November  2001 
Special Report

Why POTO must go

As in case of the earlier draconian law, TADA, POTO is also claimed to be a measure necessary to contain terrorism. But its already evident that this, too, will be used by the police and the government as a weapon against minorities and dissidents


I begin with a quotation: "...  Every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected..."

Can you guess who said this and when? The Indian government could have said this when it brought MISA long ago! Or whenever it made the Armed Forces (Special Powers) Act applicable to any part of the country. This could have been said when TADA was introduced in 1984. This could be said even now. In fact, this was from Justice Pandian of the Supreme Court of India when he upheld TADA in 1994.

The Supreme Court had then observed: "Where all traditional law enforcement institutions are under suspicious scrutiny, only rational application of the function of law and thorough understanding of its complexities and limitations can protect the integrity and survival of legal order. But it is certainly true that the problem has received a new intensity and a new range as the law extends and variegates the range of its concerns and application and as the interests and modes of articulation of those ministering to the law become more and more specialised and technical."

Yet what happened in 1995? TADA was not renewed because it was universally felt that TADA had been misused and that there was no justification for such a law. So, we had a situation from 1984–85 to 1995, a decade of TADA. In what way did it secure the unity, integrity or sovereignty of the nation? Did terrorist acts come down during this period?

The only thing that happened was that over 77,571 persons were arrested and detained. It is interesting to note that during this period more "terrorists" were arrested in Gujarat than in Jammu & Kashmir and Punjab; the figures being 11,616 for Jammu & Kashmir, 15,314 for Punjab and 18,686 for Gujarat.

Again, what is the rate of conviction? It is just about 1.8 per cent. So the main purpose was to arrest and detain for no reason. Out of the 77,571 arrested, over 72,000 were let off without a trial because there was no evidence against them. Even in Punjab, out of 2,548 persons arrested in the Taran Taran area under TADA, the conviction (as of 1996–97) was only about 10 persons. In the entire Punjab state, supposed to be the hot-bed of terrorists, only 121 cases had resulted in conviction till 1996–1997.

What about the period between 1995 and 2001? Has there been a sudden spurt in so–called "terrorist activities"? Even after September 11, is there any evidence of increase in acts of "terrorism" affecting the unity, integrity and sovereignty of the nation? Then, why this ordinance?

The answer can be found in the above passage of the Supreme Court itself: "Law enforcement agencies are under "suspicious scrutiny". Why should there be any suspicion at all? Is it because of the law, or is it because of the persons who enforce the law? If those persons who enforce the law are suspect in the eye of law, how could anyone entrust them with such a harsh law like TADA? Or POTO?

Again, the Supreme Court says the law has become "more specialised and technical." In what way was TADA or the present POTO a more "specialised" or "technical" law? Does the law provide for new techniques in the investigation of any crime? What specialisation is called for in the new POTO? Again, who is to implement the law? It is the same "suspect" police in connivance with the powers that be in the home ministry that is entrusted with the execution of this law.

This is exactly what they want. They want a harsh law — a law that denies bail, a law that permits extraction of confession, a law that circumvents universally recognised fair-trial principles of law — in other words, a law that permits detention without trial. TADA was such a harsh law. But certainly, it was not a rational law. It required no specialised or technical skill in enforcing the law. To think that only a draconian law "can protect the integrity and survival of a legal order" is to betray faith in the rule of law. The harsher the law, the greater is the threat to liberty and human dignity.

It is strange that the government tries to justify the ordinance just because in some of the states ruled by the Congress there are similar laws. An irrational, harsh draconian law in one state cannot be a justification for another state or the Union government to bring in such a law. All of us who have regard for democracy, liberty, minorities’ rights and human rights have condemned such laws in no uncertain terms.

When Tamil Nadu brought the POTA Bill in 1998, Justice Krishna Iyer wrote in The Hindu (Aug 4, 1998): "The spectre of terrorism cannot be countered by the monster of POTA Bill, nor can an exaggeration of the ubiquity of terrorism be a justification for adventurist authoritarianism. Democracy will be a casualty, if the mobilisation of the people is not intensified behind it and the strengthening of Constitutional values is not immediately undertaken by human rights activists. The diagnosis will be ominous if statutory violence is the prescribed panacea."

When in 1999 the Shiv Sena-BJP government of Maharashtra brought the Maharashtra Control of Organised Crime Act (MCOCA), generally referred to as the Criminal Syndicate Act, I said in an article: "The MCOCA is anti–democratic, anti–liberty, and patently authoritarian, capable of misuse against any individual whom the government wishes to put behind bars. It is worse than TADA."

Recently, on the recommendation of the Law Commission, the government sought to introduce the Criminal Law Amendment Bill with all the features of TADA. Even the National Human Rights Commission (NHRC) opposed the same. And yet, the government has brought this POTO! It only shows that the government has no respect for our constitutional values. It has no respect for its own human rights institutions. It is unfortunate that when the erstwhile NHRC opposed the TADA law and filed a detailed statement in the Supreme Court, the latter just ignored it.

