An Act of ill will

THE NDA government has emerged victorious on its Pota project. The same cannot be said for the nation. The Prevention of Terrorism Act is no ordinary piece of legislation. It undermines the spirit of the Constitution, deepens seriously divisive trends within the country and diminishes Indian democracy.

The fellowship of the ring ensured that the Bill got through riding on a 425-296 vote. But last Tuesday’s exercise in Parliament was not quite democracy in action, if we are to presume that democracy is not the mere counting of heads but an accounting of minds.

Not only was the joint session of Parliament an attempt to force the issue, if you look at the voting figures more closely, at least a 100 votes came from parties which supported Pota for extraneous considerations.

Parties like the TDP, one of whose members confessed during the Rajya Sabha voting on the Bill that he was only supporting it because of the whip issued by his party; parties like the National Conference, which had opposed the Bill in the Rajya Sabha; parties like the AIADMK, that is presently sniffing the possibilities of Delhi’s air; parties like the DMK, which has voiced serious reservations over the Bill but doesn’t wish to give up its tenuous hold on the national centrestage; parties like the newly constituted Indian Federal Democratic Party, which has just joined the NDA and needs to prove its credentials.

Not only is the process that birthed this Act seriously flawed, Pota itself is bad in law, bad in intent, bad in timing. Much has been written about the first attribute, but it would be useful nevertheless to quickly run through the reasons why this is the case.

Most disturbing is the loose definition of what constitutes membership of a ‘terrorist organisation’ — the Act explains it with a tautology, ‘‘terrorist organisation’ means an organisation which is concerned with or involved in terrorism’’. What constitutes ‘support’ to a terrorist organisation and what constitutes the ‘proceeds’ of terrorism are also left gloriously undefined.

Nowhere does Pota insist on the furnishing of evidence of the accused having actually committed an illegal act — the fact that he/she is deemed a member of such an organisation is sufficient. This, as civil libertarians have pointed out, is violative of the principle of certainty in criminal law in that something deemed as ‘criminal behaviour’ must be a recognisable criminal offence if it is to invite prosecution.

There are other major problems too with the Act, from the lack of pre-trial safeguards — in effect, the accused can be denied bail for a period of a year — to rights during the trial. But what is most dangerous is that the principle of presumption of innocence, which is the bedrock of modern criminal law, is constantly subverted in the various provisions of Pota. It would be no exaggeration to say that Pota constitutes within itself a parallel criminal justice system.

Many luminaries in the government have cited American and British anti-terrorism legislation to justify this law. Their arguments are, for the most part, based on carefully selected half truths. The US Anti-Terrorism and Effective Death Penalty Act, 1996, it must be noted, does not limit the defendant’s fundamental rights. In any case, detention can only happen after lawful arrest based on a probable cause that the individual has engaged in criminal conduct, an indictment that has to be confirmed by a judge or grand jury.

The post-Black Tuesday PATRIOT Act provides additional powers to the federal government, establishing a new criminal prohibition against harbouring terrorists. But due process is not dispensed with. Similarly, under the UK’s Prevention of Terrorist Act 2001, the detention of an individual arrested under the Act can be extended for up to five days,
but only with the permission of the home minister.

Let’s now come to the second aspect — as to why Pota is bad in intent. The recent history of this piece of legislation is very revealing. The government, seizing the moment of the September 11 attacks, dusted down the Law Commission’s draft anti-terrorism bill, quietly adding two chapters to it which had not even been scrutinised and debated. It cynically cited as justification the UN Security Council Resolution 1373, urging member states to combat ‘terrorist acts’ and bring those guilty to ‘justice’ — a notion that seems to elude Pota, with its provisions that go contrary to the UN’s International Covenant on Civil and Political Rights.

The president promulgated the Prevention of Terrorism Ordinance (Poto) on October 24, just three weeks before the Winter Session of Parliament was to begin — indicating the Centre’s anxiety to short-circuit the democratic system. The National Human Rights Commission, which was not consulted at all, made its unhappiness over the proposed law very clear at this point, but that did not prevent the union home minister from making the astonishing statement in November that those who are against the ordinance were anti-national.

He later modified this by observing that Poto’s critics were ‘‘wittingly or unwittingly making terrorists happy’’. However, at a seminar on November 30, he did admit that the country’s criminal justice system was marked by ‘‘poor quality of investigation, procedural lapses, sloppy prosecution and other shortcomings...’’

The December 13 attack gave a fillip to the government’s campaign, although it was pointed out that Parliament was stormed despite Poto having been in force. With UP assembly elections looming large, the Centre’s pro-Poto stance became even more belligerent. Electoral arguments, of course, are notorious for being the enemy of reasoned debate but they nevertheless ensured that the ordinance was re-promulgated on December 31, with some cosmetic changes to sugarcoat it.

This entire process was, in fact, marked by an attempt to play up visceral fears and ended up alienating large sections of the people. The ham-handed and biased manner the ordinance was deployed on the ground — establishing conclusively its anti-minority character — did not help matters.

Yet, despite the hype, the people have remained unconvinced about the need for such a law. This has been proved by the results in the elections of UP, Punjab, Uttaranchal and, most recently, in Delhi’s municipal elections — where the Godhra massacre was sought to be made an issue.

Which brings us to the bad timing of Pota. This was certainly not the juncture for a move that will only divide the country further. This is the time for every Indian to reach out and help heal the deep fissures left by the recent attacks in Gujarat. There are, going by the Narendra Modi government’s own figures, 97,998 riot-affected people in that state.

Gujarat represents, in fact, nothing less than a reenactment of Partition, 55 years after that monstrous upheaval. To come up with Pota at this point is a travesty, not just of justice, but of the values that have gone to shape us as a united nation.

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