Author: Bisheshwar Mishra
Publication: The Times of India
Date: December 13, 2001
Union law minister Arun Jaitley
has emerged as one of the most energetic defenders of the Vajpayee government's
controversial Prevention of Terrorism Ordinance. In an interview with Bisheshwar
Mishra, he says fears about POTO being misused are unfounded:
Q.: Despite TADA diluting the trial
procedure for suspected terrorists by making confessions admissible, etc,
the conviction rate was only 1.5 per cent. Don't you think that POTO -
which has watered down these provisions because of the 'safeguards' you
have introduced - will lead to an even lower rate of conviction? If so,
how does having such a law help fight terrorism?
A.: It need not necessarily be
so. POTO is a substantial improvement over TADA. One of the reasons for
the low conviction rate in TADA was that in several states where TADA should
not have been used like UP, Madhya Pradesh and Gujarat, it was used. Obviously
if Gujarat used TADA against 19,000 farmers, the conviction rate against
farmers would have been nil; and that brought down the average.
The second difference is that the
techniques applied under POTO with regard to prohibition on funding, banning
of organisation and intercepts of communications enable the police to get
hold of legally admissible evidence which is irrefutable. Oral witnesses
can turn hostile, intercepts don't turn hostile. Intercepts stare an accused
in the face. Where a law providing for intercepts has been made applicable
in the state of Maharashtra (under the Maharashtra Organised Crime Law),
the conviction rate on the strength of these intercepts is already 77 per
cent.
Q.: You have claimed that POTO is
an improvement over TADA because policemen who bring mala fide charges
can be punished. But POTO - which only provides for two years' imprisonment
in this regard - is actually a dilution of a similar provision in the IPC
which specifies a jail term of seven years.
A.: POTO is better than TADA because
there is a deterrent against the police officer in terms of punishment.
If he uses POTO against a person for mala fide reasons, he can be prosecuted.
Q.: You have been saying that POTO's
clauses 3(8) and 14 - requiring citizens to divulge any information that
the police believe is relevant - is nothing more than what is already contained
in the CrPC and IPC. But the latter are limited only to information about
crimes that have already been committed or about to be committed whereas
POTO's provision about obliging citizens to provide information is very,
very open-ended.
A.: These provisions are based
on the rules of a civil society - that a citizen has a responsibility in
maintaining and strengthening the rule of law. The principle is, if you
know about the commission of an offence, it is your duty to inform the
police. Even though the government has now considered an amendment in 3(8),
we must all also appreciate the rationale behind the original provision.
How can any civilised democracy survive if an argument is raised that citizens
have no responsibility to report crime to the police? How can we make a
virtue out of such an argument? And clause 14 only requires that if you
have information with regard to a crime, the police has a right to know
this.
Q.: But this obligation is very
general and broad.
A.: Well, the spirit of any investigative
law will always be the same but the specific exercise of power will be
in relation to specific information and not general information.
Q.: How do you justify the power
under POTO for the government to ban ''all front organisations'' of a 'terrorist
organisation' without bothering to name these organisations?
A.: Well, the experience of bans
in the past has been that when you ban an organisation, they tend to convert
themselves and resurface under alternative names. The law should be strong
enough to take care of such an eventuality.
Q.: Doesn't POTO's provision for
the attachment of property prior to conviction violate principles of natural
justice, especially since it may take years for the case to finally be
resolved? In the event of the police attaching the property and money of
a suspect, will compensation and interest be paid by the government if
he is eventually acquitted?
A.: If there is prima facie reason
to believe that a particular property has been acquired through crime,
the law will operate in two stages. Stage one, you allow attachment of
that property and eventually if it is found that it is not acquired out
of crime, the property is to be released back and if it is acquired out
of crime it is to be forfeited. Attachment is only an interim stage, forfeiture
is the final stage. Attachment is to be carried out by the executive but
forfeiture depends upon judicial orders. And even for attachment, a remedy
to move the special court has been provided. Thus there are sufficient
safeguards.
Q.: In the event of POTO lapsing,
what will happen to the 25 organisations banned under it?
A.: This depends upon the interpretation
which has already been given on ordinances by the Supreme Court. I am reasonably
sure POTO will become a law and such an eventuality won't arise. But assuming
it does not, actions under a lapsed ordinance which have already taken
place - i.e., concluded actions - continue to operate. But nothing further
can be done under a lapsed ordinance.
Q.: If a journalist takes the initiative
to arrange an interview with the leader of a terrorist organisation like
Hizbul Mujahideen, would this invite the POTO definition of ''helping to
organise a meeting to be addressed by a member of terrorist organisation''?
Would the journalist face a 10-year jail term?
A.: My reading of the law is that
he would not. Only a meeting for the cause of terrorism would attract punishment
within the purview of the law. Meeting means, meeting for the cause of
terrorism.
Q.: The Law Commission draft said
that POTO should explicitly say that ''it will not apply to trade union
activities and peaceful mass movements''. Why doesn't POTO incorporate
such a caveat?
A.: POTO's definition of terrorism
doesn't include trade unionism or any mass movement. It includes only those
who try to disrupt the integrity, sovereignty or unity of India by use
of arms, ammunition, explosives. Obviously, democratic mass movements and
trade unionism do not use these tactics.
Q.: It is alleged that the haste
with which the ordinance was promulgated indicates the government was interested
in using it for political gains and not against terrorism.
A.: POTO was long overdue - in
a country where thousands of people have been killed in acts of terrorism,
where thousands of kilograms of RDX has been recovered and where different
terrorist movements are already in interplay. POTO has been debated for
almost two years. The views of the Law Commission, safeguards suggested
by the Supreme Court, objections raised by the National Human Rights Commission
have all been taken into consideration before a final draft was prepared.
