Reject POTO in Toto

A Few Words

The 50-page document of the Prevention of Terrorism Ordinance 2001 (POTO), promulgated by the President of India, on October 24, is to be presented for approval in the winter session of Parliament, beginning on November 19. If it is passed by both the Houses of Parliament, it would become a law i.e. Prevention of Terrorism Act (POTA). Therefore, it is high time we are discussing the controversial ordinance under the above theme at this national convention of the All India Milli Council, which had played a key role in the campaign against TADA, the predecessor of POTO. One recalls how this umbrella body then helped create an atmosphere under the banner of the People Movement of India against a draconian legislation, already passed by both the Houses of Parliament.

So far as the prevention of terrorism is concerned, no body is opposed to it and also there is no question of opposing it. Therefore, who are opposing the present government move, are also not against the prevention of terrorism. Actually what have led the common citizen to go against POTO are the past experiences with the other preventive measures, including TADA, questions about the ruling NDA's intentions, and apprehensions regarding new ordinance's misuse. That is why there appears to be no change in the stance of the common citizen even after the Union Home Minister Mr L K Advani's assertion that all those who oppose the Prevention of Terrorism Ordinance, would wittingly or unwittingly be appeasing terrorists.

Experience with TADA

It is interesting to recall that it was Mr L K Advani who was in the forefront to campaign for disbanding TADA and his BJP had first of all charged the Congress government led by Mr Chimanbhai Patel in Gujarat in 1990-92 for misusing TADA. It is said that then a large number of the activists of BJP's Indian Farmers' Union had been arrested under TADA.

TADA remained in force for 10 years (1985-95). It was allowed to lapse on 23rd May, 1995 following a nation-wide protest. During this period 77,500 persons, were arrested. According to a NHRC report, Gujarat with no militant activity at all once accounted for as many as 19,000 out of a total of 65,000 TADA cases alone. In other states like Punjab, Maharashtra, Kashmir and Andhra Pradesh, tens of thousands of people were lying without even once appearing before the court of law.

A high-level inquiry committee appointed by Maharashtra government to review TADA cases observed that out of 20 cases involving 150 accused reviewed by it so far, the act was wrongly applied in at least 16 cases.

In Delhi a review panel for TADA detainees found that three in every four cases of arrest under TADA was unnecessary. That was why the then Delhi government ordered its director of prosecution to withdraw all TADA charges in 145 of the 200 TADA cases.

Similarly, a study conducted by the Peoples Union of Democratic Rights (PUDR) showed that of the 53,000 TADA cases all over the country only one per cent had been convicted by the court.

The then Union Internal Security Minister late Rajesh Pilot had himself presented figures in the Parliament that out of 67,000 odd persons booked under TADA between 1985 and 1994, 53,000 were bailed out and 8,000 were tried and only 725 were convicted.

Six months after the Mumbai bomb blasts the union home ministry revealed the figure of total number of detentions under TADA was 52,000. The conviction rate of those tried by the designated courts under it was merely 0.81 per cent ever since the law was enacted in 1985.

The sweeping powers given to the police was the only reason that led late Rajesh Pilot to admit that because of this rampant misuse and low conviction rate, TADA was serving no purpose. As the internal security minister he had then said there were enough laws in the country to punish terrorists. He had said that one serious aspect of the misuse of TADA was the fact that in states like Gujarat, Maharashtra and Rajasthan, 80 per cent TADA detainees were of the minority communities. He also said that the Muslim community had suffered disproportionately from the Police excesses under TADA.

Six years after TADA lapsed, it still causes shiver under the spines of those who suffered under it. It is on record that out of a total of 77,500 persons arrested under TADA, only 8,000 were tried, 725 (0.81 per cent) convicted and 3,000 are still believed to be in jails.

Apprehensions about POTO

The general feeling is that law and order problem cannot be solved just by enacting laws that do away with legal safeguards preventing the innocents from being prosecuted and punished. The new ordinance inverts a basic premise of criminal justice. The law presumes a person innocent till proven guilty. But POTO implies the onus is on the accused to prove his innocence. The accused is presumed guilty till proven innocent! And if the accused refuses to give samples of fingerprints, blood and salvia, "the court shall draw adverse inference."

It is to point out that the NDA government had introduced Prevention of Terrorism Bill, POTO's predecessor, last year in Parliament. It was voted down. Then the National Human Rights Commission observed  that the main problem facing the country was "related to proper investigation of crimes, efficient prosecution of criminal trials and delays in adjudication and punishment in the courts."

