POTA act of India and its Misuse

When the Gujarat government withdrew Poto from the Godhra case, the Opposition parties understandably seized it as an official admission that the new terrorist law, like the earlier one, is being misused to target the minorities. All the more so because this decision followed an expose in The Indian Express on the selective application of Poto: while the Godhra suspects were booked under Poto, the state had no compunction about not applying that law to any of the accused involved in the so-called Hindu backlash. The state, of course, never actually admitted the selective use of Poto. Instead, it sought to make the withdrawal of terrorism allegations from the Godhra case appear as innocuous as possible. It claimed that the Godhra police backtracked purely on the advocate general’s advice that Poto provisions could not be invoked without first appointing the various regulatory authorities envisaged by that law.
As a corollary, the Narendra Modi government clarified that once those authorities are in place, the police may reinvoke Poto (now Pota) in the Godhra case. To be sure, this is not an unlikely scenario because the Godhra tragedy, in which over 50 Hindus were roasted alive in a train, does bear the appearance of a terrorist attack. But so do some of the retaliatory attacks on Muslims around Gujarat. Yet, given the communal bias it displayed over the last one month, can you even begin to imagine that the Modi government will make no distinction between the Hindu miscreants and their Muslim counterparts? And this is not only because of the Hindutva ideology of the BJP or the Sangh parivar. Let us not forget that the Congress governments of the past had also failed to be even-handed in applying Pota’s predecessor TADA in cases involving Hindu-Muslim conflicts.
It can be argued that the Congress party has its own unsavoury record of communal misdeeds. But this is not an analysis of the secular credentials of our political parties. The attempt here is to show that if TADA or Pota has a record of being used in a discriminatory manner, it is not necessarily because the law is consciously misused or abused. There is an inherent bias in the way terrorism is defined or, rather, interpreted. And that is what makes Muslims more vulnerable than Hindus to the rigours of the terrorist law irrespective of the party in power.
Recall December 6, 1992, and its aftermath. If, in Modi’s memorable words, Gujarat was a reaction to Godhra, the Bombay blasts were a reaction to the Babri Masjid demolition. But the parallel ends there. In fact, from the viewpoint of the terrorist law, the violence in Godhra and Gujarat are a reversal of the events of 1992-93. The BJP government regards the ‘action’ in Godhra as an instance of terrorism while the ‘reaction’ around Gujarat has been passed off as routine cases of rioting, looting and murder. In contrast, the Congress rulers passed off the ‘action’ in Ayodhya as a case of vandalism and other such offences under the ordinary law while the ‘reaction’ in Bombay was regarded as an instance of terrorism. It may be noted that for invoking the terrorist law, it did not matter whether the event concerned was an ‘action’ or a ‘reaction’. It also did not matter whether the miscreants used explosives or inflammable substances. After all, much like the way the mob in Godhra poured fuel and lit fire to the bogies carrying kar sevaks from Ayodhya, the miscreants in Ahmedabad and other places of Gujarat used all sorts of lethal weapons and hazardous materials to kill over 700 Muslims. Let’s face it. All that seemed to decide whether an offence constituted terrorism was the religion of the accused persons. As a result, in the events of 2002 as well as 1992-93, those booked under the terrorist law were predominantly Muslims while those booked under the ordinary law were predominantly Hindus.

The bias in the interpretation of the law becomes all the more evident from the long-winded definition of the expression ‘terrorist act’. Pota has been touted an improvement on TADA and one of the claimed reforms is that the definition of ‘terrorist act’ has been made sharper and therefore less prone to abuse. So, even if we go by the narrower definition of Pota, the Babri Masjid demolition, the underlying cause of the recent disturbances, should have been dealt with as a terrorist act. The presence of top BJP leaders in Ayodhya on the fateful day does not detract from the terrorist nature of the demolition. It fits the definition of Pota as there is ample scope to contend that the mosque was demolished with intent ‘‘to strike terror in the people or any section of the people’’. That the kar sevaks did not use bombs or such devastating methods does not matter because Pota says the terrorist act against a person or property could have been committed ‘‘by any other means whatsoever’’. Yet, the failure to book the kar sevaks and their instigators under TADA despite its wider definition never became an issue. The problem then is not just the misuse of the law but its selective use.