Repealing POTA

Some Issues
Over the 50 odd years we have been so methodically unconstitutional that to revert to constitutional governance is becoming very difficult. There will no doubt be innumerable hurdles created to the introduction of legislation to repeal POTA.
K G KANNABIRAN
ow does one repeal POTA? People will be busy grappling with this issue, which in a fit of enthusiasm was included by the UPA in the Common Minimum Programme. It is a part of the declaration of war against terrorism. This unilateral declaration by American president Bush and endorsed by the United Nations and the UN resolution is binding on us. How can we renege on this UN Resolution? That was why even the home minister speaking at Chennai in the month of June apprehended difficulties in the way of fulfilling the commitment to repeal POTA. In fact, the US has assumed the supervisory jurisdiction over terrorism in the world. It has assumed the authority to select and declare the global terrorist. It has assumed jurisdiction to ban domestic organisations as terrorist organisation. It may take pre-emptive action against the domestic organistions declared as terrorist. In fact, the prime ministers security adviser may be averse to the proposal to withdraw POTA. Like the decision to humanise globalisation. The prime ministers office may suggest that we give POTA a human face! These are the very insubstantial objections to renege on the undertaking given to the voters and later when the UPA was constituted and the subject of repeal of this law was unanimously approved. But then over the 50 odd years we have been so methodically unconstitutional that to revert to constitutional governance is becoming very difficult. The first task is to create hurdles for introducing the act to repeal POTA. There is bound to be hectic lobbying against repeal. The legal scholars will inform us how difficult it is to repeal POTA. Interpretive hurdles. Public Interest Litigation against the repeal raising conundrums to stress that to repeal the terrorist law is as impossible as it is for the camel to jump over its hump! As the UPA has agreed to repeal POTA have a new law in its place. The Congress Party in power brought forth the Terrorist Disruptive Activities (Prevention) Act in 1985 and the government had to bring about an amendment to the act in 1993. Despite these amendments the TADA was abused and the BJP did take electoral advantage of the protest against abuse of TADA and ultimately it was not renewed by further extension. The statute with a two-year tenure was extended from time to time until 1993 and allowed to lapse and the consequence was all acts commenced while the act was in force continued after the expiry of the act though for similar offence persons suspected were prosecuted under the ordinary law! Beant Singh, the chief minister of Punjab, was shot immediately after the lapse. The offence of killing but for the lapse of TADA ought to have been tried under TADA. The suspects would have been tried under the ordinary law. The killers of General Vaidya were not hanged under the TADA but under the Indian Penal Code though they were charged under TADA also. The killers of Rajiv Gandhi, though as opposition leader he enjoyed the status of a shadow prime minister the apex court held that the crime was not a terrorist offence. Offenders in Indira Gandhis assassination were tried and sentenced to death under the provisions of ordinary law. These special laws with special procedures grant impunity to police forces but does not eliminate the evil for which it was enacted. POTA was enacted by the NDA in the teeth of opposition. They did not have the strength to have the law passed by both the houses of parliament. Instead they chose to convene a joint sitting of the houses and had the bill passed into an act. MDMK of Tamil Nadu supported the measure and all of us know and have not yet forgotten how the measure led to the arrest of the leader MDMK leaders. Though we were assured this terrorist law would

have a human face it entrusted enormous powers of impunity to the police forces and it is structured for abuse. There need not be any further debate on the question of repeal. When in the Congress manifesto and later in the CMP of the UPA it was mentioned that POTA would be repealed, it did not mean that a similar law will replace it. If that were the intention of these political parties now in power they ought to have made it clear during their election campaign. Unfortunately recall or referendum is not an option open to the people. Does the promise of repeal include withdrawal of all proceedings initiated under POTA? Normally the repealing act should withdraw specifically all pending prosecution under the provisions of POTA, but may allow prosecution for offences under either the Penal Code or Explosive Substances Act or the Arms Act if such prosecution is possible on the basis of material available on record. Such a course is possible under section 33 of the act. It has to be legislatively enacted so that the trial for other offences is relieved of the cumbersome procedure and the rules of admissibility of confessions recorded by the police officers. The government before they heed the advice to have another law in place of POTA should first publish the total number of cases prosecuted under POTA, the results and the pendency regionwise and the total accused involved. It should also publish regionwise the property confiscated and the claim proceedings, if any, against such confiscation. What is the extent of share that stood transferred under POTA to the government? This right to information the citizens have. All the confiscation proceedings whether of the terrorist or otherwise under POTA should be transferred to the district and sessions judges having jurisdiction for enquiry and disposal. These provisions should be made part of the repealing law. Banning of organisation must be on the basis of objective criteria and not merely on the basis of some unverified intelligence reports. The Supreme Court very early in its career held that the criterion of subjective satisfaction, applicable in the case of preventive detention, is not applicable to negate associational freedom. None of the organisations have the international standing as has either Al Qaida, and Taliban has no such standing. American perception of terrorist organisation need not be ours and in these matters August 21, 2004

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we need not surrender our judgment to theirs. We need not tether our sovereignty to the fast sinking credibility of the American government. The UN Security Council order 2004 dealing with war on terrorism has no such binding force particularly when UN is bonded to US. Of course, one can always use a UN resolution as a pretext to saddle the people with repressive laws and with impunity disrespect the same world bodys Human Rights Declaration and other human rights conventions. The organisations included in the schedule are the offshoot of unresolved political problems by the countrys government over long period of years. First four organisations are linked to the Punjab issue. Far too many members of the Sikh community have been killed before it could die down presently. Six organisations are related to the Kashmir issue, which has been festering since independence. This can only be resolved politically and not by terrorist laws or by banning organisations. Till today they have had no effect Ten organisations represent various political movements awaiting resolution in the north-eastern states. LTTE need not be banned here at all. In the context of the ongoing peace talks continuation of the ban here makes no sense. This was done to satisfy the whim of Jayalalithaa the chief minister of Tamil Nadu. Students Islamic Movement was in response to Babri masjid and Gujarat carnage. Deendar Anjuman is a faith and not an organisation, which asserts that Mohammed is not the last prophet and for having held this view they were banned. CPI (ML) PW and MCC are ML and Maoist organistions. So long as poverty continues to exist on such a large scale and governance is supervised by an exploitative order ably supported by the tenets of globalisation such and similar movements will arise and the only known way to prevent such movements from arising is to ban poverty and exploitation. The suitable modification of the Unlawful Activities (Prevention) Act, 1967 taking care of the innocent among terrorists and others among the public is a placebo for public consumption and a sanction to continue the uninterrupted impunity the law and order forces have been enjoying in this country from the commencement of the Constitution. None of us seem to feel free without restraint. As presently constituted the war against terrorism is against persons belonging to Islamic faith who are fighting against Economic and Political Weekly

American expanding imperialism and this country should not be drawn into this war unless we wish to turn into international fundamentalists. We must move out of the

sphere of American influence. We must remember that we have a large population of Indian diaspora in west Asia and other Islamic countries. EPW

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