Why India required a stringent anti-terrorist law

GANESH SOVANI

Advocate, Bombay High Court

1- 4, Shree-Nalanda,

Ghantali Devi Path,

Thane – 400 602

(India).

Tel : (91-22)814 4542. Fax : 819 6759

E-mail : ganesh_sovani@rediffmail.com

A Momentous Day for Indian democracy

Twenty Sixth March Two Thousand Two would go down as the ‘Momentous Day’ in the annals of the Indian democracy when the legislation combating terrorism was passed in the joint session of the Indian parliament which lasted for 9 hours and 20 minutes to be precise. When the attempts were made by the government to pass the much publicized ‘Prevention Of Terrorism Bill – 2000’ in both houses of the parliament failed, as the Lok Sabha (Lower House) passed it with thumping majority, however the bill got defeated in Rajya Sabha (Upper House), the Government no option but to request the President of India to summon a joint session of the two houses of the parliament as per the provision of Article 108 of the Constitution of India for the passage of the bill..

As the deficiency of heads of the ruling coalition parties in the Upper House was off set by the substantial majority in the Lower House, the ‘smooth passage’ of the bill was a forgone conclusion. On being taken up for the voting, with 425 ‘Ayes’ versus 296 ‘Nos’ the Deputy Speaker M. Sayyed declared the passing of the bill as the clock struck 9.10 PM amidst lot of pandemonium, chaos, cacophony, allegations and counter-allegations in the third joint session of the parliament in the history of Indian democracy.

The marathon debate witnessed as many as forty-two MPs (Member of Parliament) deliberating on the bill, with the members of the treasury benches vehemently supporting it and the opposition parties (which included the Congress (I), CPI (M) – Communist Party of India (Marxists), etc.) opposing it tooth and nail. The live telecast of the joint session of the parliament on the state owned DD (Door Darshan) channel was watched by the millions of Indians at home and abroad with beated breath. The fact that thirty four MPs of the AIDMK (All India Anna Dravid Munnetra Kalagham) party which rules in the state of Tamil Nadu, but which not a member of the ruling NDA (National Democratic Alliance) voted in favor of the bill ‘lock, stock and barrel’ going by the assertion made by it’s MP Advocate Dr. P.H. Pandian who spoke very vehemently and humorously in support of the bill, was the only solace of the entire debate.

How POTO became POTA

In any other democratic country, a bill empowering the law enforcement agencies with additional and stringent powers to combat the terrorism would have been passed ‘unanimously’ by keeping aside the political differences and in the supreme interest of the nation ! However, in the country like India, which is regarded as the world’s biggest democracy the bill was severely criticized by the opposition parties for the ‘sake of opposition’ with a clear cut eye on the ‘vote bank’ or from ‘image’ considerations.

Ever since the bill was taken for the discussion by the Law Commission of India way back in December 2000 by organizing two mega seminars in the capital New Delhi , neither the opposition parties nor the human right activities came out with a concrete suggestion or two for the modification to the intended bill. However, they went on accusing the ruling party by describing labeling the bill as ‘anti-democratic’ , ‘draconian’ and ‘aimed at misusing or targeting the minorities’.

The bill was first promulgated on 24^th October, 2001 in the form of an ordinance ‘The Prevention of Terrorism Ordinance – 2001’ by the President of India while invoking the powers vested in him under Article 123 of Constitution of India, as parliament was not in the session. As the bill could not be taken up even for the discussion during the winter session of the parliament which took place in November – December 2001 and that the validity of the ordinance was getting over on 31^st December, 2001, the Central Government once again requested the President of the country to re-promulgate the ordinance with some modifications, until the Budget Session of the parliament commenced on 25^th February, 2002.

Now with the passage of bill, the ‘Prevention of Terrorism Ordinance’ (POTO) has thus become POTA – ‘The Prevention of Terrorism Act – 2002’ having an applicability all over the Union which is aimed at ‘ prevention of and for dealing with, terrorist activities and for matters connected therewith’ going by the preamble of the law.

Opposition’s opposition for nurturing minority constituency

If the history of the Congress party, which strongly opposed the enactment, since independence from 1947 until now is carefully scrutinized, then one would come to know that it had consistently sided with the minorities (Read : Muslim community) which accounts sizeable 15 % of India’s one billion population) with an eye on vote bank.

