The truth about POTO

Print edition : December 08, 2001

The draconian Prevention of Terrorism Ordinance draws heavily from anti-terrorism Acts in the United States and the United Kingdom. But unlike those in the latter two, which cover only foreigners in the respective nations, POTO affects all Indians.

THE Prevention of Terrorism Ordinance (POTO), promulgated on October 24, 2001, is a monumental fraud; a sitting duck awaiting a whiff of grapeshot from the apex court's gun. A single flaw, in a provision which touches its very core, will suffice to render it unconstitutional and void. It also exposes the evil intent behind the law.

Relatives of Ghulam Mohammad Dar outside his house in Srinagar, which was sealed, in the first instance of use of POTO, for allegedly being let out as a safehouse for Al-Badr members. On November 29, Chief Minister Farooq Abdullah ordered the restoration of the house to the owner after a proper inquiry.-AIJAZ RAHI/AP

Two crucial provisions in any law of this kind are the definition clause and in a sense more so, the mechanism for its implementation. Fifty years ago, in a vastly more conservative clime, the Constitution Bench of five Judges of the Supreme Court ruled with emphatic unanimity in the State of Madras vs V.G. Row ((1952) SCR 597) that the fundamental right to form associations or unions, embodied in Article 19 (1) (c) of the Constitution, "has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects, to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed... on the exercise of the fundamental right under Article 19 (1) (c); for, no summary and what is bound to be a largely one-sided review by an advisory board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an advisory board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizens, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this court upheld in Gopalan's case deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing for preventive detention".

Chief Justice Patanjali Sastri pointed out that an association is banned on grounds which are factual and not anticipatory or based on suspicion. "The factual existence of these grounds is amenable to objective determination by the Court." A provision which, in effect, denies judicial review of an order banning an association cannot be regarded as a "reasonable restriction" on the precious fundamental right. The statute in question was therefore held to be "unconstitutional and void".

This is precisely why the Unlawful Activities (Prevention) Act, 1967 provides for a tribunal to determine "whether or not there is sufficient cause for declaring the association unlawful" as defined in the Act. It is judge of the facts as well as the law. Only a sitting judge of a High Court can be appointed on the tribunal. It has "the same powers as are vested in a civil court" in regard to summoning persons, requisitioning records, etc. Tribunals receive oral testimony and are not confined to affidavits.

Far from prescribing a "dilatory" procedure, as has been alleged, the Act binds the Central government to refer the ban notification within 30 days of its publication to the tribunal which, in turn, is bound to decide the case within six months of the ban.

POTO consciously departs from this model and, in glaring contrast, deliberately provides a dilatory procedure ending with a kangaroo court, called a Review Committee. It provides, first, for an application for removal of the ban to the very government which imposed it (Section 19). The government will make rules for "admission and disposal" of such pleas. If the application is rejected, after a waste of time, an application for its review can be made to the committee which, unlike the tribunal, cannot sit in appeal on the facts. Its remit is narrow - whether "the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review"; that is, the High Court's writ powers exercised broadly, to correct only errors of law (Section 19 (5)); not errors of fact or misappreciation of evidence. It will act on affidavits. It will not receive oral evidence tested by cross-examination. It has none of the judicial powers which the Tribunal possesses. It is not a judicial body.

The committee will consist of a chairperson and such other members, not exceeding three and "possessing such qualifications as may be prescribed" by the government (Section 59). Only the chairperson will be a High Court Judge. Concurrence of its Chief Justice is necessary only if he is on the Bench. A retired judge can be appointed without such constraint. The chairperson will, in any case, be one in the crowd. This is surely not a judicial body at all. POTO wilfully flouts the Supreme Court's ruling. (Incidentally, it is this committee which will also review orders for phone-tapping (Section 45).) This flaw alone suffices to render the Ordinance unconstitutional. Since the committee constitutes the very core of the scheme, the entire law is vitiated. It simply cannot stand.

