Opinion - Editorials

POTA REPACKAGED

ON THE FACE of it, the United Progressive Alliance Government has fulfilled its promise of repealing the Prevention of Terrorism Act (POTA). But what it has really done, in a sort of legal sleight of hand, is to smuggle in most of the provisions of the anti-terrorism law through the ruse of an omnibus amendment of the Unlawful Activities (Prevention) Act, 1967. The ordinance amending the Act contains 53 sections; most of them are reproductions of POTA sections. Some of POTA's most controversial provisions, those that raised serious anxiety from a jurisprudential and human rights standpoint, are conspicuously absent in the amending ordinance. So in effect the new law is a less draconian version of POTA. It is worth recalling that the Common Minimum Programme (CMP) of the UPA Government proclaimed that POTA was "grossly misused" and promised to "repeal it, while [ensuring that] existing laws are enforced strictly." Rather than give the mischievous anti-terrorism law the unlamented burial it deserved, the Centre has repackaged most of its provisions under the guise of an amendment to another law. The explanation that these amendments were required to meet international obligations towards the eradication of terrorism sounds like a lame excuse for going back on a key democratic promise, namely that POTA, in its entirety, would be laid to rest.

The Unlawful Activities (Prevention) Amendment Ordinance, 2004 is a mixed bag. It has omitted some of POTA's contentious provisions, retained some others, and, oddly enough, dispensed with certain safeguards in the old law. The basis for claiming that it is not POTA rests principally on the omission of the provisions in the repealed law that dealt with confessions and bail (Sections 32 and 49). Section 32 made confessions to a senior police officer, under certain conditions, admissible in evidence. This outrageous provision, which does not exist in ordinary criminal law, belongs to a police state. It undermines the very notion of a free trial. It encourages the practice of extracting confessions from persons in police custody, which as often as not under South Asian conditions means third degree methods. Under Section 49(7) of POTA, those accused could seek bail only after a year from the date of detention. Although this stringent condition was relaxed last year as a result of the Supreme Court holding that bail could be sought even before the expiry of the one year period, the amending ordinance brings the entire issue of bail for terrorist offences within the ambit of ordinary criminal law. Likewise, the new law does not contain the unduly restrictive provision under which an accused could be kept in detention for up to six months without filing charges.

While such changes are commendable, the amending ordinance does nothing to alter the overly broad definition of what constitutes terrorism, a notorious factor that contributed to the use of POTA against political rivals, grandfathers, children and highly vulnerable tribal folk who would not be cast in the role of terrorists even in a Bollywood pot-boiler. Ironically, a stricter definition of what constituted a terrorist act was contained in POTA's notorious predecessor, the Terrorism and Disruptive Activities (Prevention) Act, 1987. Section 3(1) of TADA made "intent to overawe the Government" an essential ingredient of a terrorist offence. Disturbingly, the amending ordinance retains the POTA provision that made intercepted communication ("wire, electronic or oral") admissible in evidence but omits the detailed procedures, in the nature of safeguards against privacy invasion, that were stipulated for tapping telephones or intercepting e-mails. It was the political realisation that the only use of POTA could be its misuse that led the major constituents of the UPA to make its repeal a major poll plank and, later, a commitment in the CMP. By incorporating so many of POTA's awful provisions into another law, the Congress-led Government has ensured that anxieties over the direction the `war against terrorism' has taken in the legal realm will remain.

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