POTA prospects

The NDA government's move to enact the Prevention of Terrorism Bill despite widespread opposition to it smacks of a desire to exercise powers granted by the Constitution only in the case of emergency.

THE debate on the Prevention of Terrorism Ordinance (POTO) has once again come to the fore with the Bharatiya Janata Party-led National Democratic Alliance government seeking to enact a Bill to replace the ordinance at a joint session of Parliament on March 26, following the defeat of the government's motion in the Rajya Sabha on March 21. The Bill was carried in the Lok Sabha on March 18 with 261 members supporting and 137 voting against it. In the Rajya Sabha, however, where the Opposition was more vigilant and determined than in the Lower House, the Bill was defeated after a lively debate: 113 members voted in favour of the statutory resolution, moved by the Congress (I)'s Kapil Sibal, disapproving the bill, while 98 members opposed it.

The Bill had surprise supporters and opponents: while in the Opposition the All India Anna Dravida Munnetra Kazhagam (AIADMK) and the Nationalist Congress Party (NCP) supported the Bill, within the ruling coalition the Trinamul Congress absented itself from voting. The Telugu Desam Party, despite serious reservations, backed the Bill. The Dravida Munnetra Kazhagam (DMK), too endorsed it, even though the AIADMK, its adversary, supported it.

The (possible) enactment of the Bill at the joint session, where the Opposition would be outnumbered by the NDA and the new POTO-wadis within the Opposition, despite stiff resistance to it from a substantial section of the political class and civil society, would mark a sad episode for Indian democracy, which badly requires a healing touch in the wake of the State-supported terrorism in Gujarat following the Godhra train carnage.

EVEN as one seeks to understand the government's compulsions to enact the draconian measure, it is difficult not to doubt its bona fides or miss the inconsistencies in its intentions. While introducing in the Lok Sabha on March 18 the Bill to replace the Prevention of Terrorism (Second) Ordinance, 2001, promulgated on December 31 (which replaced the earlier Ordinance promulgated on October 24, 2001) Home Minister L.K.Advani sought to make a subtle distinction between an open war and a proxy war. He said: "If there is an open war, the Constitution itself provides for the suspension of fundamental rights, and an emergency is imposed. In a proxy war we do not do that, but at the same time, wherever terrorism has been there, we thought of TADA (Terrorist and Disruptive Activities (Prevention) Act). Subsequently TADA kept on being extended and, at one point of time, a situation came around 1995 when we allowed it to lapse."

The distinction between an open war and a proxy war is not discernible in the Constitution. Article 352 of the Constit-ution, as amended by the Constitution (44th Amendment) Act in 1978, provides for the proclamation of a state of emergency by the President in respect of the whole of India or part of its territory, if the security of India or of any part of its territory is threatened, whether by war or by external aggression or by armed rebellion. The explanation to Article 352 (1) says that the proclamation may be issued not only when the war or external aggression or armed rebellion has actually ensued but also when there is an imminent danger thereof. Article 358 - also amended by the Constitution (44th Amendment) Act - enables the state to suspend the provisions of Article 19 that guarantee fundamental rights during an emergency, but it makes a key exception: it can be invoked only during the proclamation of a state of emergency, necessitated by war or external aggression and not armed rebellion.

It is to the credit of Indian democracy that ever since the disastrous internal emergency remained in force between 1975 and 1977 and after the enactment of the Constitution (44th Amendment) Act, governments at the Centre have not been under any pressure to resort to the use of Articles 352 and 358 despite grave provocation on the country's borders. The 1999 Kargil War and the present tensions on the border with Pakistan could perhaps have satisfied the requirements inherent in Article 352, had the government argued that there was an imminent danger of war.

But any attempt by the government to use the emergency powers by stretching the meaning and intent of Article 352 would have met with universal disapproval. Had the Janata Party government of the later 1970s wanted that, it could have deleted Article 352 from the Constitution, Advani, who was a Minister in the Janata government, said during the debate in the Rajya Sabha. That Article 352 remained almost a dead letter points to the strength of Indian democracy and acts as a reminder that fundamental rights can be suspended only in the gravest of circumstances.

