IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 04/02/2004 Coram The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice and The Honourable Mr. Justice S. SARDAR ZACKRIA HUSSAIN W.P. Nos.1238 of 2004,WP.1239 of 2004 ,WP. 1240 of 2004 and W.P.M.P. Nos.1297 to 1299 of 2004 W.P. No.1238 of 2004 The Government of Tamil Nadu Rep. by its Chief Secretary, Fort St. George, CHENNAI - 600 009. ... Petitioner Vs. 1. Union of India, Rep. by its Secretary, Ministry of Law & Justice, New Delhi. 2. Review Committee on POTA through its Secretary, Room No.246, Vigyan Bhavan Annexe, New Delhi. 3. R.R. Gopal 105, Jani Jahankhan Street, Royapettah, Chennai - 14. 4. T.R. Balu Member of Parliament, 10, Raisina Road, New Delhi - 1. 5. Thiru A. Kamaraj, Associate Editor, Nakkeeran, 105, Jani Jahankhan Street, Royapettah, Chennai - 14. 6. Thiru S. Ramanathan, F/o R.R. Gopal, 105, Jani Jahankhan Street, Royapettah, Chennai - 14. 7. Thiru. Vaiko (Now confined at Central Prison, Vellore) 8. Thiru. Madurai Ganesan, S/o Perisamy, Compounder Thoppu, Madurai. 9. Thiru. Alagusundaram, s/o Kandasamy, No.30, Palani Andavar Koil Street, Thiruparamkundram, Madurai. 10. Thiru Ganesa Murthy, S/o Avinasi Gounder, H-45, Periyar Nagar, Erode. 11. Thiru Veera Ilavarasan, S/o Veerappan, Pallapatti Post, Melur Taluk, Madurai Dist. 12. Thiru Bhoominathan, S/o Muniyandi, 786, Karpagam Nagar, K. Pudur, Madurai. 13. Thiru P.S. Maniyan, S/o Palaniappan, Melachinnanampatti, Kalvelipatti, Thanichujam, Vadapatti PS Limits. 14. Thiru Sivanthiappan, S/o Sethuraman, 4-A, 8th South Extension, Subramanyapuram, Karaikudi, Sivagangai Dist. 15. Thiru Nagarajan, S/o Kandasamy Naidu, 25-B/4, Kamarajapuram North, Thirumangalam, Madurai Dist. 16. Gingee Ramachandran, No.48, Lodhi Estate, New Delhi - 3. ... Respondents W.P. No.1239 of 2004 The Government of Tamil Nadu Rep. by its Chief Secretary, Fort St. George, CHENNAI - 600 009. ... Petitioner Vs. 1. Union of India, Rep. by its Secretary, Ministry of Law & Justice, New Delhi. 2. Review Committee on POTA through its Secretary, Room No.246, Vigyan Bhavan Annexe, New Delhi. 3. Thiru Vaiko, AL-20, 4th Cross St., 11th Main Road, Anna Nagar, Chennai - 40 (Now confined in Central Prison, Vellore) 4. Thiru. Madurai Ganesan, S/o Perisamy, Compounder Thoppu, Madurai. 5. Thiru. Alagusundaram, s/o Kandasamy, No.30, Palani Andavar Koil Street, Thiruparamkundram, Madurai. 6. Thiru Ganesa Murthy, S/o Avinasi Gounder, H-45, Periyar Nagar, Erode. 7. Thiru Veera Ilavarasan, S/o Veerappan, Pallapatti Post, Melur Taluk, Madurai Dist. 8. Thiru Bhoominathan, S/o Muniyandi, 786, Karpagam Nagar, K. Pudur, Madurai. 9. Thiru P.S. Maniyan, S/o Palaniappan, Melachinnanampatti, Kalvelipatti, Thanichujam, Vadapatti PS Limits. 10. Thiru Sivanthiappan, S/o Sethuraman, 4-A, 8th South Extension, Subramanyapuram, Karaikudi, Sivagangai Dist. 11. Thiru Nagarajan, S/o Kandasamy Naidu, 25-B/4, Kamarajapuram North, Thirumangalam, Madurai Dist. 12. Gingee Ramachandran, No.35, Subbaraya Gounder Street, Gingee, Villupuram Dist. ... Respondents W.P. No.1240 of 2004 The Government of Tamil Nadu Rep. by its Chief Secretary, Fort St. George, CHENNAI - 600 009. ... Petitioner Vs. 1. Union of India, Rep. by its Secretary, Ministry of Law & Justice, New Delhi. 2. Review Committee on POTA through its Secretary, Room No.246, Vigyan Bhavan Annexe, New Delhi. 3. R.R. Gopal 105, Jani Jahankhan Street, Royapettah, Chennai - 14. 4. T.R. Balu Member of Parliament, 10, Raisina Road, New Delhi - 1. 5. Thiru A. Kamaraj, Associate Editor, Nakkeeran, 105, Jani Jahankhan Street, Royapettah, Chennai - 14. 6. Thiru S. Ramanathan, F/o R.R. Gopal, 105, Jani Jahankhan Street, Royapettah, Chennai - 14. ... Respondents Petitions under Article 226 of Constitution of India for the issuance of Writs of Certiorari for the reasons stated therein. For Petitioner : Mr. C.S. Vaidyanathan, Sr. Counsel, assisted by Mr. I. Subramanian, PP Mr. V. Raghupathi, GP Mr. S. Jayakumar, Addl. PP and Mr. C. Manishankar, Spl. PP For 2nd Respondent : Mr. V.T. Gopalan, Addl. S.G. For Mr. P. Wilson, ACGSC For 7th Respondent in W.P.No. : Mr. K. Chandru, S.C. for 1238/04 and 3rd Respondent in Mr. Yashod Varadhan 1239/04 For 3rd Respondent in W.P. : Mr. R. Shanmugasundaram, Nos.1238 and 1240 of 2004 Sr. Counsel for M/s.NR Elango :O R D E R THE HONOURABLE THE 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. 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 incidental acts thereto and, in fact, has been modelled on the Terrorists and Disruptive Activities (Prevention) Act, 1987, h 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: "In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA cases instituted by the Central Government as well as to have a quarterly administrative r States' action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on". 3. In compliance with the same, the Screening Committees or Review Committees, by whatever name called, have been constitut 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: "(1) The Central Government and each State Government, shall whenever necessary, constitute one or more Review Committees for the purposes of this Act. (2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed. (3) A Chairperson of the Committee shall be a person, who is, or who has been, a Judge of a High Court, who shall be appointe Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall a Chairperson with the concurrence of the Chief Justice of the concerned High Court." 