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POTO II
WHILE THE PROMULGATION of POTO was greeted with a censorious bang, its repromulgation has met with little more than a critical whimper. This may be a result of the country's preoccupation with tensions along the western border. It could also be due to political apprehension that keeping up the strong offensive against POTO in these charged and turbulent times - that were precipitated by the chilling attack on Parliament House on December 13 - could send out signals that are counter-productive or likely to be totally misunderstood. It is a measure of such concerns that the Opposition, while remaining wedded to its opposition to POTO, has been careful to avoid criticising its application - particularly with respect to those arrested for their alleged involvement in the December 13 conspiracy.
Nevertheless, the renewal of POTO, which has been altered slightly with a few deletions and modifications, raises two important questions. The first relates to the very act of repromulgation itself. The argument that POTO was not repromulgated since the newer version varies with the earlier one does not wash. The alterations made are largely minor or cosmetic and so POTO II cannot, by any stretch of imagination, be construed as a fresh ordinance. Having got the classificatory issue out of the way, the question shifts to the appropriateness of repromulgating the ordinance. Rule by successive ordinances goes directly against the constitutional grain. More than two decades ago, in the Wadhwa v. State of Bihar case, the Supreme Court ruled that repromulgation of ordinances in a routine manner would constitute a fraud on the Constitution and that any such repromulgated ordinance was liable to be struck down.
The Union Government's only defence for repromulgating POTO is that the circumstances under which it was done were far from routine. Specifically, that the legislative failure in enacting a statute in place of the ordinance stemmed wholly and directly from the extraordinary circumstances which led to the curtailment of the last session of Parliament by common agreement. There is some truth or merit in this defence. But it begs an important question. One of the many legitimate criticisms of the BJP Government's handling of POTO is the manner in which it was hastily rushed through - as an ordinance and not a Bill. If the Centre had adopted the latter route, there may have been no need to take recourse to the questionable and legally suspect practice of keeping POTO alive by issuing successive ordinances.
The other question relates to the changes in POTO II. All the alterations have been incorporated in the face of the intense criticism that the Centre was subject to regarding the original ordinance. The harsh provision relating to the failure to disclose information which could prevent the commission of a terrorist act - a requirement which could have been horribly misused, not merely against journalists as feared in some quarters but against virtually anyone - has been deleted. A safeguard has been built into the powers to forfeit the proceeds of terrorism and the life of the proposed legislation has been reduced to three years from the original five. Such modifications may render POTO a tad less harsh, but they do not alter its basic character - one that raises fundamental questions which pertain to its draconian nature, the curtailment of civil liberties and the possible abuse of extraordinary powers. Unfortunately, until now, the political debate on POTO has been cynical and self-serving - characterised by a desire to score political points rather than a commitment to seriously examine the provisions of the proposed law. Both the Government and the Opposition were responsible for politicising the debate on POTO. It can only be hoped that when POTO is placed before Parliament after it reconvenes, the debate on the need for a new terrorism legislation will generate much more light rather than just plenty of heat.
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