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Vajpayee Govt. in a fix over Terrorism Ordinance

	November 12, 2001

The Centre has made POTO a prestige issue in the context of the current global fight against terrorism. The Opposition, on the other hand, has voiced fears that there were more political designs than any real need for a special law to deal with terrorism and the target could be the minorities whose loyalties, are suspect. The fate of the ordinance hangs in balance as the government lacks majority in the Rajya Sabha. It is only if the Congress lends backing, the NDA could breathe easy. But till now, the party has shown no indication that it will bail out the government over POTO. The so-called safeguards that the government has touted through Law Minister Arun Jaitley and senior BJP leaders have not carried conviction with the Congress, the Left combine and the regional parties like the Samajwadi Party and the Rashtriya Janata Dal. The BJP leaders have taken the stand that opposing POTO would be helping the terrorists. The Amritsar meet of the BJP National Executive gave a clear indication that the party planned to exploit the issue of terrorism as a poll issue. Party strategists feel that if POTO fails it could launch an attack on the Opposition for encouraging terrorism and if the ordinance becomes law, it will be a feather in the cap for the BJP. It is this “win-win” situation that has resulted in POTO becoming a touch-stone for the BJP-led NDA.

Under attack from Opposition parties for his remarks made in Amritsar about their stand on POTO, Home Minister L K Advani too spoke of consensus on the proposed law but maintained that those opposing it would make terrorists “happy”. “No terrorist organisation will like POTO. Those who ensure its defeat in Parliament should realise that, wittingly or unwittingly, they will only make the terrorists “happy”, Advani argued. Similar remarks by Advani at the National Executive of the BJP in Amritsar came under fire from the Opposition parties, including the Congress which dubbed the Home Minister’s utterances as “fanatical”. In an apparent softening of stand, Advani said he would convene a meeting of the Consultative Committee attached to Home Ministry on November 23 in a bid to work out a consensus on POTO. The Ordinance is likely to be brought up in the second or third week of Parliament’s Winter Session which begins on November 19.

At a meeting of the Home Ministry’s Consultative Committee, many Opposition members demanded that POTO be taken up for discussion by them. Saying every person had the right to say that a particular portion of the ordinance was not correct, Advani assured them that Parliament or political parties would be willing to change it, if it was necessary. Advani insisted that POTO had given additional teeth to the security forces fighting terrorism. ‘’There is a provision in POTO that if the security agencies act in good faith, it will be a bona fide act,’’ he held. Advani explained at length that the lack of this provision had led to scores of human rights violation cases being slapped on those police officials in Punjab who had taken the lead in fighting militancy in the state during the eighties.

The Consultative Committee concentrated mainly on the situation in Jammu and Kashmir in the aftermath of the September 11 terrorist strikes in the US, the influx of Hindu refugees from Bangladesh and the reported mushrooming of ‘madrasas’ in the border areas of UP and Bihar. On the issue of restoration of autonomy in J&K, Advani told the committee that there was ‘’no question of setting the clock back...However, the Government is always prepared to consider further devolution of powers to the states in general, including J&K.’ The Home Ministry was monitoring the influx of refugees from Bangladesh and that the matter was recently taken up by the Prime Minister’s Principal Secretary with the Bangladesh Government.

A few members of the committee did accuse the ‘madrasas’ of ‘’doubtful activities’’ but not everybody agreed. It was felt that ‘’madrasas as a whole should not be condemned and their activities should be brought more into the mainstream.’’ Hitting out at Pakistan, Advani held that the dynamics of the post-September 11 incidents would ensure that all those countries using terrorism as an instrument of state policy did not find their task so easy now.

Meanwhile, Congress leader Ghulam Nabi Azad and CPI(M)’s Somnath Chatterjee have registered their protests against Advani’s remarks on POTO in writing at the Consultative Committee meeting. Lashing out at the Home Minister for the statement that all those who oppose the ordinance will be helping terrorists, the Opposition members said, ‘’these do not suit the country’s Home Minister.’’

Another meeting of the consultative committee is scheduled for the first week of the Parliament session beginning November 19. It will discuss the contentious ordinance at length. Advani said later that he would ask the Parliamentary Affairs Minister to place the Ordinance in Parliament in the second or third week of its winter session.

According to the Home Ministry, the government is fully prepared to hold discussions on POTO anytime and has no objection or reservation to sharing its views with the Opposition even when Parliament is in session.