The evil intent is apparent from the selective plagiarism. The government had before it two models to draw on. It preferred the one which denies the citizen's rights even at the risk of unconstitutionality. The U.S. Anti-terrorism and Effective Death Penalty Act, 1996 empowers the Secretary of State (Section 302) "to designate an organisation as a foreign terrorist organisation". But even this foreign organisation "may seek judicial review of the designation in the United States Court of Appeals in for the District of Columbia Circuit". One of the grounds of challenge is that the designation was "arbitrary, capricious, an abuse of discretion..."

But, the draftsmen of POTO copied Sections 3 to 6 of the British Terrorism Act, 2000 (T.A.) and mindlessly so. Section 19 (5) of POTO speaks of "the principles applicable on an application for judicial review". No such procedure exists in the Indian legal system. The writ powers of the Supreme Court and High Courts (Articles 32 and 226) comprise mainly issuance of what were known in the United Kingdom as prerogative writs (certiorari, mandamus, quo warranto and so on). They were replaced in the U.K. by a simpler "application for judicial review". It makes sense for Section 5 (3) of the T.A. to use the expression; not for POTO to use it in Section 19 (5). The U.S. and U.K. laws cover foreigners only. POTO affects Indians.

The Bharatiya Janata Party regime has been trying hard to promote repressive legislation for over a year. The Terrorist and Disruptive Activities (Prevention) Act, 1987 lapsed on May 23, 1995. The then Home Minister, S. B. Chavan, moved in the Rajya Sabha on May 18, 1995 the Criminal Law Amendment Bill, 1995. On May 23, he accepted eight amendments to the Bill to mollify the Opposition. The Bill was not enacted. The Law Commission's "Working Paper on Legislation to Combat Terrorism" made that Bill worse, still. The Bill had omitted the provision making confessions to police officers admissible in evidence and imposing on the accused the burden of proving his innocence while applying for bail.

The Law Commission not only restored them (Clauses 15 (A) and 18 (16A), respectively) but added illiberal provisions in the draft Bill appended to its Working Paper. For instance, its Clause 3 (8) on "information about acts of terrorism" exposed a journalist to a year's imprisonment if he failed to disclose "as soon as reasonably practicable to the police" information which "he knows or reasonably believes might be of material assistance" in preventing the commission of an offence or in securing the arrest of the offender. Journalists who interview members of banned organisations could be sent to prison. None will speak to a journalist who is a police informer.

On February 2, 1999 the BJP government sent some amendments of its own. The Commission took the Bill, "as modified by the official amendments" of 1999, "as the basis" and recommended some additional provisions, besides. All the eight amendments of 1995, at the instance of the Opposition, were ameliorative and were reported in the press. The Commission was bound to publish their texts. It chose not to do so.

The Law Commission's outlook is crassly illiberal: "A perception has developed among the terrorist groups that the Indian state is inherently incapable of meeting their challenge - that it has become soft and indolent. As a matter of fact, quite a few parties and groups appear to have developed a vested interest in a soft state, a weak government and an ineffective implementation of the laws. Even certain foreign powers are interested in destablising our country."

The Commission holds that "religious militancy... had first raised its head in 1993 with bomb explosions in Mumbai". It is, evidently, unaware of Justice B. N. Srikrishna's finding that the blasts "were a reaction to the totality of events at Ayodhya and Bombay in December 1992 and January 1993". Was the demolition of the Babri Masjid on December 6, 1992 also not an expression of "religious militancy"? And what of L.K. Advani's rath yatra of 1990 escorted by the Bajrang Dal?

The attacks in New York and Washington on September 11 emboldened the BJP government to dust up the Commissions Bill and add illiberal provisions of its own - ban on organisations and wire-tapping. It could have amended the Act of 1967. It did not. Nor did it profit by the Supreme Court's judgments on TADA. (Kartar Singh vs State of Punjab (1994) 3 SCC 569). The provision empowering police officials to record confessions was approved by a narrow majority (3-2). The Bench reflected an illiberal outlook "Worse than Rowlatt"; Frontline; April 22, 1994). That ruling can be reversed. Justices K. Ramaswamy and R. M. Sahai's powerful, though limited, dissents on Section 15 of TADA (confessions to the police) might well be accepted and preferred by the Supreme Court now.