In it’s efforts to appease the Muslims, the Congress leaders in this country, never hesitated to belittle and sometimes even some times ridicule the divided majority Hindu community and nurture the interest of the minorities. A maiden attempt to placate Muslim community was first made by the Congress way back in 1921 when Mahatma Gandhi extolled the virtues of Kemal Pasha of Turkistan and began a Khilafat movement in India in support of Turk leader, which according to many was inconsequential and irrelevant move from the view point of Indian Muslims. Even during the freedom struggle, Gandhi had openly sided with the Muslims whenever the Hindu- Muslim riots broke out. The incidents in Naukhali (West Bengal) when the Hindus were practically butchered by the Muslims for days after days, Gandhi never condemned ‘barbaric act’s of Muslim zealots, but went on advising the Hindus to maintain peace and harmony.

During his stint as the longest serving prime minister of the country Pandit Jawaharlal Nehru too wooed the Muslims one way or the other, so much so that when the ‘instrument of accession’ was declared by ‘full and final’ by the Ruler of Kashmir Maha Raja Hari Singh in 1948, Nehru supported the ‘plebiscite’ in Kashmir during his maiden speech at the United Nations 1953, thus sew the seeds of separatist thought in Kashmir valley.

His daughter Madam Indira Gandhi too had consistently talked about the ‘welfare’ of the minorities and meticulously nurtured this constituency in preference to divided Hindu votes.

Eighteen years after Indira Gandhi’s assassination now, her Italian born daughter-in-law Mrs. Sonia Gandhi, who is the leader of opposition in the Lower House of parliament, too maintained the consistency and openly charged the government during the POTO debate in the joint session of the parliament, that the intended bill was aimed at targeting the minorities.

It was at the instance of the Congress (I) Prime Minister P.V. Narsimha Rao (the first prime minister of Congress not belonging to Nehru and / or Gandhi lineage) ‘The Terrorist & Disruptive Activities (Preventive) Act was repealed in 1996 with an eye on the parliamentary general elections which were to take place in April, 1996.

Even as the Union Law Minister Arun Jaitely ,when he spoke in defense of the bill in his most effervescent speech made in chaste Hindi (Hindi is India’s national language spoken by not less than 600 Million people) told the august assembly that barring the Muslims from Jammu & Kashmir and Gujrat state number of Muslim detenues, arrestees under TADA were barely 4.5 %, the Opposition parties still continued to maintain their recalcitrant stance by dubbing the bill as ‘anti-minorities’.

Former enactors, now opposers

The duplicity of the main opposition party Congress (I) was exposed when the members of the incumbent ruling alliance pointed out that TADA was enacted by late Prime Minister Rajeev Gandhi (the eldest of the two sons of Late Indira Gandhi) in mid-eighties to combat the growing terrorism in Western Province of Punjab where a separatist movement for the formation of Sikh State of Khalistan was gathering a momentum, then why the same Congress party should now oppose the anti-terrorism bill. None of the Congress (I) MP present in the Central Hall of the parliament could tackle this criticism in proper manner, when it was raised by the ruling party MPs time and again.

It may be recalled that Rajeev Gandhi passed TADA virtually unanimously in the parliament which had 99 % MPs belonging to the party Congress (Indira) named after his mother, as BJP had barely 2 MPs after 1984 general elections in the parliament.

One witnessed a curious development in Wednesdays’ debate on POTO. The Congress (I) party, which was responsible for the enactment of TADA strongly opposed the POTO. Whereas, BJP (Bhartiya Janata Party) which has currently 183 MPs in the present NDA government once critic of TADA for it’s gross misuse when it was in force, introduced the present ‘anti-terrorism bill.

Whether the new law be a non-starter in few states

Though the bill has been passed and has now acquired a status of an ‘enactment’ it’s applicability has come under serious doubt following the open refusal of 14 Congress (I) ruled states and 2 Communist ruled states (West Bengal & Tripura) to invoke the provisions of POTA since the ‘law and order’ is the ‘subject’ coming under the ‘State list’ of the Constitution and it is their discretion to invoke it or otherwise. The chief ministers of sixteen states have defiantly said that the existing laws were sufficient to tackle the terrorism and incidental crimes. Many political and constitutional observers feel that POTA might become a ‘ non-starter’ in half of the country due to confrontationist attitude adopted by the Congress (I) and it’s allied parties.

History of India’s preventive detention laws

Before one analyses the aims, objectives and the provisions of bill, it would be interesting to have a glance of the three preventive detention laws enacted by the very Congress party, which is stoutly opposing POTA by dubbing it anti-democratic as well as insidious.

Three years after securing an independence, ‘The Prevention Detention Act – 1950’ was enacted by the government headed by Pandit Jawaharlal Nehru for ‘providing prevention detention in certain cases and matters connected therewith’.

This law was strongly opposed by the Communist Party of India (CPI) and when it’s fire brand trade union leader A.K. Gopalan was arrested under PDA after it’s enactment, the communist party went to the extent of challenging the legality and validity of law, by calling it as an ‘Act curtailing the fundamental rights’ conferred by the Indian Constitution on it’s citizens.

