Wednesday, Dec 01, 2021

POTO In Toto?

After the terrorist attacks on the parliament, the debate over POTO is getting more acrimonious. Excerpts from the second Bodh Raj Sawhny Memorial Oration by Justice J.S. Verma, Chairman of NHRC and the full text of the ordinance.

POTO In Toto?
| illustration by Jayachandran
POTO In Toto?

Terrorism is the phenomenon which produces terrorists and therefore, combating terrorism has a wider connotation which includes identification and eradication of the causes which give rise to, and promote the phenomenon of terrorism. That is the lasting remedy or cure of terrorism. Terrorism has no precise definition. Terrorism results in gross violation of human rights and must, no doubt, be dealt with a heavy hand. However, the methods to counter terrorism must not violate the human rights of innocents or else the innocents would be exposed to double jeopardy and suffer twin violation of their human rights. Experience worldwide has shown that state terrorism to combat terrorism is counter productive.

Prof. Noam Chomsky of MIT in one of his recent public lectures speaking on ‘The New War Against Terror’ describing terrorism referred to the Reagan administration which called it, plague spread by “depraved opponents of civilization,” and said that, “terrorism is not the weapon of the weak, it is the weapon of those who are against ‘us’, whoever ‘us’ happens to be.” He described it as ‘primarily a weapon of the strong, overwhelming, in fact.’

So understood, it has wide ramification and amounts to ‘intolerance’ of any opposition of the strong. The source of strength may be any kind of power, even the power of the state. In that sense any weapon to combat terrorism which is not tempered with ‘tolerance’ and ‘justice’ may, itself, amount to an act of terrorism and be not within the ambit of ‘rule of law’. Terrorism is a dastardly crime. In the case of crime, the rule of law requires finding the perpetrators and bringing them to justice under the law. In doing so, innocent people are not exposed to any danger or violation of human rights. If a criminal hides somewhere, the law does not contemplate assault on people all around to isolate and apprehend the criminal. The requirement of the rule of law in combating terrorism is similar.

Rule of Law
Rule of law is a basic feature of the Constitution of India and a part of its basic structure which is indestructible. The Supreme Court in Indira Gandhi Vs. Raj Narain 1 observed that “the major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty become license.” The perennial dilemma is to discover a measure of right balance appropriate to ever shifting tangle of human affairs. The device adopted by peoples devoted to liberal democracy to overcome the dilemma is the ‘Rule of Law’. Article 21 in the Constitution of India has been judicially interpreted to mean right to life with dignity and not mere animal existence. Human dignity is the quintessence of human rights. Thus, Article 21 alone is comprehensive enough to encompass all human rights. Article 21 has also been construed to be applicable even to non-citizens along with Article 14 which guarantees right to equality, inclusive of the rule of non-arbitrariness.

The core values of our constitutional philosophy indicated in the Preamble to the Constitution are: dignity of the individual and unity and integrity of the nation. The two, obviously can co-exist, and are not incompatible. Otherwise, framers of the Constitution would not club them together in the Preamble as the core values. The message is clear. Every attempt must be made to balance the two in all state actions including legislation, its interpretation and implementation.

That is the demand of the rule of law in a true democracy. Combating terrorism under the rule of law must, therefore, mean compliance of the constitutional mandate. It is significant that Article 21 is non-derogable. After the emergency, an amendment of Article 359 of the Constitution provides that Article 20 (protection against testimonial compulsion) and Article 21 (right to life) cannot be suspended even during an emergency. War against terrorism cannot be more stringent. Methods for combating terrorism must conform to these constitutional requirements.

I may also make a passing reference to the provisions contained in the ICCPR and the Convention Against Torture which can be safely read into the constitutional guarantees in India by virtue of the decision in Vishaka 2 which requires reading into the domestic law all provisions in international instruments not inconsistent with the domestic law which have the effect of enlarging the fundamental rights guaranteed under the Constitution. It is this wide canvass of rule of law which must determine the kind of laws and nature of other strategies to combat terrorism in India. Enforcement and implementation of the same must be similarly regulated.

