Munnabhai's jinx

Last week, Sanjay Dutt arrived at the special Tada court in Mumbai in a cheerful mood but left uncertain about when his verdict will be out. For yet another peculiar legal twist - and there have been many in this case - has now put his fate in jeopardy. The jinx just refuses to break.
Dutt's lawyer Farhana Shah, who also represents 79 other accused in the case, informed the court that certain observations by a Supreme Court judge pertaining to a different Tada case were relevant to the special Tada court proceedings as well. The observations were made by Supreme Court Justice Markandeya Katju on the constitutional validity of Terrorist and Disruptive Activities (Prevention) Act (Tada) on May 18. Interestingly, the same day, Judge Pramod Kode sentenced the first of the 100 convicted in the serial blasts case.
Relying on Justice Katju's observations, Shah said that the Tada was repealed on May 24, 1995, and hence from May 25, onwards its provisions automatically ceased to be applicable. Justice Katju had observed, "In my opinion, the provision that legal proceedings can be instituted or continued even after the act has expired is clearly violative of Article 14 of Constitution of India."

Article 14 of the constitution ensures equality for all under the law.
Though Justice Katju said he was merely giving his 'opinion', and refrained from giving any directive to the lower courts, he further made remarks which could be interpreted as a 'directive' from the judge. Justice Katju said, "As regards those who have already undergone the entire sentence for which they were convicted under Tada, obviously nothing can be done but regarding those who have undergone only part of the sentence or regarding those who are facing prosecution or investigation under Tada, such prosecution or investigation are liable to be quashed in view of the opinion expressed above."

Justice Katju also said, "Since this point has not been raised in the appeal (the specific Tada case he was hearing) I am not giving any final opinion in the matter but the point, to my mind, is of such a vital and wide constitutional importance that I thought it fit to express my opinion on the same, so that this opinion can be considered in other cases where prosecution under Tada are going on or where convictions have been made in relation to the offences under Section 3 alleged to have been committed before May 25, 1995."

Latching on to these observations, the panel of defence lawyers argued that since the special Tada court was currently sentencing the convicted accused, these remarks amounted to a 'directive' from the court and hence Judge Pramod Kode should refer the matter to the Supreme Court or the Bombay High Court to decide. The prosecution opposed this and argued that these remarks were not the 'final opinion' and any 'passing' remark passed by a Supreme Court was not legally binding on lower courts unless it is a specific directive.

On Monday, Judge Kode is likely to give his verdict on this issue. If he rejects the defence arguments, the sentencing process could restart. If he decides to refer the matter to either the Supreme Court or the high court, it means that the sentencing process in the serial blasts case could be stalled for several weeks until that plea is decided.

Sanjay Dutt and his three friends have nothing to do with this legal issue since they have been acquitted under Tada and convicted only for possession of firearms under the Arms Act. But with a question mark on the existence of the Special Tada Court, unless the thorny issue is sorted out, Dutt's verdict cannot happen, say legal sources.

Dutt and his Bollywood producers have no option but to wait patiently.