The then six judge Madras bench of Supreme Court upheld the constitutional validity of law which was challenged by A.K. Gopalan himself from the judicial custody. The verdict in essence said that section 14 of this act did not curtail the Fundamental rights conferred on the citizens vide Chapter III of the Constitution of India. The 94 – para judgment is duly reported under Citation A.K. Gopalan V/s. Union of India A I R (37) 1950 S.C. 27 . It may be recalled Chapter III of the Indian constitution gives every Indian citizen Right to equality, Right to freedom, Right against exploitation, Right to Freedom of Religion, Cultural and Educational Rights, Right to Constitutional remedies. Interestingly, ‘Bill of Rights’ enshrined in the American Constitution have considerably influenced the makers of the Indian Constitution while framing it.

However, to the utter surprise, if not dismay to many, when the Congress party sensed the possibility of sharing the power with the Communists in the State Kerala in 1957, the act was repealed within no time. Incidentally, Kerala is the first state in the Indian union which throned a Communist person EMS Namboodripad as the Chief Minister after independence.

The terror law – MISA

In early seventies, when the freedom movement gathered a considerable momentum in erstwhile Bangladesh (formerly Eastern Pakistan), the war clouds began to hover the nation. The Pakistani troops began incursions on East and West sides of the country as a result of which a great amount of security threat was posed on India’s both borders.

Then Prime Minister Indira Gandhi promulgated ‘MISA’ (The Maintenance of Internal Security Act – 1971) for ‘providing detention in certain cases for the purpose of maintenance of internal security and matters connected therewith’. This act which came into existence barely a week before Pakistan engaged third war against India in the Second week of December, 1971. However, this Act had actually lost it’s utility because East Pakistan broke away from West Pakistan to become an independent country Bangaladesh, as Pakistani troops headed by General Niyazi surrendered before Indian Army Chief Jagjit Singh on India’s Eastern border. But even after the end of the war, the MISA remained in force.

However, Madam Gandhi is alleged to have misused this act on her opponents across the country and as many as 20,000 activists belonging to various opposition parties detained and thrown into jail after Allahabad High Court vide it’s historic verdict dated 20^th June, 1975 set aside her election to Lok Sabha in 1972 general election on the charges of using unfair means for the while getting elected. The members, supporters and sympathizers of opposition parties were booked under MISA were detained without trial for eighteen months or more, until her party lost the power in nose dive defeat in February, 1977 general elections.

The third time, when Madam Gandhi enacted a prevention detention law when she introduced ‘The National Security Act – 1980’ authorizing a detention of person with a view ‘from preventing him from acting in any manner prejudicial to the defense of India, the relation of India with foreign powers , of the security of India.’

The political leaders belonging to various opposition parties were arrested under the NSA. The five judge bench of Apex Court headed by Justice Y. V. Chandrachud and others while jointly disposing of three writ petitions challenging the legality and validity of this law upheld it’s constitutional validity.

As per the provision of this act a detenue can challenge his / her detention only before the Advisory Board constituted by the state government. However, the NSA had forbidden a detenue from engaging or availing the services of a lawyer while presenting his case before the members of the Advisory Board.

An eminent Jurist Ram Jethmalani who appeared on behalf of one of the petitioners in Supreme Court had contended that “ a detenue has not only a right to be heard through his / her counsel, but right of cross –examination and right of presenting his evidence in rebuttal’.

Jethamalani while arguing had placed a reliance on the historic judgment given by Sunderland J. in Ozie Powell v/s. State of Alabama (991932) 77 L ed. 158.

Notwithstanding this, the Supreme Court had upheld the validity of the law and that is how a new terminology ‘ a committed judiciary’ came into existence for the first time in post – independent era of the country. (A.K. Roy V/s. Union of India – AIR 1982 SC 710).

Given the history of India’s three preventive detention laws which were essentially enacted during the Congress era, one would come to know, how it’s present opposition to POTA is unjustifiable and deceptive as well.

How TADA was conceived

Before, understanding how the hotly debated POTA came into existence, it is also necessary to understand how the TADA came into existence seventeen years back, on the backdrop of growing terrorism in the Punjab province of India.

The world’s biggest democracy, India has witnessed a steep increase in the terrorist activities since early eighties when the section of the politicians from country’s most fertile province Punjab started openly advocating the formation of ‘Khalistan’ by seceding from the mainland. Due to the rise of terrorist outfits in Punjab which received lots of patronage from the secessionist Sikh leaders based in UK, USA and Canada the Congress government was forced to enact ‘The National Security Act – 1980’.

