GOVERNMENT OF TAMIL NADU Vs. UNION OF INDIA

JUDGEMENT

(1.) The Honourable Chief Justice. In Writ Petition No.1238 of 2004, the constitutionality of sub-Sections 4, 5, 6 and 7 of Section 60 of Prevention of Terrorism (Amendment) Act, 2003 (Central Act 4 of 2004) is questioned. The above Act is hereinafter referred to as "POTA - 2004". The same was preceded by the Prevention of Terrorism (Amendment) Ordinance, 2003, promulgated on 27.10.2003. The said Ordinance was replaced by POTA - 2004. In the Ordinance, sub-Section (7) was not there, but, was added when the Bill was presented, which transformed into Act on the assent of the President on 2.1.2004. POTA-2004 is given retrospective effect from 27.10.2003 i.e. the date of issuance of the Ordinance.

(2.) POTA was first enacted in the year 2002, which was also preceded by an Ordinance. POTA was enacted to contain terrorism and the incidental acts thereto and, in fact, has been modelled on the Terrorists and Disruptive Activities (Prevention) Act, 1987, hereinafter referred to as "TADA". As the tenure was fixed for such enactments starting from 1984, the Central Government thought it necessary to enact laws from time to time to contain terrorism, which is on the rise every time and which has now assumed alarming proportions. The constitutionality of TADA was first challenged and the leading case on the subject is KARTAR SINGH v. STATE OF PUNJAB (1994) 3 SCC 569). Excepting Section 22 of the Act, all the provisions of TADA were upheld. Judgment was rendered by a Constitution Bench of the Supreme Court. While upholding the validity of TADA, except Section 22 thereof, the Supreme Court in the above case held in paragraph 265 as hereunder:

(3.) In compliance with the same, the Screening Committees or Review Committees, by whatever name called, have been constituted to review the cases lodged under TADA to examine the existence of element of terrorism attracting the said Special Act containing harsh measures. Once the Committee takes a view that it was not a case under TADA, then the option was to deal with the same in ordinary Criminal law, if the facts and circumstances so warrant. The above Supreme Court judgment speaks of high-level officers of the Central Government or the State Government, as the case may be. But, in the later judgment, in SHAHEEN WELFARE ASSOCIATION v. UNION OF INDIA (1996) 2 SCC 616), the Supreme Court opined that a more independent and objective scrutiny of TADA cases by a Committee headed by a retired Judge is obviously necessary. Presumably, the Central Government has taken into consideration all these statements of law made by the Supreme Court, as, while enacting POTA-2002, it had incorporated provisions in Section 60, which read: