POTO and a stand-off

The Central government's attempts to push through the Prevention of Terrorism Ordinance in the aftermath of the December 13 attacks on Parliament fail in the face of the firm stand on the matter taken by the Opposition parties.

ALTHOUGH the full dimensions of the terrorist attack on Parliament House are yet to be unravelled, questions about the future of the controversial Prevention of Terrorism Ordinance (POTO) have already forced themselves into the focus of public attention. All Members of Parliament, irrespective of party affiliations, were shaken by the events of December 13. However, to its dismay, the government found that the sense of outrage expressed by all political groups could not be translated into an endorsement of POTO.

The Opposition tended to view POTO as a mandate for lawlessness and, after December 13, dismissed the argument about the indispensability of POTO as a disingenuous one. It is a fact that the attack took place despite the fact that POTO was in place. The Ordinance was yet to lapse and the Government had all the authority of preventive detention and summary arrest that POTO conferred on it. What December 13 demonstrated was that POTO, even if enacted as a law, would not necessarily help the authorities gather the required intelligence regarding terrorist actions or initiate pre-emptive action. If December 13 did not result in a tragedy of greater dimensions, it was perhaps owing to sheer luck and the courage of a few dedicated security personnel who confronted the armed intruders. Congress(I) spokesperson S. Jaipal Reddy summed up the Opposition's mood when he said that the attack happened despite POTO, and not for want of it. "The government did precious little to take pre-emptive action despite prior information about a likely attack on Parliament," he said. The Communist Party of India (Marxist) and the Communist Party of India also raised questions regarding the serious security lapse that led to the entry of militants into the Parliament compound.

A few members of the ruling combine justified the need for POTO in the aftermath of December 13. However, the government realised the impropriety of linking the Bill's passage in Parliament to the December 13 events. In fact, Parliamentary Affairs Minister Pramod Mahajan was examining the option of adjourning the winter session of Parliament ahead of schedule in the face of the deadlock between the government and the Opposition over the coffins procurement issue and POTO. Apparently, December 13 triggered some rethinking within the government and the Opposition about the need to let the session run its course and seek a sensible resolution of the impasse.

Uncertainties over POTO arose more from within the ruling combine than the Opposition. Apparently, there was a difference in perception between Prime Minister Atal Behari Vajpayee and Home Minister L. K. Advani. Vajpayee admitted during an impromptu debate in the Lok Sabha on December 4 that the Government should have consulted the Opposition parties before promulgating the Ordinance. This was in contrast to Advani's claim all along that consultations had taken place at various levels across the political spectrum.

Vajpayee and Advani also seemed to differ in their approach to achieve a political consensus. Although Vajpayee was willing to discuss the inclusion of safeguards to prevent the misuse of POTO, he warned that the government would go ahead with the Ordinance if the Opposition did not cooperate. Advani said that the government was not inclined to consider all the suggestions made at the December 4 all-party meeting on POTO. Apparently, the remarks of Vajpayee and Advani indicated the magnitude of the pressure from within the BJP in favour of POTO.

Advani agreed to make three concessions: deletion of Section 3(8), which the media feared could be used to curb their autonomy; reduction of the life of the legislation to three years instead of the proposed five years; and an amendment to Section 8 to provide for a judicial mechanism to be set in motion before the property of a suspected terrorist is seized or attached by the Designated Authority. Under Section 8 of POTO, the Designated Authority, who could either be a Joint Secretary at the Centre or a Secretary with a State Government, can order forfeiture of property if he or she is satisfied about its links to proceeds from terrorism. The power can be exercised irrespective of whether the person from whose possession it is seized is prosecuted in a Special Court for an offence under the Ordinance. Advani ruled out any more concessions saying that he would not "abdicate" his responsibility whether there was "unanimity" or not.

Even the three amendments that the government was willing to make were the result of pressure exerted by the Telugu Desam Party (TDP), which provides the necessary prop for the survival of the government. Although the Dravida Munnetra Kazhagam, the Trinamul Congress and the Janata Dal (United) warned at the all-party meeting against the potential misuse of POTO, they did not make it clear whether they would back the Bill if it did not include the proposed safeguards.

