People’s Union for Democratic Rights
22 September 2003
Justice Arun B. Saharya
Chairman, Review Committee on POTA
Room no. 246, Vigyan Bhavan Annexe
New Delhi
Subject: A review of POTA
Dear Sir,POTA has been on the statute books as an Ordinance and subsequently as an Act of Parliament for almost two years. Its working over this period has confirmed PUDR’s position that POTA is inherently undemocratic and unjust. POTA confers arbitrary powers onto the Executive, subverts the due process, and is amenable to misuse and abuse.
Besides the general problem of the nature of the Act there is a serious problem of information and data. Till date no data beyond brief Parliamentary answers to questions have been provided on the total number of cases, the nature of the cases, the present position of trial in each case and the total numbers of acquittals and convictions. Whatever data has been collected has been done by local organizations and media. Lack of data means that no substantive critical assessment of the working of the Act can be done. The fact that a law like POTA has been in operation with no concern on the part of the government to assess its working only means that lessons once learnt from TADA have to be relearnt.
We strongly feel that the present Review Committee should furnish the entire data on the available cases so that a serious and informed debate can take place on the need, efficacy, application and operations of POTA. Our submissions are meant to help in generating this very debate. Hence, our submissions examine both the nature of the provisions and their application. The review of the provisions is not an exhaustive as examples of cases, accused and court proceedings are not available. In each provision we have shown the vagueness in definition, inherent problem of arbitrariness and/or lack of objective criteria. Our contention is that the nature of the provisions gives rise to arbitrariness and undemocratic nature of the Act.
We hope that you will respond to our petition with the urgency with which this Review Committee has been set up.
Regards
Ujjwal Kumar Singh
Secretary
People’s Union for Democratic Rights (PUDR), Delhi
Flat No. 5, Miranda House Teachers’ Flats
Chhatra Marg, Delhi University
Delhi 110007
People’s Union for Democratic Rights
Examination of Certain Provisions of POTA and their Application
People’s Union of Democratic Rights (PUDR) is one of India’s oldest civil liberties and democratic rights organizations. It is an independent, voluntary, non-party organization which campaigns against violation of civil liberties and democratic rights on the basis of detailed and objective field investigations. It has been our considered position that POTA, like other ‘security’ and ‘anti-terrorist’ laws before it, notably TADA, is not only undemocratic but by its very nature cannot serve the purpose for which it was enacted, namely, to check terrorism. It creates terrorists where earlier there were ordinary citizens, first, by inverting the due procedures which safeguard people’s rights and afford protection against wrongful and arbitrary conviction, and secondly, by the ease with which it lends itself to abuse by those in power. While supporters of laws like TADA and POTA often argue that ‘terrorists’ do not deserve the safeguards of due process since they have willfully sacrificed the rights of others, they often forget that the persons accused are not yet ‘proven’ terrorists. The problem with POTA, especially in the prevailing political climate is that it shifts the onus of proof onto the accused, such that a person becomes almost automatically seen as guilty unless found innocent. Several clauses under POTA do away with the personal rights that are available to an accused under normal law. Once a person is detained, he/she is denied bail for a minimum of one year. Moreover bail cannot be given if the prosecution opposes it, and unless the court is satisfied of the detainee’s innocence. This withdrawal of existing safeguards and dilution of evidence, decreases the threshold of proving guilt, encourages shoddy investigation and tilts the trial disproportionately in favour of the prosecution. While the lives of previous such laws have thrown up numerous instances of abuse, POTA has so far given no reason to believe that its trajectory will be any different. Indeed, our experience of POTA shows that even the limited safeguards are not adhered to. In short, extraordinary powers given to the executive under POTA, police arrogance that they can get away with shoddy investigations and a political climate which wants immediate retribution, regardless of whether those accused are in fact the ones who are responsible leads to a situation where innocent people can be easily hanged. In the process, of course, the real culprits may get away. No civilized society can afford to play fast and loose with the fabric of its justice system simply for some immediate political gains.