If the courts ignore what the Human Rights Commission says, what is left in this country? Fortunately, the NHRC persisted in its efforts and wrote to MPs and that is how the government could not extend the draconian law.

One of the worst features of this law, as also of TADA, is the lack of definition of "terrorism". It defines "terrorist acts", but it does not define "terrorism". And all the actions referred to in S. 3 are all offences under the regular law, such as the Indian Penal Code, the Arms Act or the Explosives Act, etc. There is a whole chapter (Chapter VI) under the IPC, from Ss. 121–130, containing offences against the State which include overawing the government by use of criminal force, threat, intimidation etc.

Then again, Chapter VIII deals with offences of "unlawful assembly", overawing by criminal force the government, the people, and use of force or violence armed with deadly weapons to cause death etc. Then, of course, we have offences of murder, extortion, criminal intimidation, etc. So the objective is not to create a new offence, but only to pick and choose.

The police, the government can decide whom they want to book under the ordinary law or under POTO — knowing full well that a person booked under POTO will remain in jail whether there is any case against him or not. Even under the existing detention laws, such as the National Security Act (NSA), or MISA or NDPS Act, if there is any detention, the same can be challenged under Article 32 or Article 226 of the Constitution. But, if you are charged under POTO, even those remedies are not available.

S. 3 provides, inter-alia, for intention to "strike terror" in the people. What about the Bajrang Dal? Or the Shiv Sena? Do they not strike terror? What about gang wars, like between two groups of goondas? Do they strike terror or not?

The Supreme Court, in the case of Usmanbhai (1988) and thereafter in Niranjansingh (1990) said that TADA is not applicable to gang warfare, because "the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or the section of the people and thereby commit a Terrorist Act."

So, I can move about with an AK-56 rifle and not be dubbed a terrorist, but another person who moves with a kitchen knife (even a plastic one) may be hauled up under this law. The police only have to say that he is charged under POTO. (As happened in the case of the attack on the WTC at New York, even a plastic knife can be a weapon of mass destruction).

The Supreme Court, in the case of Hitendra Vishnu Thakur (1994), tried to define "terrorism" but came up with a very unsatisfactory definition. It said: "Terrorism is use of violence, but its most important feature is not merely the physical and mental damage of the victim, but the prolonged psychological effect it produces on the society as a whole." Broadly, what distinguishes it "from other acts of violence, appears to be "the deliberate and systematic use of coercive intimidation."

Who makes deliberate and systematic use of coercive intimidation? Can you absolve the Bajrang Dal from it? What about the Shiv Sena? What about the Hindu Jagran Manch? What about erstwhile goondas becoming MPs and ministers and moving about with gun-toting security guards?

Of course in Jammu & Kashmir, and also in Manipur, Nagaland or Mizoram, certain groups have been indulging in such coercive intimidation. However, is that a new phenomenon? They have been there for the last several years. The government has sent in the army, the security forces and has indulged in all sorts of oppressive and repressive methods to control the "terrorist activities", and continues to do so even now. In fact, TADA was not used in these states. So, where is the need for POTO at this juncture, to make it applicable for the whole country?

Of course, there is a definition of "terrorism" which was referred to by Prof. Noam Chomsky in one of his speeches, ‘The abyss of the future’ (See The Hindu, Nov 5, 2001), during his recent tour of India. He found this in the US official document. It says that terrorism is "the calculated use of violence or threat of violence to attain goals that are political, religious, or ideological in nature, through intimidation, coercion or instilling fear." Noam Chomsky says that this is the literal meaning which the government would not accept. The government prefers its propagandist version, i.e., "terrorism is terrorism that is directed against the US and its friends and allies."

Our POTO is the subservient contribution to this propagandist version, in its desire to claim ourselves to be friends of the US whether they have any respect for us or not!

One of the other features relates to the question of giving information. Anyone can be charged under this law for not giving information which he "knows" or "believes" to be of material assistance in the investigation of any terrorist act. On paper, it looks innocuous, but in reality it may become oppressive. The police have only to say: "You have some information and you have failed to give it."

But what is that information? The police do not know what it is. I myself do not know what it is? Yet, if I am charged under this law, there is no bail. There is also another provision: The police can call upon my bank, my company, or my institution or organisation to furnish information in their possession which the officer believes will be relevant or useful, and if they fail to disclose such information, they too will be liable for prosecution (s. 14). So my privacy is at stake, for no reason, and I have no remedy.

