Goodbye POTA, Hello ULPA!

A Black Law By Any Other Name …

The UPA Cabinet has proudly announced the promulgation of an Ordinance to repeal POTA, claiming to be ‘fulfilling its promise' of restoring democracy. How true is this claim?

Even the BJP-led Govt., under pressure from the likes of Vaiko and Raja Bhaiyya had promised to ‘review' POTA and amend some of its more offensive or objectionable clauses. However, common citizens and human rights groups had, rightly, demanded the ‘repeal of POTA in toto', pointing out that the very DNA of the Act was draconian, and no part of it must be salvaged or retained.

Now the Home Minister Shivraj Patil has grandly announced that POTA is being repealed. But another Ordinance has been introduced to amend the Unlawful Activities (Prevention) Act (ULPA) and give it some of the powers enjoyed hitherto by POTA! As yet, the Govt is vague as to exactly how ULPA will differ from POTA. Patil said he would not compare the definition of terrorism under POTA and ULPA, since it would require “a lawyer's acumen” to do so. Well, maybe a lawyer will be able to see the difference between the two, but the common citizen can't!

Firstly, the ULPA too will set out to ‘define' terrorism, just as POTA did – this fact goes against the democratic opinion in the country, which held that the existing laws were more than enough to deal with terrorist crimes, and no new and special legal ‘definition' was required. ‘Definitions' of terrorism are invariably politically guided – in the Arwal TADA case, for instance, possession of Marxist and Kisan Sabha literature has been construed as ‘proof' of terrorism, and was upheld by no less than a Supreme Court judgement. That judgment explicitly sets out to define terrorism as the ‘peacetime equivalent of war crime', and saw nothing strange in branding a dispute over a water-chestnut harvest, as an act of terrorist conspiracy against the Indian State ! Those engaged in movements for social change continue to be at risk of victimization, since the State will still have the subjective prerogative of defining terrorism according to convenience, erasing the differences between democratic protest and actual dastardly acts of terror.

Secondly, the organizations banned under POTA will continue to be banned under ULPA. Also, the so-called ‘support' systems for terrorism will continue to be declared ‘terrorist' under ULPA. What is the definition of ‘sympathy' or ‘support' for terrorism? Remember that according to Shivraj Patil, the thousands of Manipuri people who are peacefully engaging in civil disobedience against AFSPA are all ‘backed' by militants and are to be booked under the ‘National Security Act'! All participants in such people's movements will continue to be branded as ‘sympathisers' or ‘funders' of terrorism, and can be booked under ULPA instead of POTA!

Interception of private communication (through mobile phones, mail etc...) is being made admissible as evidence under the ULPA, as it was under POTA. Given that the innocent SAR Geelani almost got sent to the gallows (in the Parliament attack case) by such evidence, which turned out to be terribly concocted, is enough indication of what is to come in ULPA. Clearly, now POTA is leaving its killer canines behind in the Indian Penal Code and has armed it with the easiest weapons for cracking protest and violating rights.

Those landless poor and workers booked under TADA, introduced by Congress, continue to face trials, life imprisonment and death sentences long after TADA lapsed. To prevent such miscarriage of justice, the demand for retrospective repeal of POTA was raised. But the UPA has refused to do so. Instead, it has promised that all POTA cases will be reviewed within a year and no POTA cases will be allowed to continue past one year after repeal of POTA. The problem, however, is that the review panel will be constituted under POTA itself, and the probe will be conducted under the very provisions of POTA! Will such a panel free the innocent tribal or agrarian poor (the bulk of POTA cases are in Jharkhand, against this very section), who are being penalised for their political assertion? Hardly likely. Patil says that in case the central Review Committee is overburdened, state-level review committees will be formed. Imagine a scenario where the Modi Government has to review the POTA cases slapped on hundreds of Muslims – it is ridiculous to think that they might get any justice! The selective victimization of POTA victims will continue, just as in the case of TADA, where TADA cases were withdrawn from upper caste Ranveer Sena goons but were retained against dalit landless labourers.

The only difference we may expect is that after one year, the cases may not continue under POTA, but, conveniently, most will be shifted to the ‘newly improved' nai shakti wala ULPA. The Vaikos and Raja Bhaiyyas will no doubt go free, but the hundreds of tribals and poor people including women and children will continue to be victimized by a black law by another name – the POTA-boosted ULPA!

Finally, the question arises, if the Government says POTA cases cannot continue past one year of repeal of the Act, why can't TADA cases, under which dalit poor continue to languish, facing life imprisonment and death sentences 9 years after the lapse of that Act, be scrapped? Why can't the mother of all black laws, AFSPA be repealed?

Radhika Menon