On the basis of our fact-findings and study of the law, we give below the inherent undemocratic nature of certain provisions. Given the paucity of information on the application and working of POTA, a problem facing the Review Committee as well, an examination of all the provisions of the Act has not been possible. The list presented below is not exhaustive but examines provisions on the basis of their vagueness, arbitrariness, unavailability of judicial redress, and lack of particularity in application in spite of the presence of overriding effect (S.56). Each of these provisions, therefore, needs to be deleted from the statute.
S. 3(1)(a) Terrorist Acts: What constitutes a “terrorist act” is not only the violence and use of arms by the accused but also the intention of the person in committing such act. It is the gauging of this intention by a police officer that decides whether the crime forms an offence under POTA. This makes the law arbitrary. In the absence of any objective criteria, the law becomes a political instrument. This outcome is amply clear in the application of POTA against Muslims accused in the Godhra train burning and its non-application against Hindus accused of mass murders.
S. 3(1)(b) Inclusion of Unlawful Activities (Prevention) Act, 1967: One of the major criticism’s of TADA, 1985 was its use to target minorities. This was also responsible for the lapsing of TADA in 1995. The particular provision that enabled such use was the intention to “alienate any section of the people or to adversely affect the harmony amongst different sections of the people”. This was specifically left out of POTA both by the Law Commission that drew up the Act as well as by the Parliament. Section 3(1)(b) by defining a terrorist act as one committed by a member of an organization banned under the Unlawful Activities Act defeats the intent of the legislature since alienating or causing disharmony among sections of the people is a ground for banning under the Unlawful Activities Act.
S. 3(3) Conspiracy under POTA and IPC: Conspiracy to commit a terrorist act is defined under this section. However S.3 (2) read with 120(b) of IPC has been used to convict accused for conspiracy in the Parliament attack case in addition to a conviction under S.3 (3) by the Special Court. S.56 of POTA gives it overriding effect and therefore disallows the use of IPC in this instance. Yet such a conviction has been awarded by the Special Court.
S. 3(5) Terrorist gangs: While punishment for membership of terrorist organisations is detailed in S. 20 of the Act, S.3 (5) provides a different punishment for the same offence. In fact the explanation provided with S.3 (5) suggests that there is no definition of terrorist organization anywhere in the Act.
S. 16 Forfeiture of property: This provision allows for the attachment of property and funds of the accused during the course of trial and its forfeiture in case of conviction. The section is therefore prejudiced against the accused’s family even if the latter has no connection with the terrorist act. This harassment may be used to pressurize the accused into confessing. In addition the provision is unfair to the accused as it deprives the family of resources to engage a lawyer. In general, the provisions for forfeiture (S.7-17) allow for the substitution of judicial authority by designated authority. This creates the possibility of intimidation and harassment of the families of the accused and is designed to abet corruption within the law enforcers.
S. 18 Banning of Terrorist Organization: This provision is nothing short of bizarre. It does not require a statement to explain the reasons of issuing a ban. A gazette notification merely adding an entry to the schedule of the Act is sufficient. Vagueness and arbitrariness are thus, inbuilt into this provision and this application is evident in the manner in which ABNES (Akhil Bharatiya Nepali Ekta Samaj), which has no history of ‘criminal’, ‘violent’ and ‘terrorist activities’, was banned without a shred of evidence of any ‘terrorist activities’. It has also led to the banning of organizations even whose names are not specified (serial numbers 24 and 25 of the Schedule).
S. 19 De-notifying Terrorist Organizations: The nature of the provision is ill conceived and insufficient. An application for denotification u/s 19(1) is to be made to the Central Government. But the applicant is not provided the initial reason for the ban. Refusal by the Central Government merely states “the government is not inclined to use its powers under 19(1) to denotify”. On such refusal the applicant may approach the Review Committee u/s 19(2) within one month. But the applicant has no argument to present since the refusal does not reflect any application of mind. Also, since the Act does not specify the creation of any permanent Review Committee, the applicant lacks an authority to apply to. The Act does not even specify the time within which the Review Committee is to examine the application. The experience of the ABNES is a case in point. It appealed against the Central Government refusal to denotify in December 2002. Till date, the organization has not heard of any acknowledgement of its petition. In short, the stress of applying within 30 days and the period of waiting for the concerned organization is enhanced by the lack of time frame of Sec.60. In any case, the review provided for u/s 19(2) is not a judicial review and therefore violates the constitutional right to judicial redressal.
