"Tamil Nadu
Prevention of Terrorist Activities Act 1998" (POTA)
Karunanidhi's Birthday gift to the People
S.V. Rajadurai
It was glitter and glitz again. And a public space resembling a cinematic interior. It looked like dream sequence from one of the films of T. Rajendar (now DMK’s propaganda secretary and a sitting MLA) where one sees monstrous models of anatomic hearts with veins and arteries! But the chief minister and the DMK president M. Karunanidhi demanded a very different model this time – on the occasion of his 75th birthday on June 3. As a leader of a party which articulates its political and cultural ideology through a array of signs, indices and symbols, he made sure this time his ‘Chola heritage’ is also remembered as well (a hybrid variety of rice was named after his mother Anjugam long back.) It was a model he personally inspected and chose in preference to two other – one a replica of Valluvar Kottam, a concrete monstrosity his government built in Chennai in the middle seventies to ‘honour’ the great Sangam poet Thiruvalluvar, and the other, a simulated version of a fort in southern Tamil Nadu where reigned a local chieftain (poligar) who fought the British. Karunanidhi’s stars did not go well with the former. When its opening ceremony was only a few days away his ministry was dismissed by Indira Gandhi; the poligar has long ago been appropriated into the nationalist pantheon and would not rhyme reasonably with the Dravidian politics, which itself exists only in name now. One that was finally approved would invoke the complex image of Poompuhar, the coramandal port-city of the yore with its legends of pearl divers and ‘yavana’ (Roman) merchants whom Karunanidhi has time and again written about and the one that would invoke the memory of his father. It was an oyster-like dais with a ‘muthu’ (pearl in Tamil, but also the short from of the name of Karunanidhi’s father-Muthuvel.) The chief minister, who went into the rehearsal a couple of days earlier, entered the dais from behind through the pearl part of it. It rotated and stopped opening the door to the gaze of thousands of spectators in the Marina Beach. And the ‘Hero of History’ emerged from the pearl, all smiles and with folded hands amidst the loud cheers and a Eurasian music reaching a crescendo. There was his unmistakable yellow shawl too- itself a signifier denoting the ideological somersault all the Dravidian political parties have made in competitive spirit.
It was not so much an occasion for Karunanidhi to mobilise the tired horses of the United Front and the local allies to express the Dravidian gift and determination to fight the Brahminical Hindutva as to indulge in a narcissistic exercise of celebrating what his admirers call his ‘platinum jubilee, one year in advance so that all the pomp, pageantry and praise associated with power could well be ensured. Perhaps, I.K. Gujral, who has attended more state banquets (or state funerals) than public meetings in his life would have felt a little uncomfortable in the extravaganza. The speaker after speaker heaped praises on Karunanidhi’s wisdom, sagacity, political acumen, literary merits, will to survive the heavy odds and of course his ‘sense of history’ – a sense expressed itself in his birthday message to the people of Tamil Nadu in which he blatantly distorted the historical facts concerning the month and year in which the anti-Hindi agitation of the late thirties (1937-39) was launched by claming that it coincided with his fourteenth birth day!
The common theme (or minimum program?) of the speakers was Article 356 but the wily chief minister brushed aside even the mild taunts of A.B. Bardhan, the CPI leader and refused to be drawn into an anti-Hindutva plank. Recalling his statement on the floor of the legislature a few weeks earlier that he would be willing to sacrifice his government for the stability of the government at the center, he told Bardhan that it was only meant to make Vajpayee admit that there was no valid grounds for the dismissal of his government. To ‘prove’ the principled stand of the DMK on Article 356 he reminded his U.F. partners that he opposed and severely criticised Narsimha Rao government’s decision to dismiss the BJP led state governments in the wake of Babri Masjid demolition! Neither he nor any of the other speakers including those from the Indian Muslim League and the Indian National League chose to talk about the other principles the DMK ‘stood for’. While everyone spoke of the birthday gifts and praises the chief minister deserved, no one mentioned the gift he gave the people of Tamil Nadu.