S. 18 relates to terrorist organisations. If any person is a member of a terrorist organisation, he commits an offence u/s 3. How do you determine a "terrorist organisation"? The Section 18 (4) says that an organisation shall be deemed to be involved in terrorism if it:

a) commits or participates in acts of terrorism

b) prepares for terrorism

c) promotes or encourages

terrorism, or

d) is otherwise involved in


But where is the definition of "terrorism"? So, we go back to what the government says: Terrorism is what the government says is terrorism. A list of 23 organisations, all belonging to minority groups, have been notified along with POTO. Though most of them have been in existence for several years, it is as if the government has suddenly discovered that they are all terrorist organisations. Significantly, though Bajrang Dal qualifies under all the criteria, it is not included. Again, it is not clear whether this is in addition to the associations declared unlawful under the Unlawful Activities (Prevention) Act, 1967, because u/s 3, being a member of such an association is also an offence.

POTO does not lay down any guidelines for the purpose of including any organisation in the list of terrorist organisations. Thus with the promulgation of this ordinance, a whole minority is sought to be silenced, for whoever raises his voice in protest can be charged with being in association with terrorist organisations.

The government says that this law has been so drafted as to guarantee that no hardship could be caused to an innocent person. It points out that though POTO provides for recording confessions, it takes care to see that it is recorded by a police officer not below the rank of a Superintendent of Police. In fact, all these so–called safeguards are taken from justice Pandian in Kartarsingh’s case which upheld the TADA law.

The learned judge had observed: "Whatever may be said for and against the submission with regard to the admissibility of a confession made before a police officer, we cannot avoid but saying that we — with the years of experience both at the bar and on the bench — have frequently dealt with cases of atrocity and brutality practiced by some over-zealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers even though no general and sweeping condemnation can be made."

The observation should have been sufficient to strike down that provision. However, instead of striking down the law, the learned judge sought to lay down the guidelines, as follows:

1) The confession should be recorded in a free atmosphere, in the same language in which the person is examined;

2) The confessional statements should be sent to the magistrate without delay;

3) The magistrate should record the statement of the accused when produced before him, and if necessary should be sent for medical examination; and,

4) The accused should be given a statutory warning that he is not bound to make a confession... and if he asserts his right to silence, the police officer must respect his right.

POTO and such other laws like MCOCA of Maharashtra have literally copied down this and think that human rights are guaranteed with these provisions. Each of these guidelines is only a farce. Under ordinary criminal law and the Evidence Act, confessions recorded by the police are inadmissible. On what basis can you make a distinction in the case of a POTO accused? If the police are not credible enough to have confessions recorded by them admitted under the general jurisprudence of criminal law, what is the rationale for sanctification of police credibility merely because it is recorded by a police officer higher in rank?

Police are police, and no distinction can be made when it comes to "collecting evidence by hook or crook and wrenching a decision in their favour"; as if an erstwhile inspector on becoming a superintendent will be free from such pernicious desires. All other rituals mentioned in the guidelines are no more than a farce and have no meaning. Even if the accused is sent to the magistrate within 48 hours of recording the statement, there is no guarantee that the accused and the members of his family would be free from the trauma of arrest, detention and investigation. Assuming that the accused musters courage to withdraw his statement, the case does not come to an end, and there is no guarantee that he would be released on bail.

One other feature is that the confessions need not be in writing. It can be cassettes, tapes, sound records and it can easily be manipulated, and the authenticity of the same will be tested only at the time of trial. Till then the accused will remain in custody with no bail, and that is the object of the law.

I would only recall what a PUDR report said: "In the end TADA is state terrorism marked by bad conscience and evil intent. The Indian state has thus acquired enormous powers to pick and choose the individual, the group, the class or the community and hit them with legislated violence."

We are once again on the threshold of a diabolical decade of a dubious government suppressing all minority rights and civil liberties!

Finally, it is difficult for me to believe that the government is not aware of what TADA had done to the people. Yet this law is being sponsored. Not to contain terrorism for the simple reason that such a law has failed, but for the main objective — to divide the people on the basis that all minority groups are unloyal. The list of terrorist organisations amply demonstrates the government’s partisan approach. During the last general election, the government had Kargil. Now that major elections are due in UP and other states, the government realises that without the ghost of internal or external threat they cannot win.

That is why, following the September 11 attack on the WTC, we went out of our way to be a partner with US in its patently unlawful attack on Afghanistan. Having realised that the US was not obliging, we had to create our own scare of waging an imaginary war. Unfortunately for the government, in Jammu & Kashmir there is no likelihood of any escalation of violence from Pakistan, because of the US presence in Pakistan and because of the elimination of several Taliban training camps in Afghanistan and Pakistan. Internally, the army and the security forces have become proactive to contain terrorist acts.

In the north–eastern states, we have the Armed Forces (Special Powers) Act, which is virtually like army rule. As far as Naxalite pockets are concerned, they have been there for the last fifty years and TADA has not eliminated them. So the only thing this government can think of is to create an imaginary terrorism situation in the rest of the country and tell the people that the BJP is the only party which fights against terrorism, while the rest do not realise the danger. That is the meaning of what Advani said the other day, a la George W Bush: "Those who are not with us are with the terrorists." It is time the government realises that it can fool some people for some time but not all the people at all times. 

(The writer is a retired judge of the Mumbai High Court).


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