S. 20,21,22 Membership, Support and Fund Raising: These sections are meant to curb terrorist activities. By increasing the definition of terrorist activities to include membership, support and financial assistance brings in vagueness into the definition of prevention as it allows for a much wider use of the law against people. To give an example: Sub-section 2 of Sec. 21 states that “a person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is…” In short, any person who arranges a meeting and in which one speaker is a member of a banned organization (Sec. 18) is guilty under this section for which the punishment which can extend up to 10 years and fine or both. By way of explanation, the text states that meeting means “three or more persons whether or not the public are admitted”. The sheer arbitrary nature of this section can include any and everyone thus blurring the distinction between a person who has committed a terrorist act (Sec.3), who belongs to a terrorist organization (Sec.18) and someone who arranges a meeting! Given the vague nature and application of S.18 discussed above, these sections carry possibility of rampant misuse
Further, all these sections, by implication, confer on the police unlimited powers to declare an individual a terrorist without substantive evidence. In the Parliament Attack case, the police floated the theory that the four accused were members of Jaish and Lashkar without concrete evidence. Ultimately, even the Sessions Judge had to acquit all four of the charge that they belonged to a banned organization. The fact that enhanced penalties accompany each of these sections only goes to prove that these sections can and do have malafide intentions.
S. 27 Samples from the accused: This section forces the accused to provide samples (blood, urine, fingerprints etc.) to the police. In case of refusal the court would draw adverse inferences. The possibility of fudging such evidence and it to go unnoticed is high. There is however no procedure specified in the Act to ensure authenticity of the samples procured and sent for examination. The fudging of DNA samples of family members of those killed by the security forces at Anantnag is well-known. The judicial coercion to provide samples and the lack of any protection to ensure transparency seriously questions the admissibility of this evidence.
S. 32 Police Confessions: That police records confessions from the accused under duress is well known. Such statements should not be admissible as evidence since they blur the distinction between innocence and guilt. The requirement for a senior police officer under this Act makes no significant difference. The role of a magistrate has been limited to ascertaining marks of physical injuries and is blind to all forms of intimidation and threats to family members. There is even no provision to protect the accused from further police harassment in case the accused has suffered torture. That such confessions cannot be relied upon is amply exhibited by the confessions extracted by the Ahmedabad police and J&K police in the Akshardham case. Both sets of accused have implicated themselves without mention of the other and with varying accounts of the organization behind the attack.
That police confessions are permitted does not imply that confessions before a judicial officer are inadmissible. But there is not even a single instance where the accused has been brought before a magistrate for the recording of the confession. Such provisions therefore lower the level of dependability of the evidence collected.
S. 36-48 Interception: Unlike normal law, interceptions are permitted by an order of the Competent Authority, another one-man executive authority created by POTA. If the police claims a situation of emergency, even this Authority can be replaced by a police officer. Since the police and the court are unaware of the context of the private conversation intercepted through this manner, there is a serious fear of implicating in error. Executive authorities that can be hand-picked by the government in power are no substitute for a judge. Yet the Act merely requires that another executive authority, the Review Committee, one that may or may not be in existence, ratify the permission by the Competent Authority. The Act provides for a multitude of authorities that individually and collectively remain undependable.
S.49 (6-9) Bail Provisions: The bail provisions under POTA are designed to deny bail as it assumes that the accused is guilty and is eligible for bail only if the Court is satisfied that he/she is not guilty. And no court can be satisfied till the entire trial is over. Besides, S. (7) allows for consideration for bail only after a year from the date of detention is over. In short, it is a provision for preventive detention even when a chargesheet has not been filed. There is, however, no provision for compensation for unnecessary incarceration in case the accused is either acquitted or sentenced for a period lesser than the time of imprisonment as an undertrial.
S. 60 Review Committee: A Review Committee is envisaged to perform a variety of functions. These include: reviewing Central Government orders on banning; validating or rejecting interception orders by Competent Authority, and; reviewing the application and provisions of the Act. Yet the Act does not provide for a permanent Review Committee either at the State or Central level. To the best of our knowledge, no such Committee has been set up in Delhi since the enactment of POTA.
