August 04, 2020
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Vicarious Pursuits

The Vaiko episode in the SC may bust POTA clause, shake up political alignments

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Vicarious Pursuits
R. S. Kumar
Vicarious Pursuits
"If a child stabs the mother with a kitchen knife, the father will disarm the child."
—M. Karunanidhi on the use of POTA against Vaiko

The DMK chief had expected some fatherly intervention from the Centre. It came, but not before giving the southern NDA allies some anxious moments. Even as Karunanidhi was demanding the release of his "brother"—former party colleague and MDMK chief Vaiko—at a day-long fast in Chennai on March 29, the Union government did the unexpected. It submitted an affidavit in the Supreme Court stating that Vaiko's speech at a public meeting near Madurai in June last year did indeed constitute an "act of terrorism" under Section 21 of the Prevention of Terrorism Act (POTA).

Later, of course, realising the faux pas, it did a turnaround. The Centre retracted its original statement and filed an additional affidavit. In it was the official clarification—that Vaiko's speech did not attract any provisions of POTA. A red-faced attorney general, Soli Sorabjee, blamed his juniors for the gaffe, claiming that a few sentences had crept in due to "misapprehensions at the junior level". In the fresh two-page affidavit, the Centre explained its position, stating that "if properly interpreted and read in the entire context of the speech and the surrounding circumstances, the speech does not attract Section 21 of POTA".

Section 21 provides for 10 years imprisonment if a person "supports or addresses a meeting encouraging support for a terrorist organisation". Even an expression of moral support is seen as an offence. The POTA provision has come in for much objection from rights activists as well as NDA leaders like George Fernandes. Even Union law minister Arun Jaitley expressed his reservations when he recently met Tamil Nadu MPs.

The significance of the government's admission in court cannot be understated. Constitutional lawyers say it amounts to saying it is not seditious to support a separatist cause or make speeches espousing it. Thus, it virtually takes the teeth out of Section 21 of POTA under which Vaiko has been charged. According to law ministry officials, the government may even consider scrapping or modifying Section 21 should the MDMK leader be released.

Should this happen, then other pro-Eelam leaders like Nedumaran and his associates in Tamil Nadu as well as SIMI activists in UP (booked under the same section of POTA) may also have to be released. Government counsel A.D.N. Rao admitted as much to Outlook, "If the SC upholds the government's position, those charged under this section may also be released." With cases of POTA misuse already being reviewed by a three-member review panel set up by deputy PM L.K. Advani, changes in the Act are on the cards.

But why did the Centre decide to bail out Vaiko almost a year after he was arrested? Initially, it maintained a safe distance from the case so as to keep AIADMK supremo Jayalalitha happy. It was the TN government, after all, that arrested Vaiko. The Centre maintained that law and order is a state subject. But in the entire episode, New Delhi failed to factor in Karunanidhi's aggressive opposition. Slowly but effectively, the DMK leader rallied Opposition parties to take up Vaiko's cause.

The BJP leadership, not wanting to appear indifferent to an ally with general elections a year away, finally promised to help Vaiko. While there were demands from various quarters for his release, it was Karunanidhi's statement last fortnight that did the trick: "We will not rest till all those detained under POTA are released. I am ready to go to jail for the release of Vaiko. Let Jayalalitha not ignore the upsurge of the Tamils and let the government act before such a situation arises." The DMK chief, who's been involved in an 18-month war of words with the BJP state unit, even declared that the NDA in Tamil Nadu was virtually non-existent.

Very clearly, the Vaiko issue has enabled Karunanidhi to enlist the support of not just parties like the PMK, but also Left parties in the anti-POTA agitation. The BJP would not have been happy with the prospect of the DMK, MDMK and pmk walking out over Vaiko's continued detention. This forced it to change its affidavit. But the DMK and MDMK are certainly not happy with the double game the BJP played.

The Union government's first SC affidavit came as a shock to the MDMK leader. When the news was conveyed to Vaiko at Vellore prison by DMK general secretary K. Anbazhagan, he wanted to immediately quit the NDA. The MDMK had even passed a resolution earlier to this effect at a presidium meeting, but didn't act on it. It was Karunanidhi who cautioned Vaiko against any hasty decision, preferring instead that the collective displeasure of the NDA partners in the state be made known. Having maintained all along that the DMK was not against POTA as such but only against its misuse, Karunanidhi now changed tack and demanded its repeal.

The MDMK chief's case came up after he filed a petition in the SC on January 13 challenging Section 21 of POTA. His contention was that its scope was very wide, "affecting the right to freedom of speech and expression guaranteed under Article 19 of the Constitution". Along with Vaiko's petition, the apex court is also hearing another petition filed by the People's Union of Civil Liberties (PUCL) questioning the constitutionality of POTA. Understandably, then, the Centre's initial affidavit responding to Vaiko's petition came as a shock to not just the MDMK, which has two ministers at the Centre, but also to all key NDA players in Tamil Nadu.

Ironically, it was the Karunanidhi-led government that had introduced a POTA-like legislation in the state in 1998. Since the then president, K.R. Narayanan, had refused to give his assent, Karunanidhi's version of the 'kitchen knife' was blunted before birth. In the current context, realpolitik has necessitated a different course of action. The MDMK has been moving closer to the DMK and there's also been talk of a merger if Vaiko is set free by the SC. The two parties are witnessing an unforeseen bonhomie. Earlier, in December last, Karunanidhi visited his "younger brother" in prison, and affixed the first among the 1.1 crore signatures that were collected by the MDMK in a petition seeking Vaiko's release which was sent to the president and prime minister.

The MDMK, which drew a blank in the last assembly polls going it alone, realises that without allying with the DMK or some broader alliance it stands no chance. The DMK too paid the price for letting the MDMK eat into its vote-share. Karunanidhi's passionate defence of Vaiko—though heir apparent M.K. Stalin is not comfortable with the MDMK chief—shows that the DMK is putting state-level alliance politics above personalities. In fact, even Stalin participated in a protest fast in Kanchipuram for Vaiko's release.

If the SC accepts the Centre's fresh affidavit, and should Vaiko be released, it would give some clarity to alliance politics in Tamil Nadu in the coming months. The BJP has already proved it would stick with an NDA ally only when it is pushed. And now that it has gone against Jayalalitha's interpretation of POTA, a future alliance will be only on her terms. Otherwise, it's back to the DMK for the BJP.

S. Anand In Chennai And Murali Krishnan in Delhi
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