Congress weak spots identified

In its campaign to push the anti-terrorism ordinance forward and the Opposition to the wall, the Centre has identified two weak spots in the Congress party: its Governments in Maharashtra and Karnataka. Ever since its formation two years ago, the Vilasrao Deshmukh Government has been extensively using an anti-terrorist law, Maharashtra Control of Organised Crime Act 1999 (MOCA), enacted by its predecessor Shiv Sena-BJP regime. And the S M Krishna Government is awaiting Presidential assent to a very similar anti-terrorist legislation piloted by it, Karnataka Control of Organised Crime (KCOC) Bill.

Though POTO has opened up scope to harass journalists, ban organisations without judicial supervision and seize properties from anybody, the provisions of MOCA and the KCOC Bill are in other aspects as stringent as POTO-or even worse.

Intercepting communication : POTO seems to have lifted all these provisions from the Maharashtra law and the Karnataka bill. POTO not only prescribes a similar procedure for effecting interceptions but it also uses the same terminology. For instance, a senior bureaucrat at the Centre or any state Government empowered to authorise wiretapping under POTO is called the Competent Authority, the very designation coined by MOCA. Further, like its state counterparts, POTO allows even a senior police officer to authorise interceptions in ‘’an emergency situation.’’

Review Committee: POTO is an improvement on MOCA and the KCOC Bill in terms of providing a relatively more independent review of the actions taken under the anti-terrorist law. The chairman and members of the Review Committee appointed under MOCA and the KCOC Bill are all Government officers. The executive members dominate the Review Committee envisaged by POTO as well. But the chairman of that body is required to be a High Court judge, serving or retired.

Draconian pre-conditions for bail : MOCA and the KCOC Bill have retained the worst of TADA’s provisions relating to bail. They forbid the court to grant bail to the accused unless it is ‘’satisfied’’ that ‘’there are reasonable grounds for believing that he is not guilty of such offence’’ and, what is even more difficult, ‘’that he is not likely to commit any offence while on bail.’’ POTO made an improvement on TADA by deleting the latter condition. This allows the Centre to claim that POTO has relatively more liberal bail provisions than its Maharashtra and Karnataka counterparts.

Confessions : MOCA and POTO contain this provision of TADA vintage. But MOCA seems to offer more scope for police abuse because a confession under it can be used against not only the accused person but also any ‘’co-accused, abettor or conspirator.’’

What also puts the Congress in a spot is that its state government echoes what the Centre has been saying, that ‘’existing penal laws and the adjudicatory system;; are not adequate to ‘’curb or control the menace of organised crime.’’ The Karnataka Bill defines organised crime in terms of a broad sweep of activity including insurgency but then does not define what constitutes an act of insurgency.



Significance of AIADMK support : Allies raise eyebrows

Meanwhile, in the midst of strident criticism from almost all sections of the non-BJP spectrum, the Vajpayee government’s bid to push through the Prevention of Terrorism Ordinance has received support from unexpected quarters: AIADMK chief J. Jayalalithaa.a

She said the stringent anti-terrorism legislation was not only essential but also inevitable. However, she said the Centre should evolve consensus on POTO before going ahead with its enactment to get wider acceptability.

Her support for POTO comes at a time when the AIADMK’s rival and key NDA partner of the ruling National Democratic Alliance, the DMK, had flatly opposed the ordinance and other BJP allies, including the Telugu Desam, had voiced reservations. The apparent backing for the Centre from Jayalalithaa, who has had a running battle with it, has raised eyebrows in political circles. Jayalalithaa’s support to the Vajpayee Government on POTO is also significant in the context of some strains developing between the DMK and the BJP during municipal elections in Tamil Nadu. Karunanidhi had recently criticised the Vajpayee government, though in an oblique manner, for failing to take action against the AIADMK government following his arrest and the subsequent police “excesses” against DMK rallyists.

Vajpayee was in Chennai last month to attend the wedding of BJP chief Jana Krishnamurthy’s son but avoided meeting the DMK chief. Jayalalithaa’s support to POTO should serve the Centre well in exploiting chinks in the Opposition’s resolve to fight POTO. Already the Congress, which took the lead in opposing it, is now grappling with contradictions in its stand with three states ruled by it bringing in POTO-like laws to combat organised crime and terrorism.