The Centre’s apparent change of heart on POTA’s most draconian provision convinced the Supreme Court today to endorse it—even as the law remains unchanged. Result: its political ally MDMK leader Vaiko may soon be free after 17 months in prison. For, the Supreme Court agreed with Attorney General Soli Sorabjee’s interpretation of Section 21. This is a loosely worded provision designed to give unfettered discretion to the states to lock up anybody who can be in any way accused of inviting support for a terrorist organisation. Sorabjee, however, said that support per se should not be treated as an offence, the prosecution needs to establish ‘‘criminal intention.’’ Endorsing this professed ‘‘spirit’’ rather than asking for an amendment in the ‘‘letter’’ of the law—as the court did in the case of the Competition Commission—a bench headed by Justice S Rajendra Babu ruled that nobody can be tried under Section 21 for speaking in support of a terrorist organisation unless there was evidence to show a criminal intention behind the speech. In effect, the court saved the Vajpayee Government from embarrassment by reading into the provision a safeguard it proposed only after ally Vaiko challenged the validity of Section 21. The bench directed the trial court in Chennai to reconsider the allegations against Vaiko in the light of today’s interpretation. Vaiko has reason to be relieved. Not only because of the Centre’s qualification to Section 21 but also its contention that under POTA itself, normal bail provisions should apply to anyone detained beyond a year. This was upheld by the Supreme Court. While its ruling that the accused is entitled to liberal bail after one year is based on Section 49 of POTA, the Supreme Court’s attempt to sanitise Section 21 penalising any expression of support to a terrorist organisation runs contrary to the express language of the provision. This is evident especially when Section 21 is compared with the very next provision, Section 22, which deals specifically with ‘‘fund raising’’ for a terrorist organisation. Section 22 clearly states that a person seeking money for a terrorist organisation would be liable under POTA only if he ‘‘intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.’’ The absence of such an in-built safeguard in Section 21 shows that as regards any verbal expression of support to banned organisations, the Vajpayee Government, which pushed POTA through a rare joint sitting of Parliament, originally wanted to penalise the person concerned regardless of whether he had a criminal intention or not. Thanks to Vaiko’s detention, the Centre has virtually asked the Supreme Court to read the safeguard of Section 22 into Section 21, even though the two provisions are not meant to overlap. The Supreme Court also upheld the validity of Section 14 which cast a duty on everybody to furnish whatever information the police ask for in relation to any terrorist crime. The bench ruled that even journalists and advocates had ‘‘no sacrosanct right’’ to withhold such information.
