Miscued Priorities

On October 21, 2003, the Union Cabinet approved an Ordinance to amend the Prevention of Terrorism Act (POTA),2002, to confer more powers on the Central and State Review Committees to make their decisions binding on theCentral and State Governments and the police officers investigating the POTA cases.

Briefing reporters on the Cabinet decision, the Parliamentary Affairs Minister, Sushma Swaraj, said theOrdinance giving statutory powers to the review committees would be promulgated by the President, and a Billto replace it would be introduced in the winter session of Parliament.

POTA was enacted by India's Parliament on March 28, 2002, with a clear agenda and purpose of arming the statewith an adequate judicial mechanism to bring terrorists to book. Inadequate strategy, lack of vision, and poordraftsmanship have often plagued the lawmakers of this country, and these were clearly reflected in POTA andits predecessor, the Terrorist and Disruptive Act (TADA), 1987.

Both laws contain stringent provisions and there is no doubt that there would be room for abuse of the Actby law enforcers - though POTA does contain harsh penalties for malicious prosecution under the law. Sadly,abuse of legal processes is seen even for laws not specifically meant for terrorists, and such a situationwill persist unless corrupt elements in the enforcement agencies are rooted out, and the proclivity amongpolitical parties to use legal processes to harass or punish political rivals is neutralized.

With growing complaints of abuse of POTA creeping in from States like Jharkhand and Tamil Nadu, the rulingNational Democratic Alliance (NDA) Government at Delhi resolved that the misuse of the Act had to be stopped.This is ironic, in view of the fact that the Bharatiya Janata Party (BJP), the prime constituent of thealliance, was the strongest proponent and backer for POTA.

A central review committee had been set up in April 2003 under the former Chief Justice of Punjab andHaryana High Court, A.K. Saharya, to look into the complaints arising out of the alleged misuse of POTA.Section 60 of POTA gives room for such a committee to be constituted at the Centre as well as at the Statelevel. The recommendations of the Centrally-appointed Review Committee was, till now, only advisory in natureand was not binding on the enforcement authorities even if there was a finding that the law had been abused ina particular case.

Under the new Ordinance, however, if the Central Review Committee comes to the conclusion that POTA has beenmisused or abused in a particular case or cases, it could direct the release of the victims, the decisionwould be communicated to the States concerned immediately, and would be final and binding on the special POTAcourts dealing with these cases.

Under the new Ordinance, a provision will be incorporated in POTA stating that the decisions of the CentralReview Committee on complaints scrutinised by it are binding on the Centre, the States concerned and theinvestigation officials. Similarly, the State Committees' decision is binding on the State Governmentsconcerned. If there are conflicting decisions between the Central and State committees with regard to the samecomplaints, the Central Committee's decision will prevail. No time limit has been proposed under the Ordinancefor the disposal of complaints by the Review Committees.

Three reasons appear to have precipitated the promulgation of the Ordinance. The first and most widelyreported was the alleged misuse of the Act by law enforcement agencies in some States. Reports of childrenbeing arrested under POTA in Jharkhand created the deepest suspicions regarding the implementation of the Act.The apparently lopsided use of the Act is reflected in the number of cases filed under POTA in a State likeJharkhand, with relatively low levels of Left Wing extremist violence, where 130 cases have been registered,as compared to Jammu and Kashmir (J&K), with the highest intensity of terrorist violence in the country,where just 97 cases have been registered under POTA.

With the ghost of TADA and its history of abuse still hanging in the air, any arrest under POTA appears toarouse suspicions of political and state high-handedness. The fact, however, is that the Act, under Section58(1), does provide for a punishment mechanism for malicious use, a mechanism that was absent in itsprecursor, TADA. The section reads:

"any police officer who exercises powers corruptly or maliciously, knowing that there are noreasonable grounds for proceeding under this Act, shall be punishable with imprisonment which may extend totwo years, or with fine, or with both."

This clause, if effectively implemented, could act as a strong deterrent against vindictive arrests underthe POTA, but there is yet no case of the clause being effectively invoked.

The Justice Saharya committee disclosed that POTA had not been applied in 15 States and six Union Territories(UTs) of the country. However, in the remaining States, a total of 301 cases had been registered involvingover 1,600 persons. Of these, 514 persons were in jail and 885 absconding from the date of the promulgation ofthe Act. The States which had invoked POTA were Andhra Pradesh, Delhi, Gujarat, Himachal Pradesh, Jammu andKashmir, Jharkhand, Maharashtra, Sikkim, Tamil Nadu and Uttar Pradesh.

