Author: Arun Shourie
Publication: The Hindustan Times
Date: November 20, 2001
Introduction: POTO should be approved
immediately and gradually made more stringent
The provisions of TADA were much
more stringent than those of POTO. The constitutionality of those provisions,
of TADA itself, had been challenged in the courts. The Supreme Court specifically
upheld TADA, and declared its provisions - the much more stringent provisions
- to be in accord with the Constitution.
While I happen to be in government,
my assessment for Parliament is the opposite one to that of the critics:
the ordinance bends too far back to accommodate human rightists, and that
includes some impractical judgments too - like that of the Supreme Court
in D.K. Basu vs State of West Bengal.
Under TADA, the accused was allowed
only one appeal - that to the Supreme Court. Even with that restriction,
the judgment in the Rajiv Gandhi assassination case took all of eight years.
By allowing another intermediate appeal - to the High Court - we are ensuring
that the period would be not eight but a multiple of eight years.
Similarly, recall the provision
that allows a lawyer to meet the accused while he is being interrogated.
Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyeba.
He is certain to have been saturated with indoctrination to the point that
he is nothing but a killing machine. Do you think he is going to give you
information over a cup of tea? And if lawyers are going to be meeting him
from time to time during interrogation, is there the slightest chance that
you will be able to extract information - information about their plans,
about their networks, that is information which is literally a matter of
life and death for our people and our country?
But such is the condition of public
life and public discourse in India today, and so far removed from reality
are some of our judgments, that a provision like that one about lawyers
has had to be incorporated in the ordinance.
Similarly, consider the deletion
of 'disruptive activities' from the ordinance. TADA provided that any action
that questions or disrupts the sovereignty and territorial integrity of
India or is intended to do so, or which is intended to bring about or supports
a claim for the secession of any part of India from the Union shall be
a crime under TADA. Imagine how far we have fallen when even such a provision
has had to be jettisoned - even from a law the specific purpose of which
is to thwart terrorists out to break our country.
The charge that such provisions
were used against Muslims, that TADA was an anti-minorities law, was a
travesty. The facts were completely to the contrary. The notorious case
of abuse was by the Congress-led government of Gujarat. It threw almost
19,000 people in jail under TADA, and these were farmers opposing its policies.
I don't recall any protests against that abuse by those who are now imagining
possible abuses in the future. Just as important, 98 per cent of those
arrested in Gujarat got bail under that very Act from the courts.
In Kashmir it is true that the overwhelming
proportion of those held under TADA were Muslims: but they were arrested
not because they were Muslims; they were arrested because they were out
to break the country. These two instances apart, the proportion of Muslims
among the total arrested under TADA was only 4.5 per cent.
But such is the shadow that the
falsehoods circulated at the time cast, that even six years later, and
with thousands more having been killed by terrorists, the provision about
activities aimed at disrupting the sovereignty and territorial integrity
of the country has had to be excluded from the ordinance.
'But what was the need for an ordinance?
Should the government not have first evolved a consensus on the matter?'
Is there never to be a finality?
Not even in a matter relating to the security of the country? Guess since
when the efforts to bring about a consensus on this law have been going
on? Since May 1995. TADA was allowed to lapse because opportunist politicians
looking for issues that would curry favour with the Muslim vote bank saw
an opportunity. That itself was a crime - an instrument vital to the security
and defence of the country was sacrificed to the crassest political calculation.
Then began the long march.
A Criminal Law Amendment Bill was
drafted and circulated in 1995. It was abandoned. Consultations continued
with all and sundry. The matter was eventually referred to the Law Commission
in 1998. The commission deliberated on the question for two years - giving
its report and draft Bill in April 2000.
That draft was considered at meetings
of directors general and inspectors general of police, of chief secretaries
and home secretaries of state governments. It was considered at the chief
ministers' conference on internal security last year. It was sent to the
Human Rights Commission for its observations. It was sent to the state
governments for their comments.
Should the process go on indefinitely?
And what are the prospects of 'evolving a consensus' when it has become
an article of faith of everyone who is out of office that his job is to
block everything a government does? That his job is to block even what
he was doing when he was in office, in fact even what he is today doing
in the states in which he is in office?
The comments that the states sent
to the draft Bill themselves tell the tale. The Congress is opposing POTO.
In fact, when the Law Commission's draft was circulated, the Congress government
of Delhi supported the enactment of the law in toto. The Congress government
of Karnataka supported the enactment of the law in toto. The Congress government
of Nagaland supported the law in toto. The Congress government of Madhya
Pradesh, the Congress government of Rajasthan, and the Congress government
of Maharashtra supported the enactment of the law, they sent suggestions
about specific clauses.
The CPI(M) governments of Kerala,
West Bengal and Tripura sent their usual 'principled' opposition. That
government in Kerala has gone. The one in West Bengal is trying to cover
up its embarrassment for having finalised its own version of the Maharashtra
Act. The government of Tripura, after some initial show of reluctance because
of 'the party's stand', has begun using corresponding provisions from other
enactments relating to national security.
Not just those governments in the
states, representatives of those parties at 'the national level' have in
general endorsed the need for a law to deal specifically with terrorists
and their organisations. The leading figure in Parliament from the CPI(M)
went so far as to counsel government that it should study what Israel is
doing in the matter.
One of the most highly regarded
leaders of the Congress in Parliament stated that the Indian Penal Code
is inadequate for combating terrorism, that a special law is needed, that
in fact the draft Bill itself was not adequate. Nailing the falsehood that
is being circulated, he said that the Bill does not shift the onus of proof
on to the accused, that the provisions only seek to raise a presumption
in certain circumstances. He said that there were many loopholes in the
Bill, and for that reason it should go to the select committee or standing
committee of the House.
This process has been going on for
six years. In the meanwhile terrorists have continued to maim, kill, blow
up and burn. Fifty five thousand people killed. And we are still stalled
- awaiting a consensus before getting even a law in place to deal with
terrorism.
My plea, therefore, is the one opposite
to that of the critics: the ordinance should be approved at the first opportunity,
and soon thereafter toughened - the diluted provisions should be replaced
by tougher ones - closer to those of TADA.
