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Throw POTA out http://www.hindu.com/2003/10/28/stories/2003102800961000.htm THE SHORT AND benighted history of the Prevention of Terrorism Ordinance (2001) and Act (2002) has made some things clear. Adopted under cover of re-empowering the state to combat terrorism post- September 11, this extraordinary law was bad in motivation, conception, and detail. As for motivation, it was introduced in the full knowledge that its predecessor, the Terrorist and Disruptive Activities (Prevention) Act, had done enormous damage to the lives and happiness of thousands of innocent people (to judge by the worse than 2 per cent conviction rate between 1987 and 1995, the period TADA was in force). Notwithstanding the National Law Commission's extensive preparatory work that paved the way for this law, it was always clear that, like its predecessor, POTA would strike at the root of the fundamental "Right to Freedom" guaranteed by the Constitution under Articles 19, 20, 21 and 22. Its adoption spoke to an authoritarian mindset that considered civil liberties dispensable. The crafting of the law, specifically the broadening of the definition of `terrorist act', was permissive towards a political tendency to view such laws as a legitimate resource available for use against certain categories of political opponents. It necessarily follows that the only use of POTA can be its misuse, as this newspaper pointed out recently in an editorial. There is no official disclosure of the number of persons arrested in various States under POTA, but press reports suggest it is over 500 (with more than 300 cases registered against more than 1600 persons). The good news is that as many as 15 States and six Union Territories do not seem to have arrested anyone under the Act. However, Jharkhand, which tops the list with more than 180 arrests, inclusive of schoolchildren, in the name of fighting Naxalites; Jammu and Kashmir; Andhra Pradesh; Gujarat and Maharashtra, which have targeted Muslims; Tamil Nadu, which has more than 40 persons in jail, including the most high profile cases; Uttar Pradesh, where the Act was used by Chief Minister Mayawati as a tool in her survival kit; Himachal Pradesh; and Delhi can be said to be the POTA- user States. While most POTA cases and arrests have come in States ruled by the Bharatiya Janata Party or its allies, the Congress has not been above using the Act, as the Maharashtra example testifies. The most eloquent champion of POTA in the country is Tamil Nadu Chief Minister Jayalalithaa. Vaiko, the leader of the Marumalarchi Dravida Munnetra Kazhagam and a BJP ally, has been in jail since July 2002 for reiterating at a public meeting a statement he had made in Parliament in support of the Liberation Tigers of Tamil Eelam. The State also became the first to arrest a journalist under the Act. The Union Cabinet recently approved an ordinance to amend POTA so as to give teeth to the Central and State Review Committees set up under Section 60. It appears this will be done in two ways. The findings of the Review Committees on complaints brought before them will now become binding. More importantly, if the Central Review Committee comes to the conclusion that POTA has been misused in a particular case, its finding that the victim should be released will be final and binding on the State Government. This change will be in line with what the Bharatiya Janata Party has been advocating for some time. Not surprisingly, Ms.Jayalalithaa, whose threat to arrest the Union Minister, M. Kannappan, for making pro-LTTE statements surely played a role in persuading the Centre to bring the amendment, has opposed the change. While the empowerment especially of the Central Review Committee may act as a restraint against political abuse, the amendment is likely to prove an inept and clumsy solution. Why? A close study of the Act reveals that the problem inheres in the role assigned to the Review Committees ??” as some kind of pseudo- safeguard. Under Section 60 of POTA, both the Central and State Governments "shall, wherever necessary," constitute Review Committees "for the purposes of the Act". While the law prescribes that the chairpersons should be sitting or retired High Court judges, the power to appoint committee members vests solely with the Governments concerned. The only broad power of review is provided under Section 19 and this relates exclusively to the Review Committee appointed by the Central Government. The power is to go into the question of whether an organisation should be de-notified as `terrorist' upon application to the Central Government by the organisation or an affected individual. Should an application to remove the organisation from the Schedule be refused, the Central Review Committee may allow the application for review "if it considers that the decision to refuse was flawed when considered in the light of principles applicable on an application for judicial review." It may then make an order under Section 19 (6) that would bind the Central Government to de-notify the organisation as `terrorist'. The other power of the Review Committees, a binding authority conferred by Sections 40 and 46 of POTA and applying to both the Central and State levels, relates to cases involving interception of communication, for example phone tapping. What is clear is that the solicitude displayed by the Act towards the victims of unjustified intercepted communication is nowhere in evidence in more vital areas of the fundamental "Right to Freedom". The loosely worded Section 21 of POTA, which deals with an "offence relating to support given to a terrorist organisation", was asking to be misused. The actual experience has prompted the Attorney-General for India, Soli J. Sorabjee, to give a written opinion to the Government of India that "mere expression of opinion or expression of moral support per se does not tantamount to a breach" of Section 21. The Central Review Committee was constituted only in March 2003 ??” a year after POTA was enacted ??” with the former Chief Justice of Punjab and Haryana, Arun B. Saharya, at its head. Although a suo motu statement made by Deputy Prime Minister L. K. Advani in the Lok Sabha (on March 13, 2003) made it clear that the committee was appointed under Section 60, its brief went well beyond what was envisaged by the Act. Noting members' concerns that the provisions of this law were invoked "even against such persons and acts which do not fall within the ambit of this law," Mr. Advani admitted that the matter was "serious enough to warrant" an invocation of the Central Government's special powers under the Act. The Central Review Committee would take "a comprehensive view" of the use of POTA in various States and come up with its "findings and suggestions" to ensure that the Act was invoked only "for the combating of terrorism" and not "against ordinary criminals or those who are not terrorists or whose acts cannot be considered as terrorist acts." Such an admission by the Central Government amounts to a serious indictment of POTA. Ms. Jayalalithaa, in her strongly worded protest against the Central Government's decision to amend POTA to empower the Review Committees to "intervene and interfere with" the functioning of the special courts set up by State Governments, has called attention to the legal, and also Centre- State political, complications that are likely to arise. Such opposition underlines the point that the only real safeguard against the built-in and politically inevitable misuse of POTA is its abrogation. |
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| << October29, 2003 - [India Thinkers Net] Online petition to stop harassment of Mallika Sarabhai |
October31, 2003 - [India Thinkers Net]Continuing harassment of women artists and activists >> |
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