No conflict between human rights and combating terrorism
Terrorism regardless of motivation has to be condemned and countered but this has to be done taking “all necessary measures in accordance with the relevant provisions of international law and international standards of human rights to prevent, combat and eliminate terrorism, whenever and by whomever committed”. This has to be achieved within the framework of rule of law. The Vienna Declaration and programme of action adopted on 25 June, 1993 categorically asserted:

“The acts, methods and practices of terrorism in all its forms and manifestations, as well as linkage in some countries to drug trafficking, are activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening territorial integrity, security of States and legitimately constituted governments. The international community should take the necessary steps to enhance cooperation to prevent and combat terrorism.”

The responsibility for the security of our land, and the fight against terrorism, are patriotic duties and the integrity of the state must be preserved and the terrorism – the sworn enemy of civil society – which respects neither life, nor law nor any human rights, must be suppressed. Yet we must fight this just war using means that are righteous, that are in conformity with our Constitution, our law, and our treaty obligations. This is no easy task. But then it is never easy to live by ideals and it is the ideals that distinguish civilized people from barbarians.

It must be remembered that there is a clear and emphatic relationship between national security and the security and integrity of the individuals who comprise the state. Between them, there is a symbiosis and no antagonism. The nation has no meaning without its people. John Stuart Mill emphasized that the worth of a nation is the worth of the individuals constituting the nation. This is the emphasis laid in the Constitution of India which holds out the promise to secure both simultaneously.

Often doubt is raised about the possible conflict between respect for human rights and combating terrorism. There is really no such conflict. International humanitarian law is a part of human rights law applicable even in armed conflict. There is a growing convergence between the two since the object of both is the same and that is to respect human dignity and abjure needless violence. The fundamental concepts of laws of war are based on the balance between military necessity and humanity which includes proportionality of the force used. Military necessity does not admit of cruelty or wounding except in fight nor of torture to extract confessions. Geneva Conventions are for humane treatment even of the POWs. How a party to a conflict is to behave in relation to people at its mercy is governed by humanitarian laws. If humane considerations prevail even in armed conflict with an enemy, the treatment of persons dealt with in low intensity conflict cannot be harsher because they are often not even enemies of the nation. The whole regimen of Hague laws and Geneva laws covers the field and there is growing convergence between them.

No person who supports human rights can support terrorism which is a grave violation of human rights. There is no conflict between respect for human rights and combating terrorism. Ms. Mary Robinson, the UN High Commissioner for Human Rights, recently in India to receive the Indira Gandhi Prize for Peace, Disarmament and Development, emphasized this fact when she stressed that ‘government action must be guided by human rights principles, which strike a balance between the enjoyment of freedoms and the legitimate concerns for national security.’ She added, ‘I am concerned that some governments are now introducing measures that may erode core human rights safeguards.’

It is essential to bear this in mind.

Current Scenario
The recent dastardly terrorist attacks in America on September 11, 2001 have generated world wide panic and triggered the call for stricter laws to combat terrorism. Our own country is no exception even though in effect the situation here remains substantially the same as before September 11. Incidentally, some Judges of the US Supreme Court were in India when America suffered the terrorist attacks on September 11. It is significant that the US Judges did not exhibit any panic reaction and said that the terrorists must be tried under the rule of law and no stricter laws are needed to deal with them and to do justice. Ms. Mary Robinson also said recently, ‘In a world which has changed not for the better after the September 11 attacks, there is need to reinforce the rule of law and international human rights and for ensuring that tolerance was not looked upon as luxury but a way of life.’In these difficult times there is need to check expression of anger. We must not be carried away by the knee jerk different reaction of other countries.

The General Assembly of the United Nations considered the item entitled “Measures to Eliminate International Terrorism” in its resolution 22/158 of December 12, 2000 and while strongly condemning ‘all actions, methods and tactics of terrorism as criminal and unjust, wherever and by whomever committed’, reiterated its view that such actions ‘are in any circumstance unjustifiable” and further reiterated its call to all states ‘to adopt every measure in accordance with the charter of the UN and the relevant provisions of the international laws, including international standards of human rights’. A similar view has been expressed in successive resolutions of General Assembly and the UN Commission of Human Rights on the item entitled “Human Rights and Terrorism”.

