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HUMAN RIGHTS FEATURES (Voice of the Asia-Pacific Human Rights Network) E-mail: hrdc_online@hotmail.com <mailto: hrdc_online@hotmail.com Home Page: <http://www.hrdc.net/sahrdc/ HRF/106/04 Embargoed for 12 October 2004 The Reincarnation of POTA Unlawful Activities (Prevention) Amendment Ordinance is POTA's Second Coming The repeal of India's Prevention of Terrorism Act (POTA) brought with it proclamations from certain corners that a great triumph for civil liberties had been achieved in India. At first glance, this appears plausible. However, the ensuing promulgation of the Unlawful Activities (Prevention) Amendment Ordinance, 2004, which is designed to incorporate the essential provisions of POTA, should have by now served to extinguish any premature enthusiasm. The Ordinance gives lie to the loud pronouncements of the newly elected Central Government - explicitly reiterated in the Government's Common Minimum Programme (CMP) - that "given the abuse of POTA that has taken place, the UPA government will repeal it, while existing laws are enforced strictly." The gist of this is that no new laws would be necessary beyond the existing criminal laws. The Ordinance contradicts this. There are, without question, notable improvements in the Ordinance, and these must be commended. There are also sections that include verbatim provisions from the repealed POTA, provisions that were repeatedly misused under POTA and may equally continue to be misused under the Ordinance. And lastly, additional provisions have been included, which, rather than amend the deficiencies of POTA, only serve to further erode the rights of the accused. The Ordinance as it presently stands, before examination, revision and eventual adoption by Parliament, is certainly no triumph for civil liberties. Three Steps Forward. In certain areas, to the drafters' credit, the Ordinance is an improvement on POTA. Under POTA suspects could be detained for up to 180 days without charge. The Ordinance has done away with this provision to bring the period of allowable detention in line with Section 167(2)(a) of the Code of Criminal Procedure, which stipulates that all arrested persons have to be produced within 24 hours. Suspects are now also entitled to apply for bail, in accordance with the Code. This was only permissible under POTA after one year. The provisions under POTA had been the cause of egregious misuse by way of interrogations that amounted to torture, or cruel, inhuman or degrading treatment. Further, any confessions made under interrogation would be admissible as evidence in court. This combined to inadvertently (or otherwise) condone the use of torture, now a well-documented consequence of the use of POTA. Despite the reticence of the newly elected United Progressive Alliance (UPA) Government to signal a sincere commitment to abolishing torture in India by ratifying the United Nations Convention Against Torture (CAT), the repeal of the admissibility of confessions, in accordance with the Indian Evidence Act, is welcomed. The obligation to furnish any information to "any officer" under POTA has also been revoked. The reversal of the burden of proof to rest on the prosecution is equally significant. POTA had so reduced the credibility of India's criminal justice system that the fundamental principle of the presumption of innocence was inverted, so that 'adverse inference' could be drawn against the accused in the rendering of financial assistance or the refusal to provide samples, despite there being legitimate reasons for doing so. In reversing the burden of proof back to the prosecution, the Ordinance appears to restore a semblance of legitimacy to Indian criminal justice. However, the Ordinance has not yet fully restored the presumption of innocence. It provides that preclusion from prosecution on account of "membership" is only possible if the accused is able to prove "that the organisation was not declared as a terrorist organisation when he became a member or began to profess to be a member". The independence of the judiciary has also been restored with the disposal of POTA's Special Courts. Under POTA, the referral of the Special Court's jurisdiction to the central government was permitted, as well as the entitlement to conduct proceedings in any place of the Court's choosing. The reversion to established criminal procedure strengthens the prospects of due process and fair trial. Finally, the Ordinance has added clarifications to the wording of certain provisions. This includes the requirement that "intent to further the activity of a terrorist organisation" in the arrangement or addressing of meetings, or "intent to aid any terrorist" in the possession of unauthorised firearms, must be established. This mens rea component, omitted from all corresponding sections of POTA, is a prerequisite principle of criminal law. However, this necessary criminal intent has not been applied consistently throughout the Ordinance, as shall be shown below. POTA Revisited Turning to replications of POTA in the Ordinance, there are more instances of negative ad verbatim replication than positive. Centrally, the vague definition of terrorist acts taken from TADA to POTA remains. This was