Draconian - and doomed

Print edition : December 08, 2001

LESS than a month after the Prevention of Terrorism Ordinance (POTO) was promulgated, the Bharatiya Janata Party-led government came up squarely against its moment of reckoning. The Opposition parties served notice early on that they saw little reason for a draconian law that would abridge the fundamental processes of rule of law. They remained unrelenting when the winter session of Parliament opened.

Under Article 123(2) of the Constitution, an ordinance will cease to operate at the expiry of six weeks from the reassembly of Parliament until it is enacted into law by both Houses. POTO will thus lapse within six weeks of November 19, when the session opened. If the legal provisions were to be sustained beyond its limited life, a bill would have to be enacted in the current session.

Two weeks after Parliament reassembled, the government appeared in no hurry. The defeat of the Bill seemed certain since the BJP and its allies did not have the requisite strength in the Rajya Sabha. Since the government had staked much of its credibility on pushing through an anti-terrorism legislation that would show its seriousness in joining the global crusades of the United States, this would have been an unacceptable price to pay.

Union Home Minister L.K. Advani first suggested that POTO meant a "win-win situation" for the BJP. Its passage in Parliament would help the government overcome its soft-state syndrome and tap a vein of public opinion that is firmly opposed to terrorism and its various manifestations. On the other hand, if the government failed to enact such legislation, it could blame the Opposition for effectively being in collusion with terrorism, using this as an issue in the coming Assembly elections in Uttar Pradesh and Punjab. Advani provided a foretaste of this strategic move when he hinted that the critics of POTO were doing little else than appeasing terrorists.

However, the government soon discovered that its own allies in the NDA and outside were not with it. Many of the participants in the Chief Ministers' conference on Internal Security held in New Delhi on November 17, expressed reservations about the Ordinance. Andhra Pradesh Chief Minister N. Chandrababu Naidu, whose Telugu Desam Party is one of the government's vital props, sought the dilution of POTO's provisions, especially of Sections 3(8) and 14 that have a bearing on the freedom of the press. The Congress(I) Chief Ministers made it clear that the legislation was unacceptable in its proposed form. West Bengal Chief Minister Buddhadeb Bhattacharjee opposed the measure, which in his view would be superfluous given the number of laws that exist. Even Tamil Nadu Chief Minister O. Panneerselvam, who supported POTO, favoured a consensus through persuasion.

The States opposed not only POTO but the Centre's proposal to set up a Central law enforcement agency on the pattern of the Federal Bureau of Investigation (FBI) in the U.S. Such an agency was proposed to tackle organised crime and other cases that have all-India ramifications. It could operate all over the country and take up cases without prior consent from the States.

Congress(I) president Sonia Gandhi politely advised Prime Minister Atal Behari Vajpayee to involve all the Opposition parties in the consultation process and to begin the exercise afresh. She made it clear that the manner in which the government had promulgated the Ordinance made it a fait accompli, which the party was not prepared to accept. The Prime Minister then had no option but to call an all-party meeting on POTO, even though the government had yet to decide on its timing.

Advani professed himself "pleasantly surprised" to find that the differences on the matter among Chief Ministers were not substantial. But it was not the number of differences on POTO but the substance and style of the government's approach to tackle terrorism that worried most of the Chief Ministers.

Advani asserted that the Maharashtra Control of Organised Crime Act, 1999, from which POTO has lifted its Chapter V that relates to the Interception of Communication in Certain Cases, has registered a fairly high rate of convictions by virtue of this provision. According to him, POTO could be justified on the basis of this chapter alone, since there is no corresponding provision in existing legislation.

However, experts point out that Section 5(2) of the Indian Telegraph Act, 1885 gives sufficient power to the government to intercept any message in the interest of public safety, national integrity, the security of the state or for the prevention of incitement to the commission of an offence. They argue that if the government feels that it needs broader powers, it could amend this section rather than introduce a draconian law.

AT the meeting of the coordination committee of the National Democratic Alliance in New Delhi on November 19, the fissures within the NDA became apparent. The BJP's allies pleaded for effective safeguards to ensure that POTO was not misused. They sought steps to remove apprehensions that it could be used against the press, political opponents and the Muslim community. Commerce Minister Murasoli Maran revealed his concerns, saying that he himself was a victim of the Maintenance of Internal Security Act (MISA) during the Emergency. The Trinamul Congress, the Akali Dal and Maneka Gandhi (who is an independent member of Parliament) kept away from the meeting, without revealing their stand. Punjab Finance Minister Kanwaljit Singh, after standing in for Chief Minister Prakash Singh Badal at the Chief Ministers' conference, again opposed POTO, claiming that the States were competent to deal with terrorism.

Expectations that Sharad Pawar's Nationalist Congress Party (NCP) would back the Ordinance were belied. The government had based its optimism on remarks favouring POTO that had been made by Maharashtra Deputy Chief Minister Chhagan Bhujbal of the NCP. But Pawar himself was unequivocal that the legislation in its present form would be unacceptable.

At the meeting of the Parliamentary Consultative Committee attached to the Home Ministry on November 23, the Opposition parties accused the government of having a "closed mind". The government was criticised for its "hypocrisy" in seeking a consensus, when it had hinted that it would call a joint session of Parliament under Article 108 of the Constitution. A joint sitting of Parliament would help surmount the inconvenience of its lack of a majority in the Rajya Sabha, but would impinge on its credibility.

Article 108 is only an enabling provision which empowers the President to take steps to resolve a deadlock that may arise between the two Houses. The President is not obliged to summon the Houses to meet at a joint sitting, note M.N. Kaul and S.L. Shakdher, in their standard reference manual, Practice and Procedure of Parliament (Fifth edition, 2001). Such joint sittings have taken place only on two occasions. The first was on May 9, 1961 when the Dowry Prohibition Bill was passed, following disagreements between the two Houses over certain amendments. And the second instance was on May 16, 1978, when the Banking Services Commission (Repeal) Bill was passed following its rejection by the Rajya Sabha.

Considering that much heat has been generated even before a Bill has been introduced in Parliament to replace POTO, moderate counsel seemed to suggest that it would be unwise to call a joint session just on the basis of the assumption that the Rajya Sabha was likely to reject it. It would not only be unprecedented but might be construed to be against the spirit of the constitutional provision envisaging such an extraordinary step. The Congress(I) criticised the stratagem as being a "Machiavellian" one and warned that any effort to "bulldoze" the issue through Parliament would aggravate tensions.

At the Home Ministry Consultative Committee meeting, Vaiko, whose Marumalarchi Dravida Munnetra Kazhagam (MDMK) is a constituent of the NDA, demanded that Section 3(8) of POTO be scrapped, in order to allay fears about an assault on independent journalism. He also suggested that Section 32(4) be amended to require production of the person before a magistrate within 24 hours (rather than 48 hours) after his confession has been recorded by the police. He also sought reconsideration of the definition of "meeting", as used in Section 21(2) and (3), as it was liable to be misused. According to this provision, a person commits an offence of supporting a terrorist organisation if he arranges or assists in arranging, or addresses a meeting which he knows is in support of a terrorist organisation, or would be addressed by a person who belongs to a terrorist organisation. An explanatory proviso in POTO says the expression "meeting" means a meeting of three or more persons whether or not the public are admitted.

Rather than wait for the government to bring forward a Bill to replace POTO, experts advise that the Opposition could consider a private member's statutory resolution seeking its disapproval under the rules. Such a measure would preempt any effort by the government to use the harsh provisions of the Ordinance during the interregnum before it lapses. It would also be an important propaganda victory for the Opposition, which could claim to have exposed the government's duplicity.

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