Terror through ordinance

The Prevention of Terrorism Ordinance (POTO) promises to be more draconian than the draft bill recommended by the Law Commission of India.

A STORM of political protest has greeted the promulgation of the Prevention of Terrorism Ordinance (POTO), which arms the Central and State governments with greatly enhanced powers of preventive detention. Legal and constitutional experts are unconvinced that the added powers - which include the virtually unfettered authority to notify organisations as practitioners of terrorism - will be of any substantive benefit in combating terror. Rather, they say, it would only provide ample opportunities for abuse by the executive authority.

Preventive detention, a procedure that runs counter to all notions of fairness, was inherited by India as a part of the colonial baggage that the British left behind. Article 22 was subsequently introduced in the Constitution to enable Parliament and the State legislatures to make laws providing for preventive detention for reasons related to the security of the state and maintenance of public order. Preventive detention is based on a suspicion that the accused could commit a wrongful act and is generally resorted to when enforcement agencies find the existing evidence against the accused insufficient for proper trial. The provision was regarded as a necessary evil, particularly in the context of the riots that accompanied freedom and the worsening communal atmosphere that threatened the survival of the Indian republic.

The Constitution enshrines certain safeguards against the abuse of the power of preventive detention. Insofar as preventive detention seeks to do away with the presumption of innocence, the foundation of personal liberty, and eliminates the need for an independent judicial scrutiny before the liberty of a person is interfered with, any preventive detention law is inherently liable to be abused unless there are reasonable checks and balances built into such a piece of legislation.

There have been several preventive detention laws passed both by Parliament and by the State legislatures, for varying durations and for different purposes. The fear of public opinion turning against the misuse of such laws acted as a deterrent against frequent resort to them, even though the judiciary upheld their constitutionality. Thus the country has had no preventive detention law at the Union level since 1995, when the Terrorist and Disruptive Activities (Prevention) Act, 1987, or TADA, was allowed to lapse following a nationwide uproar against its abuse by the law-enforcement authorities.

TADA's demise did not prevent the government from toying with the idea of bringing in a replacement. The Congress(I) government headed by P.V. Narasimha Rao introduced the Criminal Law Amendment Bill, 1995, in the Rajya Sabha, but it had to be abandoned for want of political consensus. After the Vajpayee government assumed power, the Union Home Ministry proposed several amendments to this Bill, and requested the Law Commission to study afresh the possibility of enacting a suitable law to combat terrorism and other anti-national activities. In its 173rd Report, the Commission recommended the new, and harsher, Prevention of Terrorism Bill for enactment (Frontline, August 18, 2000).

Having failed to reach a political consensus on the draft Bill proposed by the Commission, the government was evidently waiting for an opportunity to win converts to its stand. The September 11 terrorist strikes in the U.S. and the war in Afghanistan provided just the kind of urgency that the government sought.

Besides incorporating almost all the controversial provisions recommended by the Law Commission, the Prevention of Terrorism Ordinance (POTO), promulgated by the Centre on October 25, includes two new chapters - one on 'terrorist organisations' and another on 'Interception of communication in certain cases'. In the view of civil liberties groups, both these are fraught with extreme risks and virtually confer the licence on the law enforcement authorities to infringe on individual and group freedoms. POTO clearly shows that the government has not really learnt from the public debate that followed the Law Commission's draft Bill.

Nobody could seriously disagree with the proposition that the security environment in the country has worsened, principally as a result of growing terrorist activities. In this context, Union Home Secretary Kamal Pande has justified POTO on the grounds that the "existing criminal justice system was not designed to deal with terrorism".

An ordinance is generally promulgated when Parliament is not in session and an urgent need for legislation has to be met. It is necessary in this respect to know what circumstances forced the government to take such expedient action. The only explanation available is that of Home Minister L.K. Advani, who said: "If the country wants to wage a war against terrorism, then we must have a law to counter it. On the one hand, Pakistan has unleashed a proxy war on us while on the other we are being discouraged to bring an effective law to fight the menace."

But then Advani went on to direct his attention towards an entirely different set of targets: "For instance, under existing laws we cannot charge scare-mongers. But in POTO there is a provision to charge those who are mailing terror letters. Even if the letter contains talcum powder, a case can be made out."

Advani was perhaps induced to narrow his focus because a few letters carrying suspicious substances were mailed to his office by unknown persons (all of which, however, have tested negative for anthrax). But his remarks underscore the extent to which POTO could be abused, if the law-enforcing authorities are customarily liberal in interpreting its provisions.

Under Section 3(1)(a) of POTO, acts committed with the intention to kill, maim, injure, destroy property or disrupt essential services could be deemed as acts of terrorism. The instrumentalities for committing these acts are listed - bombs, dynamite, explosive substances, firearms, hazardous chemical and biological materials - but then there is also a broad category of "any other means" that virtually opens up infinite possibilities of abuse of the new law. Even suspicions of intent and the likelihood that any of the outcomes of a terrorist act as defined supra could materialise would suffice for POTO to be invoked. In cases where terrorism has resulted in the death of any person, the death penalty and life imprisonment could be imposed. Life imprisonment and a fine could be imposed where the outcome has been less severe.

