4. Presumption of guilt:

There are several provisions in the Evidence Act, 1872, which allows presumptions to be made. Those are still applicable in the prosecution of terrorists under the Act of 2004. However, to presume an accused under the POTA guilty, till he proves his innocence, is a burden that can rarely be discharged. Even under the US Patriot Act, non-citizens who are prosecuted are not subject to such a disability. Neither does such presumption exist in UK or any other democratic nation.

Even with the repeal of the POTA, India can, under the present legal framework of the act of 2004, claim to have the harshest law dealing with terrorists.

The reason why the POTA was repealed was because of rampant misuse of its provisions for settling political scores, targeting a minority community, and arresting innocent citizens during the NDA regime. Tamil Nadu CM Jayalalithaa invoked the POTA for booking MDMK leader Vaiko; UP Chief Minister Mayawati used it against Raghuraj Pratap Singh and Gujarat CM Narendra Modi used it as a tool to book persons belonging to a particular community. In Jharkhand more than 300 persons were arrested under the POTA, which included women and children.

Our constitutional ethos requires Parliament to enact laws, which on the one hand should be effective instruments in dealing with terrorists and on the other hand, ensure that the foundation of our constitutional values and our adherence to the rule of law does not falter. This government believes that wherever it can be demonstrated that certain provisions need to be strengthened or that the ambit of the law should be widened to allow investigating agencies to access evidence, in the legitimate exercise of power, that should indeed be done. Terrorism, which has taken roots here, needs to be combated with determination. The strategy is two-fold. One, enact laws which allow you to combat terror by use of technology, electronic devices, interceptions, satellite networks and management systems. Two, having access to such information, to deal with terrorists through a legislation which is effective and inspires public confidence consistent with our constitutional ethos.

... contd.