In the Rajiv Gandhi assassination case the Supreme Court ruled no more than that a confession to the police recorded under TADA can be relied on against the accused in respect of other offences even if he is acquitted under TADA in a joint trial of both cases. (State vs Nalini (1999) 5 SCC 253 at 304). The competent investigating team would have secured a conviction even if TADA did not exist - as did the prosecution in cases of conspiracy earlier. Advani's claim (November 7) that "not a single person... would have been convicted" but for TADA is absurd.

POTO is at once a tool of diplomacy, to earn brownie points abroad, and a weapon of repression at home devised by a regime which bans the Students Islamic Movement of India (SIMI) but not the Vishwa Hindu Parishad (VHP) or the Bajrang Dal. Internationally, its record on terrorism is disgraceful. There is not a word of censure on state terrorism practised by the Ariel Sharon government in Israel. Prime Minister Atal Behari Vajpayee said that "no region is a greater source of terrorism than our neighbourhood". On July 24, 2001 the Liberation Tigers of Tamil Eelam (LTTE) destroyed half the fleet of Srilanka Airlines and eight military planes in Colombo's airport. New Delhi's response revealed it in its true colours. It was "concerned and disappointed about these developments in Sri Lanka. There is no room for violence and terrorism in the effort to achieve a political solution of the conflict. We would urge all concerned to resume steps for the commencement of talks for a political settlement". It had earlier expressed its "great disppointment" at the bombing of the LTTE's positions by Sri Lanka's airforce. The terrorist LTTE was equated with the government.

The war against terrorism can well be fought with due respect for human rights. None of the militant bodies which operate in India has been as ruthless and well-equipped as the Irish Republican Army (IRA) in Northern Ireland. But preventive detention (called internment there) was introduced on August 9, 1971 only to be withdrawn on December 5, 1975. The law has been reviewed continuously by jurists of eminence - the Diplock Report (1972; Cmnd. 5185); the Report of the Gardiner Committee "to consider in the context of civil liberties and human rights, measures to deal with terrorism in Northern Ireland" (1975; Cmnd. 5847); Lord Shackleton's Report (1978; Cmnd. 7234); Lord Jellicoe's Report (1983; Cmnd. 8803); Sir George Baker's (1984).

Jellicoe's conclusion is relevant: "I found that some of those powers most likely to infringe civil liberties are also the least valuable and the least used." The scandal of TADA supports his conclusion. It is puerile of Ministers of the government to say that any law can be abused. The point is that a law which confers vast powers without effective checks readily lends itself to abuse; indeed, tempts and invites abuse.

Two studies make a timely appearance. Prevention of Terrorism Ordinance, 2001: Government Decides to play judge and jury; South Asia Human Rights Documentation Centre (SAHRDC), New Delhi (pages 148, Rs. 100) run by the erudite Ravi Nair and Combating Terrorism: The Legal Challenge by Arnab Goswami (Har-Anand; pages 176; Rs. 295.)

The SAHRDC study analyses each provision of POTO in detail in the light of the Constitution, India's international obligations, and emergency legislation during the Raj and after Independence. It finds POTO to be worse than the Rowlatt Act.

Arnab Goswami, a Special Correspondent with New Delhi Television, spares himself no pains in documentation and analysis. He appends the texts of POTO, TADA and the SAARC Convention (Suppression of Terrorism) Act, 1993. The Convention was signed on November 4, 1987. Few people remember India's reservations on it. Rajiv Gandhi expressed them candidly in an interview with Pritish Nandy who asked: "On the terrorist front, I am sure there were no disagreements either. Except perhaps for some semantic uncertainties?"