However, these problems could not be solved by enacting laws that do away with the legal safeguards designed to prevent innocent persons from being prosecuted and punished. Nor can the problem be solved by providing for a different and more drastic procedure for prosecution of certain crimes, for making confessions before the police admissible in evidence contrary to the provisions to the Evidence Act, for raising the presumption of guilt as set out in the Bill, and creating special courts. These provisions would seriously affect human rights guaranteed under the Constitution of India and violate the basic principles of criminal jurisprudence as internationally understood.

This was quoted by the Amnesty International from an NHRC report that is no longer accessible on the NHRC site. Strangely enough one would now not find it because the link "Opinion in regard: The Prevention of Terrorism Bill, 2000" is dead.

Perhaps this was the reason why the NHRC was officially not consulted this time. Should it be meant that the present NDA government feared that its own NHRC would oppose the new ordinance and so support terrorism!

The Main Question

The question is: What would happen to the POTO Bill, 2001 the ruling NDA plans to present before the Parliament with a strong determination?

Meanwhile, it has been learnt that the Union Home Minister L K Advani has called a meeting of the state chief ministers later this week ostensibly to discuss internal security. The move is seen by many an attempt to seek the endorsement of all the state chief ministers to the controversial POTO, which was hurriedly promulgated by the government without taking the Opposition into confidence.

There are a total of 12 Congress chief minsters in different states. It is high time if the Congress leadership is really serious, it should ask its chief ministers to take a categorical stand opposing the ordinance at the home minister's meeting. The vocal opposition to POTO by the chief ministers, more so the ones from Maharashtra and Karnataka, would help the party to take the anti-POTO campaign to these states. This is necessary because the NDA, particularly the BJP has been charging its governments in Maharashtrsa and Karnataka of implementing POTO-like anti-terrorist rules claiming that both the chief ministers Vilasrao Deshmukh and S M Krishna would be less than enthused to oppose the move.

It is hoped the Congress chief Ms Sonia Gandhi will not miss the opportunity to take her chief ministers into confidence and make them commit to review the anti-terrorism bills in their states, containing "POTO-like viruses", and   issue a whip to all Congress members of Parliament instructing them to oppose the POTO in Parliament.

The Left parties should also adopt the same strategy. To show its seriousness, it should also review such anti-terrorism bill in its state West Bengal. After all, it is a constituent of the Left Front that has moved to the Andhra Pradesh High Court, challenging the POTO.

A POTO-like anti-terrorism legislation is also in force in Andhra Pradesh. It is to be seen how Mr Chandrababu Naidu's Telugu Desham Party, which had reacted sharply to TADA, reacts this time in Parliament. The occasion would also be a litmus test for the allies of the BJP still claiming to be "secular".

These moves by the Opposition are necessary also because the terrorism ordinance seems to be promulgated with the sole aim of using it as an issue in the ensuing assembly polls. Many perceive it as "an extension of the government's September-end ban on the Students Islamic Movement of India".

BJP has now already declared that it intends to make POTO and terrorism its main election agenda in the ensuing elections in UP. It has come as a part of a series of measures adopted by the BJP to polarise the state's electorate. Let us see and ponder over, first, they tried to fudge the electoral rolls, then they defiled the Taj Mahal, then came the storming of the disputed site at Ayodhya in complete disrespect of the Supreme Court's order, and now we have POTO.

To quote Mr L K Advani in his address at the recent national executive meeting of the BJP, it would be a "win-win" situation for the party either way if the anti-terror bill is passed or defeated in Parliament. Says Union law minister Arun Jaitley, if Parliament does not pass the bill, it would only leave a smile on the face of the terrorists. He even accused Congress leader Mr Kapil Sibal of being "terrorist-friendly". The new Gujarat chief minister Narendra Modi is also on record to say that "all Muslims are not terrorists but all terrorists appear to be Muslims". The country should take notice of these assertions.

An important point is that if the ordinance is not passed, even then it will be in effect for at least six months which means that a lot of people can get locked up in that time to spend the next eight years as undertrials.


The question is: Do we really need such a law in the light of the TADA experience? Legal experts opine that the existing laws---Arms Act, Preventive Detention Act, Unlawful Association Act---and provisions in the Indian Penal Code for sedition (section 153) and conspiracy (section 120 (B) are sufficient to deal with terrorism. Hence, no need of a new law to deal with terrorism.

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