This law empowered the authorities to detain a person for a minimum period of twelve months in the ‘larger interest’ of the society and to maintain a ‘public order’. Though there was provision to scrutinize the government’s decision to detain a person was vested with the ‘Advisory Board’ still a minimal detention of three weeks used to virtually take given the modalities involved in the procedure of the board in reviewing the decision of the government of the detenue.

However, the most astonishing thing was that like ‘The Prevention Detention Act – 1950’ the applicability of NSA was excluded from the State of Jammu & Kashmir, which is sufficient to indicate that in early eighties the J & K was immune from the terrorist activities.

Even after the enactment of NSA the terrorists activities in Punjab continued to rise by leaps and bounds, as a result of which the Central Government headed by Late. RAJEEV GANDHI was compelled to introduce a new legislation called “The Terrorists & Disruptive Activities Act – 1985”, in the hope that stringent provisions made in this law, as regards the admissibility of the confession made before the Superintendent of Police, the search & seizure powers, detention of the accused without a trial for a period of 180 days (i.e. until the charge sheet is filed) etc. would help containing the terrorist activities.

How and why TADA was repealed

However, the TADA virtually turned out to be counter productive so much so that the law enforcement agencies started receiving the flak from the Apex Court of the land for non – application of mind while invoking the provisions of the TADA to the accused in one case after another. Moreover, a bogey was created that TADA was specifically enacted to finish off the minorities of the country. There were several instances across the country that when the striking workers of the factory or mill, or the demonstrators or squatters were jailed under TADA with utter non application of mind by the police.

Finally, the Congress ruled central government headed by P.V. NARSIMHA RAO had to annul the TADA in 1996, during his last year in office prior to the general elections.

It is interesting to note that though TADA was regarded as a stringent law the conviction rate was as disastrous as 0.9 % , given the fact that witnesses were not coming forward for the fear of being singled out and eliminated if they were to depose against TADA accused in the hearing before the special court.

The terror wave created Punjab was so alarming that even the TADA court special judges and the APP (Additional / Assistant Police Prosecutors) were threatened and harmed in some incidents.

The situation in Kashmir was not far different from Punjab. According to Veeranna Aivalli, the Commissioner of Security (Civil Aviation) who spent thirty years in Kashmir, not a single TADA case was put on the trial for the fear of reprisal from the terrorist.

It is interesting to note that Government could not began the hearing of TADA cases involving two dreaded Pakistani terrorists Mulla Omar Shaikh (who is now accused of killing WSJ journalist Daniel Pearl) and Maulana Masood Azhar although they were in Kashmir jail between 3 to 5 years, for the fear that these two terrorist would have acquired a ‘demi-God’ status had they been acquitted by the Special Court for want of evidence.

Incidentally, the these two terrorists along with a third one were ‘released’ by the Indian government in exchange of lives of passengers of Indian Airlines hijacked plane IC – 184 from Kathmandu to New Delhi in December, 1999.

It is a sad, but true that that India has paid the price in terms of the lives of two of her prime ministers LATE. INDIRA GANDHI and LATE. RAJEEV GANDHI who were assassinated by the terrorists by different ways and means and both were instrumental in introducing enactment like ‘The National Security Act – 1980’ and ‘The Terrorist Disruptive Activities – 1985’ respectively.

Vacuum created in absence of TADA

In the meanwhile, the terrorists activities in the Jammu & Kashmir started increasing, more so from 1988 onwards for want of any political solution coming into foresight to solve the ‘Kashmir’ imbroglio.

Between 1988 to March 1999 as many as 45,000 incidents of terrorists violence had taken place in J& K alone, which resulted in death of 20,500 civilians. Even the security personnel and friendly militants and political leaders became the ‘soft targets’ of the terrorist in J&K who were substantially backed from the people across the border. In contrast, the number casualties of defense personnel in three Indo – Pak war were under 6,000.

With the phenomenal rise of OSAMA BIN LADEN in mid-90s the number of foreign terrorists operating in J&K with active support from across the border outnumbered the local extremists.

The situation had come to such a pass that incidents of innocent civilians getting killed by the extremists without any provocation became the order of the day. Hence a need was increasingly felt to promulgate a stringent legislation which would be able to effectively deal with the incidents of cross border terrorism, which was not just confined to Jammu & Kashmir alone, but it had acquired a serious dimension in the seven North – Eastern states of India where the banned outfits like ULFA, BODO, etc. started killing innocent people and destruction of properties like throwing petrol bomb on oil refineries in Assam, etc.