More significant, the proxy war, which Advani has been using as a justification for POTO, is perhaps substantially less serious than what our parliamentarians envisaged in 1978 as "armed rebellion". If an armed rebellion, short of war or external aggression, which could threaten the security of the country or its territory but would not necessitate the suspension of fundamental rights under Article 19 of the Constitution, could a "proxy war", which is rooted more in internal strife than in external support, be a justification to impose unreasonable restrictions on the citizens' fundamental rights?

Advani was reluctant to go into the factors that led to the lapsing of TADA in 1995. Had he done so, he would have understood the depth of the opposition to POTO. Kapil Sibal put it succinctly in the Rajya Sabha when he told the government: "We have learnt from the TADA (meaning its abuse), but you have unlearnt from it." Speeches made by Congress(I) members were: the Congress(I) could be rightly blamed for enacting TADA and keeping it in the statute book between 1987 and 1995, but should it be denied the right to retrospective wisdom? Some constituents of the NDA, which had been critical of TADA in Parliament when it was in existence, however had no convincing explanation for their change of stand.

Advani claimed in the Lok Sabha that the government took into cognisance even the Supreme Court's judgment on TADA in which several of its shortcomings were pointed out. "In the new Bill, all the shortcomings that we experienced in case of TADA - perhaps the Executive at that time in the States or at the Centre sometimes was tempted to abuse it - have been sought to be eliminated," he stated.

Advani's assertion was supported by former Law Minister and independent member Ram Jethmalani, who, in his intervention in the Rajya Sabha, sought to allay the fears that POTA (the Act that would succeed POTO) would also be abused like TADA. Jethmalani claimed that all the six safeguards prescribed by the Supreme Court against the abuse of TADA in Kartar Singh v. State of Punjab (1994) had been incorporated into POTO.

The first requirement was that confessions of the accused must be recorded in a free atmosphere by the police officer during interrogation. No doubt, Section 32(3) of POTO requires that the confession shall be recorded in an atmosphere free from threat or inducement. Section 15(2) of TADA had a similar provision: a police officer shall not record any confession unless upon questioning the person making it he has reason to believe that it is being made voluntarily. The mere reproduction of the Supreme Court's safeguard in the Bill, without any supporting provisions to show how it would be enforced, is obviously insufficient.

The second safeguard is that the person from whom a confession has been recorded under Section 15(1) of TADA should be produced before the court of a Chief Metropolitan Magistrate (CMM) or the Chief Judicial Magistrate (CJM) along with a confession without unreasonable delay. Section 32(4) of POTO fixes a time-limit of 48 hours within which the accused, along with the confession, has to be produced before the court. The government rejected some well-meaning suggestions to reduce this time-limit to 24 hours. Ironically, Vaiko of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) who had suggested this reasonable change, voted in favour of Advani's motion in the Lok Sabha even though the government did not accept the change. Vaiko's other demands too went unheeded: he sought a reconsideration of the definition of a "meeting" arranged in support of a terrorist organisation, under Section 21(2) and (3), as it was liable to be misused. The Bill defines a meeting as the meeting of three or more persons, whether or not members of the public are admitted. Advani's professed openness to suggestions for changes from the Opposition looks hollow in the light of his rejection of suggestions from within the NDA itself.

The third safeguard is that the CMM or the CJM should, in case of any complaint of torture, direct the authorities to produce the person who had given the confession for medical examination before a medical officer not lower in rank than an Assistant Civil Surgeon. Section 32(5) of POTO incorporates this provision but adds that thereafter the accused could be sent to judicial custody. It appears that even if the medical examination confirms torture, the accused has to be sent to judicial custody, and there is no bar in such cases on the police filing an affidavit seeking the reversion of the accused from judicial custody to police custody for pre-trial interrogation.

