If a rose will smell as sweet by any other name, the Prevention of Terrorism Act (POTA) 2004 will smell as foul by other nomenclature. The old adage comes to mind in view of the UPA government’s cosmetic exercise in purporting to repeal POTA – but simultaneously providing that notwithstanding the repeal, any investigations or legal proceedings may be instituted, continued and enforced, and any penalty or punishment may be imposed as if the said Act had not been repealed. Put simply, it means that all action taken by the NDA government and even false cases instituted against Muslims in Gujarat will be cloaked in legality, permitting Narendra Modi to continue his harassment of minorities unchecked. At present, 217 cases (involving 1,600 persons) are being investigated under POTA while 116 of them (involving 500 people) are being tried. Many of the accused have been in jail for more than two years but so far trial has not even commenced. What does one tell them now? That the UPA government, having proclaimed its opposition to POTA in the past, now feels that all pending cases should continue to undergo trial, subject to review by the Central Review Committee (set up by the NDA government), and until the committee rules in favour of detenues they must remain in jail. What a sorry display of the UPA government’s commitment to secularism and its pledge to safeguard civil liberties at the very threshold of its governance! Considering the immediacy shown in the withdrawal of the case against UP legislator, Raja Bhaiya, when POTA was still in existence, what prevents the UPA government from instantly withdrawing all other cases under POTA now, after its repeal?

A large number of POTA’s more objectionable features have been retained by the not-so-clever exercise of amendments made in the Unlawful Activities (Prevention) Act, 1967, Ordinance 2004. Blanket power allowing the government to declare any association as terrorist has been retained but the remedy provided for in the Unlawful Activities (Prevention) Act, 1967, to have the matter inquired into by a sitting judge of a high court on facts, has been dispensed with by providing for limited jurisdictional remedy through a review committee consisting mainly of government officials though headed by a sitting or retired judge of the high court. The definition of unlawful activity is common to both the 1967 Act and the Amendment Ordinance to mean an association, which either by words, spoken or otherwise, acts so as to disrupt the sovereignty and integrity of India. The offence being the same but the remedy being less favourable under the Ordinance as against that provided under the 1967 Act, no court can uphold such patent discrimination and the unfettered power of the central government to pick and choose between two associations accused of the same crime. Such an action is totally illegal.

As per section 7 of the Amendment Ordinance, new chapters IV, V, VI, as well as the schedule of POTA have been bodily lifted from the repealed POTA and incorporated into the 1967 Act. The result being that the UPA government accepts and continues to accept as terrorist, those organisations that the NDA government earlier declared as terrorist. Is it not tragicomical that on assuming the mantle of government, the fiercest opposing political parties think and behave in the same manner as its predecessors against common citizens?

There has been much ineptitude in the drafting of the new Ordinance. Though provisions of admissibility of evidence collected through the interception of wire, electronic, have been bodily lifted from POTA, they do not include the procedural safeguards included in POTA (which were, in fact, made compulsory through an earlier judgement in the case filed by People’s Union for Civil Liberties, PUCL, challenging telephone tapping). The Supreme Court upheld the legality of telephone tapping, but subject to certain safeguards. Inexplicably, these safeguards have been omitted. In another instance, while incorporating the necessity of an order by a competent authority permitting interception to be supplied to the accused before trial, the definition of "competent authority" included in POTA has been omitted. As a result, this provision becomes unworkable because no interception can be legally carried out without prior authorisation by a competent authority, and as no competent authority has been detailed by the Ordinance, any interception will be illegal and inadmissible – and the whole purpose of this provision will remain a dead letter. Moreover, in POTA, a review committee was formed to review the order of the competent authority. This has also been omitted in the Amendment Ordinance.

I cannot comprehend the reasoning behind the government’s omission of this chapter. Since the Supreme Court upheld the power of interception subject to safeguards so as to comply with the requirement of Article 19 (right of privacy) of the Indian Constitution, the deletion will make all such interceptions unconstitutional and inadmissible. It is to be noted that without such safeguards, in the past, the government’s abuse of this power was so prevalent that government agencies even intercepted communications of former Prime Ministers and central ministers, as observed in the PUCL case. Does the UPA government wish to go back to such arbitrary police powers?

One particularly objectionable feature of POTA, permitting the court to keep the identity of a witness secret, has been retained and incorporated in the Amendment Ordinance. Such a provision has been held to be unconstitutional by the Inter-American Court of Human Rights and evidence thus obtained is not admissible. Even the Supreme Court has accepted (in the PUCL case challenging POTA) that keeping the identity of a witness secret is a deviation from the usual mode of trial. However, the Amendment Ordinance still retains this provision thus denying fair trial to the accused, the very accusation previously levelled against the provision in POTA by constituents of the UPA.

One must give the government credit for maintaining the inadmissibility of confessions before the police on par with the general law of the land but then again this will not benefit existing detenues, who will continue to be governed by the draconian law of POTA, which the government itself feels denies safeguards to detenues for their defence.

The government need take no credit for purporting to suggest that the accused can apply for bail in the first year itself. This position was laid down by the Supreme Court while disposing off the PUCL case challenging POTA, specifying that it was open to the accused to apply for bail in the first year even under POTA. As a matter of fact, it was the central government that had conceded this position before the Supreme Court. No relaxation has therefore been made and the government cannot take any kudos for it.

No matter how clever you may try to be, reality will always catch up with you – this is an ancient maxim that governments continue to ignore at their peril.