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Can POTO achieve what TADA could not?
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A person arrested under the POTO cannot be released on bail by a court until the court is satisfied that there are grounds for believing that he is not guilty of committing such an offence. When the odds are heavily loaded against a person accused of an offence under the POTO, is it not unfair to deny him the right to move an anticipatory bail?
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THE PREVENTION of Terrorism Ordinance (POTO) is the reincarnation of TADA. The TADA was introduced for the first time in 1985 after the assassination of Indira Gandhi. The modified version of the TADA was enacted in 1987. Both the 1985 and 1987 TADA Acts were introduced as a temporary measure for two years. But the 1987 Act was extended every two years till its expiry in May 1995. The POTO is also a temporary legislation for three years. It is believed that the TADA Act has helped to a great measure in containing terrorism in Punjab. Several cases of violence between criminal gangs were booked under the TADA in Maharashtra. In the rest of the country including Tamil Nadu, though several cases were booked under the Act, almost all of them including the Rajiv Gandhi assassination case, have been declared by the Supreme Court as cases not relating to terrorist activities.
There were several incidents of the TADA being misused by the Executive. Many TADA cases investigated by the police in Tamil Nadu ended in acquittals as they were not cases of terrorist activities. The Padmanabha case is a telling example of the misuse of the TADA. The incident regarding the assassination of Sri Lankan Tamil leader Padmanabha was reported in June 1990. The case was altered to that of an offence under the TADA 14 months later in August 1991 after the change of government in the aftermath of Rajiv Gandhi's assassination.
Former Tamil Nadu Minister, Ms. Subbulakshmi Jagadeesan, was booked along with her husband Mr. Jagadeesan under the TADA Act on the charge of harbouring a terrorist in September 1991. She was arrested by the State police in January 1992 and was in prison till August 1992 when she was released on bail by the Supreme Court. Similarly Mr. V. Ravichandran, younger brother of the General Secretary of MDMK, Mr. Vaiko, was arrested on the charge of harbouring terrorists in October 1991.
Mr. Veerasekaran, advocate, was accused of rendering legal advice to his client, a terrorist involved in the conspiracy thereby assisting the conspirator to the assassination of Padmanabha. As the TADA prohibited any appeal to the High Court, Mr. Veerasekaran was constrained to move an application under Articles 226 and 227 of the Constitution for his release on bail. However, appeal to the High Court has been provided under section 34 of the POTO.
Messrs Subbulakshmi Jagadeesan, her husband Jagadeesan, V. Ravichandran and Veerasekaran underwent the ordeal of arrest, detention and trial proceedings for over six long years before they were found not guilty of the charge of conspiracy or abetment in Padmanabha assassination.
A basic difference
In the case of Kartar Singh vs. the State of Punjab (1994 SCC Cr. 899) the Constitution Bench of the Supreme Court upheld the validity of section 15 of the TADA which made a confession statement recorded by a police officer as admissible in evidence. The minority view of Mr. Justice K. Ramasamy and Mr. Justice Sahai that the approach of the police is absolutely different from that of the judiciary as the former is concerned with the result and not with the procedural fairness, is worth consideration.
While commenting on the admissibility of the confession recorded by a Superintendent of Police, Mr. Justice Sahai in the Kartar Singh case observed, "There is a basic difference between the approach of a police officer and a judicial officer. A judicial officer is trained and tuned to reach the final goal by a fair procedure. The basic of a civilised jurisprudence is that the procedure by which a person is sent behind the bars should be fair, honest and just. A police officer is trained to achieve the result irrespective of the means and method which is employed to achieve it. So long as the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officer".
Mr. Justice S. Ratnavel Pandian delivering the majority view in the Kartar Singh case upheld the validity of section15 of the TADA and has laid down certain guidelines to be followed by the police officer while recording a confession. In the case of Lal Singh vs. the State of Gujarat (2001 3 SCC 221) when it was pointed out that the guidelines laid down in the Kartar Singh case were not followed, the Supreme Court held that confession recorded by a police officer without following the guidelines is still admissible. In the case of S.N. Dube vs. N.B. Boir (2000 SCC Cr. 343) the Supreme Court ruled that it is sufficient if the court is able to conclude that the requirements have been substantially complied with by a police officer. However, now the guidelines have been more or less incorporated in section 32 of the POTO. Even then it is unsafe to allow a police officer who is trained to achieve the result without following fair procedure to record the confession. Why should the police officer be allowed 48 hours to produce before the court the accused along with the confession statement recorded by him. Section 57 of the POTO makes a police officer, who exercises his powers corruptly or maliciously, punishable with imprisonment for two years.
This section will drive the police officer to disregard all the procedural fairness for achieving the success of his prosecution and avoiding the onslaught of section 57. The confession to be recorded by a police officer has been ruled as substantive evidence in the Rajiv Gandhi assassination case (State vs. Nalini (1999) 5 SCC 253) overruling the earlier proposition of law that such confession can only be used as corroborative piece of evidence held in the Kalpanath Rai case (1997 8 SCC 732). Conviction on the basis of a confession recorded by a police officer is permissible now. In such background no police officer should be armed with the dangerous weapon of recording confession which can be the sole basis for conviction. Producing an accused person before a magistrate for recording his confession is not difficult today. Section 32 of the POTO is too dangerous a weapon to be entrusted to the police.
In Usmanabhai Dawoodbhai vs. the State of Gujarat (1988 2 SCC 271) the Supreme Court viewed the TADA as "an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intension is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the government's law enforcing machinery fails."
It should not be forgotten that Kalpanath Rai, former Union Minister, was ultimately found not guilty of TADA charges after undergoing prolonged incarceration.
When such was the experience with the TADA, what is the guarantee that professionals, political leaders, presspersons and others who are not favourably disposed towards the party in power will not be harassed by using the stringent provisions of the POTO.
A person arrested under the POTO cannot be released on bail by a court until the court is satisfied that there are grounds for believing that he is not guilty of committing such offence. This in other words requires the arrested person to prove his innocence before he was fully apprised of the material implicating him in the charge. When the odds are heavily loaded against a person accused of an offence under the POTO, is it not unfair to deny him the right to move an anticipatory bail? Section 48(5) which prohibits moving anticipatory bail has to be deleted in view of the past experience of innocent people having been made to face false accusations of terrorist activities.
The review committee provided under section 59 of the POTO appears toothless. It should be assigned a role similar to the advisory boards in preventive detention laws. The review committee shall be empowered to review every arrest and chargesheet filed under the POTO. The committee should give its opinion within four weeks of such arrest or chargesheet. The opinion given should be made mandatory if it recommends the release of an accused. It is reported that on March 23, 1999, the Jammu and Kashmir Minister for Home Affairs told the State Assembly that 16,620 persons had been detained under the TADA in the State since 1990; of these, 1,640 were brought to trial and 10 were convicted. Can the POTO achieve what the TADA could not achieve? Is the hurry in introducing the POTO with such stringent provisions justified?
R. SHUNMUGASUNDARAM
Former Public Prosecutor,
Madras High Court
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