On September 28, 2001, the United Nations adopted Security Council’s resolution 1373 (2001), the sternest ever on the subject of terrorism. A series of steps are prescribed in that resolution for states to take in order to prevent terrorist attacks; and states are called upon, inter-alia, to exchange information in accordance with international and domestic law; and to take appropriate measures in conformity with the relevant provisions of national and international law, including standards of human rights.

The Attorney General for India, Mr. Soli J. Sorabjee, writing in the Sunday Times ofIndia (November 11, 2001) quotes Ms. Mary Robinson, the United Nations Commissioner for Human Rights from the Annual Report, where dealing with some fundamental issues relating to terrorism, she said:

“There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe on human rights; and a strengthened commitment to the rule of law”.

(Emphasis supplied)

He further quotes Ms. Robinson who has observed that:

… true respect for human life must go hand in hand with securing justice,” and that “ the best tribute we can pay to the victims of terrorism and their grieving families and friends, is toensure that justice, and not revenge, is served”.

(Emphasis supplied)

Mr. Soli Sorabjee then adds:

“In the current cacophony it is heartening to hear the voice of reason and sanity”.

Let us hope, the observation of the Attorney General will receive the attention it deserves in the process of devising strategies, including legislation to combat terrorism.

Speaking on terrorism, Ms. Mary Robinson cautioned against the violation of human rights in the global ‘fixation’ with the war against terrorism and said:

“What must never be forgotten is that human rights are no hindrance to the promotion of peace and security. Rather they are an essential element of any strategy to defeat terrorism.”

(Emphasis supplied)

It is, therefore, disturbing to hear the comments of some responsible persons that expression of concern for the protection of human rights, particularly of the innocents in combating terrorism can be construed as tacit support to terrorism. The intolerance to any voice of dissent is a greater danger to the democratic ethos in which the right to freedom of speech is sacrosanct. Let us hope, in the current scene ‘the voice of reason and sanity’ would not be muffled.

Existing Laws
A bird’s eye view is worthwhile of the existing laws.

Indian Penal Code

Chapter IV - General Exceptions (Acts which are not offences)

Section 76 -Act done by a person bound, or by mistake of fact believing himself bound, by law
Section 79 -Act done by a person justified, by mistake of fact believing  himself justified, by law 
Section 96-106 - Right of private defence extending to causing death  in certain situations

Chapter VA - Criminal conspiracy

Sections 120 A,120 B

Chapter VI - Offences against the State

Section 121 - 130
Section 124 A - Sedition

Chapter VIII - Offences against the public tranquility

Section 153 A Promoting enmity between groups etc.
Section 153 B Imputation, assertions prejudicial to national integration

Chapter XVI - Offences affecting human body

Cr.P.C - 
Section 46 -Power of arrest includes use of necessary force

Arms Act, 1959
Explosives and Explosive Substances Act
Armed Forces (Special Powers)Act, 1958
Unlawful Activities (Prevention) Act, 1967
The Preventive Detention Laws e.g. NSA, COFEPOSA etc.

The above are existing laws covering the several aspects pertaining to terrorism. In addition, the laws could be amended to the extent found necessary to cover the deficient area, instead of duplicating legislation which gives arbitrary option to resort to the stricter law.

Is there need of a stricter new Law ?
The debate on the need of a stricter law to combat terrorism generated in the wake of the proposal to enact the Prevention of Terrorism Bill, 2000 into law based on the 173rd Report of the Law Commission of India impelled the National Human Rights Commission to give its opinion on the subject. NHRC had also opposed the continuance of earlier Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). Giving its opinion on the Prevention of Terrorism Bill, 2000, the NHRC referred to the existing laws on the subject and emphasized that the real deficiency was in their implementation and not the content. The conclusion was:

“…….For the above reasons, and consistent with the view that it took in respect of TADA, the Commission is now unanimously of the considered view that there is no need to enact a law based on the Draft Prevention of Terrorism Bill, 2000 and the needed solution can be found under the existing laws, if properly enforced and implemented, and amended, if necessary. The proposed Bill, if enacted, would have the ill-effect of providing unintentionally a strong weapon capable of gross misuse and violation of human rights which must be avoided particularly in view of the experience of the misuse in the recent past of TADA and earlier of MISA of the emergency days.

