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AN ANALYSIS OF POTA
JUDGEMENT AND BILL
Asian Centre for Human Rights (ACHR), Weekly Feature Service, Index:
ACHRF/01/2004, 01-01-04
INTERPRETERS OF THE DRACONIAN : An analysis of the POTA judgement
and POTA Amendment Bill 2003
On 7 January 2004, the Review Committee of the Prevention of
Terrorism Act, 2002 (POTA) is scheduled to hear the petition of
Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader, Vaiko. He was
arrested on 11 July 2002 for a speech he delivered at Tirumangalam,
Madurai,
Tamilnadu in June 2002 allegedly supporting the Sri Lanka’s
Liberation Tigers of Tamil Eelam, banned under the POTA. With the
Tamilnadu state government questioning the competence of the Review
Committee, the latest remedial measures – the adoption of the
Prevention of Terrorism (Amendment) Bill, 2003 by the parliament and
Supreme Court’s clarifications on Section 20, 21 and 22 of POTA on
16 December 2003- have failed at the outset.
There is an uncanny link between the adoption of the Prevention of
Terrorism (Amendment) Bill, 2003 and the Supreme Court judgement
[With W.P. (Crl.) 39/2002, W.P. (Crl.) 129/2002, W.P. (Crl.) 28/2003
& W.P.(Crl.) 48/2003] upholding the constitutional validity of POTA
of 16 December 2003. Both are tailored to suit the demands of
political leaders detained under POTA but who matter to the
power-wielders at the Centre or in the States.
The Supreme Court while justifying the need for POTA stated, “Our
country has been the victim of an undeclared war by the epicenters
of terrorism with the aid of well-knit and resourceful terrorist
organizations engaged in terrorist activities in different States
such as Jammu & Kashmir, North-East States, Delhi, West Bengal,
Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh.”
There is no reference to Jharkhand, which has become synonymous of
the mis-use of the POTA. Till February 2003, 218 persons were
arrested under POTA in Jharkhand, the heartland of India’s
indigenous peoples. Another 59 persons have reportedly been arrested
since then. After the public outcry against the mis-use of the Act
against victims as young as 12 years and as old as 81 years,
Jharkhand government asked its Crime Investigation Department (CID)
to review the cases filed by the Jharkhand Police. The CID has so
far reviewed 84 cases against a total of 142 cases lodged with
police stations of Jharkhand, involving 1109 persons. Out of 84
cases reviewed, CID found insufficient evidence in 41 cases. Out of
277 persons arrested, 71 persons have been granted bail. The Review
Committee constituted by the state government discharged 114
persons.
There are 440 persons currently "behind the bar" under POTA. The
maximum number of 93 POTA accused in jail are in Maharashtra,
followed by 90 in Jharkhand, 83 in Gujarat, 46 in Delhi, 42 in Tamil
Nadu and 36 in Andhra Pradesh. POTA is presently applicable in 10
states namely Andhra Pradesh, Delhi, Gujarat, Himachal Pradesh,
Jammu and Kashmir, Jharkhand, Maharashtra, Sikkim, Tamil Nadu and
Uttar Pradesh.
The Supreme Court in its judgement on 16 December 2003 upheld the
constitutional validity of all the provisions of the POTA except
clarifying that a mere speech in support of terrorist organisations
without the criminal intent of committing terrorist offences cannot
be considered as terrorist activities. The Supreme Court states,
“The prominent method of understanding the legislative intension, in
a matter of this nature, is to see whether the substantive
provisions of the Act requires mens rea element as a constituent
ingredient for an offence. Offence under Section 3(1) of POTA will
be constituted only if it is done with an “intent”. If Parliament
stipulates that the
‘terrorist act’ itself has to be committed with the criminal
intention, can it be said that a person who ‘profess’ (as under
Section 20) or ‘invites support’ or ‘arranges, manages, or assist in
arranging or managing a meeting’ or ‘addresses a meeting’ (as under
Section 21) has committed the offence if he does not have an
intention or design to further the samples of handwriting, finger
prints, foot-prints, photographs, blood, saliva, semen, hair, voice
of any accused person reasonably suspected to be involved in the
commission of an offence under the Act. The Curt can also draw
adverse inference if any accused refuses to do so….. Therefore, it
is obvious that the offence under Section 20 or 21 or 22 needs
positive inference that a person has acted with intent of furthering
or encouraging terrorist activity or facilitating its commission. In
other words, these Sections are limited only to those activities
that have the intent of encouraging or furthering or promoting or
facilitating the commission of terrorist activities.”
After the Supreme Court expectedly upheld the constitutional
validity of the POTA, the focus is on the Review Committee set up by
the Central government on 13 March 2003, in the words of Home
Minister L K Advani, to “take a comprehensive view of the use of the
legislation in various States and give its findings and suggestions
for removing shortcomings in the implementation of POTA”. About 180
complaints respectively 40 from Tamilnadu, 5 from Gujarat, 28 from
Delhi, 26 Uttar Pradesh, 15 from Jharkhand, 39 from Maharashtra, 16
from Jammu and Kashmir have been filed with the Review Committee.
The State governments, most notably Tamilnadu, adopted the
time-tested stratagem of procrastination and the Review Committee
has so far failed to deal with any complaint conclusively.
In order to ensure compliance of the State governments with the
Review Committee, on 16 December 2003, the Lok Sabha adopted POTA
Amendment Bill, 2003 to amend Section 60 of POTA. However, the
government seemed to have over stepped the side of the judiciary.
Section 60(7) of the POTA Amendment Bill, 2003, which is presently
waiting for President’s signature, provides that “Where any review
committee is of opinion that there is no prima facie case for
proceeding against the accused and issues directions, then the
proceedings pending against the accused shall be deemed to have been
withdrawn from the date of such direction.” In other words, once the
review committee orders the withdrawal of a case pending trial, the
proceedings are ‘‘deemed’’ to have been withdrawn with or without
the consent of the court concerned. However, the Supreme Court in
1996—in the context of Terrorist and Disruptive Activities
(Prevention) Act, held that the withdrawal of a case at the instance
of a TADA review committee is ‘‘not to be permitted mechanically by
the court on an application by the public prosecutor.’’ It also held
that ‘‘the public prosecutor has to satisfy himself that it is a fit
case for withdrawal from prosecution before he seeks the consent of
the court for that purpose.’’ The Supreme Court in its ruling on 19
December 2003 also held that State governments can not set free a
POTA accused without the consent of the Central government. Under
Section 321 (1) of the - Criminal Procedure Code, a public
Prosecutor can seek withdrawal of the case relating to a central law
only with the consent of the Centre. The ambiguity continues.
The Supreme Court in its judgment on 16 December 2003 once again
held “mere possibility of abuse cannot be counted as a ground for
denying the vesting of powers or for declaring a statute
unconstitutional”. As the POTA is tailored to suit the demands of
political leaders who matter to the power-wielders at the Centre or
in the States, there is no succour for the innocent victims.
ACHR Features
[A weekly feature service of Asian Centre for Human Rights (ACHR)]
C-3/441-C, Janakpuri, New Delhi-110058, India
Phone: +91-11-25620583, 25503626; Fax: +91-11-25620583
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www.achrweb.org
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