COMMENT
Ordinance of Terror
Will
POTO stop or reduce terrorism? No. It will only legitimise
police brutality
The
first objectionable feature of the Prevention of Terrorism
Ordinance (POTO) is the manner of its creation. TADA lapsed
more than six years ago. The interregnum saw the reincarnation
of a modified version of TADA, a Criminal Law Amendment
Bill, a report of the Law Commission and some other stray
legislative initiatives. Suddenly we find POTO thrust upon
us, without parliamentary discussion, without a joint select
committee scrutiny, without bipartisan debate.
An
ordinance is nothing but an executive instruction with no
legislative mandate. It is even inferior to delegated subsidiary
legislation, although constitutionally it is given the elevated
status of ‘law’ for a temporary period of time. Resorting
to an ordinance barely a month before the congress of the
people is scheduled to meet is indicative of the casual
manner in which the government bypasses the will of the
people.
Harkening
back to the ambience of insecurity generated by the September
11 events and the Afghanistan war is an insufficient justification
for the alleged existence of emergent circumstances necessitating
resort to an ordinance. The promulgation of an ordinance
is proof of the government’s acceptance of the inevitability
of defeat in one or more Houses of Parliament in the winter
session.
The
second objection questions the necessity of POTO at all.
India is often described as an over legislated but an under
enforced country. It is not lack of laws which is at the
core of our failures in the war against terrorism. It is
the absence of comprehensive intelligence and information
gathering, the lackadaisical nature of investigation, insufficiency
of resources including manpower, lack of proper training
and international legal structures like extradition treaties.
We
already have the wide National Security Act. Almost all
states have wide-ranging preventive detention laws. On the
economic front, we have the potent Essential Services Maintenance
Act (ESMA) and COFEPOSA. Specific trouble spots like Jammu
and Kashmir and the North-east have special enactments like
the Disturbed Areas Act and Army (Special Powers) Act. All
this is in addition to the comprehensive underlying criminal
law structures of the IPC and the CrPC.
Several
states have other special enactments to combat organized
mafias, for example, the Maharashtra Organised Crime Act.
It is likely that POTO, like its predecessor TADA, far from
resulting in better anti-terrorism policing, will be misused
as an additional instrument of State harassment. Good,
efficient and legally valid policing is the only answer.
A
perusal of the detailed, reasoned judgment of the High Court
in the UK in the Nadeem case underlines the glaring loopholes
and shoddy lapses in our prosecution processes which led
the British court to reject our plea for extradition and
impose staggering costs upon India. We may assume Nadeem
to be guilty because of the press hype surrounding his arrest,
but unbiased and objective courts have found our evidence
collection systems highly suspect. Indeed, how much truer
would this be under POTO!
The
third objectionable feature is the obvious inability or
unwillingness of the government to learn the lessons of
history. TADA had an abysmal conviction rate of approximately
1.5 percent. Even more importantly, it had a discharge rate
of over 66 percent which means that over two-thirds of arrestees
under TADA were not thought to have cases against them deserving
the commencement of trial and were ‘discharged’ at the threshold.
The
maximum arrests and the highest use of TADA was in Gujarat
and Maharashtra which cannot exactly be called the hotbed
of terrorism. The TADA review committee found clear evidence
of its arbitrary and discriminatory misuse against the minorities.
The
fourth set of objections focus upon the nitty-gritty content
of POTO. If TADA was found objectionable, is this ‘son of
Sam’ legislation really much different?
The
Indian Evidence Act excludes from evidence confessions made
to the police and yet under Section 32 of the ordinance,
confessions made to the police officer not below the rank
of superintendent are admissible in a trial. This will encourage
officials to resort to custodial torture to extract confessions
and give a boost to the scourge of custodial deaths. This
was one of the most abhorrent aspects of TADA.
The
decision of the Supreme Court to uphold such a provision
under TADA was not unanimous. One judge found the section
to be ‘unfair, unjust and unconscionable, offending Article
14 and 21 of the Constitution". What is more alarming
is that nowhere in the ordinance is there any clause which
explicitly prohibits statements made to the police
and extracted under torture from being admissible. The supposed
safeguard is only in respect of production of the person
before a magistrate within 48 hours and reference of the
detenu for medical examination in case of complaint of torture.
Analogous
laws in the UK like the Northern Ireland (Emergency Provisions)
Act 1996 under Section 12 ensure that a statement made by
the accused may be given in evidence if the prosecution
satisfies the court that it was not "obtained by
torture, inhuman or degrading treatment". Such
safeguards are conspicuously absent in POTO.
POTO
will adversely erode the right to liberty and security of
a person. There is no provision for challenging the sufficiency
of the prosecution evidence prior to trial. This results
in increase in under-trials. A large number of people detained
under similar provisions of TADA for several years had to
be released by the review committees on grounds that there
was insufficient evidence. But the prejudice already caused
is inherently irreversible.
As
far as bail is concerned, POTO gives the power of determination
of bail to the public prosecutor! If the public prosecutor
opposes bail, it should be granted unless the "court
is satisfied that there are grounds for believing that the
accused is not guilty of committing such offence".
Not only is the prosecutor (and not the judge) given an
initial veto but the final decision of the judge is based
upon a reversed burden of proof requiring prima facie proof
of innocence.
Section
3(8) of the ordinance imposes criminal liability for an
omission (as opposed to commission), itself a rarity in
criminal jurisprudence. Mere non-disclosure of information
known or believed to be of material assistance in preventing
a terrorist act or in apprehending any terrorist is punishable
with imprisonment of up to one year. The possibility of
harassment by the police is large and real: mere interviews
by journalists (including with Pirabhakaran and Musharraf)
would fall within the definition of terrorist and may make
the journalist concerned culpable.
Similarly,
the new ordinance does make the disruption of ‘essential
services’ an act of terrorism. Possibility of misuse could
range from striking employees in a hospital to those who
clean the railway platforms whenever they peacefully protest
or strike.
Let
us not digress from our focus of combating terrorism by
using reassuring but misleading forms of deception like
POTO. To oppose POTO is not to condone or turn a blind
eye to terrorism. There can be no two views regarding
combating of terrorism. The real question is, will POTO
actually stop or reduce terrorism? History and TADA teach
us that the answer is an emphatic No.
-
Abhishek Manu Singhvi
The writer is a former Additional Solicitor General
of India (Courtesy HT)
