POTO is an Attack on Democracy

Kamala Prasad

The Union Government notified on 24th October the Prevention of Terrorism Ordinance, 2001 (POTO). This has instantly become controversial. The policy as well as the motives of the Government have come under attack. This is in the backdrop of several “black laws” already existing in the country, the struggles waged to get them off the statute book, and the cloning mindset of the administration in making them an instrument of state terror.

A Weak Case

The Government’s case appears weak ab initio from the way this Ordinance is being justified. Home Minister LK Advani chooses the BJP National Executive to declare that those who do not support POTO, by implication, support terrorism! He forgets that the Government lacked courage to face the Parliament and had abused the emergency provisions for issuing an ordinance. And this is when the Parliament is convening within weeks. Ministers go to press emphasising that there is no political motive behind the measure and the means adopted. Any connection with the forthcoming UP elections is also discounted. But the UP Chief Minister immediately declares that he would replicate this law in the state, if it fails in Parliament. He has discovered its necessity only during the extended tenure of the BJP legislators who continue despite the five-year tenure having already expired. Belatedly, the Union Law Minister pleads that the USA and UK are already enacting anti-terrorist laws and they are mature democracies. So, why should India not imitate, when the USA is the only political model for the BJP to imitate?

This is precisely the reason why the broad political opinion in the country should go for deeper introspection. There is nothing commendable about the herd mentality. Even the USA and the UK are seeking legislative approval and not rushing through a loophole in procedure. The UK law may even be delayed since it contravenes a European Union convention on protection of the liberty of the accused. The National Human Rights Commission in India also feels some of the provisions of the Ordinance may contravene provisions of the International Covenant on Civil and Political Rights to which India is a party. Has the Government tried to bring out facts for sober reflection so far?

The Union Government has been overwhelmed by events and is obsessed with its measures to contain cross-border terrorism. Political and administrative failure is being papered up now to show that a draconian law alone can save the situation. Perhaps, the concerned union ministers had promised more than what they were capable of delivering. Once again reasonable misgivings of right-thinking people are being drowned in verbal missives from the BJP and its ministers.

Misgivings on Specific Provisions

Despite articulated deficiencies, there are three sentinels of our democratic freedoms. They contribute to guarantee citizens’ rights. Even unknowingly, they support people’s movements in their struggles for a better future for marginalised groups. How do they fare in this Ordinance?

The media and the press have been the first to rise in widespread protest. Is it not ironic that there is so much talk about right to information while one major pillar of information is being put to risk? Section 3(8) of the Ordinance purports to discipline the media and create a fear psychosis among journalists. The multiple restraints on their professional activities are detrimental to their task, to their professional ethics, and to their bonafides in gathering information. An atmosphere of suspicion about their being agents of the investigating agency may reduce the quality of information they provide for public use. It may suppress some, even if marginal, inputs useful in understanding the motives of underground movements and their modus operandi. It will not be in the public interest to place the media in a position where its arms are twisted either through blackmail or through state terror.

The judicial processes do need reform. However, this Government has appointed a commission, essentially comprising jurists, to review the working of the Constitution, which will throw ideas for reforms. The provisions for special courts in Chapter IV and for disposal of bail applications, presumptions of adverse inference against the accused, composition of Review Committees, to name just a few in Chapter VI, purport to curtail the independence of courts. True, the judiciary will prevail once any case is brought up but the inherent risks due to political pressures and incompetence of the investigating agencies are very much a cause for public concern.

Finally, the status and the credibility of the National Human Rights Commission are under challenge. India has drawn considerable mileage globally from the commendable performance of the Commission. However, its views have been totally ignored in the promulgation of the Ordinance. The Commission had, in 1995, pinpointed the provisions of TADA that militated against the normal legal processes. More importantly, it pointed out that TADA was intended to apply to specific areas but had been extended to the whole country and these provisions were freely applied to situations not contemplated by the Act. These provisions related to raising the presumption of guilt, admission as evidence of confession of guilt before a police officer, extraordinary protection to witnesses, amending the time limit for investigation and preparation of the chargesheet. In the view of the Commission in 1995, TADA was draconian in effect and character, yielding to abuse. This was violative of the social, economic and political justice of our Constitution. The Act operated unjustly and was based on a foundation of injustice. It also dismissed the plea that the integrity of our motherland would be in jeopardy, as a stand without merit.

A differently composed Commission examined the Draft Prevention of Terrorism Bill 2000 as drafted by the Central Law Commission. This draft bill contained all the provisions now part of the Ordinance in 2001. The Commission rejected outright the need and the advisability for such legislation.

Politics and the Law

It is abundantly clear basing on facts that the Government was not after results; it was after a symbol and a slogan. The political decision to float the Ordinance has been clearly to pursue politics by other means. The experience of the last 20 years has been swept away making use of the opportunity provided by public outrage against events in the USA on September 11, 2001. But for the Home Minister and BJP stalwarts to state that the Ordinance is the outcome of universal public demand in the face of all these contrary facts is, to say the least, preposterous. In fact, “terrorism” has not even been properly defined though punishments for “terrorist activities” have been prescribed.

The Ordinance in its content and the manner in which this surprise has been sprung on political India is a challenge to political and parliamentary supremacy, to the sanctity of constitutional ethics and judicial processes, to the dignity of the institutions established by law, and to the wisdom of civil society. This is a step towards weakening the fabric of democracy; a setback to the integrative processes at play for the emotional unity of the diverse sections of our population. This is the way the BJP has grown to the present position. It is feeling thwarted in its further progress as reflected in the number of state governments under its sway. If the ‘mandir’ agitation saw its meteoric rise, can the anti-terrorist slogan stop its slide?

Civil society has the final say. Progress to promote unity and integrity of the community and safety of the nation will come from mass mobilization. Political parties have to see the lurking dangers and follow the path of right and not the one provided by demagoguery. The danger to our democracy, procedural as well as substantive, is real. The Ordinance is fit to be defeated in the Parliament.

(The writer is a former secretary to the Government of Bihar)



Arming the Monkeymen with Anthrax

IN THE backdrop of September 11, after lot of original thinking on the issue, the President of India signed an ordinance which allows arming of “monkeymen” with a deadly strain of Anthrax called POTO. The preamble of the ordinance states that the Sept’ 11 bombing of World Trade Towers has had considerable effect on the security scenario in India. The arsenal of our security should match that of terrorists, who are well equipped with biological warfare agents. Our counter-terrorism special forces, codenamed “monkeymen,” – in honour of the Monkeyman who terrorized the population in Delhi outskirts – will receive rigorous training in and around Ayodhya in the coming months. These forces will be at the disposal of the presidents of – United States, VHP and Bajrang Dal.

In the fine print, the legal eagles have found a particularly important provision which states that under certain emergency situations – like another plane crash in the US, or heavy floods in Nicaragua, or discovery of an oil field in Afghanistan – or external threats from forces inimical to the interests of India, the government of the day will be empowered to apply for becoming 52nd state of the United States. The Government of India can send the application by high-speed fax in case Pakistan is also applying at the same time.

Elaborating on the issue, the Home Minister said in a press conference that the bill would be introduced in the winter session of the Parliament. Passing of the bill would also pave the way for crucial amendments to the Constitution. Presently our Constitution treats all citizens equal, which leads to lots of complications in governance. A neat and simple way of classifying the citizens would be available after passage of the Bill – opponents of the new Bill are traitors and the supporters of the Bill are patriots.

-- Girish Ghildiyal