The Law Commission of India had organized two marathon seminars on 20^th December, 1999 and 29^th December, 2000 at New Delhi wherein the large number of legal luminaries across the country, many retired and incumbent high ranking police officers, retired judges and human rights activities vehemently participated in them.

Retired Justice J.S. VERMA, currently the Chairperson of the National Human Rights Commission (NHRC) while inaugurating the first seminar organized by the Law Commission had in unequivocal terms advocated the necessity of a special law to fight the terrorist activities, keeping in mind the extraordinary situation prevailing in the country, which required special measures.

He also emphasized that the interest of the society must prevail over the interest of an individual and during the course of his speech he also referred to several land mark judgments delivered by the Supreme Court in Kartar Singh, sanjay Dutt and Shaheen Welfare Society case.

NHRC’s somersault

However, the same retired Justice J.S. VERMA after the promulgation of POTO by NDA government on 24^th October, 2001 had disputed the necessity of such ordinance, as there were several other laws like NSA, Armed Forces Special Powers Act - 1958, The Essential Services Maintenance Act, (ESMA) etc. available to deal with the terrorists.

During the seminar many speakers having ‘leftist’ or ‘socialist’ leanings disputed the very need of such ‘anti-terrorist’ legislation on the ground of that the same might be misused against the innocent people, as it happened in case of TADA. However, the protagonist observed that the

Supreme Court of India has held in State of Rajasthan V/s. Union of India (1978 1 SCR P.1) that “merely because the power may sometimes be abused, is no ground for denying the existence of power.”

In the working paper prepared by the Law Commission a reference has also been made of Section 701 of ‘The US Anti-terrorism & Effective Death Penalty Act – 1996’ which defines federal crime of terrorism dealing with aircraft, airports, biological, weapons, nuclear material, destruction of government properties, including the communication lines, etc. The provision contained Section 805 of US Act relating to deterrent sentence in case of damaging a federal interest in computer.

Finally, these two provisions from the American law have been borrowed and have been incorporated in the form of causing any damage to “supplies or services essential to the life of the community” have been added in terrorist related activities in Section 3 (1)(a) of POTO.

There was a unanimity amongst the speakers that the Indian Penal Code – 1860 was designed by the British regime in India to check individual crimes and occasional riots at the local level and hence the question of any provision penalizing the ‘organized crime’ did not arise 140 years ago, when it was passed by the British Parliament.

Success of MCOC Act in Maharashtra state

The state of Maharashtra with Mumbai (Bombay) as it’s capital had witnessed phenomenal rise of extortion related cases by the organized gangs since early nineties and this problem had also started spreading in the major cities of the state as well. Incidentally, Mumbai is regarded as India’s financial capital.

Therefore a legislation called ‘ The Maharashtra Control of Organizsed Crimes Act – 1999’ was enacted by the Maharashtra Government ruled by Shiv Sena – BJP alliance. This Act authorized the police to intercept the private communication between the two persons, who are supposedly involved in organized crime syndicate. But the same was subject to the prior permission of Additional Chief Secretary of the State.

This interception power enabled the police to have an access to the designs of the crime syndicate and more over such interception once reduced into writing was made admissible in evidence.

Although Sena – BJP government lost the power in October, 1999 federal elections, the incumbent Congress coalition has continued MCOC Act’s application with equal sternness, so much so that the conviction rate in MCOC cases is as high as 75 % , in contrast to Indian Penal Code cases conviction which is barely 6 % to 7 %. As on the date 37 cases filed under MCOC are pending in various special courts in Maharashtra state.

A District & Session Judge, in Mumbai named J.W.SINGH was booked under MCOC (first time in the history of the Indian judiciary) when his telephonic conversation with the gangsters was taped by Mumbai Police. It is alleged that SINGH had developed contacts with the underworld for helping some of his relations to recover the money from the debtors. The successive bail applications filed by him have been rejected both by Bombay High Court and Apex Court at New Delhi and the judge continue to languish in jail for more than two and half years now. This might be unique case of it’s kind in the entire judiciary world over. !

In India, the police are authorized to carry out the investigation under section 167 of the Criminal Procedure Code and the charge is required to be filed against the accused within 90 days from his arrest in case of serious crime as contemplated under the IPC. However, under MCOC the police can delay the filing of the charge-sheet until 180 days after the arrest of the accused and in the normal course the special courts constituted under this special Act are reluctant to bail out the accused in absence of the charge sheet.

Also, another interesting aspect of MCOC Act is that investigation is done by an officer of the rank of Deputy Superintendent of Police (or by Assistant Commissioner of Police in city areas), unlike IPC where the investigation is some times done by the Head Constable or Police Sub-Inspector as well. By entrusting the investigation power to an officer of a deputy superintendent rank, a thorough investigation by an officer having professional qualities has been ensured. In addition to this, even at the time of filing of the charge-sheet a sanction by an officer of the rank of Additional Director of General of Police is also required under this Act.

