POTA - A Draconian Act

What has been proposed is an embarrassing gimmick to counter the mounting criticism of gross abuse of POTA by empowering powerless committees to prescribe ineffective remedies.

THE PREVENTION of Terrorism Act (POTA) has been amended by Ordinance. A sugar coating is to be placed around POTA's working. `Review committees' will have statutory powers to issue binding directives on complaints of wrongful entrapment under POTA. Like its predecessor, the Terrorist and Disruptive Activities (Prevention) Act (TADA, 1985-94), was, POTA remains India's most indiscriminate legislation. When the constitutionality of TADA was challenged in Kartar Singh's case (1994), an intensely concerned Supreme Court introduced the idea of a "higher level of scrutiny" by committees to prevent its abuse. The abuse of TADA was legion — to a point that, in a later case, the Supreme Court intervened to express shock at the abuse and disappointment over the review process. Several NGOs documented the abuse.

In 1995, the BJP allied with the Left to defeat the Congress Government's proposals to extend TADA while allowing for the possibility of introducing some better version of it. The better version turned out to be worse. In 2001, while the Law Commission suggested a strengthened POTA, the National Human Rights Commission (NHRC) suggested its abolition. POTA was promulgated as an Ordinance in October 2001 and pushed through the brute majorities of a joint session of Parliament to overcome opposition in the Rajya Sabha. At the time, the Union Government, through Arun Jaitley, L.K. Advani and others, said that by reposing the POTA power in responsible higher-ups in the police the possibility of abuse would be obviated.

Never was a prediction so totally wrong. Never, too, did civil liberties have to pay so heavy a price for this error. In Tamil Nadu, the MDMK leader, Vaiko's arrest led to a storm of protest. In January 2003, the Attorney General, Soli Sorabjee, gave an opinion that the Union Minister of State, M. Kannappan's speeches were not violative of POTA.

The incidence of abuse of the law caused a walkout in the Rajya Sabha in February 2001 and heated debates in both Houses where demands were made for its repeal. In January 2002, the then partner of the BJP, the Uttar Pradesh Chief Minister, Mayawati, arrested a political opponent, Raja Bhaiya, to create protests in BJP circles. In February 2002, an all India team spoke of wide abuses — especially in Jharkhand. Amazingly a boy of 12 had been arrested; as, indeed, a man of 81. The NHRC immediately demanded a report from the Jharkhand Government on February 23, 2002.

Ten other cases of children held under POTA were reported. In April 2003, POTA was slapped by the Andhra Pradesh Government on the Congress legislator, Konda Surekha, for alleged links with the People's War. In that very month it was suggested by a public interest group that POTA was being indiscriminately used in Gujarat. In September, a report suggested that some 240 POTA arrestees were Muslims. In the Bonkya case (1995), the Supreme Court had warned that just because a person belonged to the minority community, it could not be assumed that he was a terrorist. Nor was there any licence to seek regime revenge on political opponents. The history of TADA was being repeated — not as a farce but as a civil liberties tragedy.

Every promise the BJP had made when POTA was being enacted was being broken — no less by the very Governments it supported or which supported it. By March 5, 2003, the BJP was looking for a way out — to retain the legal terrorism of POTA but legitimate its abusive existence. How was this to be done? The Supreme Court's formula of review committees in Kartar Singh's case (1994) was brought into play. In April 2003, a notification was issued to empower the national review committee to review individual cases under POTA. As time wore on, this legitimating device did not work. By September 17, the BJP was looking for a more convincing even if more spurious solution, which was aired in early October and approved by the Union Cabinet for promulgation as an Ordinance on October 27, 2003. Why an Ordinance? Obviously to avoid discussion in Parliament where demands for POTA's wholesale repeal had already been made earlier in the year.

But let us look at the solution itself? What is the concept of a review committee? In their earlier incarnation, the review committees proposed by the Supreme Court were purely executive mechanisms whose recommendations were often ignored. In the Shaheen Welfare Association case (1996), the very sorry state of affairs was noted by the Supreme Court to call for a more "independent and objective scrutiny by a Committee headed by a retired judge". The TADA committees had not done their job well. At least 14,446 cases were then pending. Many detenus were ordered to be released on bail by the Supreme Court.

Despite all this, the BJP-led Government's POTA of 2002 did not contain any review safeguards for abuse cases. During enactment, POTA was defended as being safe from abuse because senior functionaries were entrusted with crucial powers. But were the officers safe from their Government? POTA 2002 did empower "the Central and each State Government (to)... constitute one or more Review Committees for the purposes of the Act" (Section 60) — whose Chairperson would be a sitting or retired High Court judge appointed with the concurrence of the Chief Justice concerned.

But the purpose of these Section 60 committees was not to look at individual use and abuse cases. In fact, POTA 2002 earmarked only two specific areas for their remit. These two specific areas were in respect of terrorist organisations (Section 19) and telephone tapping (Section 46) where their decisions would be implemented. The Central Committee headed by Justice Arun Saharya was appointed for individual cases only in April 2002. But its functions were purely advisory. It had little staff or, as Mr. Justice Saharya put it, "basic resources". Now the new Ordinance gives power to the POTA Central and State Committees to review cases on the application of an "aggrieved person" and issue binding directions to the State Government and the police. There is no inherent power to review in the absence of hapless complaints. There are no powers of investigation. Mr. Justice Saharya pointed out that the States (especially Jharkhand and Jammu and Kashmir) drag their feet. There is no time frame. Justice delayed would be justice crucified by short circuit. In the race against time, none of these recommendations would have any value if the case were before a Court. In R.M. Tewari's case (1996) dealing with TADA review committees, the Supreme Court made it clear that it was for the court, assisted independently by public prosecutors, and not the police to decide on the withdrawal of charges — a view consistent with the Veerappan decision and settled law. Binding directions without investigation powers and time frames are meaningless. But, they could be used to bully State Governments without practical effect.

The Ordinance gives already toothless committees toothless investigative powers against gross abuse by uncooperative Governments, which will have no bearing on pending cases. What will the police do in cases the committees have reviewed? Can they refuse to follow the Court's directions? Or take the cue to prosecute softly? State Governments may not cooperate — even less so with the Union's committee even if its view will prevail. With no power to investigate and no time frame such committees are a chimera — good from far, but far from good. These committees will also usurp and affect the NHRC's powers; State Governments will be able to say that their own review committee will investigate, if need be.

What has been proposed is an embarrassing gimmick to counter the mounting criticism of gross abuse of POTA by empowering powerless committees to prescribe ineffective remedies against powerful evasive Governments without examining the problems of POTA itself. The truth is that POTA has failed to measure up to the standards of a democracy bound by the rule of law. POTA will remain a gift to unscrupulous Union or State Governments. There was no need to promulgate an Ordinance. Face-saving Ordinances do not secure civil liberties. What is needed is a parliamentary debate on the future of POTA itself with a view to scrapping it.