Rajiv Gandhi replied: "Well, it's all a question of definitions. When is terrorism a freedom movement? Where does terrorism versus human rights come in? These are the sort of grey areas, you know. We have the example of South Africa before us. We have others as well, where we are clear that the movement is a freedom struggle, not a terrorist movement. But others claim that these are terrorist movements. So, you know, these sort of things will have to be clarified here, where there is no movement as yet to define today but there well might be tomorrow. So whatever we do, it shouldn't be such that we find outselves in a mess. If we rush into it now, you know, it will pose a problem in SAARC later.

"The U.N. hasn't been able to get to it as yet. Other bodies, too, have not been able to define terrorism in a proper, satisfactory manner" (The Illustrated Weekly of India; January 12, 1986).

Arnab Goswami did research at Cambridge University and cites international experience. Salah Khalef alias Abu Iyad, once Yasser Arafat's deputy, condemned "political murder" but condoned "revolutionary violence". Che Guevera, on the other hand, wisely held that "Terrorism is a measure that is generally ineffective and indiscriminate in its effects, since it often makes victims of innocent people and destroys a large number of lives that would be valuable to the revolution."

Goswami remarks: "At the risk of sounding rather simplistic, let me labour the point to prove why definitions of terrorism cannot be value neutral. The basic difference between Salah's and Che's positions is that while both seek to carry out wars of liberation, Salah avoids committing himself against attacks on civilians, Che does not. But does that make Che any less of a terrorist in the perception of the United States? It does not, which is shocking, because the United States has consistently defined attacks on 'non-combatants' as the hallmark of terrorist activity." In 1986, Secretary of State George Shultz defended the Contras in Nicaragua. Terrorism must be fought by laws which respect human rights. POTO does not.

It bars suits and prosecutions even for crass negligence in its enforcement by the armed forces in their operations. (Sections 56). Section 57 permits the prosecution of "any police officer who exercises powers corruptly or maliciously knowing that these are no reasonable grounds for proceeding under this Ordinance" - a charge well-nigh impossible to prove. But even such a prosecution cannot be constituted against members of the armed forces. They receive Advani's indemnity.

The Special Courts can be moved even on a complaint by a private citizen if he can procure the sanction of the government, Central or State. A Special Court, trying any offences under the law, can order that "all" the proceedings before it "shall not be published in any manner" (Section 30(3)(d)). In the U.K., cases can be filed under the T.A. only with the consent of the Director of Public Prosecutions who is independent of the government (Section 117).

The British Terrorism Act, 2000 makes grant of bail the rule (Section 67(3)) and prescribes precise "substantial grounds" for its refusal. Section 48 of POTO makes refusal the norm and grant conditional on proof of innocence.

THIS brings us to the rights of the press. Section 39 (1) of the Code of Criminal Procedure says: "Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code... shall, in the absence of any reasonable excuse, the burden of providing which excuse shall lie on the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention."Ministers, of whom better was expected, have, in the manner of a school debate, flogged to the death this provision in defence of provisions of POTO on the subject - inviting the legitimate retort as to why POTO was needed to cover the same ground. But Section 39 concerns actual commission of an offence or a clear "intention" of any person to do so - not mere suspicion or apprehension. Section 3(8) of POTO would punish "a person receiving or in possession of information which he knows or believes to be of material assistance: (i) in preventing the commission by any other person of a terrorist act, or (ii) in securing the apprehension, prosecution or conviction of any other person for an offence involving the commission, preparation or instigation of such an act, and fails, without reasonable cause, to disclose that information as soon as reasonably practicable to the police, shall be punishable with imprisonment for a term which may extend to one year or with fine or with both."

Section 14 empowers the investigating officer to require any person "to furnish information in their possession in relation to such offence, on points or matters, where the investigating officer has reason to believe that such information will be useful for, or relevant to, the purposes of this Ordinance."