The remaining safeguards suggested by the Supreme Court are hardly any improvement over TADA and do not address some of the serious complaints against the Act. Such safeguards, even if incorporated into POTO, are hardly sufficient to make it more humane than TADA. More important, both Kapil Sibal and S. Jaipal Reddy, who is also the spokesperson of the Congress(I), pointed to the clear and present danger to due process of justice insofar as Section 30 of POTO guarantees protection of witnesses' identity and disentitles the accused to receive the totality of statements made against him or her during the trial.

While defending POTO, Jethmalani seems to have overlooked one of his serious reservations which he expressed outside Parliament. In a newspaper article, he was critical of Section 49(7) of POTO. This sub-section says that where the Public Prosecutor opposes the application of the accused for bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the court is satisfied that there are grounds to believe that he is not guilty of committing such offence. That is, an accused will be discharged only if he proves that he is innocent. Jethmalani held that this would amount to subversion of the rule of law. He insisted that the meaning of the bail provision must be that the court could hold an accused in custody for trial only if the prosecution established a prima facie case, in the absence of which the accused would be entitled to something more than mere bail, that is, the termination of the trial and unconditional freedom. Section 49(7) of POTO remains. Jethmalani's support to the Bill, therefore, was intriguing.

Advani also claimed to have taken cognisance of the National Human Rights Commission's objections on POTO and promised the House that POTA would be effective against terrorism but would offer minimal scope for abuse. That Advani used the expression "cognisance" to mean rejection was obvious. The NHRC, in its detailed response in July 2000, to the Draft Prevention of Terrorism Bill, 2000 recommended by the Law Commission, had stated that there was no need for the enactment of this Bill or similar law and that the existing laws were sufficient to deal with any eventuality, including terrorism. The NHRC reiterated its view after POTO-I was promulgated last October.

Nominated member and eminent jurist Fali S. Nariman said in the Rajya Sabha that the NHRC had unanimously and firmly expressed its opinion against the Bill, and that it had opposed it even after its amendment. Nariman reminded members that the NHRC was headed by former Chief Justice of India Justice J.S.Verma, who delivered the majority judgment on the President's reference of the Ayodhya question to the Supreme Court in 1994.

In Nariman's view, the National Security Act (NSA) which already exists, permits the Central and State governments to detain preventively persons who are a danger to the security of the state. 'Terrorists,' he argued, were by definition such a danger. "The Home Minister may tighten up its provisions, expand it if he wishes, but let us not have another harsh law," he said. Nariman told the House that preventive detention of suspected terrorists was easier to administer since it did not involve prosecution, trial or the extracting of confessions to establish proof. Besides, there were better safeguards in the NSA than in POTO, he said.

And what has the government done to allay the concerns of the NHRC? In POTO-II, and in the Bill, only cosmetic changes have been made. Section 3(8) of POTO-I and the Law Commission's draft Bill made a person guilty of a terrorist act if he was in possession of information that would be of material assistance in preventing a terrorist act or in securing the prosecution of another involved in such an act. This provision was objected to as it infringed on the freedom of the media. The government deleted this provision but retained Section 14(2), which considered the failure to furnish information relating to a terrorist act to the investigating authority an offence under the Act. There were reasonable misgivings that this sub-section would equally come in the way of the freedom of the media. Other changes included a reduction in POTO's tenure from five to three years, but this hardly helped convince the members of the government's intentions.

THE Home Minister, who piloted the Bill in the Lok Sabha and the Rajya Sabha, on March 18 and 21 respectively, and participated in the debates, contradicted himself over and over again.

State-sponsored cross-border terrorism, he said in the Rajya Sabha, was much more dangerous than an open war. When one considers the number of victims of the four wars India had waged since Independence and the number of victims of cross-border terrorism, one would agree with the Home Minister. Law Minister Arun Jaitley said in the Lok Sabha that during the four high-intensity wars the country had fought, it lost a total of 5,468 lives; however, in the so-called low-intensity war in the last 15 years India had lost 61,013 civilians and 8,706 security personnel, and six lakh people had been rendered homeless, he said.

