The POTO debate

The Opposition is determined to defeat the Prevention of Terrorism Ordinance in Parliament even as the National Democratic Alliance continues with its strident defence of its provisions.

THE National Democratic Alliance (NDA) government finds in the Prevention of Terrorism Ordinance (POTO), to quote Home Minister L.K. Advani, a "win-win situation". Its passage in Parliament during the winter session beginning November 19 would give the government one more oppressive instrument in its so-called fight against terrorism; its defeat would help the Bharatiya Janata Party (BJP)-led alliance seek political mileage in the coming Assembly elections in some States.

The cutting edge of POTO, Advani said in an interview to a newspaper, lay in the provisions relating to evidence that enabled conviction. One important fact that was brought to the notice of the executive, he claimed, was that if the Terrorist and Disruptive Activities (Prevention) Act, or TADA, did not have the provision to admit confessions by the accused before police officers as valid evidence, none of the accused would have been convicted in the Rajiv Gandhi assassination case. Union Minister for Law and Justice Arun Jaitley endorsed this view by saying that but for this provision under TADA, now adopted by POTO, India would have appeared a soft state, where a former Prime Minister was killed and none was convicted.

Central to these arguments is the assumption that without confessions by the accused admitted as valid evidence, it would not be possible to secure convictions in any case where the accused are powerful enough to intimidate witnesses. On the face of it, this is a ridiculous argument as it concedes that the Indian prosecution and investigative system is incapable of securing corroborative evidence to confessions.

Having said this, it is worth examining how crucial Section 15 of TADA was in securing the conviction of the accused in the Rajiv Gandhi case. Under Section 15, a confession voluntarily made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer in writing or by using any mechanical device, such as audio cassettes and video tapes, was admissible in the trial of such person (or co-accused, abettor or conspirator) for an offence under this Act.

The Supreme Court, while disposing of the appeals in May 1999 by the 26 accused in the Rajiv Gandhi assassination case against the death sentence awarded to them by the Designated Court in Chennai, had held that all the accused committed no offence under TADA. But it confirmed death sentences to four and life imprisonment to four of the accused under the provisions of the Indian Penal Code (IPC) and other Acts for various criminal offences.

Section 12 of TADA enabled the Designated Court to try jointly any offence under TADA together with any other offence with which the accused might have been charged as per the Code of Criminal Procedure (CrPC). Therefore, Justice K.T. Thomas held in that judgment that the confessional statement duly recorded under Section 15 would continue to remain admissible. An amendment, through a proviso, was introduced in Section 15(1) of TADA in 1993, which said confessions by one accused could be admissible in the trial of a co-accused, abettor or conspirator, provided they are charged and tried in the same case together with the accused making the confession.

Justice Thomas, interpreting this provision, said: "While a confession is substantive evidence against its maker, it cannot be used as substantive evidence against another person, even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence."

Justice D.P. Wadhwa said: "Under Section 15 of TADA, confession of an accused is admissible against a co-accused as substantive evidence... As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence."

Concurring with this view, Justice Sayeed Shah Mohammed Quadri said: "Insofar as use of confession of an accused against a co-accused is concerned, rule of prudence cautions the judicial discretion that it cannot be relied upon unless corroborated generally by other evidence on record." It is precisely because the police failed to get enough corroborative evidence to the confessions against the co-accused, that the Supreme Court refused to confirm the convictions of all the 26 accused. It confirmed the convictions only where their confessions were sufficiently corroborated. In other words, confessions alone are not sufficient for conviction.

On the contrary, Congress(I) Member of Parliament and legal expert Kapil Sibal argues that if Section 15 alone mattered for the promulgation of POTO, the government could have thought of amending the Evidence Act, to provide for admissibility of such confessions in certain cases where investigation of a terrorist crime is involved. Ironically, Section 32 of POTO, which is the equivalent of Section 15 of TADA as amended in 1993, does not have the proviso that the confession of the accused would be admissible against a co-accused, abettor or conspirator, charged and tried in the same case together with the accused. It is surprising, therefore, that a provision of TADA, which does not find a place in POTO, should be cited in defence of the ordinance.

Civil liberty groups have questioned the police claim that the confessions secured under Section 15 were 'voluntary'. (POTO also makes it clear that confessions should be secured by the police without the use of force.) This is one of the issues raised in the mercy petition submitted by the convicts facing death sentence. Seventeen of the 26 accused in the Rajiv Gandhi case gave confessions to the police under Section 15 but retracted them before the Designated Court, which rejected their retractions.