All these provisions in MCOC Act have turned out to be extremely effective and the extortion related activities in and around Mumbai and it’s suburbs and satellite towns have considerably reduced.

The success of MCOC Act has resulted in the enactment of almost similar legislation in the State of Karnataka which is also ruled by the Congress (I). Some other India states like Uttar Pradesh, Andhra Pradesh, West Bengal are also on the verge of introducing similar kind of legislation, since the underworld elements have shifted their base from Mumbai or Maharashtra state to these states.

Similarities in MCOC & POTO

When the Law Commission conducted two seminars on the need for anti-terrorists law, the MCOC Act was greatly debated and more over it was thoroughly appreciated. The provision of interception of communication, the admissibility of confession before an officer of Superintendent of Police rank and above, investigation by Dy. Superintendent of Police level officer, penalizing the erring officer in case he maliciously applies the law and compensation to the victims of the abuse of the power of law are the important provisions in MCOC Act, which have been virtually borrowed and incorporated in the POTO.

Given the success of MCOC Act in Maharashtra, one had thought that the incumbent Congress (I) – National Congress Party coalition government would have no option but to endorse the POTO in it’s letter and spirit. However, the Congress (I) President Mrs. Sonia Gandhi along with other leftist parties continued to oppose the promulgation of POTO on the ground that it would be ‘misused’ against the minorities.

Mrs. Gandhi used this opportunity to oppose POTO simply to garner the ‘votes’ of the minority communities in Uttar Pradesh (which constitute 15 % of total voters) where the state elections took place in February, 2002.

Changed scenario after 9 / 11 and 12 / 13

The two horrendous plane crashes and flattening of twin towers of World Trade Centers at New York and followed by one on the Pentagon has virtually awakened the world community to understands the perils of terrorism. One of the bloodiest incident to happen on American soil after WWII (Pearl Harbor is the only incident of any attack on the US soil), the UN was virtually forced to plead it’s member nations through it’s Resolution No. 1373 to promulgate laws for combating the terrorism.

Although the ruling NDA government first seriously thought of introducing anti-terrorist legislation after Indian Airlines hijacking incident in December, 1999, the necessity of such law gathered a momentum after witnessing the enormity of WTC incident.

The anti-terrorist laws have been introduced by America and UK in mid-nineties and compared with that India’s POTO , now POTA is relatively mild.

The earlier opposition made by the Congress (I) and it’s allies in the Indian parliament had to waned to a certain extent following the terrorist attack on the Indian parliament on December 13, 2001. This attack, in which all the five terrorists were killed by the Indian security men, has manifested the ‘vulnerability’ of the Indian security system and have raised serious doubts about the efficiency of the law enforcement agencies and the prevalent laws to tackle terrorism.

POTA defines what is a ‘terrorist activity’ and not a ‘terrorist’

The TADA had initially served as a deterrent law, since a person could be detained in jail without trial for an year and the grant of bail in TADA cases was an ‘exception’, unlike ‘rule’ in IPC related cases.

The POTA is not much different from TADA in essence. However, it scores over TADA in terms interception of electronic communication, it’s admissibility in evidence, seizure of properties bought out of funds gathered from terrorist activities, maintaining the identities of the witness as secret are some of the features which were not incorporated in TADA.

One of the most interesting feature of POTA is that it does not define a ‘terrorist’. But it vide Section 3 it straight away describes “Punishment for terrorist acts”, which says : -

Section 3 (1) whoever :

(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by a other substances (whether biological or otherwise) of hazardous nature or by any other means whatsoever, in such a manner so as to cause, or likely to causes, death of, or injuries to any person or persons, or losses of, or damage to , or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defense of India or in connection with and other purpose of the Government of India, any State Government or any of their agencies or detains any person and threatens to kill or injure such person in order to compel the Government or any other to do or abstain from doing any act ;

(b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act – 1967 or voluntary does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearm, ammunition , explosive or other instrument or substance capable of, causing mass destruction and commits any act resulting in loss of human life or grievous commits a terrorist act,

This definition of ‘terrorist activity’ was widely debated the seminars organized by the Law Commission of India and finally approved off as it virtually encompasses all forms of terrorist activities whether done by singularly or collectively, by any means.

Punishments prescribed under POTA

If the result of terrorist activity is death, then the same is punishable with a death sentence or in imprisonment for life and shall also be liable to fine, whereas in any other case, the punishment shall not be less than five years, but which may extend to imprisonment for life and also liable for fine.

