Untold stories

Testimonies presented before a 'People's Tribunal' in New Delhi recently bring out the vast human tragedy resulting from the abuse of POTA in virtually every corner of the country.

UNTRAMMELLED power is dangerous in any hand. A "People's Tribunal", which heard a number of testimonies on the application of the Prevention of Terrorism Act (POTA) and other special security laws in Delhi in early March, seemed quite unequivocally to reach this conclusion.

The testimonies brought to life statistics recently compiled on the application of POTA and they revealed certain disquieting patterns. All the 287 cases booked under the law in Gujarat involve members of the religious minorities; all but one involve Muslims. Of the 46 POTA cases in Uttar Pradesh, all but two involve members of the Scheduled Castes or Adivasi communities.

Om Prakash, a ten-year old from a Dalit family in Sonbhadra district of Uttar Pradesh, was arrested in May 2003 and charged with political extremism and involvement in the murder of a local feudal chief. His older brother had been killed weeks before in what was described as an armed encounter with the police. In hiding ever since, Om Prakash surrendered to the local police following the threat that his family's meagre possessions, including its home, would be attached by judicial order. He was held in a juvenile prison for six months and allegedly tortured before being granted bail. Today, Om Prakash regularly walks 10 kilometres to the courthouse where his case is being heard. With no time-frame for resolution and the infinite capacity for delay that the police brings to the case, he sees no prospect of an early end to the agony.

This was one among at least four known cases involving the imprisonment and continuing harassment of juveniles under POTA and other special security laws. In Gumla district of Jharkhand, 16-year old Roopni Khari was arrested under POTA. Terrorism has become a broad rubric under which any challenge to an established order can be quashed. Khari's crime was to have organised the women of her village around basic issues of subsistence they confronted in a patriarchal order.

In Dharmapuri district of Tamil Nadu, Prabhakaran and Bhagat Singh, aged 15 and 17 then, were arrested in November 2002, for allegedly being involved with the Radical Youth League, an offshoot of one of the factions of the Communist Party of India (Marxist-Leninist). Neither was given any special consideration on grounds of being juveniles. Both were detained under a variety of provisions of the law and only informed after their third bail hearings that they stood accused under POTA. Both spent over a year in prisons before being granted bail. Their cases have now been transferred to the jurisdiction of the Juvenile Court, where they belonged from the very beginning. Quite apart from the repressive features of the law, the case of these two juveniles from Tamil Nadu seemed to illustrate, in the perception of the Tribunal, the dangerous intrusion of POTA special courts into other jurisdictions.

Evidence rendered before the Tribunal indicated that for sheer promiscuity, no State could quite match Jharkhand's record. The number of persons named in the State under POTA is an astounding 3,200. Among these, first information reports (FIRs) have been filed in 654 cases. A fact-finding team that had extensively travelled through Jharkhand last year found that most of the cases under POTA were being brought against the deprived sections belonging, as a rule, to the Dalit and Adivasi communities. POTA was also being used as an instrument of political coercion to erode the support enjoyed by parties opposed to the ruling Bharatiya Janata Party.

The picture from Uttar Pradesh showed a greater sense of restraint in numbers, but an equally ready recourse to POTA to put down any agitation for basic rights and services. Most of those arrested for alleged "terrorist" offences in this State, the Tribunal was told, were guilty of nothing more than pressing for land reforms and minimum wages.

In a survey of 25 instances of detention under POTA in Gujarat, a study team that presented its findings to the Tribunal reported that a period of illegal detention invariably preceded the formal arrest of the individuals concerned. The duration of this illegal detention varied between three and 25 days. There were cases when family members of targeted individuals were detained for days together, to pressure the main accused to surrender. The typical mode of operation is for the police party to raid the premises of the accused under cover of night to ransack and intimidate and even to seize documents - such as ration cards - which may confer certain civic entitlements on the accused. The embitterment of the religious minorities had gone deep, said a legal activist from Gujarat. POTA, in this regard, should more appropriately be called the "Production of Terrorists Act".

SPONSORED by the Human Rights Law Network, the Tribunal consisted of two retired High Court Judges, D.K. Basu and Hosbet Suresh. The senior advocate and former Union Law Minister Ram Jethmalani brought a greater depth of juristic expertise to the body. Others on the Tribunal were the veteran civil rights campaigner K.G. Kannabiran, Mohini Giri and Syeda Hameed, who have both served on the National Commission for Women, the renowned writer Arundhati Roy, and the journalist Praful Bidwai.

Summarising his impressions after two days of hearings, Jethmalani confessed that he had been grievously in error in supporting the enactment of POTA. "POTA came after a Security Council resolution asking all members of the U.N. to legislate against terrorism," he said. "I did support the enactment of POTA but I did it because it was done in obedience to the resolution of the Security Council. I today regret that I supported POTA. I had reposed faith in the honesty of the politicians who told me that it would not be misused. Today, I have no doubt that we do not need (it) and that it should go lock, stock and barrel."

Arundhati Roy for her part called for the repeal of POTA since it was no more than an accessory in the mission of "dispossessing the poor". "The misuse of POTA," she said, "is a clear illustration of how terrorism and poverty are intertwined."

The well-known cases of the Tamil Nadu politicians, Vaiko and P. Nedumaran, came in for extensive discussion at the Tribunal. Though the latter was present, he was obliged by the judicial order governing his release on bail to avoid any public utterances on his case. What the two days of testimonies proved is that beyond the media spotlight which has been almost exclusively focussed on prominent personalities whose liberty has been threatened by POTA, there is a vast human tragedy of the abuse of special security laws unfolding in virtually every corner of the country. When the Prevention of Terrorism Bill was first drafted in 2000, the National Human Rights Commission (NHRC) in its advisory jurisdiction described it as unnecessary on virtually all counts. The categories of offences that the Bill dealt with were covered by various other existing acts, it pointed out. What was required for a credible fight against terrorism was a firmer commitment to the rule of law, rather than the expansion of the powers of the police. After evaluating the 1990s experience with the Terrorist and Disruptive Activities (Prevention) Act (TADA), considering the range of powers conferred by existing laws and factoring in the provisions of international covenants to which India is a party, the NHRC in complete unanimity, affirmed that the Bill was uncalled for.

The Bill lapsed into some obscurity following this decisive intervention by the country's highest human rights watchdog and the conspicuous failure of political consensus. The terrorist attacks in the U.S. in September 2001 imparted a new life to it. The NHRC remained resolute in its opposition. Justice J.S. Verma, then NHRC Chairman, forcefully articulated this viewpoint in November 2001. In its approach to terrorism, he urged, the government should balance the "dignity of the individual with national security". Any law enacted to tackle terrorism must be very closely scrutinised and "must muster the strict approval of constitutional validity, necessity and proportionality". Care should be taken, he warned, to respect the human rights of citizens and avoid harassment of the innocent, "lest the entire action be counter-productive".

The NHRC's counsel found a receptive audience across much of the political spectrum. It took an unprecedented joint sitting of both Houses of Parliament to pass POTA into law. It took just over a year of its operation to bring home the unavoidable message that the only use of POTA was its abuse. The Union government responded with a Review Committee to examine cases booked under the Act and set the innocent at liberty. But as the Tribunal in Delhi was told, the Review Committee has remained hamstrung in its operations, often unable to obtain necessary information and documentation from the police authorities. Halfway measures serve little purpose. The Tribunal's finding that the act should be repealed in its entirety, is now backed up by extensive documentary evidence. But for those who opposed POTA from its conception, vindication has come late and after great human cost.