The Supreme Court on Tuesday started the hearing for examining the constitutional validity of a POTA provision that binds courts to abide by the Review Committee's findings on the applicability of the anti-terror law, which is now defunct.
A three-judge Bench headed by Chief Justice K G Balakrishnan will scrutinise the validity of sub section (3) of section 2 of POTA through which an amendment was brought about in section 60 of the Act.
The amendment makes it mandatory that the findings of the POTA Review Committee will be binding on the courts whether it had taken cognizance of the offence or not in cases pending before it.
The apex court is hearing an appeal against the verdict of the Gujarat High Court, which had observed that the purpose of enacting the repealed Act, with added power to Review Committee, was politically-motivated and decisions taken by it were administrative in nature and could not do away with the working of the judicial system.
The matter was referred to the Chief Justice of India by a Division Bench last February on the ground that it involved important legal issues.
The division bench had also given liberty to the 90 accused of the Godhra train fire tragedy to apply for bail. The Central POTA Review Committee has held that case could not be made out against the accused under the repealed anti-terror law.
Opening the arguments, senior advocate Colin Gonsalves submitted that all the accused have been in jail for more than five years and the apex court has stayed the trial of the case.
The accused have sought bail contending that since the Review Committee has given its finding that they cannot be prosecuted under POTA, they were entitled to be released.
However, the bench was informed that the Public Prosecutor, who had to file an application on the basis of the findings of the Review Committee for withdrawal of POTA offences against the accused, has argued otherwise and favoured retaining the charges under the anti-terror law.
It was informed that it was mandatory for the public prosecutor to file an application for withdrawal in the face of the findings of the Review Committee.
The Gujarat government had earlier said the repealed Act seeks to encroach on the judicial powers of the Court as once the Review Committee holds that a case was not made out, it takes away the authority of the public prosecutor and the court.
It had also submitted that though the Review Committee was headed by a retired High Court judge, it cannot be treated at par with judiciary and it cannot supersede the powers of public prosecutor provided under section 321 of the Code of Criminal Procedure.
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