The Telegraph
Since 1st March, 1999
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Less than a year since the Prevention of Terrorism Act was adopted on March 26, 2002, the Union home minister, L.K. Advani, announced the formation of a review committee to “take a comprehensive view of the legislation...and give its...suggestions for removing shortcomings in the implementation”.

The POTA has undoubtedly been grossly misused all over India. In Jammu and Kashmir, there were arrests even before the prevention of terrorism ordinance came into effect on October 24, 2001. In Jharkhand, more than 200 persons, aged 12 to 81 years, have been arrested and first information reports have been filed against another 3,200 persons.

Thus the review committee is a step in the right direction. Earlier on February 23, 2003, Advani had said that “the Centre cannot intervene to check its misuse by state governments; judicial intervention is the only remedy”. He further announced that the review committee would lay special emphasis on ensuring that the provisions of the POTA “are not used against ordinary criminals or those who are not terrorists or whose acts cannot be considered as terrorist acts”.

While the now defunct Terrorist And Disruptive Activities (Prevention) Act may help identify the draconian provisions of the POTA, the scrutiny of individual cases filed under the act is crucial to convince the hawks in North Block. At present, the definition of terrorism under the POTA is so vague that the police can take any suspect into custody.

Unfortunately, it was the arrest of Raja Bhaiyya and his father, about whom tales of atrocities abound, that prompted a review of the POTA and not the case of 15-year-old G. Prabhakaran, who was allegedly arrested in place of his father, Gurusamy, a suspected Naxalite whom the police could not locate.

Under the expansive definition of terrorism, the POTA may be applied to murder, robbery, theft and other crimes that are ordinarily covered by the Indian penal code, as also membership of an illegal association, already covered under the Unlawful Activities (Prevention) Act, 1967.

Scope for mischief

Criminal intent must be the determining factor for invoking the POTA. Nothing illustrates the need for this better than the case of actor Sunjay Dutt, booked under TADA for possessing an unauthorized weapon. This provision under TADA was among the most widely abused. It could be extended to a recently-expired firearms licence and did not require any criminal intent.

The principle of due process of law must be the guiding principle for combating terrorism. Under the POTA, the government is judge, jury and prosecutor. It can declare an organization a “terrorist organization” without furnishing evidence or specifying the grounds for doing so. Contrary to the provisions of the Unlawful Activities Act, the onus is on the accused to prove why it should not be declared a terrorist organization. The police can now misuse the legally-undefined offence of giving “support” to a terrorist organization even in absence of criminal conspiracy or intent.

Independence of the judiciary and primacy of the rule of law are crucial to combat terrorism. At present, little discretion is allowed judges over bail or sentencing. The provision of special courts and summary trial for offences punishable with less than three years’ imprisonment takes away the independence of the judiciary.

The absence of an appeal mechanism and a provision to challenge the sufficiency of evidence prior to the trial means custodial detention upto 180 days in violation of the provisions of the criminal procedure code is almost inevitable. Also, confessions made to the police are admissible as evidence in violation of the Indian Evidence Act. Trials can be held in camera and witnesses’ identities can be withheld. Also, the armed forces are allowed immunity for acting in good faith.

If the government is serious about preventing misuse of the POTA, the terms and references of the review committee must be made with a view to restore the autonomy of rule of law, the supremacy of Parliament and to increase the credibility of India’s fight against terrorism.

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