POTA reinvented

Print edition : November 05, 2004

The much-criticised Prevention of Terrorism Act goes, but the amended Unlawful Activities (Prevention) Act threatens to take its place with a vengeance.

in New Delhi

A protest against POTA in Mumbai. The placard reads: "POTA is BJP's law and the Congress' promise [to repeal it] is fake."-

ONE of the election promises of the constituents and supporting parties of the ruling United Progressive Alliance (UPA) became a reality when President A.P.J. Abdul Kalam promulgated an Ordinance on September 21 to repeal the Prevention of Terrorism Act (POTA). Simultaneously, the President promulgated another Ordinance to amend the Unlawful Activities (Prevention) Act (UAPA), apparently in order to fill the void created by POTA's repeal in punishing terrorism-related offences.

In its National Common Minimum Programme (NCMP), the UPA expressed its concern about the manner in which POTA had been misused since its promulgation in 2002 by the Bharatiya Janata Party-led National Democratic Alliance (NDA) government. However, the CMP promised to take forward the battle against terrorism. It said: "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."

Implicit in the promise was the recognition that every action taken under the Act by State governments needed to be reviewed. The Communist Party of India (Marxist) echoed this sentiment when its Polit Bureau urged the government to ensure that the ongoing POTA cases be brought under the purview of the Ordinance on the Act's repeal. "Cases which have to be continued can be pursued under the relevant provisions of the Indian Penal Code [IPC]," it suggested.

This demand has not been conceded. The Ordinance only allows the Review Committee constituted by the Centre under Section 60 of the repealed Act to review all the cases registered under it in order to ascertain whether a prima facie case existed for proceeding against the accused. The review would be completed within a year from the promulgation of the Ordinance. If no prima facie case is found by the committee, it can be withdrawn. In POTA cases in which the courts have not yet taken cognizance, investigations can be closed. The Ordinance also enables the Centre to constitute, if necessary, more committees to complete the review process within a year.

Contrary to the CMP, which only calls for enforcing strictly the existing laws after the repeal of POTA to fight terrorism, the UPA government has simultaneously promulgated another Ordinance to amend the UAPA extensively. The amended UAPA expands the section on definitions to include terrorist offences, and adds three new chapters dealing with punishment for terrorist activities, forfeiture of proceeds of terrorism and terrorist organisations. By this amendment the UPA government has implicitly accepted the NDA's argument that the existing laws are ineffective against terrorist acts.

The Ordinance amending the UAPA abandons Section 32 of POTA, considered the most draconian of all its provisions. The Section permits the court to consider as admissible evidence certain confessions made to police officers. The only safeguard provided under POTA was that the confession must be made by an accused before a police officer of a rank not lower than a Superintendent; the assumption was that such a confession would ensure "fair trial". POTA stated that confessions should be recorded in an atmosphere free from threat or inducement, but did not specify how to ensure such an atmosphere. Another safeguard in POTA, empowering the court to order medical examination of the accused in case of complaint of torture, did not inspire confidence because the confession obtained by the police would in any case be treated as evidence.

Moreover, Section 32 contradicted the Indian Evidence Act, under which confessions made to a police officer are not admissible as evidence on the grounds that the police may have tortured or coerced an accused to secure them. The People's Tribunal on POTA, set up by eminent human rights activists, recommended that the Act repealing POTA should include a specific provision to prevent the use of confessions taken under POTA for any trial that is to be continued under other laws. The Ordinance has no such provision.

Another much-criticised provision of POTA is the one relating to bail. To grant bail under POTA, the Judge was required to come to the conclusion that the accused had not committed the offence. This was not possible because at that stage, the Judge would have had before him only the First Information Report and the charge-sheet against the accused. The defence is not disclosed in a criminal trial until the end. This provision on bail does not find a place in the amended UAPA.

But the omission of these provisions of POTA does not make the amended UAPA less draconian. For instance, it includes with a minor qualification Section 21 of POTA, which deals with "offence relating to support given to a terrorist organisation". Under the amended UAPA, the accused should have the intention to further the activity of a terrorist organisation in order to be held guilty. (Vaiko, the Marumalarchi Dravida Munnetra Kazhagam leader, was held under Section 21 of POTA for merely speaking in support of the Liberation Tigers of Tamil Eelam (LTTE), a banned organisation under POTA.) Legal experts, however, feel the inclusion of "intention" is hardly a safeguard. Why should a person speak in support of an organisation if he does not have the intention to further its activities? The real objection to this POTA provision was that since the word "support" could be interpreted as loosely as possible, anybody could be accused of supporting a terrorist organisation.

Human rights groups are concerned that the amended UAPA has included the POTA provision relating to the admissibility of evidence collected through the interception of communication, ignoring the safeguards provided under POTA. Besides, all the 32 terrorist organisations banned under POTA have been banned under the amended UAPA, apparently without considering whether all of them are guilty of promoting terrorism.

The BJP should have felt vindicated by the provisions of the amended UAPA. However, the party is worried about one crucial provision: Section 2 (1) (p) of the amended Act includes in its definition of "unlawful association" any association held guilty of an activity or encouraging such activity punishable under Section 153 A or Section 153 B of the IPC. Section 153 A relates to the offence of promoting enmity between different groups on grounds of religion, race, place of birth and so on and promoting acts that affect the maintenance of harmony. Section 153 B deals with imputations and assertions prejudicial to national integration. Former Law Minister Arun Jaitely expressed the apprehension that this provision could be misused to declare organisations in the Sangh Parivar as unlawful.

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