This Commission regrets its inability to agree with the opinion of the Law Commission in its 173rd Report and recommends that a new law based on the Draft Prevention of Terrorism Bill, 2000 be not enacted. Such a course is consistent with our country’s determination to combat and triumph over terrorism in a manner also consistent with the promotion and protection of human rights.”

The proposal for the enactment of the new law was later shelved. After the incident of September 11, 2001 and the global ‘fixation’ with the war against terrorism, the issue has resurfaced and The Prevention Of Terrorism Ordinance, 2001 (for short POTO) promulgated with effect from October 24, 2001. A debate is on in the country pertaining to the need for enactment of such a law and that too by an ordinance. Certain provisions thereof are seen to posses dangerous potential of misuse by the enforcement agencies posing grave threat to the human rights of innocents. It should suffice to say that the NHRC, which I have the privilege to Chair even now, takes the same view of this Ordinance as it did of the earlier Bill for substantially the same reasons as given in its earlier opinion of July 14, 2000. This has been reiterated in NHRC’s opinion of November 19, 2001 which says:

“……Undoubtedly, national security is of paramount importance. Without protecting the safety and security of the nation, individual rights cannot be protected. However, the worth of a nation is the worth of the individuals constituting it. Article 21 which guarantees a life with dignity is non-derogable. Both national integrity as well as individual dignity are core values in the Constitution, and are compatible and not inconsistent. The need is to balance the two. Any law for combating terrorism should be consistent with the Constitution, the relevant international instruments and treaties, and respect the principles of necessity and proportionality.

The National Human Rights Commission, therefore, reiterates its earlier view in respect of the Ordinance also.”

Let me dispel the doubt in the minds of a few who appear to contest the propriety of NHRC expressing its opinion on this subject. It does appear that such a doubt stems from a lack of proper appreciation of NHRC’s role and its functions under the Statute. This was clarified in NHRC’s opinion of July 14, 2000 and is reproduced for ready reference:

“Functions of the Commission specified in Section 12 of the Protection of Human Rights Act, 1993, particularly those in clauses (d), (f) and (j) are relevant in this context. These functions include : to review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; study treaties and other international instruments on human rights and make recommendations for their effective implementation; and such other functions as it may consider necessary for the promotion of human rights. It is, therefore, an essential function of the Commission to formulate its opinion on the desirability and need of enacting such a stringent law and to give public expression to it for consideration by the Parliament and all those involved in the making of the laws so that due weight is given to the Commission’s opinion in the performance of this exercise.”

It is not necessary to deal at length with specific provisions in the POTO. It is sufficient to refer only to some salient features. The reversal of burden of proof for bail for a period of one year and before filing of charge-sheet is contrary to a basic principle of criminal jurisprudence, apart from the unfair requirement from the accused to perform the impossible task of proving at that stage that he is not guilty. Admissibility in evidence of statement recorded by a police officer for graver offence under POTO, when the Evidence Act continues to make it inadmissible for any offence under the general law is incongruous. The provision for general immunity for any action taken in the course of any operation directed towards combating terrorism, in addition to that under the existing law for bonafide acts of public servants with the need of prior sanction to prosecute have the propensity to further degenerate the existing tendency of custodial torture. And then, the definition of the offence is also vague and nebulous enlarging the scope for misuse of power, given the earlier experience under the MISA and TADA. There is no attempt made at systemic reforms inspite of long pending recommendations made in the National Police Commission Reports and Supreme Court decisions.