However, Advani added that POTO was not a panacea for terrorism but one of the many steps required to create a feeling of security in the nation. The Bill, he declared, was not for 'preventing' terrorism even though its phraseology would suggest so. The intention was to instil fear in potential culprits and make it easier to achieve conviction, he said when members pointed out the ineffectiveness of POTO in preventing the attack on Parliament on December 13 or the carnage at Godhra and the pogrom in Gujarat.

The provision in POTO relating to the interception of communications is significant to secure conviction, he suggested, as the police would not entirely be under pressure to produce the witnesses, who might be reluctant to testify against terrorists. A similar provision in the Maharashtra Control of Organised Crime Act, 1999, helped the State to secure the conviction of nearly 75 per cent of those held under the Act, he claimed, quoting the State government. This provision alone could distinguish POTO from TADA, which resulted in fewer convictions, he hoped. The Congress(I) was willing to reconsider and remove the harsh provisions in the pieces of legislation in Maharashtra and Karnataka against organised crime, if the Centre was willing to drop POTO, Jaipal Reddy said in the Lok Sabha.

But the record of POTO in Jammu and Kashmir, as Advani revealed, is more than sufficient to show that the new law would not be entirely helpful to achieve the stated objectives. Of the 26 persons held under POTO in the State, Advani told the Rajya Sabha, 10 had secured bail. Although Advani gave these figures to show how liberal POTO is, Kapil Sibal pointed out the inconsistency: under POTO, bail would be available to the accused only after one year; if 10 persons had indeed secured bail even before the ordinance could be enacted, it showed how ineffectively the law was being administered, he said. Advani then reasoned that the 10 persons had probably been discharged owing to the lack of prima facie evidence against them, in which case it is possible that the Act could be misused against innocent persons who could for lack of resources to fight their cases, suffer a longer prison terms.

In his defence of POTO in the Rajya Sabha Advani made a fervent plea to members not to "communalise" the debate, in response to members' fears that the Act could be used to target the minorities as happened in the case of the accused in the Godhra carnage. Although Advani promised to make amends in this case (the State government subsequently stopped the use of POTO against the accused in the Godhra case), his plea to separate terrorism from issues such as Ayodhya and secularism hardly convinced members, who questioned the non-application of POTO against people who engineered riots against the minorities in Gujarat and the VHP and Bajrang Dal activists who attacked the Assembly building in Orissa.

During the debate in the Rajya Sabha, Union Rural Development Minister M. Venkaiah Naidu and nominated member Cho Ramaswamy sought to distinguish between vandalism (of the Bajrang Dal-Vishwa Hindu Parishad variety) and terrorism, as an answer to the demand for using POTO against Hindutva forces. Political protests very often resulted in violence and that could be no ground for using a harsh piece of legislation like the POTO, they reasoned, even though such vandalism qualifies for definition as a terrorist act, according to POTO. If this explanation for the non-application of POTO against the VHP-Bajrang Dal vandals is accepted, as being logical, what would prevent the government from considering terrorism as an expression of political protest and address its root causes? The seeds of communalism present in POTO are too apparent to be concealed.

To many observers, the government's decision to go ahead with the enactment of POTO despite resistance betrays a sinister design to seek the suspension of civil liberties of innocent citizens and political dissenters without blatantly using the emergency powers under the Constitution as happened during the emergency. While internal disturbance is no longer a ground to proclaim a state of emergency, the absence of clear constitutional restrictions on the enactment of preventive detention laws appears to be a blessing in disguise for a government that intends to trample on civil liberties. If at all POTO becomes law, only judicial review and constant vigil on the part of citizens can help prevent it from paving the way for an emergency in disguise.