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POTA to get burial

	August 16, 2004

The Union government has decided to repeal POTA (Prevention of Terrorism Act). The Act has long been criticised by human rights activists for its draconian nature.

The Indian Constitution considers law and order as state subject, but also leaves all residual powers in the hands of the Central Government. It is under the provision of residual powers that the Centre enacts such laws. Prior to the POTA, there was TADA and MISA (Maintenance of Internal Security Act) that were considered equally draconian.

The Prevention of Terrorism Ordinance of 24th Oct, 2001, became an Act after it was passed by the joint session of the two Houses of Parliament on March 26, 2002. The passage of the Prevention of Terrorism Bill by the Lok Sabha was not that smooth and it was defeated in the Rajya Sabha. Subsequently, the rarely used constitutional provision to call a joint session of the two Houses was invoked to pass the legislation by a simple majority.

There has been a debate for some time on why the repealing of the Act has been sought and why rights activists have been against it. The larger question is does India really need such an Act.

Such questions have been posed by the POTA critics ever since it came into force. According to its official definition, it is an Act to make provisions for the prevention of, and for dealing with, terrorist activities and for matters connected therewith. The then Home Minister L.K.Advani said it was an instrument to fight the war on state sponsored terrorism. Many states face the problem of terrorism. Nearly 54,000 civilians have been killed by terrorists in the past 15 years, while an average 950 foreign terrorists, a majority of them Pakistani nationals, are killed by Indian security forces every year since 1999.

Supporters of the Act argue that it aims to check those terrorist activities that occur within the country. Terrorism as defined under POTA includes acts committed with any lethal weapon and offenses include inviting support for a terrorist organization, addressing a gathering of terrorist sympathizers and assisting in arranging a meeting where support is expressed for a terrorist organization or its activities. Critics argue that laws like Disturbed Areas Act, Army Special Powers Act and many other penal laws are in existence to maintain the security of the State. According to them, India does not need a POTA to maintain law and order situation and tackle the terrorism issue.

The characteristics of the Act have been called draconian. The Act says that the properties of terrorist organizations and their sympathizers shall be seized. Moreover the suspects can be detained for three months without charges being brought against them; and for three more months if allowed by a special judge. A police officer can ask the court to order samples of handwriting, fingerprints, footprints, blood, saliva, semen and to not give samples will be considered against the accused in trial and confessions made to a police officer under certain conditions are admissible.

It has been always felt that the main purpose of the Act was to provide legal cover for arbitrary actions of the government of the day for reasons of political expediency. As POTA does not talk about the type of terrorism it would deal, there were instances where it has been misused. There are different kinds of terrorism: regional, race, religion, oppressed caste, creed, colour, poverty, economic depression, cross-caste battling etc. Some observers believe that the NDA exercised it to suppress the minorities in the name of terrorism.

Thousands of tribals from Jharkhand and Chhattisgarh, Muslims from Gujarat and Jammu and Kashmir and landless peasants from Maharashtra, Andhra Pradesh and elsewhere have been implicated under this law. Though the BJP-led NDA time and again claimed that it brought this law to deal with some dreaded terrorists from out side the country, it used POTA mainly against MCCI, CPI (ML) (Peoples War), CPI (ML) Jana Shakti and Muslim minorities.

Indeed, POTA has been misused time and again to get rid of political rivals by the ruling governments. Prominent examples are the arrest of MDMK general secretary, Vaiko and independent Uttar Pradesh MLA, Raja Bhaiya by Tamil Nadu Chief minister Jayalalitha and former UP Chief Minister Mayawati respectively under the Act. The political motives of Jayalalithaa or Mayawati in putting their electoral rivals behind bars were clear.

Logically, the Act should have been used more often by the Jammu and Kashmir government where terrorism is at its height, than any other states but ironically it has not happened. The BJP claims that non-BJP Governments led by Ms Jayalalithaa and Ms Mayawati should be blamed and not the law itself. “If misuse of the law was a criterion for its repeal, then the Indian Penal Code (IPC) should first be repealed. It is misused every day in police stations across the country. Should the IPC, therefore, be repealed”, BJP leader Arun Jaitley asks.

