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Saffron State as terrorist

Saffron State as terrorist

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))

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