The POTA passage

The passing of the Prevention of Terrorism Bill at a joint sitting of Parliament betrays contempt for the spirit of the constitutional provisions. It is an exercise in hypocrisy.

THE joint sitting of the two Houses of Parliament on March 26 was a unique one in Indian parliamentary history. Unlike the earlier two occasions when the two Houses sat together in the historic Central Hall of Parliament to pass legislation, March 26 marked the first time the provision was blatantly misused to somehow push through a piece of legislation mired in serious disagreement.

With 425 members voting in favour of the Prevention of Terrorism Bill and 296 against it, the government achieved its objective but the exercise left deep scars in the polity.

The summoning of the joint sitting of the Lok Sabha and the Rajya Sabha by President K.R.Narayanan on the basis of the Union Cabinet's decision perhaps indicated the government's anxiety that the rejection of the Bill by the Rajya Sabha on March 21should not result in a vacuum in the fight against terrorism. But the debate that lasted nine hours and 42 minutes, and in which as many as 28 members from both the Houses participated, hardly reflected this concern.

The joint sitting, sanctioned under Article 108 of the Constitution, was intended by the Constitution-makers as an instrument to resolve differences of opinion between the two Houses in the matter of passing legislation. As the Constituent Assembly Debates reveal (the draft Article 88 - corresponding to the present Article 108 - was discussed in the Assembly on May 20, 1949), the joint sitting was not considered an ideal solution, but as a member put it: "It was as good as possibly can be conceived of in a Federal Constitution".

The members consciously rejected two other options - one that provided that after the lapse of a certain length of time a Bill passed by the Lower House would automatically become an Act if certified by the Speaker (the British Model) and another that the Lower House should once again pass a resolution accepting the Bill, upon which it will become an Act (the Irish model). The reason for this rejection was that the Indian Upper House, unlike the House of Lords, is elected by the representatives of the various States and therefore the States' voice should be adequately represented in the process of making laws.

Chimanlal Chakubhai Shah (elected from Saurashtra) had explained in the Constituent Assembly the rationale behind the draft Article 88 thus: "When both the Houses meet together, it is possible that either by compromise they resolve their differences or the majority of the Lower House will carry the day. But it is not right to say that the Lower House alone will be the sole judge of a particular Bill."

In a sense, the instrument of the joint sitting was devised in order to allay the fears that the Upper House may block progressive legislation, even though Dr. B.R. Ambedkar explained during the Constituent Assembly Debates that the Upper Chamber, as it was constituted, would not act as a check or stand in the way of any progressive piece of legislation. But Dr. Ambedkar saw some justification for the fears that members expressed on the draft Article 88. He then said: "This is not in any sense a novel provision. It is contained in various other Constitutions also, and therefore, my suggestion to them is to allow this article to stand as it is and see what happens in course of time. If their fears come true, I have no doubt that some honourable members will come forward to have the article amended through the procedure we have prescribed for the amendment of the Constitution."

The first two joint sittings did not witness any of the bitterness that characterised the March 26 sitting. The first joint sitting was held between May 6 and 9, 1961, to consider amendments to the Dowry Prohibition Bill. Members of both Houses were united in their support for the Bill, but differed over specific nuances. The differences came to the fore even though the Congress had an overwhelming presence in both the Houses.

Supporters of the Prevention of Terrorism Bill drew inspiration from the passage of the Banking Service Commission (Repeal) Bill at the second joint sitting on May 16, 1978. The anti-terrorism Bill was similar to that Bill in certain aspects, they suggested. Both were in force in the form of ordinances and both were rejected by the Rajya Sabha before they were approved in a joint sitting.

But they overlooked a key difference: the May 1978 sitting was held at least five months after the Rajya Sabha rejected it, thus providing a cooling-off period for parliamentarians to reconsider the measure. Moreover, the Banking Service Commission (Repeal) Ordinance, 1977, had lapsed on December 26 after the Rajya Sabha rejected it on December 8. Thus when the joint sitting was held the ordinance was not in force, even though the Bill, which was carried, had a clause giving it retrospective effect.

Again, the 1978 joint sitting was bereft of the acrimony that characterised the latest debate. The Congress(I), which had a majority in the Rajya Sabha then, had opposed the Bill in principle.

ON March 26, moving the motion for the consideration of the Bill, Home Minister L.K.Advani said that to deal merely with terrorist organisations ordinary laws were perhaps sufficient. "But when you have terrorist organisations being trained, financed by a state and it becomes state-sponsored terrorism and all of them are enabled to infiltrate into our country, it becomes a challenge of a qualitatively different nature," he said. Advani did not explain how the Prevention of Terrorism Act (POTA) would help face this challenge of state-sponsored cross-border terrorism.