The supporters of the POTA have always argued that there were safeguards in the Act and there were provisions to ensure protection for the innocent. The Act says that the investigation of an accused can be done only by a Deputy Superintendent of Police or higher and confessions made to the police must be recorded within 48 hours before a magistrate, who will send the accused for a medical examination if there is complaint of torture. A legal representative of the accused can be present for part, but not all, of the interrogation and police officers can be prosecuted for abusing their authority and compensation can be paid to the victims.



Opposition by BJP

The BJP has expressed its opposition to the proposed repeal of the POTA by the United Progressive Alliance Government and said the minimum the Government should do is to send the proposal to the relevant parliamentary standing committee for examination. The BJP vice-president and spokesperson, Mukhtar Abbas Naqvi, said the party would oppose “inside and outside Parliament” the move to repeal POTA.

The former Law Minister and BJP general-secretary Arun Jaitley has listed seven reasons why the anti-terrorist law should not be repealed. First, POTA was the only law, which defined terrorism. If a terrorist act is not defined under the law, then how would the prosecution make its case against a militant. Second, there was a provision to trace the source funding for terrorist groups. It was designed to cut the lifeline of militants who would not be able to make logistical arrangement and procure arms without having a perpetual source of funding. Third, was to deal with ‘proceeds’ of terrorism. No other law mentioned it. Security agencies over the period had felt helpless in booking those who had benefited from “proceeds of terrorism”. The law enforcing agencies were empowered to seize such property and book the accused.

Fourth, the communication intercepts were admissible under the law in POTA. The antiquated Indian Evidence Act did not consider intercepts as evidence in the court of law nor did it empower the security agencies to intercept communication channels of a suspect. The anti-terrorist law gave huge teeth to the investigative agencies to prosecute an accused. Fifth, the confessions of an accused before the designated police officer was admissible in the court. The other laws in the country had no such provisions. It were because of such provisions that masterminds of attack on Parliament were convicted in a record period of one year. It was under the provisions of TADA that assassins of former Prime Minister Rajiv Gandhi were convicted. Sixth, even as there was a provision of review it was not easy for an accused to get bail, if booked under POTA. Seventh, the law empowered the Government to ban militant outfits and over 25 groups had so far been banned under the law, Jaitley said. The Unlawful Activities Act does not have same teeth.

The government is not only under pressure by the Opposition, the security forces and intelligence agencies also want to accommodate stringent provisions of POTA in the laws that the UPA govt would enact to replace POTA.

The UPA govt is believed to be under pressure from its allies to do away the Act. The BJP has criticised the Congress for ignoring the security of the country for just keeping its UPA govt in power. It is fine if the government allows its allies to dictate its politics. But they should not be allowed to interfere in the government’s job of handling national security, Arun Jaitley has emphasised.

The CPI has welcomed the Centre’s decision. The party said, “While making clear that there will be no compromise in the fight against terrorism, the UPA through CMP, had promised to repeal POTA and enforce existing laws strictly.”

The government obviously has to do a tough balancing act as it cannot ignore either the concerns of the security forces or that of the allies who believe that the only use of POTA can be its misuse. Union Home Minister Shivraj Patil, on the other hand, has indicated the government would not ‘leave things in vacuum’ and amend the existing laws to tackle terrorism. Patil pointed out the government has taken a ‘decision in principle’ to repeal POTA and asserted that the intention with which the anti-terrorism law was enacted was not achieved. The UPA Government’s view is that an amendment to the Unlawful Activities (Prevention) Act, which it proposes to enact, would take care of the internal security considerations, including funding of terrorist organisations.

In the event of the government deciding to repackage POTA, it will only be creating another point of friction within the ruling alliance. The government’s task is not easy since POTA was enacted as part of the global efforts to prevent money laundering and financing of terrorism. Besides, it fulfilled India’s obligations on complying with the United Nations Security Council Resolution 1373.