It was the gift (of course propelled by the ‘sense of history’) he gave the people of Tamil Nadu on the last day of the extra-ordinarily extended budget session of the Legislative assembly. He saw to it that the session was extended well beyond the date of announcement by the Election Commission of the date of election to Rajya Sabha with a view to ward off the possibility of dissolution. On the last day of the session, the Assembly passed the ‘Tamil Nadu Prevention of Terrorist Activities Act 1998 (POTA) with an overwhelming majority. The ruling DMK and its ally TMC that is still nostalgic about Rajiv Gandhi days rejected the suggestion made by 13 opposition MLAs to refer the draft bill so the select committee and restricted the debate barely to two hours. Surprisingly, the three MLAs belonging to the PMK-1, whose leader Dr. Ramdoss has been, day in and day out, thundering against Karunanidhi’s inefficiency in handling the ‘terrorist menace’ walked out in protest during the debate.
The new Act is nothing but TADA incarnate. When the TADA was allowed to lapse in he parliament on May 23, 1995, the DMK which did not have a single member in the Lok Sabha then, not only welcomed it but had its Executive Council pass a resolution urging the center to scrap the draconian act completely. It was only the BJP and the AIADMK that were unhappy with the move to allow TADA to lapse and the later suggested teething of Criminal Law Amendment Act with stringent provisions so that the TADA would not be missed altogether. In fact, during the Chief Minister’s conference in the first week of May ’97, Jayalalitha forcefully argued for the retention of TADA. The most vociferous critic of her position that time was her present day ‘brother’ Dr. Ramdas whose party too bore the brunt of TADA in Tamil Nadu. Later, on the eve of Lok Sabha elections in 1996 and again in 1998, it was the BJP alone that spoke of bringing back TADA. If the DMK supported the lapse of TADA it was because of the widespread criticism of its draconian nature and its extensive misuse.
All the reprehensible and repressive provisions of TADA have been retained in the Tamil Nadu Act. According to the statement of objects and reasons for the bill "terrorist activities in the State have caused concern to the Government to maintain law and order. Terrorism is a new crime, for serous in nature, graver in impact and highly dangerous in consequence. In order to maintain law and order and to have active control, to curb violence and terrorist activities and for the perseverance of public tranquillity, the Government has decided to take stringent action against such activities. As there is no effective provision in the existing laws to deal with such terrorist activities, the Government have decided to enact a separate legislation for the purpose". It goes on to define the ‘terrorist act; as "any act done with intent to strike terror in the people or any section of the people or to adversely affect the harmony amongst different sections of inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to any person or persons or loss or damage to, or destruction of any property, or (ii) to detain any person and threaten to kill or injure such persons in order to compel any person or authority to do or abstain from doing any act". It is clear then, not only the ‘new crime’ the State claims that has raised its head but even ordinary crimes or violent activities issuing from a wide range of situations could be brought under the definition of ‘terrorist act’
Section 3 of the ACT deals with the punishment prescribed for offences committed;"( 1) Whoever commits any terrorist act, which has resulted in the death of any person, shall be punished with death or imprisonment for life and also with a fine which may extend to ten lakhs of rupees and in any other case with imprisonment for a term which shall not be less than three years but, which may extend to imprisonment for life and also with fine which may extend to one lakh rupees; (2) Whoever, abets, instigate, conspires, attempts, incites or knowingly facilitates the commission of a terrorist act, or (ii) harbours or conceals, or attempts to harbour, or conceal, any terrorist; of (iii) is a member of a terrorist gang or organisation, which is involved in terrorist act; or (iv) holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and also with fine which may extend to ten lakhs of rupee."
One need not dwell on the vague definition of what a ‘terrorist gang or organisation’ is and on the sweeping provision with which anybody can be booked for ‘abetting’, ‘inciting’, `conspiring’ or ‘knowingly facilitating the crime’ etc. The other draconian provision of TADA that the new Act has appropriated relates to the possession of certain ‘unauthorized weapons’. Section 4 of the Act says: "Where any person intent to commit an offence specified under Section 3 possesses any firearms, ammunition, bomb, or explosive devices, dynamite or other explosive substances, he shall be punished with imprisonment for a term of which shall not be less than three years but which may extend to imprisonment for life and shall also with fine which may extend to ten lakh of rupees."