He defended POTA because its enactment, he claimed, would meet a call made by United Nations Security Council Resolution No. 1373, passed on September 28. The resolution said: "All states shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice." Advani emphasised that insofar as POTA would help secure conviction of the terrorist-accused, it would be a vast improvement over the Terrorist and Disruptive Activities (Prevention) Act (TADA), which lapsed in 1995, and whose record in securing convictions was poor.

Comparing POTA with the Maharashtra Control of Organised Crime Act (MCOCA), he said that under both these laws the content of intercepted communication would be deemed to be admissible evidence, and claimed - without substantiation - that this provision alone contributed to the higher rate of convictions under MCOCA.

It is true that TADA's failure to secure convictions stemmed from the fact witnesses were afraid to testify. If intercepted communication could substitute witness testimony, it would certainly constitute an improvement. But Advani left the crucial question unanswered: If this provision alone could help bring terrorists to justice, why was the government reluctant to review other provisions of POTA that are seen as being draconian?

Even with regard to the provision enabling the use of intercepted communication as evidence, Congress(I) member of the Rajya Sabha and senior advocate R.K. Anand expressed doubts. Citing a 1996 Supreme Court judgment, he said the court had allowed wire-tapping on sufficient grounds and it had made clear that the authority empowered to do so should not be the investigating officer. "The information which will be given to the investigating officers will be limited to the part of the investigation," the court had ruled, he said. Clause 42 of POTA, however, allows interception, in whole or in part, by a public servant acting under the supervision of the investigating officer. Wire-tapping was a serious matter that infringes upon the fundamental right to privacy guaranteed by Article 21, Anand cautioned.

Rather than answer the substantive misgivings expressed by Opposition members, Advani sought to score political points by suggesting that some Chief Ministers of Opposition-ruled States had told him in private that they supported POTO, but because of their parties' official position they were unable to say so publicly. He refused to divulge the names of the Chief Ministers.

Advani quoted from the Supreme Court judgment in Kartar Singh vs State of Punjab (1994), which upheld the constitutionality of TADA. The court had held that while dispensing justice in cases under TADA, the court should keep in mind not only the need to ensure the liberty of the accused but also the interest of the victims and their near and dear ones and, above all, the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and resort to private retribution.

But Advani left unstated what the court's majority judgment said in the succeeding paragraph: "The invocation of the provisions of TADA in cases, the facts of which did not warrant, was nothing but sheer misuse and abuse of the Act by the police."

Law Minister Arun Jaitley reasoned that POTA was better than TADA because it would hold the funding of terrorist crimes as an equally terrorist act, and that any person who associated himself with a banned organisation would be considered a terrorist. But Jaitley failed to answer the thrust of the Opposition's complaint that limiting the scope for judicial review of arrests under POTO at the threshold stage would increase the scope for its misuse too, as a few cases in Jammu and Kashmir, where it was invoked, had made clear.

THE joint sitting failed to resolve the differences between the government and the Opposition on various provisions of POTA. And the government simply ignored the misgivings over enacting POTA in the background of the communal carnage in BJP-ruled Gujarat.

Rather than assuage the feelings of the minorities and gain their confidence, Prime Minister Atal Behari Vajpayee, who spoke towards the end of the joint sitting, found that he had little to contribute to the debate, even though he had the unique distinction of being the only member to have participated in all the three joint sittings. Vajpayee surprised everyone by attacking the Leader of the Opposition, Sonia Gandhi.

Vajpayee was offended by the Congress(I) president's remark that he had to decide whether his primary duty was to protect the welfare of the people of India or to succumb to the internal pressures of his party and its sister organisations. "Will he be submissive and weak in his leadership or will he uphold the prestige of the high office he holds? His moment of reckoning has come," she had said in her speech. None from the National Democratic Alliance (NDA) had thought it necessary to defend the Prime Minister against her so-called insinuation. She had made these remarks in the background of the Prime Minister's inaction in controlling the riots in Gujarat, a divisive Ayodhya campaign, and the attack on the Orissa Assembly.

None could question Vajpayee's right to deny her allegation on the basis of facts. But Vajpayee is seen to have crossed the canons of parliamentary behaviour by questioning her right to make critical remarks against him. He also cast aspersions on her by referring to her political inexperience, as compared to his, and demanded an apology from her. This, rather than the passage of the Bill, marked the denouement of the joint sitting.

While POTA has been passed, the majority of the States, which have the responsibility to enforce it, have expressed their reluctance or refusal to use it. These are mainly ruled by the Opposition parties. Serious misgivings about POTA had been expressed by those who finally voted in favour of the motion. Pritish Nandy of the Shiv Sena, the Nationalist Congress Party, and the Telugu Desam Party had all been critical of POTO. Yet, they voted with the government. The spirit of parliamentary democracy and federalism may well be at stake after the joint sitting.