Experience in the working of such laws has shown that there is need to make systemic reforms in the functioning of the enforcement agencies, the police force being the main enforcement agency, its constitution, autonomy and accountability. The reports of the National Police Commission making copious recommendations to this effect including the need for autonomy of the police force to insulate it from political and other extraneous influences and its accountability continue to gather dust notwithstanding the lament of the then Union Home Minister, Shri Inderjeet Gupta, in his letter dated April 3, 1997 to all Chief Ministers drawing attention to the urgent need to act in this behalf. The Supreme Court judgment in Hawala Case 3also dealt with this aspect at length and made recommendations, many of which have yet to receive serious attention. The experience of the working of stringent laws like Maintenance of Internal Security Act (MISA) during the Emergency and TADA in the recent past with no improvement in the performance and police culture is a lesson to be remembered while devising new strategies to combat terrorism. If the so-called stricter TADA did not serve the purpose, as is well known, how can the POTO professed as a milder version do better in the same hands? It is difficult to appreciate the professed hope. Inefficacy of TADA to combat terrorism is self evident from the statistics. The substantial area of deficiency lies elsewhere, that is, in implementation of the laws. That must be remedied. Quarrel with the tools without improving efficiency and integrity of performance is meaningless.

These facts indicate the need for identification of, and emphasis on the real areas of deficiency in the implementation of the existing laws together with the assurance of speedy trials. The remedy does not appear to be in the enactment of more stringent laws which transfer judicial power into executive hands and result in the denial of a fair trial to the accused with the added potential danger of harassment of innocents and the violation of their human rights without effective remedies. The need is of systemic reforms to improve the image and performance of the enforcement agencies with effective accountability to prevent misuse of public power. Conferment of larger powers, if needed even then, must follow only thereafter.

After performing such meaningful exercise, if any deficiency is found in the existing laws, then, and then alone there would be need to supplement the existing laws to the extent of the felt need, instead of adding to the burden of plethora of existing laws which make the judicial process more cumbersome and protracted. Even though unwisdom of legislation and its potential for misuse are no grounds of constitutional invalidity, yet they are strong factors which must influence the legislature in considering the necessity of enacting new and stricter legislation.

The need is also to identify the causes for the rise in the phenomenon of terrorism other than that which has trans-border genesis and support. Good governance ensuring realization of the constitutional promise of promoting socio-economic justice, eradicating causes which give rise to a genuine sense of injustice must be seriously addressed as effective strategies to combat terrorism. A genuine sense of injustice harboured by the marginalized must be effectively addressed. Rampant corruption is a major cause of the pervading sense of injustice in the civil society. It also provides a nexus as well as the means for promoting crimes and terrorism. It is pertinent to recall the well-known Hawala case which came to light as a result of two terrorists being apprehended, which indicated the link of common funding of terrorists, politicians, public servants, businessmen and other anti-social elements. It is sad that this nexus was not investigated by the investigating agency inspite of Supreme Court’s persistence requiring investigation of the crime in all its facets which appeared to suggest international criminal links posing serious threat to national security.

To combat terrorism in the true sense, the strategies adopted must not be confined merely to identification of terrorists and their elimination by revenge, not justice, but must extend to diagnosis of the malady and finding a permanent cure. Combating terrorism under the rule of law must necessarily have this meaning. A limited approach may help eliminate some present terrorists but not the causes or the phenomenon of terrorism which produces terrorists; and that too at the cost of violation of human rights of many innocents. A proper balance between the need and the remedy requires respect for the principles of necessity and proportionality. Performance of this balancing trick is the mission of the rule of law to which our nation is committed. Let us not be carried away by possible short-term gains at the cost of long-term interests. The war against terrorism must be won under the rule of law.

“It is a delusion to think that the nation’s security is advanced by the sacrifice of the individual’s basic liberty. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alien procedures or with a denial of essential constitutional guarantees.”

-- Judge Stanley H. Fuld of the New York Court of Appeals


1. AIR 1975 SC 2299
2. Vishaka Vs. State of Rajasthan, AIR 1997 SC 3011
3. Vineet Narain & Ors. Vs. Union of India & Anr. AIR 1996 SC 3386; 1998 (1) SCC 226

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