The government claimed that at the all-party meeting, attended by 24 political parties, nine parties had opposed POTO while 14 supported the passage of the Ordinance with some amendments. Mahajan claimed that the Congress(I) opposed POTO because of the manner of its promulgation, thus suggesting that the party backed its contents. Apparently, this was in line with Mahajan's well-known propensity to manufacture consensus where none exists since Congress(I) president Sonia Gandhi had said precisely the opposite after the meeting. Characterising POTO as being structurally defective, she urged the government to start the process of consultations afresh before bringing in legislation to combat terrorism.

Somnath Chatterjee, senior CPI(M) MP, also wanted POTO to lapse so that the Bill could be referred to a Select Committee of Parliament and discussed thoroughly before enactment. Samajwadi Party (S.P.) and Rashtriya Janata Dal (RJD) representatives felt that there was no need at all for POTO since existing laws were sufficient to tackle terrorism. However, in the aftermath of December 13, S.P. leader Amar Singh said that there was little use for legal measures like POTO when dealing with die-hard terrorists on suicide missions. Instead, he advocated military strikes at terrorist bases across the border.

At the all-party meeting, Nationalist Congress Party (NCP) president Sharad Pawar raised nine serious objections against POTO. Perhaps the most serious among them was that there were no guidelines for notifying an organisation as a banned one under Section 18 of POTO. Pawar said that in the absence of any guidelines framed for the purpose, the delegation of power under Section 18 is too wide and would not be sustainable in a court of law. Asked whether the NCP would re-reconsider its stand in view of December 13, Sharad Pawar told Frontline that it would, provided the government addressed all the nine complaints it had listed in the memorandum submitted at the meeting.

A DAY after the all-party meeting, the government went ahead and notified two left-wing extremist organisations - the Communist Party of India (Marxist-Leninist- Peoples' War) (People's War Group) and the Maoist Communist Centre (MCC) - under POTO. With the ban on the PWG and the MCC, the total number of terrorist organisations named in the ordinance has gone up to 25. All the formations and front organisations of the two outfits were also named as terrorist organisations. Apparently, the government felt that the ban was necessary in the wake of stepped-up naxalite violence in Andhra Pradesh, Orissa, Bihar and Jharkhand (Reports on pages 36-39). However, the notification of the two organisations under POTO was superfluous since they were already banned in the States where they were active.

The government's move to increase the number of organisations banned under POTO was seen as a serious impropriety as it was made close on the heels of serious reservations expressed by various political parties about the legal validity of the Ordinance. The government justified the exclusion of the Nationalist Socialist Council of Nagalim (Isaac-Muivah), a militant outfit active in some northeastern States, from POTO on the grounds that peace talks were under way with it. Vajpayee had, during his recent visit to Japan, held a dialogue with NSCN(I-M) representatives. Congress(I) MP Kapil Sibal asked: "If this is a valid criterion, what prevented the government from starting a dialogue with the PWG and the MCC as well?"

On December 11, the government's attempt to introduce a partly diluted Bill to replace POTO was stalled in the Lok Sabha owing to procedural wrangles. With barely a week to go for the conclusion of the winter session, time was running out for the government. Moreover, though December 13 had created a confrontational mood in the government, the Opposition remained sceptical.

The re-promulgation of POTO was an alternative that the government considered seriously, though it would be legally inadvisable. The Supreme Court's Constitution Bench in D.C. Wadhwa vs the State of Bihar, 1987, had held that re-promulgation of ordinances without placing them before the legislature as required in a routine manner would amount to a fraud on the Constitution. The court held that any such re-promulgated ordinance would be struck down. However, the Bench said that a re-promulgation may be justified in an extreme case when, owing to the pressure of business, the legislature may be unable to enact a statute in place of an ordinance. However, to resort to it as a matter of practice would constitute "usurpation by the executive of the law-making function of the legislature".

It is evident that POTO has not been ratified and enacted as a law on account of a failure of political consensus rather than the pressure of legislative business in Parliament. The re-promulgation option, if it is resorted to, could well be challenged in court. But even if it is not, it would be no less a fraud on the Constitution.