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POTO: safeguards lacking
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The BJP, in its tunnel vision, should not forget that it does not enjoy a popular mandate for such a sweeping legislation like the POTO, which is detrimental to a plural society like ours.
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A WIDE spectrum of opinion is being aired these days on all issues relating to the proposed legislation to fight terrorism, the main debatable issues being whether the Prevention of Terrorism Ordinance (POTO) adheres to "due process" based on the rule of law; and whether it should extend throughout the nation or not.
The Supreme Court's historic judgment in the Maneka Gandhi case makes law on "life and liberty" to be fair, just and reasonable; imposing restrictions should not be tainted by unreasonableness and arbitrariness. Further in Hussainara Khatoon and Francis Coralie Mullens cases, the apex court upheld the undertrials' right to speedy trial and also human dignity. What the NDA Government should realise is that ordinances like the POTO should adhere to the cardinal principles as laid down by the Supreme Court.
Admissibility of confession
One of the dangerous aspects of the POTO is the admissibility of confession before an SP as evidence. Our law enforcement agencies are notorious for their bias. Recently, in Kerala a DIG and a Police Commissioner were transferred following widespread criticism when the Calicut District Congress president was arrested in the early hours in violation of the Supreme Court directions in the D. K. Basu case. If this is the fate of the ruling party dignitary in a State like Kerala, one can imagine how our police sahibs will behave in remote, inaccessible rural India! The top Delhi police officials' inhuman attitude towards Sikhs during the 1984 riots where many innocent men were simply roasted alive before the eyes of their wives and children by lumpen mobs needs no reminding. Sadly indeed, the then Prime Minister justified this carnage. The controversial former Punjab supercop even today justifies state terrorism against political dissent. On the directives of the Supreme Court, the CBI report in December 1996 confirmed 2,097 illegal mass cremations in Amritsar (of which 582 were identified, 278 partially identified and the rest unidentified). Within a few months of this, Jaswant Singh Kalra, the then General Secretary of the SAD, human rights wing, who filed the PIL, disappeared with no trace.
When extreme penalty is proposed, including death sentence, confession will have to be before a Chief Judicial or Metropolitan Magistrate in the presence of the accused's counsel. In the POTO, medical examination of every detenu within 24 hours is a must. In all POTO detentions, the CJM/CMM concerned has to record whether the Supreme Court directions (in the D.K. Basu case) have been followed or not: "Custodial violence, including torture and deaths in lock-ups, strikes a blow at the rule of law which demands that powers of the Executive should not only be derived from law, but also that the same should be limited by law." The POTO should contain appropriate provision for adequate compensation for custodial violence as well as illegal detentions. It prohibits interlocutory appeals before High Courts which is nothing but absurd. All POTO appeals before HCs should he heard by a three judge bench instead of the present two to enhance judicial legitimacy and public confidence.
In this hurriedly drafted ordinance, even a mere possession of unlicensed firearms constitutes `terrorism.' Our legislative mandarins perhaps are unaware how crooked some of our law enforcement agencies and officers are who can, without any scruples, plant unlicensed firearms to implicate an innocent if it suits their purpose.
The nation and the people have to be satisfied that terrorism means not only political terrorism. The scope of terrorism has to be defined to include both financial and social aspects. Scamsters who have looted public funds, be it from the treasury or banks, and cheated innocent men and women of their lives' savings through paper companies have also to be brought within its scope. While targeting ideologically committed political dissent, one cannot leave out financial dacoits who suck the blood of the nation and the poor and social obscurantists who knowingly disturb public order and peace. The BJP, in its tunnel vision and wisdom, should not forget that it does not enjoy a popular mandate for such a sweeping legislation like the POTO, which is detrimental to a plural society like ours. As political terrorism cannot be contained by mere state terrorism, a sober and healthy national debate is a must, not merely confined to Parliament, but extending to the NHRC, jurists, media, Bar, etc.
Inalienable rights
The national rhetoric on the POTO has not only vulgarised but also turned diabolical with all and sundry compounding the confusion. Instead of attempting an indepth study on "liberty and life" as guaranteed in our Constitution, this debate has only resulted in further polemics to suit narrow ends. In live democracies, political will has never been constant. Those elected on minority votes seldom represent the majority will. Rousseauan will in his "Social Contract" is not absolute or constant. As we all are aware, the Rajya Sabha or the Lok Sabha seldom represents the majority will. Even a joint Parliament session does not reflect the General Will. The General Will lies outside Parliament, spread all over this vast nation. Indira Gandhi on the advice of a coterie and aided and abetted by her 350 MPs in the Lok Sabha imposed the draconian Emergency even without Cabinet approval just to preserve her dynasty, but the Mass Will eventually overthrew her in under two years.
The natural, inalienable rights of "liberty and life" cannot be wiped out by simple legislation, for they are the cardinal principles of civilised life. For their protection, the rule of law is enshrined in civil society. The debate on "due process" and "life and liberty" in the Constituent Assembly did take three years. Finally, it was discarded for "procedure established by law." Unfortunately, now, the BJP wants instant POTO at any cost, but fails to admit that the apex court, through the Maneka Gandhi case, brought in the very discarded "due process" by combining Articles 21 and 19 (1) (a) and (g). In brief, the state has no option but to adhere to "due process" and it cannot deprive "liberty and life" of the people.
Instead of resorting to the cheap and low polemics, our legal luminaries and MPs must go back to the history of the Constituent Assembly and find out how sober, decent and mature was the debate between Ambedkar and Mahavir Tyagi on September 16, 1949. Tyagi cautioned Ambedkar against making defective constitutional provisions on "life and liberty," "... not to make provisions which will be applied against us very soon. There might come a time when these very clauses which we are now considering will be used freely by a government against its political opponents."
Subsequent events proved Tyagi was right in his assessment. One should not forget that Sunil Dutt as an MP had consented to the TADA, but never dreamt that he would have to struggle to defend his Bollywood TADA son legally. Our MPs, while consenting to the POTO, could learn a lesson from this and realise that tomorrow they themselves could become its victims.
The Congress, shouting from rooftops against the POTO just to regain its lost political legitimacy and democratic credibility, is shedding crocodile tears. The grand old party fathered a whole range of dreadful acronyms, PDA, DIA, MISA, NSA, TADA, etc., in the past and misused them liberally to suit its political contingencies; today its government in Maharashtra has an anti-terrorist law and drafted a similar Bill in Karnataka. A former Congress Home Minister did introduce the Criminal Law Amendment Bill 1995 (Bill No. XXXIII of 1995) in the Rajya Sabha on May 15, 1995 but conveniently slept over it till May 10, 1996 with no debate in the Lok Sabha or reference to a joint select committee. Tragically indeed, Congress legal luminaries are churning out one article after another against the POTO to gain mere political ascendancy and consolidate their legal profession! Had the Congress succeeded in amending the Criminal Law through parliamentary consensus after wide and extensive consultations, today the BJP would not have dared to promulgate the POTO. The Congress, which failed to provide a viable alternative to the NDA on the fall of the Vajpayee Government on April 26, 1999 is simply mouthing invectives to divert attention from real issues. Whether at the present juncture we require immediately a law like the POTO, in the light of our bitter experience from similar legislation, is a highly debatable point.
R.G. JAMES KUTTICKATTU
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