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Economic and Political Weekly August 21, 20043794

K G KANNABIRAN

How does one repeal POTA? Peoplewill be busy grappling with thisissue, which in a fit of enthusiasm

was included by the UPA in the CommonMinimum Programme. It is a part of thedeclaration of war against terrorism. Thisunilateral declaration by American presi-

dent Bush and endorsed by the UnitedNations and the UN resolution is bindingon us. How can we renege on this UNResolution? That was why even the homeminister speaking at Chennai in the monthof June apprehended difficulties in theway of fulfilling the commitment to repealPOTA. In fact, the US has assumed thesupervisory jurisdiction over terrorism inthe world. It has assumed the authority toselect and declare the global terrorist. Ithas assumed jurisdiction to ban domesticorganisations as terrorist organisation. It

may take pre-emptive action against thedomestic organistions declared as terror-ist. In fact, the prime ministers securityadviser may be averse to the proposal towithdraw POTA. Like the decision tohumanise globalisation. The primeministers office may suggest that we givePOTA a human face! These are the veryinsubstantial objections to renege on theundertaking given to the voters and laterwhen the UPA was constituted and thesubject of repeal of this law was unani-mously approved.

But then over the 50 odd years we havebeen so methodically unconstitutional thatto revert to constitutional governance isbecoming very difficult. The first task isto create hurdles for introducing the actto repeal POTA. There is bound to behectic lobbying against repeal. The legalscholars will inform us how difficult it isto repeal POTA. Interpretive hurdles.Public Interest Litigation against the repealraising conundrums to stress that to repealthe terrorist law is as impossible as it isfor the camel to jump over its hump! As

Repealing POTASome Issues

Over the 50 odd years we have been so methodicallyunconstitutional that to revert to constitutional governance isbecoming very difficult. There will no doubt be innumerablehurdles created to the introduction of legislation to repeal POTA.

the UPA has agreed to repeal POTA havea new law in its place. The Congress Partyin power brought forth the Terrorist Dis-ruptive Activities (Prevention) Act in 1985and the government had to bring about anamendment to the act in 1993. Despitethese amendments the TADA was abusedand the BJP did take electoral advantageof the protest against abuse of TADA and

ultimately it was not renewed by furtherextension. The statute with a two-yeartenure was extended from time to timeuntil 1993 and allowed to lapse and theconsequence was all acts commenced whilethe act was in force continued after theexpiry of the act though for similar offencepersons suspected were prosecuted underthe ordinary law! Beant Singh, the chiefminister of Punjab, was shot immediatelyafter the lapse. The offence of killing butfor the lapse of TADA ought to have beentried under TADA. The suspects would

have been tried under the ordinary law.The killers of General Vaidya were nothanged under the TADA but under theIndian Penal Code though they werecharged under TADA also. The killers ofRajiv Gandhi, though as opposition leaderhe enjoyed the status of a shadow primeminister the apex court held that the crimewas not a terrorist offence. Offenders inIndira Gandhis assassination were triedand sentenced to death under the provi-sions of ordinary law. These special lawswith special procedures grant impunity to

police forces but does not eliminate theevil for which it was enacted.

POTA was enacted by the NDA in theteeth of opposition. They did not have thestrength to have the law passed by boththe houses of parliament. Instead theychose to convene a joint sitting of thehouses and had the bill passed into an act.MDMK of Tamil Nadu supported themeasure and all of us know and have notyet forgotten how the measure led to thearrest of the leader MDMK leaders. Thoughwe were assured this terrorist law would

have a human face it entrusted enormouspowers of impunity to the police forcesand it is structured for abuse. There neednot be any further debate on the questionof repeal. When in the Congress manifestoand later in the CMP of the UPA it wasmentioned that POTA would be repealed,it did not mean that a similar law willreplace it. If that were the intention of

these political parties now in power theyought to have made it clear during theirelection campaign. Unfortunately recallor referendum is not an option open tothe people.

Does the promise of repeal includewithdrawal of all proceedings initiatedunder POTA? Normally the repealing actshould withdraw specifically all pendingprosecution under the provisions of POTA,but may allow prosecution for offencesunder either the Penal Code or ExplosiveSubstances Act or the Arms Act if such

prosecution is possible on the basis ofmaterial available on record. Such a courseis possible under section 33 of the act. Ithas to be legislatively enacted so that thetrial for other offences is relieved of thecumbersome procedure and the rules ofadmissibility of confessions recorded bythe police officers.

The government before they heed theadvice to have another law in place ofPOTA should first publish the total num-ber of cases prosecuted under POTA, theresults and the pendency regionwise and

the total accused involved. It should alsopublish regionwise the property confis-cated and the claim proceedings, if any,against such confiscation. What is theextent of share that stood transferred underPOTA to the government? This right toinformation the citizens have. All theconfiscation proceedings whether of theterrorist or otherwise under POTA shouldbe transferred to the district and sessionsjudges having jurisdiction for enquiry anddisposal. These provisions should be madepart of the repealing law.

Banning of organisation must be on thebasis of objective criteria and not merelyon the basis of some unverified intelli-gence reports. The Supreme Court veryearly in its career held that the criterionof subjective satisfaction, applicable inthe case of preventive detention, is notapplicable to negate associational free-dom. None of the organisations have theinternational standing as has either AlQaida, and Taliban has no such standing.American perception of terrorist organi-sation need not be ours and in these matters

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we need not surrender our judgment totheirs. We need not tether our sovereigntyto the fast sinking credibility of theAmerican government. The UN SecurityCouncil order 2004 dealing with war onterrorism has no such binding force parti-cularly when UN is bonded to US. Ofcourse, one can always use a UN resolu-tion as a pretext to saddle the people with

repressive laws and with impunity dis-respect the same world bodys HumanRights Declaration and other human rightsconventions.

The organisations included in the sched-ule are the offshoot of unresolved politicalproblems by the countrys government overlong period of years. First four organisa-tions are linked to the Punjab issue. Fartoo many members of the Sikh communityhave been killed before it could die downpresently. Six organisations are related tothe Kashmir issue, which has been fester-

ing since independence. This can only beresolved politically and not by terroristlaws or by banning organisations. Till todaythey have had no effect

Ten organisations represent variouspolitical movements awaiting resolutionin the north-eastern states. LTTE need notbe banned here at all. In the context of theongoing peace talks continuation of theban here makes no sense. This was doneto satisfy the whim of Jayalalithaa the chiefminister of Tamil Nadu. Students IslamicMovement was in response to Babri masjid

and Gujarat carnage. Deendar Anjuman isa faith and not an organisation, whichasserts that Mohammed is not the lastprophet and for having held this view theywere banned. CPI (ML) PW and MCC areML and Maoist organistions. So long aspoverty continues to exist on such a largescale and governance is supervised by anexploitative order ably supported by thetenets of globalisation such and similarmovements will arise and the only knownway to prevent such movements fromarising is to ban poverty and exploitation.

The suitable modification of the UnlawfulActivities (Prevention) Act, 1967 takingcare of the innocent among terrorists andothers among the public is a placebo forpublic consumption and a sanction tocontinue the uninterrupted impunity thelaw and order forces have been enjoyingin this country from the commencementof the Constitution. None of us seem tofeel free without restraint.

As presently constituted the war againstterrorism is against persons belonging toIslamic faith who are fighting against

American expanding imperialism and thiscountry should not be drawn into this warunless we wish to turn into internationalfundamentalists. We must move out of the

sphere of American influence. We mustremember that we have a large populationof Indian diaspora in west Asia and otherIslamic countries. EPW