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Act II: Hawks Have Landed

POTA is now law, thanks to a rarely-used strategem by the BJP. But it's still up to the states whether to use it or not.

Act II: Hawks Have Landed
Jitender Gupta
Act II: Hawks Have Landed
"Advaniji ka gala kharaab ho gaya hai, aur mera dimaag. Kuchch to kal ho gaya tha... [Advaniji's throat is sore and so is my head. Partly because of (the joint session of Parliament) yesterday...]"

—Prime Minister Vajpayee, referring to his fit of anger during the joint Parliament session on POTA.

The BJP's spin doctors have been projecting the transmutation of POTO into POTA (Prevention of Terrorism Act) at the controversial joint session of Parliament last week as a big political victory for the party, the forces of Hindutva and the war on terrorism. The prime minister losing his cool with Opposition leader Sonia Gandhi in Parliament is being viewed as a carefully orchestrated effort—by belittling her and her objections to POTA, he was playing to saffron sentiments.

That the BJP has been trying to find a substitute for Ayodhya in POTA was evident at its November 2001 Amritsar national executive itself. A day after POTA became law, the PM called for a shift away from "stagnant" Hindutva. Whether the fight against terrorism can provide new focus for pro-Hindutva elements is questionable: POTO proved singularly ineffective as an election issue both in Uttar Pradesh and, more recently, in the Delhi municipal polls.

The Opposition is equally determined not to allow the BJP to claim POTA's passage as a victory. The party may have rammed POTA down the nation's throat through political chicanery, but it couldn't ensure its implementation, Left and Congress leaders point out. Law and order being a state subject, it would be largely up to the chief ministers whether to apply POTA or not. And with the Opposition in power in 17 states, the BJP is in no position to ensure that POTA is effectively employed. In fact, the People's Union of Civil Liberties has already challenged POTA in the Supreme Court, contending that Parliament has no legislative competence on a law and order issue.

The Left has openly said it will not implement POTA. "One week before the joint session, we adopted a resolution that we would not use POTA. It is now completely at the discretion of the state governments. The National Security Act has been on the statutes for a long time but it has never been used in West Bengal. Similarly, MISA and ESMA haven't been used in Left-run states. We've appealed to opposition governments not to enforce POTA," says the CPI(M)'s Prakash Karat.

The Congress was in two minds on what line to adopt. Having opposed POTA, it could not now say it would implement the law. On the other hand, tricky legal issues regarding Centre-state relations could crop up if it directed its chief ministers to ignore the act's existence. Spokesperson S. Jaipal Reddy said the party was examining the legal implications involved. The fact is that, as former justice Rajinder Sachar points out, that Congress-ruled states like Maharashtra and Madhya Pradesh have equally draconian laws (like the Maharashtra Control of Organised Crime Act) in existence.

Within the party, opinion is divided. Congress MP and well-known lawyer R.K. Anand agrees that the states could make it well-nigh impossible to "use" POTA, just as the Gujarat government had made it possible to "abuse" it. "It is the state police which has to use the law. Of course, the courts are free to apply it even if the police does not once the investigations are over and the chargesheets are filed. But if the state administration is against POTA, the police is unlikely to use it." Says former Supreme Court judge V.R. Krishna Iyer: "The act contemplates state action and hence they can decline to use it. The CMs of Maharashtra and Kerala have already said they will not use POTA."

Congress MP and eminent lawyer Kapil Sibal, on the other hand, says the Left's position is unworkable: "Once a law has been passed, no state government can say it will not implement it.That's not the way a democracy functions." He points out that no state government or police force will refuse to espouse POTA, whatever its political denomination: "Who doesn't want more power?"

Sibal observed that the Maharashtra police had used POTO against terrorism-accused Mohammad Afroz but later withdrew the charge because it proved legally untenable. Says former chief justice A.M. Ahmadi: "In a state like Gujarat, where the police dances to the tune of politicians, it can produce dangerous chemical reactions. Has any of the police officers who misused TADA been punished so far?"

Lawyer Rajeev Dhawan agrees that once the Centre has passed a law, it will be difficult for the states to spurn it. There are provisions in the Constitution, notably Articles 258 and 259, on administrative compliance by states. The Centre can even issue a warning to state governments. All the more reason why the states should have been consulted on the legislation before it was passed. "India has a cooperative and not a confrontationist federalism," he points out. Legal experts agree that the law is more draconian than TADA, which in turn calls into question the manner in which it was passed.

First, it was brought in as an ordinance on October 24 last year, despite the fact that Parliament was to meet three weeks later. Instead of getting Parliament's approval, it was re-promulgated in January this year. When it was finally tabled, it was rejected by the Rajya Sabha. Normal procedure demanded that it then be referred to a select committee of Parliament. Instead, resorting to a sparingly used strategem, the government called a joint session of both Houses and pushed it through. The BJP may have saved face, says Dhawan, but it was at the cost of undermining democratic traditions and subverting federalism.

Bhavdeep Kang With Davinder Kumar

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