A reality check

The Terror of POTA and other security legislation: A report on the People's Tribunal on the Prevention of Terrorism Act and other security legislation, New Delhi, March 2004; Ed. by Preeti Verma, published by Human Rights Law Network, New Delhi, and People's Watch, Madurai.

THE United Progressive Alliance (UPA) government is committed to repealing the Prevention of Terrorism Act (POTA). In its Common Minimum Programme (CMP), the UPA has expressed its concern about the manner in which POTA was grossly misused over the past two years. "There will be no compromise in the fight against terrorism. But given the abuse of POTA that has taken place, the UPA government will repeal it, while existing laws are enforced strictly," it has promised. The government may be close to fulfilling the promise, but a reality check on the application of the draconian legislation may help create the right political climate and mould public opinion in favour of its repeal.

In March 2002, the National Democratic Alliance (NDA) government pushed through the legislation at a joint sitting of Parliament, claiming that it was a national necessity in the fight against terrorism. The Opposition cautioned the government against its abuse and expressed the fear that it would be misused against the minorities and as an instrument of political vendetta. The government ignored the apprehensions.

The present report by civil society vindicates the fears. It brings together testimonies of POTA victims across 10 States through a national framework in order to contextualise the law and its selective use against the poor, the tribal people, Dalits and Muslims.

The report is prepared by a panel of eight eminent persons, namely, Ram Jethmalani, K.G. Kannabiran, Justice Hosbet Suresh, D.K. Basu, Mohini Giri, Syeda Hameed, Arundhati Roy and Praful Bidwai, and edited by Preeti Verma of the Human Rights Law Network. The report grew out of the proceedings of the People's Tribunal on POTA held in New Delhi in March year (Frontline, April 9).

According to the POTA Review Committee's database of cases and complaints, as on January 12 there were as many as 1,376 detainees in 10 States. Jharkhand registered the highest number of arrests under POTA, with 745 accused having been lodged in jail. It was followed by Jammu and Kashmir (181), Gujarat (158), Maharashtra (87), Delhi (66), Tamil Nadu (50), Uttar Pradesh (44) and Andhra Pradesh (36).

The huge number of arrests in Jharkhand would obviously require an explanation. A fact-finding team comprising 10 representatives from civil liberty groups toured several districts of Jharkhand in early 2003 to collect data on POTA-related arrests. The team found that the State government used POTA indiscriminately against ordinary citizens, mostly illiterate tribal people and those belonging to the Scheduled Castes and Other Backward Classes and that the police booked POTA cases to terrorise people. The team alleged that the Bharatiya Janata Party-led government in the State used the law to terrorise and wean away people from all Opposition parties, such as the Jharkhand Mukti Morcha and the Rashtriya Janata Dal, and also parties and groups preaching revolution. There were 3,000-odd people booked under POTA in the State, but none among them qualified as an accused under the Act, the team found.

The team reported that the families of most POTA victims did not understand the law; nor could they arrange advocates to invoke the due process under the law to get relief. In cases where the families could arrange advocates, they were not able to meet the expenses: they sold cattle, houses or small patches of land, whatever they possessed. "The POTA is a burden unimaginable on the mere subsistence economy of Jharkhand villages," the team's report said.

G.N. Saibaba, a member of the team, told the tribunal that they met among the detainees, children including girls, apart from government employees and journalists. A number of people, particularly contractors, had been named in First Information Reports (FIR) and arrested on allegations that they had funded Left extremists.

Some examples from Jharkhand are indeed shocking. In Pipawar, the police slapped a POTA case against people who tried to escape from a village market after the police had beaten up several of them, while seeking information about Naxalites. Those who failed to escape were arrested and booked under POTA. The present report says: "Hundreds of people continue to stay away from their families and villages for fear that the police might still arrest them under POTA." The police consider them absconders, having named them in the FIRs.

The report concludes that in Gujarat POTA was used with great precision to preserve and perpetuate the communal divide. Until March 14, over 280 persons in the State were booked under POTA. The tribunal found evidence that the law was used mostly against Muslims. Four cases in recent times, the tribunal found, had been used to book "terrorists" in Gujarat. The first relates to waging war and conspiring to do terrorist acts. However, no specific instance of commission of any terrorist act is alleged. The police booked 82 persons and arrested 44 in the case.

The second is popularly known as the "tiffin bomb" case, relating to an incident last year in which low-powered bombs in tiffin boxes exploded in different parts of Ahmedabad and injured several people. The police booked two persons and arrested 17 accused in the case. In the third case relating to the murder of former Minister Haren Pandya, which is being investigated by the Central Bureau of Investigation, the police booked 19 persons and arrested 15. In the fourth case, registered towards the end of last year, it was alleged that the accused planned to kill some important leaders belonging to the Vishwa Hindu Parishad (VHP) and the BJP. The police booked seven persons under the Act.

The tribunal found that the first and fourth cases did not require even an iota of proof that a terrorist act had been committed, since both dealt with `conspiracy' to wage war or kill important leaders. "All that is required is a good story of Muslim youth going to Pakistan to take arms training to take revenge for the killing of Muslims in the post-Godhra riot," the report says. It alleges that in all the four cases the accused are first detained without any authority of law and then tortured to secure confessions during the period of legal remand. The story of "conspiracy" is built up without any corroborating proof and given wide publicity in the local press in order to achieve communal polarisation, the report alleges.

The proponents of POTA had suggested that the Act was more effective than the previous law against terrorism, namely, the Terrorist and Disruptive Activities (Prevention) Act or TADA, which was allowed to lapse in 1995 because it had `in-built' safeguards against misuse, compared to the latter. The banning of the Akhil Bharatiya Nepali Ekta Samaj (ABNES) under POTA in 2002, on the contrary, suggests the opposite. Section 18 of POTA, which enables the government to notify an organisation as terrorist, does not require it to justify the ban. The ABNES, which has no history of criminal, violent, or terrorist activities on Indian soil, was banned without a shred of evidence against it, apparently to appease the Nepalese government. Section 19, which deals with the procedure for the denotification of such banned organisations, envisages the setting up of a committee for the purpose so that an aggrieved organisation can approach it for remedy. The previous government ignored the ABNES' plea for the removal of the ban, as it did not constitute a committee for the purpose of hearing such a plea.

In Tamil Nadu, the "safeguards" came to the rescue of the victims only after they underwent considerable suffering. Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader Vaiko and Tamil Nationalist Movement leader P. Nedumaran have both been released on bail, but their freedom of speech has been curtailed by the judiciary. The application of POTA against two minors - Prabhakaran and Bhagat Singh - was reversed on an intervention by the Madras High Court, but the provisions of the Juvenile Justice Act were applied in its place. Rightly, the tribunal has raised the issue of compensation to those who unjustly suffered under POTA.

The report draws its inspiration from Irom Sharmila Devi of Manipur, who has been on an indefinite fast since November 2, 2000, in protest against the abuses by the armed forces in the State and to press her demand for the repeal of the Armed Forces (Special Powers) Act, 1958, following an incident in which Assam Rifles personnel killed 10 civilians. Sharmila Devi is now force-fed through her nose. Her resolve is an amazing story of how an individual, without any organisational support, can offer resistance to the state.

The panel has concluded that POTA should be repealed, and it cannot be "reformed" or "improved upon". It has recommended the law's repeal retrospectively, wherein all charges framed under it will have to be deleted. The charges registered under POTA, the panel says, may continue, if the state so desires, under other laws. However, it cautioned against the use of confessions under POTA for any trial to be continued under normal laws.