Section 21 (2) goes further: "(2) A person commits an offence if he arranges, manages, or assists in arranging or managing a meeting which he knows is (a) to support a terrorist organisation, (b) to further the activities of a terrorist organisation, or (c) to be addressed by a person who belongs or professes to belong to a terrorist organisation." A "meeting" means a meeting of "three or more persons whether or not the public are admitted". The offender is liable to imprisonment for a term not exceeding ten years.

This web of three provisions goes far beyond Section 39 of the CrPC and violates press freedom. Any two correspondents who meet a militant for interview incur the risk of prosecution. (Section 21(2)). A police officer can compel disclosure of sources. (Section 14). He can seek any information he deems "useful to or relevant for" the purposes of POTO. Section 3(8) is not confined to knowledge of and criminal offence or intention. It applies to assessment of or belief as to the value of any "information" he has which might prevent commission of an offence or assist in the offender's apprehension. Woe betide him if his belief or assessment differs with that of the authorities. It is disingenuous to cite Section 39 of the CrPC in support of this drastic provision. Worse still, to overlook the more liberal Section 19 of the T.A. There must be belief or suspicion that a person has "committed an offence" based on "information which comes to his attention" professionally, except as a lawyer. It goes back to Section 11 of the Prevention of Terrorism Act (PTA) 1976. Lord Shackleton noted: "Section 11 was not thought necessary in 1974. It has an unpleasant ring about it in terms of civil liberties."

The National Council for Civil Liberties (now called Liberty) published in 1985 an excellent study "The New Prevention of Terrorism Act: The Case for Repeal" by Catherine Scorer, Sarah Spencer and Patricia Hewitt. They wrote: "Under Section 11 people can be prosecuted for failing to give information about others which could also incriminate themselves in the same or related offences. Lord Jellicoe recognised that the greatest potential for abuse of this power was at the interrogation stage, for example, pressurising a relative who inadvertently picked up information with consequent divided loyalties or fear of reprisals. Lord Shackleton had also noted that "there is a distinction between suspicion and sure knowledge, and that where a person merely suspects that someone may be involved in terrorism but has no certain knowledge, he might understandably be wary of implicating someone who might be quite innocent."

"The use of Section 11 to curb journalists' freedom was raised in Parliament during the debates on the 1984 Bill. Clive Soley MP argued that 'the issue becomes one of the freedom of the press and other media to report on events as they deem appropriate' and Gerald Bermingham MP asked the Minister whether he would not agree that 'if journalism is truly accurate it can clearly and effectively display the abhorrent beliefs, practices and acts of perpetrators of terrorist offences and that, in its own way, that is beneficial to society because the true nature of what is being done is thereby demonstrated'." The government, predictably, disagreed.

The SAHRDC study points out that the PTA, unlike POTO, is an "emergency legislation. The U.K. has declared a formal emergency under Article 15 of the European Convention on Human Rights; and has asserted the right to derogate from its obligations under Articles 5 and 6 of the European Convention. Indeed, the U.K. has conceded that PTA violates Article 5 of the European Convention; justifying its legality only on the grounds that a formal derogation notice has been filed with the Secretary General of the Council of Europe.

"The Government of India has not formally declared an emergency under Article 4 of the International Convenant on Civil and Political Rights (the analogue to Article 15 of the European Convention) much less formally declared an emergency under its own Constitution. Second, the European Court of Human Rights, in Brogan and others vs U.K. (1989) 11 EHRR 117, declared the PTA inconsistent with the European Convention on Human Rights. Third, the anti-terrorism regime embodied in POTO's procedural and substantive provisions is far more draconian... Although the PTA of U.K. is subject to annual review by Parliament, POTO is not subject to any review for up to five years.

"In addition, the maximum periods of detention allowed by the two laws differ drastically. An individual arrested under PTA of U.K. may be detained for up to 48 hours and, with the approval of the Secretary of State, this period may be extended to five days. An individual arrested under POTO may be detained for up to 90 days and, with the approval of the Special Court, this period may be extended to 180 days."

Under TADA an area had to be declared as a "disturbed area" before its provisions were applied. POTO covers the whole country.

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