The Telegraph
Since 1st March, 1999
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SC debate on terror law bail

New Delhi, April 7: The controversial Prevention of Terrorism Act has sparked another debate in the Supreme Court — this time on bail conditions of an accused charged under the Act.

Under the provisions of the Act, an accused can be kept in prison for one year without trial.

The latest debate is over granting of bail to Pazha Nedumaran, chief of the Tamil Nationalist Movement, who was arrested by the Tamil Nadu government in July last year. The trial court had declined to accept Nedumaran’s bail petition concurring with the state government’s argument that an accused under the Act is entitled to move a bail application only a year after his arrest.

But Madras High Court said the one-year period was for statutory bail and there was nothing in the law to prevent an accused from applying for bail. The Jayalalithaa government has appealed to the Supreme Court against this order, on which a division bench of Justices K.G. Balakrishnan and P. Venkatarama Reddi issued notices returnable in eight weeks.

Nedumaran’s arrest came after another Tamil leader, MDMK chief Vaiko, was booked under this Act.

If Vaiko’s pro-LTTE speech provoked Jayalalithaa to arrest him, it is the alleged “nexus” between forest brigand Veerappan and Tamil armed separatists that was behind Nedumaran’s arrest.

The Tamil Nationalist leader has been charged with being an “intermediary” between Veerappan and several Tamil separatist groups like the Tamil Nadu Liberation Force and the Tamil Retrieval Army.

Vaiko has challenged only one provision of the Act — Section 21 — which stipulates that even a speech in support of a banned militant organisation constitutes an offence of terrorism.

However, Nedumaran’s case has not been clubbed with that of Vaiko’s and has been taken up by a different division bench (of Justices Balakrishnan and Reddi).

The anti-terror Act has come under severe criticism from various human rights and civil liberties groups mainly on three grounds: stringent bail conditions, enabling of the prosecution to proceed even for non-disclosure of a conversation with an alleged terrorist, and possession of arms in notified areas.

Another feature that rights groups are critical of is admission as evidence a statement given before a police officer. This is non-admissible as evidence under normal criminal law.

The second aspect is opposed by a majority of lawyers as a lawyer, under the law, is legally bound to disclose to the police about the details of the terrorist who might have been his client and come to him for legal advice. This, in US jurisprudence, is described as “lawyer-client privilege”.

However, US courts have held that “no privilege is an absolute privilege”.

Further, under the same provision, a person who knows even an iota of information about a terrorist is legally bound to inform the police. Hence, a journalist can be booked under the law for an interview with a militant.

Although the Union government had earlier made a slight change in the Act, after protests from various journalist bodies, the provision remains almost the same as it envisages “any person” having knowledge about a terrorist has to mandatorily and voluntarily disclose that information to the police.

Possession of arms in a notified area is another aspect of the law used by its critics to describe it as “draconian”. If an area is notified under the law, then even a coconut-grower who is bound to have a longish knife or aruval (a sword type weapon used to peel off and cut coconuts) can be booked under the Act. As such, 14-year-old boys to 70-year-old men have been booked under the Act in certain states.

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