Chapter VI of POTO Justifiable
The government repeats its justification for POTO that extraordinary
offence and extraordinary situations have to be dealt with extraordinary
procedures as proposed in POTO. The extraordinary procedure suggested
here is that confessions to the police can be made the basis of conviction,
bail can be denied for one year until innocence is proven, and the
investigative periods are statutorily extended to 6 months and so
on. But the critics of POTO say that this extraordinary procedure
is irrelevant in India as we follow a different system of bail, investigation
and confession from other countries. They say that out jails are already
crammed with people who were denied bail because of tough bail procedure.
This is not a proper logic as we would like to build jails to confine
the terrorists and those who help terrorists if we have to make the
bail procedure even more tough. We have seen that extraordinary penalty
is not helping us a deterrent as there are many ways by which one
can get away with the loopholes in procedure before one goes to the
stage of getting penalized. This is what is encouraging the anti-social
elements and fundamentalists to resort to terrorism. There is a talk
around that even if USA succeeds in capturing Usama Ben Landen, it
would take years before he is punished or he may stand a chance of
not getting punished at all. So there can not be a compromise here.
As the government says, we need to have extraordinary procedures to
bring the culprits to the book and punish them severely. Thus the
Chapter VI of POTO amending the Criminal Code is completely justified.
Re-examine Unlawful Activities Act 1967
The Sections 18-22 in Chapter III of POTO contain provisions for banning
terrorist organizations and the sections 6-17 deals with proceeds
of terrorism. The debate is whether we need to retain these sections
in Chapter 3 of POTO when it is going to be passed as an "Act". Again
the critics say that there are already enough provisions available
for banning terrorists organizations under the Unlawful Activities
Act, 1967. This Act includes a provision for freezing assets of such
illegal terrorist organizations. The Opposition and the legal experts
should re-examine the Unlawful Activities Act of 1967 and facilitate
a national discussion as to whether we need to retain the sections
6-22 of Chapter 3 in POTO. If there is anything that lacks in 1967
Act, there is no harm in retaining these sections in POTO as after
all it deals with the legitimacy of the existence of the nation's
detractors.
Interception of communications
The Chapter V of POTO deals with the issue of "interception of communications".
Those who oppose this portion of the Ordinance cite that Supreme Court's
PUCL judgment (1967) as the correct model. While expressing lack of
knowledge in Supreme Courts' 1967 PUCL judgement, this author would
like to know what is wrong with the Chapter V. Until now, the interception
of communication exists for reasons other than terrorism such as for
national security. Even before POTO, the phones of all kinds of persons
were being tapped. The only crib could be that when we already have
provisions to tap individual's phone, why do we introduce this in
POTO. This could be simply aimed at making interception of communication
as an integral part of POTO. The investigations revealed that before
December 13 attack on Parliament the perpetuators of the crime had
telephonic conversations with Pakistani based organizations. Also,
in the post September 11 situation, any postal material from abroad
and also emanating from within the country needs scrutiny due to the
fear of biological warfare. It is imperative that we enact a statute
to control post-office and electronic spying by the State. When we
come out with an Ordinance such as POTO, let this be a part of POTO
rather than enacting a separate statute. If the critics insist that
this provision should go through Parliament scrutiny under a Joint
Committee Procedure, it is perfectly fine. In fact, POTO can not become
an Act unless it is ratified by the Parliament after scrutiny. In
future, as and when POTO becomes redundant, we can cull out this provision
from POTO and enact a separate statute and make it a permanent addition
to our legislation. Until then, there is nothing wrong in including
this in Chapter V of POTO and add teeth to POTO.
Special Vs. Fast Tract Courts
The Chapter IV of POTO concerns special courts. Although this is in
accordance with the Supreme Court law laid down as far back as 1952
and was consolidated in the Special Courts Reference of 1979 and the
V. C. Shukla case (1980), the remark here is that POTO needs to justify
the need for Special courts to try terrorism. It is just a procedural
issue and this can be dealt with appropriately by the Law Ministry.
For political reasons, NDA government - BJP in particular is keen
to build a huge edifice of POTO. A simple amendment of the Indian
Penal Code might do to take care of the current situation. At the
same time, the criticism on POTO is also mostly borne out of our bad
experience with TADA and also due to the suspicion on the intentions
of saffron coloured NDA government. But, what is lost in the din is
the present definition of "terrorism" in Section 3 of POTO. This author
insists that this needs to be re-examined. Because, the definition
of terrorism is what is going to be misused by the "powers". Even
if it is not going to be "misused", certain acts can be conveniently
omitted or kept out of the definition of terrorism to suit the interests
of the "powers". There is no need for a discussion to decide whether
the experience of the nation on December 13, 2001 is an act of terrorism.
But the well wishers of peace and unity should ask for a debate on
whether the experience of the nation on December 6, 1992 comes under
the act of "terrorism" as defined in Section 3 of POTO. This would
be a constructive debate to contain the terrorism fueled both from
outside and inside the border. Let us not spend all our energy in
criticizing POTO based on procedural and technical lacunae. Let us
do something constructively to contain violence and terrorism in the
country. Before we conclude on this POTO issue, let us also go through
some of the events that took place between the start of this controversy
and today in the next week's article so that the reader is enabled
to take his own call on POTO.
