The Telegraph
Since 1st March, 1999
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Anti-terror law faces statute test

New Delhi, Aug. 26: The “dormant” Prevention of Terrorism Act again surfaced today with a challenge to its constitutionality.

A division bench of Justices G.B. Pattanaik and Ruma Pal issued notices to the Centre asking why the Act — passed by a joint session of Parliament — should not be struck down as unconstitutional.

The notices were issued on a batch of PILs by the All India Human Rights and Social Justice Front and the People’s Union for Civil Liberties.

Front lawyer Nafis Ahmad Siddiqui said the Act infringed on the right to life, guaranteed by the Constitution. Counsel Rajinder Sachar and counsel Sanjay Parikh contended the Act had “shocking provisions”, making it worse than its predecessor, the Terrorist and Disruptive Activities (Prevention) Act.

The PILs contended that the Act itself was passed by an “unparliamentary” practice. Instead of introducing the Bill in the Lok Sabha and the Rajya Sabha, the BJP — finding a lack of majority to pass the “draconian act” — conducted an unprecedented joint session of both Houses to pass it.

The justice front petition also said the National Human Rights Commission, headed by a retired chief justice of India, had rejected the anti-terrorism law and wanted it scrapped.

The PUCL contended that the law was against the principles of the right to life guaranteed under Article 21 and equality before and equal application of law enshrined under Article 14.

Nafis said no date had been set for a reply from the Centre but usually eight weeks were given in such cases.

The PUCL said under the anti-terror law a person could be jailed till up to a year without trial and bail provisions were very stringent. The court has to be satisfied that bail should be granted to an accused and the accused has to establish his innocence.

The PUCL also argued that the arrest provisions violated the guidelines set by the Supreme Court in the D.K. Basu case. For example, a person could not be arrested at midnight. He/she should be produced in the nearest magistrate’s court within 24 hours. Police should inform relatives, friends and lawyers of the arrested person so that they could move for bail. These guidelines had been given up under the new law.

The petition argued that though there were conditions for bail, practically “no bail can be granted to a person accused of the offence under Pota”.

The latest example of misuse of the law was MDMK chief Vaiko’s arrest on Tamil Nadu chief minister Jayalalithaa’s orders. Vaiko is unable to attend Parliament though he is an elected member of the Lok Sabha.

He had to seek the court’s permission to vote in the presidential and vice-presidential elections.

The PUCL petition sought a direction to strike down the Act as “being violative of Articles 14, 19, 20, 21 and 22 of the Constitution” besides “lacking legislative competence”.

It said bail provisions stipulated that a court had to record a finding that the accused was not guilty contrary to the procedure that “justifiable considerations for grant of bail” were enough. This “virtually” means “no bail can be granted to a person”.

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