the primary cause of misapplication of both TADA and POTA, and there is no reason to suspect that the Ordinance will be any different. Under Section 15 of the Ordinance, as with POTA, the definition of a 'terrorist act' is so broad that ordinary cases of murder, robbery, and theft might be included. The concomitant failure to provide a definition of "abetment" of terrorist acts may likewise result in arbitrary entrapment. For the very fact that abetment should clearly be subject to prosecution, an express definition should be provided in the Ordinance. Likewise, no definition of the parameters of "membership" are divulged, and no criminal intent needs be proven for guilt to be established. This may result in imprisonment for life. The scheduled listing of a terrorist organisation as one that may be "involved in terrorism" remains devoid of any statutory procedure or requirements. The Ordinance maintains that the Central Government will "prescribe the procedure for admission and disposal of an application made under this section". Once listed, the onus lies on the organisation or any person affected to prove otherwise, with no knowledge of the basis of their being added to the Schedule. Under Section 3(2) of the Unlawful Activities (Prevention) Act, 1967, which refers to the banning of "unlawful" as opposed to "terrorist" organizations, specification of the grounds for notification must be given. There is no basis for not affording the same transparency under Section 26 of the Ordinance, accounting for limitations on the basis of national security, in order to safeguard potential violations of the right to free association. The preservation of official immunity for those involved in "any operations directed towards combating terrorism" is also regrettable. Such protections invite abuse, as such a high evidentiary bar makes it is practically impossible to prove that a police officer has acted without good faith in abusing the provisions of the Ordinance. The culture of impunity that this creates is not consistent with the values that the Ordinance is intended to uphold. And finally, the Ordinance maintains that whoever commits a terrorist act shall, "if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine". There is a growing consensus under international human rights law that "all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life". According to the Human Rights Committee, Article 6(2) of the International Covenant on Civil and Political Rights) "refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable". The repeal of the offending article from the Ordinance would signal a commitment to the progressive development of legal norms by the present government, who should be further encouraged to become party to the second optional protocol of the ICCPR. .Two Steps Back While certain aspects of the Ordinance attempt to correct the horrors of POTA, and some others prudently revert to the provisions of the CrPC, it is the third aspect, the diminishing of certain safeguards, on which the Ordinance must eventually be judged. The key feature of this regression is the Ordinance's permissibility of unlimited interceptions of communications. Though the police were previously authorised to tap phones under the Indian Telegraph Act 1885, under POTA, the police had to abide by specific safeguards to justify their encroachment on the privacy of the individual, including: the submission by a superintendent of an application detailing the facts to justify interception; the permission could be granted only by a specially appointed "competent authority", which in turn was required to submit this order to the Review Committee; an order of interception was strictly limited to sixty days; misuse carried with it a penalty of imprisonment for up to one year. The Ordinance has done away with these safeguards in their entirety, so that any interceptions collected, without any authorisation, shall be admissible as evidence. Thus the safeguards of POTA have been swiftly and inexplicably discarded. Where one worthwhile chapter of POTA existed, now two paragraphs remain. Such unregulated power has created an aperture for future misuse and may become a cause of serious violations of the right to privacy. Article 17 of the ICCPR also provides for the right of every person to be protected against arbitrary or unlawful interference with his/her privacy, family, home or correspondence. Rather than adopting legislative measures to prohibit such activity, the Indian legislature has fully sanctioned it. This amounts to a direct violation of Article 17, and is the Ordinance's most regrettable contribution to the catalogue of misfortunes that have resulted from hastily devised anti-terrorist legislation in India. While the Unlawful Activities (Prevention) Amendment Ordinance, 2004 does remedy many of the deficiencies that resulted in the gross misuse of POTA, it is clear that many of its antecedent's less sound provisions also remain intact. There are, therefore, substantial grounds for improvement. - Human Rights Features |
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| << October13, 2004 - [India Thinkers Net]video documentary by Dr. Parvez Hoodbhoy |
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