The BJP’s consistent chorus has been that the Unlawful Activities (Prevention) Am-endment Act, 2004 (Act of 2004) is inadequate in dealing with terror. They eulogise certain provisions of the POTA. I have already indicated that a harsh legislative framework is no panacea in dealing with terror. An exhaustive, effective legislation to prosecute terrorists, consistent with our constitutional ethos is necessary. In essence, the difference between the POTA and the Act of 2004 relates to the following :

1. Confessional statements of an accused before a police officer were admissible as evidence under the POTA. The act of 2004 contains no such provision.

2. Under the POTA, an accused can be detained for custodial interrogation for up to 180 days. Under the act of 2004, the maximum period of such detention has been reduced to 90 days.

3. Under the act of 2004, the accused are free to apply for bail under the Code of Criminal Procedure, 1973. This was permissible under the POTA after 1 year.

4. Under the POTA, there is a presumption of guilt and the accused has to prove his innocence whereas under the 2004 act, the prosecution has to discharge the burden of proving the accused guilty.

In order to understand the rationale of not incorporating the harsh provisions of the POTA in the act of 2004, it is necessary to deal with each of the above differences seriatim:

1. Confessional statement to a police officer made admissible

Under the POTA, hardly any convictions were based on any meaningful investigation. The confessional statement of an accused in custody of a police officer was often the basis of his conviction. Such a provision of law is not even applicable against non-citizens under the Patriot Act, 2001 in the US or under the Terrorist Act, 2006 in the UK. Secondly, even in colonial India, confessional statements to a police officer were inadmissible under the Evidence Act, 1872. Why a democratic free India needs such a provision, needs to be understood. The only possible explanation can be that investigating agencies are unable to gather evidence against terrorists other than confessional statements. Such inability cannot provide a rational basis for invoking such a provision: an easy tool in the hands of investigating agencies. The rampant abuse of this provision led to targeting of the minority community. Even women and children were not spared. Despite this, the success rate of convictions under the POTA was abysmally low.

... contd.