Pota gets a cosmetic touch

But Shourie would have none of that. He was in fact so put out by my criticism of Section 21 that he, in a tone full of contempt, questioned my understanding of the law as also the quality of my journalism. To rub it in, he read out the entire Section clause-by-clause and asked rather dramatically after each clause, “How does this pose a threat to any innocent person?” It was a masterly display of righteous indignation. Something that has however been belied by what Jayalalithaa did with Section 21 to Vaiko and journalist ‘Nakeeran’ Gopal and has been threatening to do to Union minister of state and MDMK treasurer S. Kannappan. I wonder if Shourie still has such touching faith in the efficacy of Section 21.

He might, because the recent ordinance has after all left this provision intact. The amendments are cosmetic as they are limited to Section 60, which requires the Centre and states to appoint review committees “whenever necessary”. The Centre felt the necessity to appoint one in April. Reason: “it has been alleged from time to time in certain quarters that the provisions of Pota are being applied in cases where they should not be invoked, thus giving rise to apprehensions regarding the said Act being misused”. The review committee headed by Justice Arun Saharya is very much dealing with the Vaiko case, thanks to a representation made to it by some 301 MPs from various parties. But the review committee is stranded because the Jayalalithaa government has so far not deigned to give its comments on the various averments made on Vaiko’s behalf.

This is, in fact, the story of all the 80 complaints taken up so far by the committee with five state governments. Understandably, Saharya is not too excited with the ordinance because it contains no provision to break this deadlock. Instead, lending a touch of farce, the ordinance deals with a stage that is still nowhere in sight. If and when the review committee gives its finding on whether a “prima facie case” is made out for proceeding against the accused under Pota, it will be empowered to give “directions accordingly” and those will be “binding” on all executive authorities. The ordinance is farcical because it is not in response to any perceived need. Since the committee has so far not been able to dispose of a single complaint, there has been no occasion for any state to disregard its decision. The Centre has clearly prejudged the states.

If the promulgation of an ordinance itself is an extraordinary event, an ordinance based on a purely hypothetical premise is even more so. So, what prompted the Centre to come up with such an ordinance? On the positive side, it is a tacit acknowledgement that things are not fine on the Pota front. But then there is no genuine attempt to reform the law. The retention of Section 21 — the primary cause of Vaiko’s incarceration — is a case in point. In fact, the Centre defended it before the Supreme Court earlier this year while responding to Vaiko’s petition challenging the constitutionality of Section 21. Attorney General Soli Sorabjee, on his part, tried to make Section 21 palatable by asserting that Vaiko’s professed support for LTTE did not fall under it. In the teeth of express language of this penal provision, Sorabjee valiantly argued that “support per se” did not mean that Vaiko was inviting support for LTTE. The apex court, which has since reserved the case for judgment, will have to resort to similar sophistry if it chooses to uphold Section 21.