Like TADA the new act also provides for keeping a person in police custody upto 60 days and upto one year in judicial custody with filing charge sheet. It makes obtaining bail almost impossible and permits secret ‘in camera’ trials with are violative of the recognised elements of the ‘rule of law’. Confessions obtained by a Superintendent of Police either in writing or through mechanical device are admissible as evidence (Section 13(2) of the Act says that such confessions should be voluntary in nature and if the accused decides so, he need not make a confession!) This was the most objectionable provision of TADA and most widely misused provision. That was why the Supreme Court intervened and set guidelines for recording confessions. The new Tamil Nadu Act does not refer to these guidelines.
The new Act makes obtaining bail almost impossible. The accused, as in the case of TADA offences, has to satisfy the Designated Court that he or she, if released on bail, would not commit such offences again. While the accused may not be aware under what charges he or she has been booked how can he or she prove that the crime alleged to have been committed by him/her would not be repeated? Here too, the Supreme Court’s direction that the role of the each accused person involved in a case must be examined separately and they be separately graded for consideration of bail has been completely omitted in the new Act.
Moreover it says that the accused need not be informed of the identities of the witnesses unless the prosecution is willing to do so. Information essential for preparing his/her defence is thus denied. This provision is nothing but the carbon copy of its counterpart in TADA.
The State Law Minister has tried to prove that the Act is less stringent than TADA since it contains provisions to deal with only the ‘terrorist acts’ but not the ‘disruptive activities’. In TADA itself the ‘disruptive activities’ were defined so vaguely that even an astrologer’s prediction that a Prime Minister would be killed was liable to be treated as an offence. Very rarely the ‘disruptive activities’ part of TADA was put into operation and almost all cases all over the country were booked under ‘terrorist activities’ part of it only. In fact the Tamilnadu Act (POTA) is more stringent than TADA in another aspect as well. The amendment introduced by the Parliament in 1993 (section 20 A(1) and 20A(2) provided for prior approval of a Superintendent of Police or Commissioner as the case may be, to file the FIR and prior sanction by the Inspector General of Police before filing the charge sheet . The Tamilnadu Act has clearly omitted Section 20A(2). While TADA was originally meant to be put into operation for only two years to be extended every two years, the new Act is enforceable for five years at a stretch
The statement of object and reasons of the Act, as we have already seen, talks about the ‘emergence of terrorist crimes’ in very vague terms. It does not explicitly mention the ‘Islamic fundamentalism’ which has gained a currency in the common sense of the people of state. But the timing of the passing of the Act suggests that the immediate target of it would be the minority community. It may be recalled that Ram Gopalan, the leader of the Hindu fascist outfit-the Hindu Munnani, accompanied by Cho Ramaswamy, the darling of the Indian liberals called upon the chief minister in his residence on April 13 and urged him to bring in a stringent act to crush the ‘Islamic fundamentalists’. Karunanidhi concerned solely with his political fortunes after the serial bomb blasts of February is only too willing to bend backwards to please the Hindutva master. It is no wonder, then the new Act does not have a provision to deal with those who with their inflammatory speeches and vilification campaigns against the minority community create a provocative situation conducive to the birth of minority fundamentalism and its inevitable twin, the terrorism as reactive and retaliatory measure. The State Law Minister claims that Tamilnadu is not a terrorist state like Jammu & Kashmir, Assam, Punjab and Nagaland. While these states do not have an ‘anti-terrorist act’, the Tamilnadu government has created a precedent which, as expected, was taken note of and appreciated by L. K. Advani in the recent meeting of the chief ministers of Andhra Pradesh, Maharastra, and Madhya Pradesh that discussed the ‘naxalite menace’. The signal is clear. But there are sure signs of resistance building up. From PUCL to various Muslim organisations, from Puthiya Tamizhagam to different Tamil Nationalist organisations, from CPI (ML) to a number of other ML groups are rallying under different banners but with one single aim of returning the Act to where it belongs- the dustbin of history.
(The author is a prominent intellectual and a civil liberty activist of Tamilnadu.)