Interestingly, terrorism affected States like Manipur, Tripura and Assam have not applied the law, citing theexistence of other laws to tackle terrorism. The J&K Government, in a surprising move on June 4, 2003,decided that it would not invoke POTA in the State, and that detainees under the Act who had no serious casesagainst them were to be released.

Despite some dramatic convictions under POTA, the truth is that the existence of this anti-terrorism law isstill to result in significant increases in the conviction rate of arrested terrorists. On the other hand, theConstitution categorizes 'law and order' as a State subject, and this has also put the implementation of theAct in question, as the States reserve the prerogative to apply the Act as they will. Political mileage,consequently, rules the roost. Various State Governments have refused to implement the Act in order to projecta 'rights-friendly' image, even while they fail to curb terrorist activities in their backyard.

Second, the working of the Central Review Committee had turned into a virtual tug of war between the Centerand the States. Although the POTA Review Panel was set up in April, it had been largely ineffective in gettingthe States to part with information regarding POTA cases or to accept the findings of the Panel. The Stateshave been uncooperative, citing their internal review mechanism - at least seven states (Delhi, Uttar Pradesh,Himachal Pradesh, Gujarat, Jharkhand, Tamil Nadu and Gujarat) have set up their own review committee - andhave contested the Central Panel's jurisdiction.

The reluctance of the States to aid the Central Review Committee in reviewing cases registered by themunder POTA had forced the panel to turn to NGOs, citizen groups and the complainants themselves, even to get acopy of the First Information Report (FIR). In any case, since the Panel was only advisory in nature, none ofthe States had yet bothered to facilitate its operations. Most States see the Review Panel's demand fordetails of POTA cases as an incursion into their 'turf'.

In fact, so poor has the cooperation been from the States that the Central Review Panel had to depend onBar Associations, NGOs, political parties and the public at large to gather information. The result, ofcourse, is that the Panel is yet to give its recommendations in any of the cases before it. Commenting on theOrdinance within this context, Justice Saharya said that the Ordinance would have little impact. ''I welcomethe Ordinance and it may turn out to be useful in the long run. But it talks of making my report binding...how do I even reach the stage where I can give a finding until I don't get all the relevant data?''

With the passage of the Ordinance, the tug of war between the Center and the States appears to have beensettled in favor of the former. This does not, however, signal the beginning of an easy relationship, and thecompulsions of coalition politics will continue to hamper the smooth functioning of the Act; which brings upthe third and most important reason for the promulgation of the Ordinance: 'political compulsions'.

The Cabinet decision comes at a time when the Dravida Munnetra Kazhagam (DMK), one of the constituents of theNational Democratic Alliance Government at the Centre, had announced the programme for an agitation to belaunched on December 1, 2003, seeking the repeal of POTA. Another constituent of the ruling alliance, theMarumalarchi Dravida Munnetra Kazhagam (MDMK), has been in an agitational mode against POTA since its leaderand Member of Parliament, V. Gopalswamy, popularly called Vaiko, was arrested by the Tamil Nadu police andcharged under POTA for allegedly making speeches supporting the Liberation Tigers of Tamil Eelam (LTTE). In aspeech delivered at Thirumanagalam (near Madurai) in the southern State of Tamil Nadu on June 29,2002, Vaikohad said,

"I supported the LTTE yesterday. I support the LTTE today, and I will continue to support the LTTE."

The LTTE is listed as a terrorist organization under POTA and, consequently, any public meeting ordeclaration in its support is liable to attract charges under the Act. The ruling BJP has come under pressurefrom the two southern parties (DMK and MDMK) to drop the charges. The ruling party in the State is not a partyto the ruling alliance at the Center, and stands to gain politically if Vaiko remains in prison, and isconsequently refusing to release Vaiko. As such, the present Ordinance may be the perfect weapon to bringrelief to Vaiko and his supporters.

What is lost in this political conundrum, however, is the fact that, the penalties under the Act are certainlyattracted by support to a banned terrorist organisation. With the Center bending backwards to accommodate itsalliance partners, the wrong precedents will inevitably be set. POTA certainly needs improvements and changesin certain clauses, but such changes should not be driven by transient political compulsions. The last thingthat is needed in the war against terrorism in India is the dilution of the only comprehensive anti-terrorismlegislation on its statute books.

Saji Cherian is  Research Associate, Institute for Conflict Management. Courtesy, the SouthAsia Intelligence Review of the South Asia Terrorism Portal