Author: Sitaram Yechury
Publication: Hindustan Times, New
Delhi
Date: November 28, 2001
Introduction: Not only does it violate
the Constitution, POTO is a sure recipe for political vindictiveness
Not with standing verbose pontification
and spreading of motivated disinformation by Union ministers, the Prevention
of Terrorism Ordinance (POTO) has clearly been promulgated more to advance
the RSS/BJP's partisan political agenda than to combat terrorism. L. K.
Advani himself has left very little else to doubt by declaring that the
BJP is in a 'win-win' situation; if the opposition does not allow POTO
to be enacted, then they are siding with the terrorists. If they do, then
the credit for the leadership for fighting terrorism goes to the BJP!
It is such cynical political calculations
that motivated the promulgation of an ordinance on the eve of the winter
session of Parliament. Such is its desperation that the BJP is reportedly
considering the convening of a joint session of Parliament to bypass its
hopeless minority in the Rajya Sabha.
Terrorism, both cross-border-sponsored
and indigenous, continues to take a heavy toll of innocent lives: over
50,000 victims during the last two decades. For a full decade, we had a
specific anti-terrorist law - TADA. When this came up for an extension
in 1995, the BJP joined the Left in opposing it on the grounds of being
not only ineffective (even in Punjab, for which this was specifically enacted,
the conviction rate under TADA was 2 per cent of the over 15,000 arrested)
but grossly abused. Yet, today the BJP sponsors the POTO.
Our experience with TADA has been
most frightening. Of the 76,036 people arrested by mid-1994, nearly 99
per cent or 75,200 were in different stages of trial or had not been produced
before any court at all. POTO, likewise, is liable to be misused and subject
law-abiding citizens to undue harassment while curtailing civil liberties.
The problem in containing terrorism
is not due, mainly, to the inadequacy of laws. The problem lies in the
lack of a political vision. This Vajpayee-led government, through its knee-jerk
reactions, has made matters worse, both in Kashmir and in the North-east.
Combatting terrorism is not only a law and order issue. Effective measures
can succeed only if backed by a political vision and resolve. On this score,
the Vajpayee government is hopelessly muddled; a victim of its own contradictions.
While the cabinet outrightly rejects
the Jammu and Kashmir assembly's views on autonomy, the BJP upholds its
position of abolishing Article 370 while the government declares unilateral
ceasefire only to rescind in the face of larger number of terrorist killings,
and the RSS continues to propagate the communal trifurcation of J&K.
Similarly, the unilateral extension of the ceasefire in Nagaland, the consequent
disruption and unrest leading to the government's capitulation led to sowing
deeper seeds of confusion thereby providing a fertile ground for terrorism
to thrive.
Much has been written about the
existing laws being sufficient to meet the terrorist challenges. A former
chief justice and two judges of the Supreme Court in the National Human
Rights Commission have said that POTO provisions are "substantially taken
care of under the existing laws". This can be seen by the fact that PDP
leader Madani, prime accused in the Coimbatore blasts of 1998, continues
to remain in detention till date. Similarly, SIMI was banned by this very
government recently. A laboured case is being made out that India needs
laws to check the finances of terrorist groups and to intercept their communications.
If that be the case, specific amendments to the existing laws must be considered
rather than enact draconian laws.
It is patently incorrect to claim,
as the government is doing, that POTO is the result of wide-ranging consultations.
The home ministry restored the idea of a reformed. TADA on February 2,
1999. The Law Commission was roped in and later it circulated a draft POTA.
The National Human Rights Commission had rejected this draft as being unnecessary
and draconian with one official commenting that POTA comes with a tag:
"100 per cent misuse permitted."
The then LDF governments in Kerala
and West Bengal had objected to this. Further, the Law Commission draft
has been substantially amended to add two new chapters, viz, chapters 3
and 5. These have never been subject to any consultations.
Many provisions of this law are
violative of the fundamental rights enshrined in our Constitution. POTO
does not define terrorism or a terrorist, but defines a terrorist act.
This definition is so wide as to include in Section 3 (1): "... by any
other means whatsoever, in such a manner as to cause, or likely to cause,
death of, or injuries to any person or persons or loss of, or damage to,
or destruction of, property or disruption of any supplies or services essential
to the life of the community...."
A transportation workers' strike,
for instance, will clearly fall within its ambit. Chapter 3 providing for
the banning of organisations dispenses with the safeguard in the Unlawful
Activities (Prevention) Act which stipulates a mandatory reference to a
tribunal within six months of the decision. POTO, instead, provides for
objections to be raised with the government and if rejected, the concerned
could go to the review committee which has a majority of government nominees.
A sure recipe for political vindictiveness.
The Law Commission's proposal had
a provision that the lawyer of the accused would sit through police interrogation.
This has been dispensed with. The lawyer can only visit his client.
Such confessions will be admissible
as evidence. However, within 48 hours of making such confessions, the accused
will have to confirm it before a magistrate. If he complains of torture,
he is sent for a medical examination. What is worse is that the police
can, during the first year, transfer him back to their custody from judicial
custody. Some safeguard!
The provisions for bail make a mockery
of justice. For one whole year, no bail application can be moved. When
moved later in the special court, if the public prosecutor objects, then
the court may grant bail only when it is satisfied that the person is innocent.
If the person is innocent, why was he arrested at all? In other words,
till the accused is acquitted, bail is not permissible.
Many more obnoxious provisions are
there like harbouring terrorists and not sharing information with the police.
In the former, all members of the family can be held, except the spouse
(mercifully). Under conditions of the Hindu undivided family laws, even
without having any personal contact with a distant cousin, one is liable
for arrest. The latter provision puts pressures on journalists virtually
eliminating the confidentiality of their source.
Clearly, the BJP is upping the ante
on POTO as a last ditch effort to regain some of its vastly deserted political
support in the run up to the UP elections. By equating all Muslims with
terrorism in the post-September 11 world situation and whipping up communal
passions, they hope to force a polarisation that would give them political
benefit.
Acting as the political arm of the
RSS, this BJP-led government continues to display blatant communal partisanship.
When Graham Staines is murdered by the Bajrang Dal - a terrorist act -
the prime minister calls not for speedy action but a national debate on
religious conversions. The saffron brigade is given sanction for engineering
communal riots as POTO does not contain the TADA clause which convicts
people for "adversely affecting harmony amongst different sections of the
people".
It is in this context that those
who dare oppose POTO are dubbed anti-patriotic. No one needs certificates
of patriotism from the assassins of Mahatma Gandhi. We, Indians, are neither
with the terrorists nor with the BJP's POTO.
Terrorism is a scourge that needs
to be defeated and eliminated. The CPI(M), on this score, has lost hundreds
of its comrades in Punjab, North-east, Jammu and Kashmir and elsewhere,
who courageously fought terrorism and roused public opinion against it.
However, combating terrorism cannot be allowed to be used as an excuse
to impose draconian laws that curtail civil liberties and democratic rights.
(The writer is a politburo member
of the Communist Party of India (Marxist))