4. The constitutionality of POTA - 2002 was questioned before the Supreme Court in Writ Petition (C) No.389 of 2002 and the said case was tried along with other similar matters in PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION OF INDIA (2004 (1) CTC 241). But the challenge was repelled upholding the validity of the Act by explaining the object and intendment of the Act. The purport of Section 21 interpreted but the merits of each individual case was left to be decided by the Designated Court notified for that purpose. 5. A notification was issued by the Central Government, in exercise of the power conferred on it by Section 60 of POTA - 200 3 constituting a Review Committee effective from the said date and the said Review Committee consisted of two members viz., one former IAS Officer and another former IPS Officer, who were of the rank of Secretaries to Government of India and a Chairperson, who is the former Chief Justice of High Court of Punjab and Haryana. It is pertinent to mention that the Principal Act of POTA - 2002 contained only provisions in Sections 19, 40 and 46, relating to Review Committee. Under Section 19, the Review Committee is empowered to deal with, on application by the aggrieved person or organization, the correctness or otherwise of inclusion of terrorist organization in the Schedule by the Central Government acting under Section 18. Under Section 40, the competent authority, after passing order in the preceding Section, is obliged to submit a copy of the same to the Review Committee. The other power of the Review Committee under Section 46 is to validity or otherwise of the plea of interception of oral, electronic and wire communication by person/persons, who were susp terrorists or connected with the said activities. The functions of the Review Committee either under Section 19, 40 or 46 of the POTA are questions apart in this writ petition. 6. On 27.10.2003, an Ordinance (POTO - 2003) was promulgated inserting sub-Sections 4, 5, and 6 in main Section 60 of POTA - 2002, which read, "(4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-Section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly. (5) Any direction issued under sub-Section (4) - (i) by the Review Committee constituted by the Central Government shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government shall be binding on the State Government and the police officer investigating the offence. (6) Where the reviews under sub-Section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee con State Government under sub-Section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail". Acting upon the above incorporated sub-Sections, the Review Committee has issued show-cause notices dated 14.11.2003 to the State of Tamil Nadu relating to the cases instituted under POTA against M/s.Vaiko, R.R. Gopal alias Nakkiran, M. Ganesan, K. Azhagu Su Ilavarasan, M. Bhoominathan, P.S. Maniyan, S. Sivanthiyappan, K. Nagarajan, and A. Ganesh Murthy. The sum and substance of the show-cause notices is that complaints have been made that the above persons have been unduly prosecuted by drubbing them as terrorists under POTA and that the actions of the State Government have been called to be reviewed and consequentially, notice was being issued calling upon the State Government to file a reply. We feel it apt to extract the said material portion of the show-cause notice, whose contents are the same in all the cases and which reads thus: "Now, you are hereby required to show cause whether there is a fit case for proceeding against the abovenamed accused under POTA. Also take notice that you are required to cause appearance, through authorized representative, accompanied by the Investigating Officer/Pairavi Officer (duly conversant with the case), and produce the entire records of the Investigating Agency pertain to the case, inclusive of case diary/police diaries and such other material as ma registration of the FIR and to the grant of sanction for prosecution under POTA. The records and documents must be produced with four sets of copies and wherever they are in vernacular, accompanied by English translation thereof. The required material be produced in the office of the Review Committee at the address captioned above on or before 2nd December 2003." Preliminary objections were preferred by the writ petitioner questioning the jurisdiction of the Review Committee. Emphasis was laid on the pendency of the cases before the Designated Court and also the High Court and the Apex Court and that the proceedings by the Review Committee tend to interfere in the said judicial process and is an encroachment on the judicial power of the State. It was also the stand of the petitioner that after the registration of FIR, investigation into the crime alleged, and according of sanction under Section 50 of the Act and filing of the charge-sheet and taking cognizance of the same and framing of charges and when the case is at the part-heard stage after the examination of several prosecution witnesses, the Review Committee has got no jurisdiction to undo everything and then annul the proceedings, thus making them non est under law. The apprehensions of law and order problem in the event of the intervention of the Review Committee were also highlighted. However, the petitioner State Government reserved its right to file a detailed report subject to the outcome of the consideration of the preliminary objections. 