Advani has added a caveat to his brief defence of POTO. While speaking at a seminar in New Delhi on November 1 he said: "The new ordinance should not be linked with the Hindu-Muslim issue. We should know that a terrorist is a terrorist and he has no caste or creed." Obviously, such a wide definition of "terrorist act" as contained in Section 3(1)(a) of POTO would be sufficient to include acts of vandalism indulged in by members of the Sangh Parivar from time to time.

The recent incidents of violence unleashed by the Bharatiya Janata Yuva Morcha members at the Taj Mahal and the trespass committed by Vishwa Hindu Parishad leaders at the make-shift temple at the site of the Babri Masjid in Ayodhya on October 17 are both examples of vandalism indulged in by the proponents of majority communalism. If POTO is strictly applied, these incidents could be proven to have the likelihood of resulting in mass unrest, death, injuries, damage to property and the disruption of essential services; and hence could be classified as acts of terrorism. It is extremely doubtful whether the enforcement agencies would consider these acts as "terrorist acts" under POTO. The TADA experience was that the terror emanating from minorities alone was depicted as terrorism. Operatives of Hindu militant outfits were not booked under TADA to the extent their Muslim rivals were, it has been pointed out.

The problem with POTO is that without acknowledgment, it draws its sustenance from the Law Commission's 173rd Report, which contains the draft bill. The report equates terrorism with organised crime and does not go into the roots of modern symptoms of militancy, which are often political and have regional variations.

TADA's failure should be an eye-opener for those who suggest that a stringent law could be an answer to terrorism. Even if it is conceded that TADA's effectiveness should not be judged in terms of the conviction rate (which is about 1 per cent), its proponents have not been able to establish that in practice, under TADA, the police enjoyed greater discretion and freedom of field operations, which were useful in preventing or investigating terrorist crimes.

TADA's proponents point out that the Act was enacted specifically to tackle terrorism in Punjab in the 1980s and that the achievement of normalcy in the State was proof of its success. According to the Status Paper on TADA prepared by the Union Home Ministry, in April 1995, the number of TADA detenus in Punjab was the second highest in the country. There were about 15,000 detenus in Punjab, as compared to 18,500 in Gujarat, where terrorism was hardly a problem. But the rate of convictions of TADA detenus in Punjab was less than 2 per cent. In Jammu and Kashmir, out of at least 11,000 detenus, none was convicted. Therefore, could it be argued that the end of terrorism in Punjab was largely a result of detaining these 15,000 suspected terrorists without conducting trial under TADA? As many people would argue, the rise and fall of terrorism in Punjab in the 1980s had more to do with certain sociological and administrative factors, including policing.

Is POTO more humane than TADA? No doubt, POTO does not explicitly equate acts of disruption with terrorist acts. But the wide definition of a terrorist act in POTO could easily bring into its ambit, acts of disruption as well. At times, a protest movement, whether launched by a political party or a trade union, could result in violence, and this could be made an excuse for prosecution of offenders under POTO rather than under normal laws.

In its draft Bill, the Law Commission proposed some protection against harassment by providing a section that requires two different levels of approval for a first information report (FIR) to be filed. If the Director-General of Police (DGP) does not approve of the recording of an FIR within 10 days or the Review Committee (consisting of a sitting or a retired Judge of the High Court and two government appointees) does not approve the same within 30 days, the FIR becomes null and void and the accused has to be released immediately.

Even under TADA, a station house officer could not register an FIR without the prior permission of the Inspector-General of Police or the Commissioner of Police. The Law Commission introducing one more level of approval was cited as an improvement over TADA.

Ironically, POTO retains only one of these sub-sections of the draft Bill, conveniently ignoring the proposal to make mandatory the DGP's and the Review Committee's approval in order that an FIR remains valid. In POTO, the corresponding section on cognisability of offences in POTO (Section 49) only says: "No court shall take cognisance of any offence under this Ordinance without the previous sanction of the Central government or, as the case may be, the State government."

Proponents of POTO argue that it addresses the issue of lack of conviction under TADA by guaranteeing protection to witnesses. To ensure that the witness is not deterred by any prospect of threats of violence from the accused, during cross-examination, his/her identity is sought to be concealed. However, as civil liberties groups have said, very often the accused could easily make out the identity of the witnesses through their voice and other circumstantial factors. However, from the point of view of due process, this provision in POTO weakens considerably the ability of the accused to cross-examine the witness.

