Repeal of POTA - Justified

On 26 March 2002, the controversial anti-terror law, the Prevention of Terrorism Act (POTA) was passed with 425 votes for the Act and 296 against, after a 10-hour debate in the parliament. The intensity of the effects of the bill could be seen very clearly by the rejection of the bill by the upper house of the Indian Parliament leading to a Joint Session of Parliament, a measure that had taken place only the third time in the past. The Indian Ministry of Home Affairs justified the initial Ordinance after the September 11,2001 terror attacks by claiming an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country, despite the fact that the state of Jammu and Kashmir witnessed a decrease in the terrorist incidents taking place in that state.
POTA, though now has been repealed, lives as an example showing the bold step taken by India in its fight against terrorism. The POTA had during its days and even after its downfall, has made India a silent spectator to serous ongoing debates between political parties, the media, social activists and NGOs on certain provisions seen to be draconian, within POTA.

Two years from the enactment of the POTA, a number of issues as to the possibilities of misuse of the provisions of the anti terror law including the targeting of minorities and using it against political opponents had arisen. In Gujarat, all except one of the POTA detainees are from the Muslim minority and in Tamil Nadu and UP too the ostensible anti-terror law has been abused to book, without lucidity and accountability, political opponents and underprivileged communities respectively.

A decade long experience with a previous national anti-terror law, the infamous Terrorist and Disruptive Activities Prevention (TADA) that was in force between 1985-1995 gives legitimacy to the fear that the misuse of such laws evoke among human rights activists, political dissenters and minorities. Under the TADA, the conviction rate was less than 1%, despite the fact that the confessions made to the police, even though being given under torture, were admissible as evidence.

The developments after the enactment of the POTA, including the responses received by the POTA review committee show that the POTA is worse then TADA. POTA provides for criminal liability for mere association or communication with suspected terrorists without the possession of criminal intent (Section 3(5) of the POTA). Section 4 of POTA is similar to Section 5 of TADA in laying out a legal presumption that if a person is found in unauthorized possession of arms in a notified area, he/she is automatically linked with terrorist activity. Section 48(2) provides for the option of pre-trial police detention for up to 180 days. As under the TADA, where 98% of the cases never reached the trial stage, this Section 48(2) could also be misused by the police by keeping an accused for long periods of detention without charge or trial.

Special courts for trials are established under POTA which are given the discretion to hold trials in non-public places, like prisons, and to withhold ! trial records from public scrutiny, thus preventing the independent monitoring of special court sessions. Section 32 provides that confessions made to police officers are to be admissible in trial, which has increased the possibility of coercion and torture in securing confessions.

The provisions contained under the POTA were mostly contained in existing laws, except those, which were contained in the Criminal Procedure Code, the Indian Penal Code, the Evidence Act or the Constitution of India. The Act effectively undermines the fundamental tenet of the criminal justice system by putting the burden of proof on the accused. But the Act also had some provisions, which were not attacked for being against human rights. These provisions stated that Confessions must be recorded within 48 hours before a magistrate, who will send the accused for a medical examination if there is a complaint
of torture. Further a legal representative of the accused can be present for part of the interrogation. Moreover police officers can be prosecuted for abusing their authority. The POTA also provided that victims could be paid compensation.

But these provisions could not act as an effective shield to protect the Act from the criticism it received for its other provisions abusing human rights. Those opposed to POTA had argued that existing laws were sufficient to deal with terrorism. Within a year POTA had already built up a dubious record and in some states it was already dreaded as its predecessor. State governments, including opposition-ruled ones, had not hesitated to use POTA to fix political opponents.

At the Peoples Tribunal on POTA and Other Security Legislation at the Press Club in New Delhi on July 16,2004 a 629-page report based on depositions made before the Tribunal by victims and their families from ten states in India, as well as expert depositions by lawyers and activists, showed that such security legislations grant sweeping powers to authorities, which has led to misuse of these powers and severe restriction of basic rights. At the same time, such legislations do not address the political, social and economic roots of the problem.

The tribunal concluded that the review of victim and expert testimony showed that the misuse of the Act is inseparable from its normal use. The tribunal stated that the statute meant to terrorise not so much the terrorists as ordinary civiliansand particularly the poor and disadvantaged such as dalits, religious minorities, adivasis, and working people. Thus the tribunal recommended that POTA be repealed and that too in such a manner that the POTA charges are deleted from all existing investigations and trials. But, if the state so desires, these may continue under other laws and charges.

Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government's Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 (POTA) and amend the Unlawful Activities (Prevention) Act, 1967. Home Minister Shivraj Patil said that the government would provide a sunset period of one year during which all cases pertaining to POTA would be reviewed by the Central POTA Review Committee. He added, There would be no arrests made after the ordinance is promulgated. To fill the lacuna that have been created due to the repeal of the Act, adequate amendments were being brought to the Unlawful Activities (Prevention) Act, 1967 to define a terrorist act and provide for banning of terrorist organisations and their support systems, including funding of terrorism, attachment and forfeiture of proceeds of terrorism, etc. All terrorist organisations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act. Some of the clauses contained in POTA, which will be completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer.

The BJP government has slammed the Cabinet decision to repeal POTA as politically motivated and compromising of the essentials of national security. BJP spokesperson and former Law Minister Arun Jaitley said if the amendments brought out under the existing laws after the repeal of POTA are found to be inadequate, the BJP-ruled states would be asked to come out with their own legislations filling up the lacuna. But till such a step is taken many innocent victims of the POTA can take a sign of relief and thank their stars that the reign of terror under the stringent anti terror law POTA has come to an end.

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