7. The petitioner-State Government somehow felt that preliminary objections would not be considered by the Review Committee and then moved this Court by filing Writ Petition Nos.35749 and 35750 of 2003. The learned Additional Solicitor General, after getting instructions, reported before the learned single Judge that the Review Committee will decide the preliminary objection first and only thereafter, depending on the outcome, proceed further with merits of the complaints lodged before them. The learned single Judge recorded the statement of the learned Additional Solicitor General and disposed of the writ petitions on the basis of the above undertaking making it specific that all other contentions and issues raised are left open to be decided either by the Review Committee or later by the Appropriate Authority basing upon the findings of the Review Committee. 8. Pursuant to the said order, the Review Committee has heard on the preliminary objections raised by the petitioner. The objections raised by the petitioner were to the same effect that the Review Committee would not be entitled to sit in judgment over either the prosecuting agency's decision to prosecute, petitioner's sanction under Section 50 of the Act, investigation, the framing of the charges, negation of the plea of discharge of the accused by the Des that Review Committee cannot assume the role of judicial authority and impose its judgment either on the power exercised by the State Government or its officials or the proceedings of the Court and more so, after the Designated Court formed its prima facie opinion that there exists grounds for trying the accused by framing charges. A ground was also taken that even if the newly incorporated sub-sections in Section 60 are held to be valid, then they can be applied only to the proceedings initiated after the amendment and not to the instant cases which were already booked under pre-amended provisions and are in part-heard trial stage. The Review Committee heard these objections and by order dated 23.1.2004, repelled the same holding that it has got jurisdiction to review as to whether there exists element of terrorism in the accusation so as to attract POTA and that the p incorporated in POTA after amendment can be applied to the pending proceedings and that their decision will not amount to encroachment on the judicial power of the State. The Review Committee also expressed its view that being a Central Legislation, the Central Gove got powers to set up the Review Committee and Review Committee is not a parallel body to the judicial authority, but is only administrative authority to review the decision of the Executive Government. The Committee has referred to several decisions paragraph 46 of the order stating, 'The matter of withdrawal from prosecution involves administrative action by a functionary of the State Government. It is not precluded by any law merely on account of earlier grant of sanction for prosecution by the State. In the event of the Review Committee coming to a conclusion that there is no prima facie case for proceeding against the accused under POTA in a case which may be pending trail in court, suitable direction may be i nature of "revised opinion" as per the law laid down in R.M. TIWARI's case (referred supra) and the State of Tamil Nadu was not able to show anything to interdict review by the Committee and it would be wrong to construe the show cause notice as a process that interference with the course of justice and the hierarchy of courts would proceed with the matters brought before them unhindered by the course of administrative review." Then the Review Committee has indicated that the cases will be taken up on the basis of available material for further consideration after final hearing, w on 4th, 5th and 6th February, 2004 at New Delhi. W.P. Nos.1239 and 124 0 of 2004 are filed by the Government of Tamil Nadu to call for the records pertaining to the proceedings of the second respondent ending with the order dated 23.1.2004 and quash the same. 9. Mr. C.S. Vaidyanathan, learned senior counsel, appeared for the petitioner-State Government, while Mr. V.T. Gopalan, learned Additional Solicitor General, appeared for the first respondent Central Government, Mr.R.Shanmugasundaram, learned senior counsel, appeared for the third respondent in W.P. Nos.1238 and 1240 of 2004 i.e. Mr. R.R. Gopal alias Mr. Nakkiran Gopal and Mr. K. Chandru, learned senior counsel, appeared for Mr. Vaiko, the seventh respondent in W.P. No.1238 of 2004 and third respondent in W.P. No.1239 of 2004. 