Reject the POTO cunning, not the law

By Harish Khare

THESE DAYS Mr. Lal Kishen Advani has that satisfied grin of an alley cat that has just managed to get into a jar full of POTO- fied cream. As the Home Minister he has proposed a way out of the Vajpayee Government's distinct record of non-performance: enact a new law against terrorism. Then he goes to Amritsar to attend the ruling party's conclave and probably authorises the Law Minister to let out a nugget of the Advani cleverness: the much-talked- about ``win-win'' formula about the proposed Prevention Of Terrorism Ordinance (POTO) and its opponents. An embarrassed party president, the decent man that Mr. Jana Krishnamurthi is, tries to limit the damage, but a few days later again Mr. Advani repeats the unworthy ``win-win'' thinking behind the proposed law. In between, when questioned by the Parliamentary Consultative Committee, the ``tough'' Home Minister enters this and that caveat to come across as a man lacking the courage of his convictions, just another slippery politician of a very ordinary variety.

Notwithstanding Mr. Advani's lack of credibility and competence as a POTO salesman, there can be little doubt that the Indian state has to arm itself with a modicum of additional powers to deal with those groups and individuals who have no respect for the citizens' civil liberties and who are not averse to using the openness of a democratic society to subvert that very openness and to push their agenda of hate, intolerance and repression. This is the dilemma every democratic society faces and has to devise ways and means of defeating the terror-mongers without brutalising its civilised impulses in the process.

It has been argued, and argued not without merit, that the Indian state is already armed with considerable repressive powers to take care of terrorist mischief-makers. There is, therefore, no need for the purposed POTO, and that in the hands of a thoroughly unreliable political dispensation and an equally suborned police force, the new law would be used to the disadvantage of the innocent citizens and underclasses. These apprehensions are not to be dismissed lightly.

Yet from time to time, law-making, even a repackaging of an old law, has to be thought of as a deliberate device to signal a new collective resolve to meet the challenge of a qualitative new category of crimes against the state and the citizens, especially when the criminals are arming themselves with state-of-the-art tools. An open society needs to signal to its enemies that it has the collective will and the institutional resources to protect itself against assault from within and without. Every now and then, every political system needs to renew and revitalise its instruments as well as to infuse a new sense of purpose and direction among those who wield these instruments. The POTO can be looked upon as one instance of this renewal. The challenge would be to ensure that the incumbent political class is not allowed to overwhelm the morally defensible goals with its narrow partisan considerations, just as the TADA was misused and abused, both by its motivated users and by its tendentious critics.

No doubt, the proposed law suffers from any number of legal infirmities. Irrespective of whether these infirmities are intentional or simply reflective of the cultivated incompetence that is characteristic of the NDA regime, the POTO potion would have to pass the standards set by the Supreme Court in the Kartar Singh vs. State of Punjab (1994) as and when the ordinance gets voted in Parliament and gets challenged - as it must be - in the apex court. But then civil liberties are too important to be left entirely to the mercy of the benevolent judges. The political segment has to do its bit to ensure that the likes of Mr. Advani and other closet KGB- wallas do not succeed in creating conditions of civil strife in India, all in the name of fighting terrorism.

The critics have a duty to do their homework and to deny Mr. Advani the satisfaction of painting the democratic debate as an argument between patriots and traitors, between deshbakhts and gaddars. It is clear that Mr. Advani has stumbled upon the POTO mantra just as he chanted the ``ISI White Paper'' mantra a few years ago. Soon after the BJP's coming to power in 1998, Mr. Advani had this wonderful solution to the country's law and order problem: his Ministry would bring out a ``White Paper'' on Pakistan's supposedly omnipotent and omnipresent intelligence agency. He thundered, he roared, and he threateningly waved a piece of paper that was supposed to strike terror in the hearts of the terrorists and their patrons in Islamabad. From every conceivable platform he pretended as if every terrorist would run for cover at the thought of his Ministry compiling a document. After all he was the tough, no-nonsense Home Minister, and no one would be allowed to stand in the way of Mr. Advani and his White Paper. For publishing the paper, Mr. Advani did not need Parliament's approval; yet the much-touted brahmasthra was never used.

Having fooled the country with this White Paper trick, the Home Minister has now decided to practise another sleight of hand. The critics now have a responsibility to expose Mr. Advani's non- performance as Home Minister as also to show how his insurmountable limitations have further blunted the rusted instruments of the Indian state. More than that, the critics have an obligation to make the case that the battle against terrorism cannot be won without the BJP and the rest of the NDA crowd giving up their cozy relationships with the criminals and the crooks.

For instance, the critics should want to know how the proposed anti-terrorist law would take care of the top-to-bottom corrupt revenue- collecting bureaucracy presided over by that other master non-performer, Mr. Yashwant Sinha. Or, the first man to be booked under the new ordinance ought to have been the new Gujarat Chief Minister who has just re-inducted two criminals in his Cabinet; the likes of these criminal-Ministers provide just the kind of patronage and breaks the ``POTO terrorists'' need to wreak havoc. Or, the critics should want to know how the new law would help put down the kind of arms-trafficking that has been indulged in by the district-level bureaucracy in Gurgaon, Karnal and Faridabad districts of Haryana; or, how the new law would prevent the fake arms licences being issued on a massive scale in the Jammu division.

By all means any Government should be able to arm itself with powers to frustrate the terrorists and their networks; it is an entirely morally defensible proposition that those who have little faith in an open society and its institutions are denied the legal procedural breaks. The problem is not as much with the proposed law as with its flawed and failed proponents. Before the country is asked to give Mr. Advani the law he wants it would want to know what he and his political cronies are doing to prevent the gentle, incremental subversion of the laws and governing processes that allows the terrorists to get away with their murderous designs. What is worse, the BJP crowd is stoking the middle classes' dormant boorishness, the itch to beat up someone just to feel good.

Yet the fight against terrorism, especially which seeks the respectability of religious licence, goes beyond Mr. Advani's addled stewardship of the Union Home Ministry; just as the fight goes beyond the Congress' need to be seen as opposing anything and everything that emanates from the ruling benches. It is a test of the maturity of our polity that we can arm ourselves with effective legal instruments to defeat the challenge of terrorism, without giving in to the politics of low cunning.

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