Section 51(4) of POTO makes it clear that even though the person arrested could meet his or her counsel during the course of interrogation, the legal practitioner cannot remain present throughout the period of interrogation. On the contrary, the Law Commission's draft Bill recommended that the detainee's legal practitioner be allowed to remain present during the interrogation, and that the person arrested be informed of his right as soon as he is brought to the police station. This was to ensure that the police did not employ any third-degree methods to extract confessions. Under this law, any confession would be accepted as valid evidence. It is true that the detainee gets an opportunity to change his confession before a magistrate within 48 hours, but it will be rarely done, as the threat of further police custody during trial would still be hanging over him. POTO allows for judicial custody only if there is any complaint of torture. Moreover, under Section 48 (2) (b) of POTO, the police officer undertaking the investigation can request the reversion of a person in judicial custody to police custody. Thus under POTO, police custody can be extended from 30 days to 180 days, whereas under the Criminal Procedure Code (Cr.P.C.) the maximum duration of police custody allowed is only 90 days. Under POTO, an application for bail can be heard by the court only after one year of arrest, if the public prosecutor is given an opportunity to oppose the application.

Further, POTO's point to the existence of similar laws in Maharashtra, Andhra Pradesh and Karnataka and the use of the National Security Act against insurgents in Tripura, where the CPI(M) is in power. If such laws are admissible, they argue, why should there be so much opposition to POTO? The answer appears to lie in the observation of Justice (retd.) J.S. Verma, Chairman of the National Human Rights Commission (NHRC). He said: "What we need is stricter implementation of existing anti-terrorism laws, and not new legislation." A piece of Central legislation, which empowers the Centre and the States to take action against suspected terrorists, is fraught with risks of abuse against minorities, weaker sections and innocent people, especially in the absence of strong safeguards against its misuse.

POTO retains two of the most controversial provisions in the Law Commission's draft Bill, which invited the strongest protests from the NHRC and the media. Section 3(8) proposes imprisonment up to one year or fine or both for a person who fails, without reasonable cause, to disclose information in his possession which could prevent a terrorist act from being committed, or result in securing the apprehension and prosecution of a suspected terrorist. The NHRC had said that read with Section 14, which gives powers to investigating officers to require individuals to furnish information in their possession, Section 3(8) could gravely jeopardise the work of journalists. The punishment for failure to comply with Section 14 is up to three years' imprisonment. The only exemption that has been specifically granted is for lawyers who appear on behalf of the accused.

More draconian is the provision that makes it an offence to provide money or other property with the knowledge or reasonable suspicion that it could be used for purposes of terrorism. A person found guilty of this offence would be liable, on conviction, to imprisonment for a term not exceeding 14 years, or fine or both. POTO completely overlooks the possibility that individuals who may otherwise not subscribe to the purposes of terrorism could under pressure of physical threats make a material contribution.

POTO provides for the Central government to notify any organisation of its choosing as a practitioner of terrorism. This purpose is achieved by merely naming such an organisation in the schedule provided under the ordinance. The schedule, as it now stands, is made up of 23 organisations, including the Liberation Tigers of Tamil Eelam, the Students Islamic Movement of India, Deendar Anjuman and the militant outfits in Jammu and Kashmir, the Harkatul Mujahideen and the Hizbul Mujahideen. Since these organisations have been banned under the Unlawful Activities (Prevention) Act, their status is subject to periodic review. There is also a notion of judicial restraint inherent in the necessity to submit such a ban to the scrutiny of a tribunal.

These restraints have been effectively removed through the device of designating them "terrorist organisations" by merely notifying them in the schedule to POTO. Applications for the removal of any organisation from this schedule would have to be made to the Central government, which will also have the ultimate power to frame the rules under which these requests would be heard. Once this recourse is exhausted, an aggrieved individual or organisation could approach a "Review Committee" for redress. But here too the balance of power is skewed in favour of the executive, which would be responsible for constituting such a committee. The review process provided for under POTO would be carried out by a body comprising no more than one judicial member in a committee of three.

Subject to its approval by Parliament, POTO would be applicable all over the country for a period of five years. This is in contrast to TADA, which had to be renewed every two years and had to be invoked specifically for application in the States.

In the matter of the special courts conceived under POTO too, the executive retains the balance of authority, being empowered to deal with any jurisdictional disputes. This is a rather severe abridgment of judicial processes, since the issue of jurisdiction - both as regards subject and territory - is normally settled through reference to higher courts.

Section 21(2)(c) of POTO deems a person guilty of an offence if he arranges, manages or assists in arranging or managing a meeting with a terrorist organisation. It was only recently that the Government of India held talks with the representatives of a militant group in Jammu and Kashmir. Is it that the government's interlocutors who arranged this meeting should be held guilty and liable to be imprisoned?

But these are not the only infirmities in POTO, which finally must stand testimony to a massive failure of the political imagination and a cavalier disregard for democratic processes. But considering that the National Democratic Alliance is in a minority in the Rajya Sabha, POTO is unlikely to be passed in the Upper House even if the government manages to get the Lok Sabha's approval by silencing dissenting voices within the ruling coalition.