10. (a) It is contended by Mr. C.S. Vaidyanathan, learned senior counsel, on behalf of the petitioner-State Government that the provisions contained in sub-Sections 4 to 7 of Section 60 of POTA are unconstitutional as they encroach upon the judicial power of the State and as the investigation was already completed, charge sheet filed, offence taken cognizance of, charges framed and trial is in progress after rejecting the plea of discharge, the Review Committee cannot sit as a parallel judicial body and try to adjudicate regarding encroaching on the judicial power of the State, thus violating the constitutional scheme. It is also submitted that in any event, the above exercise, even if permissible under the Constitution, can be made in cases to be filed afresh and not to the pending proceedings like the instant one. (b) Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for the Union of India, has raised the preliminary objection on the maintainability of the writ petitions on the ground that the dispute raised is one triable by the Supreme Court under Article 131 of the Constitution of India and by reason of that, Arti inapplicable and that, in any event, the setting up of Review Committees like the instant one, is not alien to the statute de activities and the impugned statutory provisions are intra vires the Constitution. The learned Additional Solicitor General further submits that POTA, with its amendments, reflects the wisdom and will of the Parliament and is unassailable and the Courts are going into the question of the wisdom and will of the Parliament. It is further submitted that the amended provisions are applicable not only to the fresh proceedings initiated after the enactment amended provisions but also applicable to the pending proceedings like the present one. The learned Additional Solicitor General also submits that sub-Section (7) to Section 60 of POTA is akin to sub-Section (3) of Section 195 of Code of Criminal Procedure. (c) Mr. K. Chandru, learned senior counsel, appearing for the third respondent in W.P. No.1239 of 2004 and Mr. R. Shanmugasundaram, learned counsel, appearing for the third respondent in W.P. Nos.1238 and 1240 of 2004, support the argument of Mr. V.T. Gopal petitions are not maintainable. They further submit that the Review Committee has got jurisdiction to go into the validity of the proceedings under POTA. They submitted that the functions entrusted to the Review Committee do not encroach upon the judicial power of the State and until conclusion of the prosecution launched agains the harshness of the provisions of POTA and on the analogy of TADA, the constitutional validity of which was upheld, and basing on the judgments of Supreme Court, periodical reviews can always be made by the Review Committees set up and there is nothing wrong in the Review Committee appointed in the instant cases going into the applicability or otherwise of POTA to the accusations made in the instant case and more particularly in view of the judgment of the Supreme Court in the case of PEOPLES' UNION OF CIVIL LIBERTIES (supra). It is further submitted that the criminal case is deemed to be pending until judgment is delivered and mere framing of the charge and even progress in trial cannot stand in the way of withdrawing the proceedings and in this connection, cited Section 321 of Code of Criminal Procedure, which permits the withdrawal. 11. In view of the rival contentions, issues arising for consideration are: (i) Whether the Writ Petitions are maintainable in view of Article 1 31 of the Constitution of India? (ii) Whether the impugned statutory provisions are applicable to the pending proceedings? (iii) Whether the setting up of Review Committee results in encroachment of judicial power of the State? (iv) Whether the impugned order passed by the Review Committee rejecting the preliminary objections raised by the petitioner - State Government is sustainable? ISSUE (i) - ARTICLE 131 OF CONSTITUTION OF INDIA 12. (a) The contentions of M/s. V.T. Gopalan, K. Chandru and R. Shanmugasundaram, learned counsel appearing for the respondents, are that as the State Government is the writ petitioner challenging the provisions of POTA enacted by the Central Government and also the jurisdiction of the Review Committee set up by the Central Government, the lis is essentially between the State Government and the Central Government and the only remedy is to invoke the jurisdiction of the Supreme Court under Article 131 of Constitution of India invocation of power of judicial review of this Court under Article 226 of Constitution of India. In support of their argumen cited the judgment of the Supreme Court in STATE OF KARNATAKA v. UNION OF INDIA (1977) 4 SCC 608) and judgments rendered by a Full Bench of Punjab & Haryana High Court in STATE OF PUNJAB v. UNION OF INDIA ( AIR 1971 P & H 155) and a Division Bench judgment of the Gujarat High Court in BABUBHAI JASHBHAI PATEL v. UNION OF INDIA (AIR 1983 Guj. 1). Countering the above arguments, Mr. C.S. Vaidyanathan, senior counsel appearing for the petitioner - State Government has submitted that even though the petitioner - State Government has filed the writ petitions, they are only questioning the provisions of the Central Act in the context of the constitutional scheme and particularly on the question of encroaching the judicial powers of the