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The Prevention of Terrorism Ordinance (POTO), like its predecessor, the TADA, defines only a terrorist act and not terrorism. In POTO, ``overawing Government by law established'' is no longer a terrorist act. This expression is an imperial device to keep insurrectionary natives at bay. This expression is replaced by ``with the intent to threaten the unity, integrity, security or sovereignty of India''.

The other half of `the terrorist act' is striking terror in the people or any section of the people. The process of curbing terrorism bars all democratic dialogue and debate. Discussions on such a law should not be confined to the interpretation of words and provisions of the statute. It is not the legality that needs to be debated. It is the politics behind the legislation that needs to be discussed and debated. That is what the BJP and we did to Indira Gandhi in the mid-1970s.

The enlargement of the remand period to one year is preventive detention by other means, which avoids the high profile habeas corpus proceedings in the High Courts or the Supreme Court. The proceedings before a criminal court will be news confined to the district or city, and this will effectively conceal the news of daily arrests. No grounds need be shown for the arrest, just a promise of a chargesheet on the 360th day.

This Act targets personal liberty by providing a crippling procedure for arrest, investigation and trial. That procedure itself is an invitation for flouting even the minimal norms provided by the statute. The statute is an abrogation of Article 21 as defined in Ms. Maneka Gandhi's case where procedure for forfeiting life and liberty are not informed by fairness and justice. The war against terrorism cannot dispense with the compliance of this Article.

This measure makes inroads into the Right to Privacy by making it lawful to tap telephone and other electronic systems of communication in whatever licensed form the facility is available. Behind your back, an application can be made to secure permission to tap your phone. The provisions in this regard provide for a hierarchy of authorities who grant and review the grant of permission.

In emergencies, the Additional Inspector-General of Police can, apprehending death or physical injury to any person or to prevent conspiracy or conspiratorial activities, authorise the investigation officer to intercept a telephone line and obtain approval later. All these interceptions will be transcribed into tapes or some such mechanical or other comparable devices and these will be preserved in a sealed condition for 10 years. The emergency power given to the Additional Director-General of Police will alone become the ordinary power, eroding the entrusting of the original power to the `competent authority'.

The evidence collected by this means can be used against the accused and is admissible in evidence. Mercifully, the accused is entitled to copies of the interception 10 days before trial and not when the chargesheet is filed. There is an arbitrary rider to this right. It can be waived by the court. One thought that waiver is personal to the right of the accused. On what principle is this right transferred to the court?

Apart from this, several persons' right to privacy is bound to be interfered with in the process of investigation. How is the State going to account for the needless intervention of so many persons' right to privacy. Is it valid to trample upon the right to privacy on such a large scale for targeting a minuscule number of terrorists?

The innumerable public and STD/ISD booths will be tapped and the licensees of these booths will become part of the police network of information. There have always been such unauthorised intrusions. That is why the PUCL initiated proceedings against telephone tapping and the Supreme Court held that the Right to Privacy is a fundamental right. It traced this right to Article 21 and clause 17 of the ICCPR to which India is a signatory.

Yet another inroad made by the ordinance is into the fundamental right to assembly and association. A person will be a terrorist if he is a member a terrorist gang or organisation; if he is a member of an organisation after it has been declared unlawful under The Unlawful Activities (Prevention) Act 1967; and if he threatens a witness or any person in whom the witness may be interested. A person who has in his possession any information of material assistance to the police and is not willing to pass this on is punishable with one year imprisonment. Presspersons unwilling to act as informants - for, that is what it means - will be offenders under this Act.

The print media rose in arms, not against the Act itself, but against this specific provision affecting their right to free speech. More than affecting free speech, non-disclosure of the source is an important aspect of the right to carry on business of selling news.

Freedom of speech and expression, freedom of association and assembly are interlinked and banning one will amount to banning the others.

A few years after independence and soon after the Constitution came into force, all enumerated rights in Part III came up for defining. So also the right to association. The old colonial Criminal Law Amendment Act 1908 had a section devoted to banning organisations and associations. Its stated purpose was to restrain civil disobedience. Despite its notorious role in restraining freedom movement, these laws were adopted as the Independent Indian Government found in these provisions nothing inconsistent with the provisions of the Constitution. Free India's Madras State brought in an amendment basing the deprivation of the right of association on the subjective satisfaction of the stated authority, with an advisory board thrown in by way of abundant caution to review the continuance for further periods.

The drafting of this provision was patterned on the principles on which the Supreme Court expounded and validated the law of preventive detention in A.K. Gopalan's case. Armed with this Amendment, the State Government banned the Madras Education Society set up by the Communist Party of India. V.G. Row questioned the validity of the ban and the court held that the principles, which validated the preventive detention law, are not applicable to the other two freedoms. Stressing the importance of the freedom of association, the court laid down that legislation leading to deprivation can only be by adjudication by an independent tribunal, where the grounds for ban has to be objectively established.

That is how the Unlawful Activities (Prevention ) Act 1967 came to be passed with a provision for an independent tribunal presided over by a sitting High Court judge to enquire into the existence of the grounds for banning the organisation as notified by the Government. It is only after the approval of the tribunal that the notification comes into force. A timeframe is fixed for notifying the tribunal and latter to complete the enquiry. Nonetheless, the Government has powers to ban forthwith an organisation from the date of notification.

Under the present Ordinance, the terrorist organisations are already listed in the schedule to the Ordinance. This will automatically form the schedule to the proposed Act. The executive list incorporated into the Act will become the legislative judgment for their banning.

The practice of passing an ordinance just a few weeks before a Parliament session has to be condemned as not acceptable. Parliament cannot be converted into a mere approving body of executive legislation.

How does one disprove the accusation that he is a member of a banned organisation? I am appearing for some of the accused who are charged with Lashkar-e-Taiba.

There is nothing to prove that such an organisation exists or operates in India. When patriotic sentiments are aroused, accusation is proof and as the accused happens to be a Muslim, an inference, not covered by the Evidence Act, has to be drawn.

Law and order cannot be an adequate reply to questions raised by terrorists. Those issues have political roots. The fact that certain organisations in Punjab have been listed in the schedule only tells us that State terrorism has not been successful. Impunity is unchecked in governance because law and order is seen as governance.

(Concluded)

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