With the dilution of a clause giving an immunity to media men from prosecution , which was called as harmful for the media (non – disclosure of terrorist related information), the applicability of the fact from five years to three years, provision to challenge the Act before the Special Court constituted for the speedy trial, etc. have virtually taken off the sting of the opposition’s criticism.

Even the conspiracy or attempt or abetment or advice or incitement or facilitating of commission of terrorist activity also awards punishment ranging from five years to life and also to a fine.

The act of voluntarily harboring or concealing or attempt of harboring or concealing the terrorist now attracts a penal provision ranging from three years R.I. to life imprisonment and also fine.

Also the membership of the terrorist gang, if proved would also attract a punishment of imprisonment for life and a fine to the extent of Rs. 10 lakh (US $ 20,000), which also a punishment for holding the proceeds of the terrorism be it moveable or immoveable.

Taking into account the threats faced by the witnesses during the TADA trial, threatening of tampering of any evidence or threatening a witnesses with violence or even wrongfully restraining him would be attracting a three years rigorous imprisonment to the wrongdoer.

Immunity to journalist is the only ‘sore’ aspect

The media in India, whether it is print or an electronic is essentially dominated by those who are having ‘leftist’ leanings and many of whom been graduated from JNU (Jawaharlal Nehru University) newly which is synonymous with the bastion of Marxist – Lenninist ideologies.

Right from the Day 1, when the first POTO ordinance was issued, the cynics in the media were making hue and cry about the subsection (8) in the definition of terrorist which had initially warranted a punishment of one year or fine or both to those persons who in spite of having a knowledge of an terrorist activity which could have helped in (i) in prevention of crime or (ii) securing an apprehension of terrorist fails to disclose the information to the police as expeditiously as possible.

The entire media community had been taking on government on this clause by dubbing it as an attack on the ‘freedom of the press’. The government while coming out with the amended second POTO ordinance has exempted the applicability of this provision to the media men in it’s effort to woe the media on it’s side. But one feels that the government has taken a biggest risks of it’s kind while doing so.

This deletion has virtually an immunity to the journalist fraternity and there is a every possibility that the terrorist might use the journalists (whether belonging to print or electronic media) as their ‘conduit’ or a ‘mole’ in the media while passing off an information to the other members of the network and also for the incidental activities.

In India, whether you be an employed journalist or a freelancer you are sure to be highly entertained by the government officials, ministers, police officials etc. as a friendship or proximity with the media men is considered to be an ‘asset’ and not a ‘liability’ in this country. Sometimes, the government officials or even senior rank police officials might disclose something to a journalist out of personal friendship, which might be passed on to the terrorist out fit.

Given this danger, the terrorist organizations which are capable of inducting their sympathizers or workers to join aviation sector, can easily plant their ‘mole’ in the media to unearth the government moves on one aspect of the other.

To substantiate the point, it is interesting to note that a noted Hindi news channel correspondent from Srinagar had interviewed the terrorist called Gazi Baba, who turned out to be one of the instrumental persons for carrying a bomb attack on the December 13^th attack on the Indian parliament, on his video camera crew way back in April, 2001. The Indian police learnt about the presence of Pakistani born Gazi Baba after this private news channel broadcast the video interview of Gazi Baba after December 13^th attack.

What is wrong, if the concerned TV network people are at least sufficiently interrogated by police to elucidate all that they knew about presence of Gazi Baba in Jammu & Kashmir, the location where he was interviewed, about his accomplice, what kind of firearms they were displaying, etc. There are many, who believe that this news channel had certainly not telecast his interview in April, 2001 itself and used that footage only after 12/13 while claiming it to be an ‘exclusive’ interview. Many in the country, why this network remained silent for eight months ? Had network reporter revealed about the presence of Gazi Baba in the Kashmir valley, December 13^th incident might not have taken at all.

I for the one, feel that the NDA government has made a biggest folly of it’s kind by giving the journalist fraternity a blanket immunity from any prosecution in the second POTO ordinance or now under POTA.

Even in Mumbai, two noted journalists (both are Hindus) belonging to the a reputed tabloid have been on the ‘watch list’ of the city police for their alleged role in supplying the information to the underworld, by establishing a rapport with them in due course of time. This shows that the journalists can be penetrated by the crime world.

Under new provision, while journalist would be spared from prosecution, a common man could be prosecuted under Section 3(8), which actually violates the fundamental right of citizen of ‘Equality before law & equal protection of law’.

How POTO minimizes abuse of power

Since the original TADA was annulled as the complaints about it’s misuse used to flood the NHRC and Supreme Court with every passing day, the Law Commission felt it was desirable to make the proposed anti-terrorism legislation in a such way that the police officer wrongly applying POTO would be made accountable.

