The present government in Centre cares less for democratic norms
although its intention could be noble and genuine. For instance in
the last few weeks, it took two most important decisions without taking
the opposition to confidence and promulgated the Ordinances. The latest
ordinance arms the government to double the Excise duties. We look
at this issue in a future article after the things become very clear.
This week, we would discuss on the other controversial ordinance,
which is the Prevention of Terrorism Ordinance (POTO). Recently, there
was an article in "The Hindu" questioning almost each and every section
in POTO. As this author considered it one-sided, he tries to play
neutral in this article. Even this author can be faulted for his assumptions,
but it is for the readers to exercise caution before taking a judgmental
view on POTO.
Controversy
The crux of the controversy is whether we require a harsh legislation
like POTO or we should deal with terrorism using the existing legislations.
People who oppose POTO cite the misuse of TADA, the earlier avatar
of POTO. Despite the attack on Parliament on December 13, 2001 there
is an opposition to the Prevention of Terrorism Ordinance (POTO).
People say that POTO is due for a decent burial. Ordinances are arbitrary
because they skip the parliamentary process before enactment. However,
the government has to get the support of Parliament before the ordinance
is converted to an "Act". The ruling party does not have to worry
about Lower House, but it would face a defeat in the Upper House.
Hence, it is also contemplated to pass it in the combined House. Although
TADA was opposed under the pretext of its wide spread misuse, the
then ruling party, Congress tried to extend TADA in 1995, by taking
it through the full democratic process of examination by a Joint Committee.
Even the British anti-terrorist legislation from which POTO reportedly
got inspiration received severe criticisms in their House of Lords.
Before we discuss on the merits and demerits of POTO, one thing is
clear that by short circuiting the parliamentary (read democratic)
process, the coalition NDA government at the Centre committed a democratic
terrorism.
Three Concessions
There are three major concessions on POTO that the government came
forward with to ensure its smooth passage in Parliament. Instead of
its five-year life term, it was agreed upon to reduce its life span
to three years. The Ordinance makes it mandatory on journalists to
report every single information, whether it is fact or rumour, to
the authorities. In case the informer is sued against it may incur
an imprisonment for three years and if the bail plea is denied it
would incur an unlimited fine. This was the major bone of contention
as it is likely to affect the freedom of press. If the fear comes
true, it would lead to end of our democracy. The Press and the Opposition
fought against this tooth and nail. Hence, the government came out
with a second concession according to which the `spy-on-your-neighbour'
provisions whereby all persons (including journalists but not lawyers)
have a duty to report every single rumour to the authorities is removed.
This concession is totally with an intention to buy out the journalists.
The Ordinance empowers the government to confiscate the terrorist
property even without a trial through an administrative process. This
was alleged to have ulterior motives and this clause along with the
"spy-on-your neighbour" clause reminded the days of emergency to may
political leaders and journalists. The hue and cry fetched the third
concession from the government after which only a proper judicial
process can decide appeals on such forfeiture. But, the initial peremptory
forfeiture will remain in administrative hands. This goes to show
that the government did not do its homework properly before passing
the Ordinance. Still a section of people does not consider them as
concessions. They feel that the core argument against POTO remains
unanswered, which is the necessity for such a "draconian" law. They
call it draconian because of their fear that it may not stop at combating
terrorism but might extend its hands and affect civil liberties as
TADA allegedly did. Already there are allegations that the Delhi Professor
who was picked up by the police on the grounds of his involvement
in December 13 attack on Parliament is maltreated with scant regard
for his civil liberties while he claims himself to be "innocent".
Is there a balance of these two in POTO?
Is Poto Necessary?
Those who question the necessity for POTO claim that the existing
laws such as law on unlawful associations and Criminal Code etc are
strong enough to combat terrorism. The TADA was passed after 1985
and it expired by 1995. The opponents of POTO claim that before 1985
and between 1995-2001, the existing laws were effective in combating
terrorism. There is a big question mark on this judgement over the
existing laws. The nation has gone through tough times especially
in Kashmir during this period (1995-2000). The hijack of Indian Airlines
flight happened in 1999. Bomb blast in Coimbatore hours before L K
Advani was to attend a meeting took place in 1999. Kidnappings and
extortions from the government were alarmingly on the rise. The brutal
murders of priests belonging to Christianity could not have gone out
of our memory. Not a single Independence Day or Republic Day went
without the fear of terrorist attack. All these goes to show that
something more is needed. A compromise solution would be Section 3
of POTO. The only qualm with this Section is that it includes ordinary
cases of damage or disturbances to public order or preparatory offences
within its scope. To tackle such offences we already have enough laws
and we do not require a new POTO. Still unsatisfied we can simply
amend Section 124-B of the Indian Penal Code to insert a new offence
of `terrorism'. .....more
