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On 26 March 2002, the controversial
anti-terror law, the Prevention of Terrorism Act (POTA) was passed with
425 votes for the Act and 296 against, after a 10-hour debate in the
parliament. The intensity of the effects of the bill could be seen very
clearly by the rejection of the bill by the upper house of the Indian
Parliament leading to a Joint Session of Parliament, a measure that had
taken place only the third time in the past. The Indian Ministry of Home
Affairs justified the initial Ordinance after the September 11,2001
terror attacks by claiming an upsurge of terrorist activities,
intensification of cross border terrorism, and insurgent groups in
different parts of the country, despite the fact that the state of Jammu
and Kashmir witnessed a decrease in the terrorist incidents taking place
in that state.
POTA, though now has been repealed,
lives as an example showing the bold step taken by India in its fight
against terrorism. The POTA had during its days and even after its
downfall, has made India a silent spectator to serous ongoing debates
between political parties, the media, social activists and NGOs on
certain provisions seen to be draconian, within POTA.
Two years from the enactment of the
POTA, a number of issues as to the possibilities of misuse of the
provisions of the anti terror law including the targeting of minorities
and using it against political opponents had arisen. In Gujarat, all
except one of the POTA detainees are from the Muslim minority and in
Tamil Nadu and UP too the ostensible anti-terror law has been abused to
book, without lucidity and accountability, political opponents and
underprivileged communities respectively.
A decade long experience with a
previous national anti-terror law, the infamous Terrorist and Disruptive
Activities Prevention (TADA) that was in force between 1985-1995 gives
legitimacy to the fear that the misuse of such laws evoke among human
rights activists, political dissenters and minorities. Under the TADA,
the conviction rate was less than 1%, despite the fact that the
confessions made to the police, even though being given under torture,
were admissible as evidence.
The developments after the enactment
of the POTA, including the responses received by the POTA review
committee show that the POTA is worse then TADA. POTA provides for
criminal liability for mere association or communication with suspected
terrorists without the possession of criminal intent (Section 3(5) of
the POTA). Section 4 of POTA is similar to Section 5 of TADA in laying
out a legal presumption that if a person is found in unauthorized
possession of arms in a notified area, he/she is automatically linked
with terrorist activity. Section 48(2) provides for the option of
pre-trial police detention for up to 180 days. As under the TADA, where
98% of the cases never reached the trial stage, this Section 48(2) could
also be misused by the police by keeping an accused for long periods of
detention without charge or trial. Special courts for trials are
established under POTA which are given the discretion to hold trials in
non-public places, like prisons, and to withhold ! trial records from
public scrutiny, thus preventing the independent monitoring of special
court sessions. Section 32 provides that confessions made to police
officers are to be admissible in trial, which has increased the
possibility of coercion and torture in securing confessions.
The provisions contained under the
POTA were mostly contained in existing laws, except those, which were
contained in the Criminal Procedure Code, the Indian Penal Code, the
Evidence Act or the Constitution of India. The Act effectively
undermines the fundamental tenet of the criminal justice system by
putting the burden of proof on the accused. But the Act also had some
provisions, which were not attacked for being against human rights.
These provisions stated that Confessions must be recorded within 48
hours before a magistrate, who will send the accused for a medical
examination if there is a complaint
of torture. Further a legal representative of the accused can be present
for part of the interrogation. Moreover police officers can be
prosecuted for abusing their authority. The POTA also provided that
victims could be paid compensation.
But these provisions could not act
as an effective shield to protect the Act from the criticism it received
for its other provisions abusing human rights. Those opposed to POTA had
argued that existing laws were sufficient to deal with terrorism. Within
a year POTA had already built up a dubious record and in some states it
was already dreaded as its predecessor. State governments, including
opposition-ruled ones, had not hesitated to use POTA to fix political
opponents.
At the Peoples Tribunal on POTA and Other Security Legislation at the
Press Club in New Delhi on July 16,2004 a 629-page report based on
depositions made before the Tribunal by victims and their families from
ten states in India, as well as expert depositions by lawyers and
activists, showed that such security legislations grant sweeping powers
to authorities, which has led to misuse of these powers and severe
restriction of basic rights. At the same time, such legislations do not
address the political, social and economic roots of the problem.
The tribunal concluded that the review of victim and expert testimony
showed that the misuse of the Act is inseparable from its normal use.
The tribunal stated that the statute meant to terrorise not so much the
terrorists as ordinary civiliansand particularly the poor and
disadvantaged such as dalits, religious minorities, adivasis, and
working people. Thus the tribunal recommended that POTA be repealed and
that too in such a manner that the POTA charges are deleted from all
existing investigations and trials. But, if the state so desires, these
may continue under other laws and charges.
Finally on September 17, 2004 the Union Cabinet in keeping with the UPA
government's Common Minimum Programme, approved ordinances to repeal the
controversial Prevention of Terrorism Act, 2002 (POTA) and amend the
Unlawful Activities (Prevention) Act, 1967. Home Minister Shivraj Patil
said that the government would provide a sunset period of one year
during which all cases pertaining to POTA would be reviewed by the
Central POTA Review Committee. He added, There would be no arrests made
after the ordinance is promulgated. To fill the lacuna that have been
created due to the repeal of the Act, adequate amendments were being
brought to the Unlawful Activities (Prevention) Act, 1967 to define a
terrorist act and provide for banning of terrorist organisations and
their support systems, including funding of terrorism, attachment and
forfeiture of proceeds of terrorism, etc. All terrorist organisations
banned under POTA would continue to remain banned, under the Unlawful
Activities Act, after the repeal of the Act. Some of the clauses
contained in POTA, which will be completely dropped in the amended
Unlawful Activities Act, are: the onus on the accused to prove his
innocence, compulsory denial of bail to accused and admission as
evidence in the court of law the confession made by the accused before
the police officer.
The BJP government has slammed the Cabinet decision to repeal POTA as
politically motivated and compromising of the essentials of national
security. BJP spokesperson and former Law Minister Arun Jaitley said if
the amendments brought out under the existing laws after the repeal of
POTA are found to be inadequate, the BJP-ruled states would be asked to
come out with their own legislations filling up the lacuna. But till
such a step is taken many innocent victims of the POTA can take a sign
of relief and thank their stars that the reign of terror under the
stringent anti terror law POTA has come to an end.
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