The perils of POTO

Draconian preventive detention laws such as POTO will brutalise innocent people, violate human rights and debase the political culture - without effectively countering terrorism.

THE promulgation of the Prevention of Terrorism Ordinance is an important black mark in the National Democratic Alliance's record of misgovernance. POTO has produced consternation in India's political and journalistic communities and raised serious questions about citizen's freedom, and the fairness of the law-and-order and justice delivery systems. There is every reason why Parliament must oppose POTO. The Rajya Sabha in particular must pass a resolution to ensure that the Ordinance lapses or is defeated.

Why has POTO generated so much heat? It is not that we do not need to fight terrorism, but POTO is a remarkably ill-conceived, draconian and counter-productive instrument for doing so. Like TADA, the Terrorist and Disruptive Activities (Prevention) Act, it will victimise innocent people through unwarranted detention and harassment, promote irresponsible policing, and thus damage the credibility of the legal system. This can only lead to more discontent and aggravate the phenomenon of sub-state terrorism which POTO is meant to fight. It is not the abuse of POTO but its normal use that should worry all those who value freedom and oppose terrorism.

To be fair, POTO is not an exact replica of TADA. In some respects, it is a slight improvement on TADA. It does not cover "disruptive" activities, which were left so ill-defined in TADA that striking students or milkmen could be detained for months. POTO allows appeals against rejection of bail to the High Court - TADA only permitted a Supreme Court appeal - and reduces the victim's rigours beyond the first year of detention. It reduces the period of detention without a charge-sheet, although 90 days is still far too long.

However, POTO is significantly worse than TADA insofar as its scope extends beyond "terrorists" to "terrorist organisations" and their supporters and sympathisers who by definition are not terrorists. This is POTO's most egregious feature. POTO also empowers the government to tap telephone and other communications and confiscate suspected "proceeds of terrorism". POTO seeks to punish severely those who may have information about terrorist activities but fail to disclose it. This has damaging implications for the freedom of expression. POTO is thus a harsh preventive detention law, which reverses the burden of proof and permits the harassment of anyone the government considers undesirable.

* Section 3(1) defines a terrorist as somebody with the "intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people...", who commits violent acts by "using bombs or other explosive substances or... other... poisons," etc. to cause death, injuries, or damage to, "property or... supplies"... to be used "for the defence of India or in connection with any other purposes" (emphasis added). Although the phrasing is somewhat vague, it at least requires that an act be committed, for which the sentence would be death or life imprisonment.

However, Chapter III of POTO makes nonsense of this very requirement by creating a new category, of "terrorist organisations", defined merely as "listed in the [attached] Schedule." (Already, 23 groups have been named.) Such organisations need not have committed or participated in terrorist acts; it is enough that they are found to "encourage" terrorism or are "otherwise involved" in it.

Thus, the Central government can arbitrarily label any organisation "terrorist" - for instance, because it promotes a "terrorist ideology" (also arbitrarily defined). It can harass its members, sympathisers, harbourers and so on. A "sympathiser" - by definition not a terrorist - can be sentenced to 10 years' imprisonment. "Members" are liable to be imprisoned for 10 years - whether they have engaged in any violent act or not. Those who raise funds can be sentenced to 14 years' imprisonment.

* The government can tap or intercept any communication, including electronic, wireless, oral or other messages from anyone suspected of indulging in a terrorist offence. A Joint Secretary to the government serves as the "competent authority" for this non-judicial decision. The intercepts are admissible as evidence in court. This provision can easily become a charter for harassing and intimidating political opponents.

* An officer of the rank of Superintendent of Police is empowered to extract confessions from the accused and present them as evidence. This provision not only has potential for abuse, it is itself directly abusive. It perverts the fundamental premise that statements recorded clandestinely, or in police custody under fear or duress, must not be admitted as evidence.

* Reversing the burden of proof directly violates the "innocent-until-proved-guilty" premise on which modern jurisprudence rests. It is trivially true that some existing laws such as the Income-Tax Act, the Narcotics Act and the Sati (Prevention) Act also demand proof of innocence. But that is no justification for POTO. The consequences of these laws are not comparable. For instance, if your bank account shows an abnormally large deposit, you must be able to explain its source to income-tax officials. But you are not imprisoned or tortured till you give an answer - as you could be under POTO. Most laws provide remedies. POTO has few: you are in the lock-up before you know it. Once you are accused, once arms are planted on you, or once your union, association or organisation is branded, you can be bunged into jail.

* Sections 3(8) and 14 are particularly obnoxious. They punish anyone who possesses information relevant to the possible commission of terrorist acts, but "fails" to disclose it. This prescribes one year's imprisonment for an act of omission, not commission - and three years for non-cooperation with the interrogating officer. This is abhorrent. In a situation where ordinary citizens hesitate to appear as witnesses to crimes out of fear of police harassment, it is unreasonable to demand that they suddenly trust the police. It is frivolous to compare this provision to Section 39 of the Criminal Procedure Code, which too mandates furnishing of information about impending crimes. This Section has mercifully not been seriously invoked for decades - like Section 377 of the Indian Penal Code pertaining to homosexuality.