In 1994, the Supreme Court, while upholding the constitutionality of TADA, said that Section 15 left ample room for misuse and miscarriage of justice, and therefore recommended certain safeguards - such as producing the accused before a court within 24 hours of recording his/her confession and arrangement of medical examination of those accused in case of any allegation of torture.

To some extent, POTO incorporates these safeguards. Under POTO, a person whose confession has been recorded shall be produced before the court within 48 hours, and the court would record his statement, and send him for medical examination, if there is any complaint of torture. But POTO does not empower a Judge to reject the admissibility of a confession if the complaint of torture is sustained by a Medical Officer. Even if such a power is implicit in some cases, relief under POTO may be available only after 180 days of police custody and the threat of further police custody after a brief spell of judicial custody is not entirely ruled out. The accused, it is feared, are unlikely to retract their confessions before a court.

The government has sought to minimise the threat to the freedom of the media from Section 3(8) and Section 14 of POTO. Arun Jaitley has argued that Section 3(8) merely imposes an obligation on a citizen to give information relating to a crime under POTO. This obviously does not cover publication of an interview with a terrorist, he suggested. Section 14 empowers an investigating officer to require anyone to furnish information. An identical provision exists under Section 39 of the Cr.P.C., which imposes an obligation on every citizen to give information to the police on any offence covered under the IPC. Non-compliance is punishable under the IPC.

But the distinction between Section 39 of the Cr.P.C. read with the provisions under the IPC and POTO is obvious: while the former has enough safeguards against abuse, the latter does not. POTO's safeguards come into operation after the damage is done.

In order to counter the Opposition's protest, the government has pointed to the laws, existing and proposed laws similar to POTO in Maharashtra, Karnataka and Andhra Pradesh. The Maharashtra Control of Organised Crime Act, 1999, (the Karnataka Control of Organised Crime Bill, 2001, and the Andhra Pradesh Control of Organised Crime Act, 2001 are modelled on this) has a narrow definition of what constitutes an organised crime - any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such a syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.

The Act is clearly intended against the Mumbai underworld. POTO lifts the provision relating to interception of communication from this Act and applies it to all citizens suspected of having committed a terrorist act.

As Kapil Sibal points out, the Maharashtra Act makes sense in the context of threats from organised crime syndicates, whereas the militants in Jammu and Kashmir, against whom POTO might be intended, do not communicate with anyone but indulge in mindless violence. Sibal, however, concedes that laws introduced by the States need to be reviewed. If they have not served the purpose, they should be dropped.

Unlike these States-specific pieces of legislation, POTO applies to every Indian and lacks the precise definition of a terrorist act, as attempted by Section 3(1) of TADA. The more vague the definition of a terrorist act, the greater the possibility of abuse, warns Sibal.

If a wide definition under POTO is intended to bring in all the terrorist organisations under its ambit, its schedule of terrorist organisations reveals exactly the opposite. Of the 23 organisations notified under POTO, four belong to Punjab, some of them already defunct, and six belong to Jammu and Kashmir, many of whom had been banned under the Unlawful Activities (Prevention) Act (UAPA), 1967, which suggests that the existing laws could have been sufficient to secure their proscription, seizure of their properties, and stoppage of the flow of funds to them. The banned People's War Group, which strikes terror in Andhra Pradesh, Madhya Pradesh, Chhattisgarh and Bihar, has not been notified. The Student's Islamic Movement of India, and the Deendar Anjuman, both banned under the UAPA, have been notified under POTO. The notification of the Liberation Tigers of Tamil Eelam (LTTE) has surprised observers.

Whereas the National Socialist Council of Nagalim (Isaac-Muivah), with whom the Centre is holding talks, has been left out in the Schedule, six organisations espousing the ethnic cause in Manipur, where there is no visible separatist movement, have been included. Two organisations each in Assam and Tripura have been notified. None of these organisations could be expected to maintain any membership records; a mere suspicion that an individual might belong to or sympathise with these organisations could lead to action under POTO.

All Opposition parties, with the exception of the All India Anna Dravida Munnetra Kazhagam, (AIADMK), have vowed to oppose POTO in Parliament. While POTO's defeat in the Rajya Sabha, where the NDA is outnumbered by the Opposition appears certain, it is not clear whether the NDA will succeed in neutralising the opposition to the ordinance from within. Although the DMK, the Akali Dal and the Telugu Desam Party expressed some reservations, they have not been vocal in their opposition to POTO.

The real test of POTO is, however, not in Parliament but in the electoral arena, where the psychological war over equating the opposition to POTO with support to terrorism would be fought.