interested in publishing the views whether the ban on the LTTE was justified or not and he organised a meeting for this purpose and he was detained under POTA. Further arguments will be heared on April 22.