Section 3(8) and 14 are liable to be used against journalists who in their line of duty may interview a "terrorist" or terrorist "sympathiser" without necessarily knowing their identity or criminal plans. To demand that the journalist part with this information amounts to imposing unreasonable restrictions upon the freedom of expression. This counterposes the right to information to an ill-defined "duty to the nation". Yet, POTO empowers the police to extract information fro journalists. This is, potentially, extremely abusive. A conscientious journalist, if she or he discovers that a terrorist act is about to be committed, will want to alert not just the police but the larger public. The possibility of a clash between privileged information (with the journalist) and knowledge available to the police is extremely rare.

Writing a whole piece of legislation on the basis of a rare, worst-case scenario risks interfering with the media. In the present situation, where there is suppression of the rights of association and collective action, such provisions are likely to lead to censorship. Journalists wanting to "play safe" will simply avoid certain beats. Publishers will restrict reporters' activities to areas where they cannot be held liable under POTO. The public will be the ultimate loser.

POTO represents an unhealthy, pathological, "big-stick" response to the social disorders which underlie sub-state terrorism. It is based upon the 173rd Report of the Law Commission - a body reduced to a pale shadow of itself by members such as a long-time swayamsevak, whose sole claim to "scholarship" is that he has edited two volumes of Atal Behari Vajpayee's speeches. This Report shows a strong communal bias in emphasising the dangers posed by "fundamentalist terrorists" and "religious fundamentalists", selectively highlighting the plight of "Hindu families" in communal disturbances, and in drawing parallels between the 1993 Bombay blasts (although not the Babri Masjid demolition) and the activities of "Muslim militants". The government has carried this communal bias into the Prevention of Terrorism Bill 2000 (since dropped) and into POTO. POTO will be used by the Bharatiya Janata Party to harass the minorities, polarise religious communities and whip up hysteria to win votes, especially in Uttar Pradesh.

The government has learnt nothing from the dismal experience with TADA, under which 76,036 people were detained under charges which were often so flimsy that two-thirds of them were discharged by the courts as the government could not even make out a prima facie case. The rate of conviction under TADA was an appalling 0.9 per cent. The law was extensively used in Gujarat and Maharashtra against college students, trade unionists and women's organisations - anyone considered "inconvenient".

By 1995, TADA had become so discredited that no government could think of extending or reviving it - until the right-wing NDA came to power. Exploiting the September 11 carnage and anti-"terrorist" shibboleths, it deviously pushed through POTO rather than pilot a Bill through Parliament. This corresponded to the hardening attitude in sections of the Indian elite which have gung-ho approaches to issues such as crime and social discontent. The government did not inform the Parliamentary Standing Committee on Home Affairs of the relevant developments. The committee has not even received a copy of the Ordinance.

DRACONIAN laws such as POTO are not just intrinsically obnoxious; they overload and pervert the judicial system. They give the police the option of not investigating crimes and painstakingly gathering evidence. Mere suspects can be charged with "terrorism" and detained for long, painful years. This can only encourage irresponsible behaviour on the part of a force which increasingly fails to bring criminals to book in cases ranging from petty theft to obnoxious killings - such as the Jessica Lall murder case, "the tandoor murder", or the BMW hit-and-run scandal, to mention examples from the national capital alone.

The BJP is disingenuous to argue that there are preventive detention Acts in States ruled by the Congress - for instance, Maharashtra and Karnataka - and therefore that that party must not oppose POTO. Bad preventive detention laws everywhere must go. However, it must be noted that the Maharashtra Control of Organised Crime Act 1999 is meant to deal with "acts... with the objective of gaining pecuniary benefits or an economic advantage". It does not have POTO's broad-spectrum scope. The Act was brought into being by a Shiv Sena-BJP government, although that is no excuse for the Congress-Nationalist Congress Party government to perpetuate it. It is also fallacious to argue that in TADA's absence, Rajiv Gandhi's assassins would not have been convicted. In reality, the Supreme Court acquitted all the 27 persons who were accused under TADA, but contradictorily, upheld their testimony under police custody as admissible evidence. Ultimately, four were convicted for murder under Section 302 of the IPC.

Laws like TADA and POTO assault not only our rights as citizens, but also our democratic sensibilities. We are asked to forget that terrorism in Punjab was brought under control not through K.P.S. Gill's strong-arm methods, nor through torture, nor by police squads moving around in unnumbered jeeps, but through a political solution which exposed the Khalistani terrorists as a bunch of extortionists and rapists. If the Naga insurgency dies down, it will not be because of the ruthless use of guns, but because of negotiations. Our existing laws can adequately deal with terrorism without preventive detention. But their enforcers are not up to the job. What we need to do is use existing laws conscientiously to bring culprits to trial and convincingly establish their guilt. That can create conditions conducive to deterring serious crime and terrorism.

Regrettably, the NDA's approach is just the opposite. Its government has done all it could to discourage, ban and vindictively punish dissent, whether on the Afghan war, WTO, or religious issues. Recent attempts to deny permission for the holding of rallies in the national capital bear testimony to this - as with a citizens' peace march on October 30, Ram Raj's conversion-to-Buddhism rally on November 4, or the Centre-Left's impressive November 6 mobilisation against a new round of talks at the WTO. The growing official intolerance of dissent, like POTO, spells serious trouble for our freedom and democracy. POTO must become a litmus test. It must go in toto.