Section 57 (1) of the earlier POTO ordinance had made a specific provision of punishing a police officer with an imprisonment of two years and fine or with both, in case when his guilt in exercising the powers in corrupt or malicious manner is proved. However, by sub-section (2) of the same Act, the Special Court is now entrusted with a power to grant a compensation to the victim of such abuse of police brutality

It is this ‘in-built mechanism’ which has considerably minimized the chance of it’s misuse and such a provision was not perceived by the lawmakers when the TADA was enacted, as a result of which the blatant misuse of TADA became the order of the day in all parts of the country and it became the means for garnering the money to the police authority by intimidating the people of it’s invoking to them.

Free hand to police machinery needed

It is unfortunate that the police machinery in the entire country has to experience a great amount of political interference at every nook and corker. The ‘withdrawal’ of POTO charges against Al-Qaeda suspect Mohammad Afroz by the Mumbai (Bombay) Police on the very day, when the joint session of the parliament was to deliberate on POTO Bill is the case in the point.

Mohammad Afroz in his confessional statement given before the Additional Metropolitan Magistrate at Esplanade Court had revealed that he was the part of the Al-Qaeda network which had planned to hit British Parliament and also Rolta Tower at Melbourne, Australia around 12^th September, 2001. On further investigation it came to the fore that Afroz, who resides in a hutment colony in the suburbs of Mumbai had undergone an aviation training in Australia by paying thousands of Dollars as training fees and that he could not satisfactory answer his source of income.

The city police had invoked POTO against Afroz on 1^st March, 2002 when the top police officials were in UK and USA for further investigation of Afroz links’ with the terrorist organizations around the world.

However, in a swift move the Government of Maharashtra of which Mumbai is the capital, suddenly decided to ‘withdraw’ POTO charges against Afroz on 26^th March, 2002, as it felt that continuance of POTO charges against him, when the ruling Congress (I) was campaigning against POTO at the national level, would back fire and weaken it’s opposition to POTO.

However, it were the Mumbai city police who would be made the ‘sacrificial lambs’ in the entire affair. Afroz case is the glaring example of government’s interference in the functioning of the police machinery and it happens every where on the national level in one form or the other.

The success of the POTA now much depends upon how the various state governments deal with the situation as it arises and how far they give free hand to the police machinery in handling the situation.

There is a PIL (Public Interest Litigation) pending in the Supreme Court since 1998 which seeks to de-link the police machinery from the bureaucracy in matters like promotions and transfers. However, but to the utter dismay of every body no body is seriously pursing the petition. Neither the police nor the petitioner himself !

But given the in-built mechanism built up under the POTA, it is unlikely that this act will be misused by the police machinery against any body maliciously.

POTO – certainly not anti-Muslim

The opposition parties in India have created a bogey in the country, that POTO was specifically designed to curb the people belonging to minority communities.

As a matter of fact, a bare perusal of Schedule prepared as per Section 18 of the Ordinance, shows that as against eight Muslim or Islamic banned organizations as against thirteen non-Muslim terrorist organizations or outfits which have been banned under the same Act.

This is so because the incidents of cross border terrorism and other forms are terrorism are not just confined to the Jammu & Kashmir state alone, which is having common and porous border with Pakistan, but terrorist activities are also on steep rise in the North Eastern states like Assam, Tripura, Methalaya, Nagaland where insurgencies of the foreign mercenaries from Myanmar and China are not anew. These NE states certainly do not have even significant Islamic population.

Some of the recently banned terrorist outfits like MCC (Mao Communist Center) and PWG (People’s War Group) are creating a menace in the states like Andhra Pradesh, Madhya Pradesh, Orissa, Bihar and on Indo – Nepal Border. These outfits which receives open support from the Communist ideologists outside the country are least connected with Islam of Islamic ideology.

Hence, the bogey that POTO is only ‘targeting’ Islamic groups does not hold good at all. Even the government has not spared in ‘blacklisting’ LTTE, the dreaded Tamil Tiger’s group from Sri Lanka, who are undoubtedly Hindus from the Emerald Island.

(Reference : AIR – All India Report, SCR – Supreme Court Reporter)

Any suggestion or comments to this article can be sent to it’s writer :

GANESH K. SOVANI

Advocate , Bombay High Court.

1-4, Shree - Nalanda, Ghantali Devi Path, Thane – 400 602, (India).

TEL : (91-22) 814 45 42 - FAX : 819 6759 : Mobile : 98213 -65379.

E-mail : ganesh_sovani@rediffmail.com