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Thanks to Advani, Shourie & Co
TADA in new avatar
By Syed Ubaidur Rahman

The sins of TADA are visiting on its newly born successor. Human rights groups, minority leaders and all opposition parties as well as some from within the governing alliance at the centre are convinced that the newly promulgated Prevention of Terrorism Ordinance (POTO) instead of serving any purpose will prove to be a blot on the fundamental rights in the country. The law that is still to be approved by both the houses of the Parliament has been hastily passed by the Union Cabinet and promulgated following the assent by the President.

The ordinance however stands slim chances of being passed by the Parliament more so when two leading alliance partners including the TDP and DMK have openly expressed their reservations over the implementation of such draconian law that will not only give sweeping powers to the police and other security agencies but also drastically reduce the freedom of media. It specially stands no chance of passage through the Rajya Sabha where the ruling alliance does not have a majority.

The new law that came into effect from 25 October when President KR Narayanan put his seal of approval on the ordinance, is harsher and more stringent than its predecessor TADA. The government was forced by all political parties, including the Congress, the then ruling party and all other parties including the BJP that now rules the country along with its allies not to give an extension to the TADA. LK Advani, who is now the most ardent supporter of the newly introduced POTO was one of the leading politicians who led the campaign to disband the infamous and widely misused law, TADA.

TADA did great damage due to its gross misuse by men in Khaki. It acquired a high degree of notoriety for its rampant abuse and none other than the then Home Minister SB Chavan had no hesitation in admitting before the Parliament that there had been widespread misuse of TADA in almost all the states. The Internal Security Minister Rajesh Pilot went a step ahead and admitted in Mumbai that the Muslim community was the main target of TADA following Babri Masjid demolition and subsequent riots that erupted in the length and breadth of the country. Even a Supreme Court judge Justice S Ratnavel Pandian was forced to observe, "It is true that on many occasions, we have come across cases wherein the prosecution unjustifiably invokes the provisions of TADA with an oblique motive of depriving the accused persons from getting bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of TADA. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police."

And the abuses of law have not ended even after more than six years when it lapsed in 1995. Thousands of people are illegally languishing in jail, some without even once appearing before the court. It was despite sweeping power given to the police and law enforcing agencies to prove anything without presenting much and accused forced to give evidence of his innocence. The new ordinance is harsher and several times more stringent than the infamous TADA.

It does not even spare media persons and imposes strict vigil over their activities. It has come with strict warning for journalists covering areas that are facing militancy. Now they are liable to be punished with an imprisonment for a term which may extend to three years or with fine or both if they do not furnish the information or provide false information about a terrorist or the organization to the police. It clearly indicates that the government wants journalists to inform police before meeting any leader that comes under the government defined term terrorists. The new law also makes it mandatory that every person should disclose information which the person knows or believes to be of material assistance in preventing any terrorist activity as soon as ‘reasonably’ practicable to the police. It means that it also lies to be decided what circumstances are practicable for any person. POTO also makes it mandatory that any person charge-sheeted for any offence under the new law automatically loses his passport and arms license for a period to be determined by a special court.

For the first time, the evidence collected by police by intercepting telephonic, wireless or email messages during investigation of a terrorist act will be admissible as evidence in the court of law against an accused booked under the Prevention of Terrorism Ordinance. Notwithstanding anything in procedure code or in any law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under this chapter shall be admissible as evidence against the accused in the court during the trial of a case, section 44 of the ordinance says. Regarding the protection of the information collected by police through intercepts, the ordinance says that the contents of any wire, electronic or oral communication intercepted by any means shall as far as possible be recorded on tape or wire and shall be done in such manner as to protect the recording from editing or other alterations.

Under the new ordinance it is an offence to fail to disclose information about a terrorist act. Investigators are empowered to extract such information from anyone they suspect of having it. The failure to reveal information could invite a three year imprisonment.

Legal experts have been openly criticizing the harsh and oppressive form of POTO. They have been saying that the new law will not only suppress human rights in the country but also give absolute power to police and other security agencies. Top lawyers have argued that the new act is faulty not only legally but also politically. They say that there is no need for an anti-terrorism law if the government implements existing laws effectively.

Former Solicitor General Abhishek Singhvi says POTO is faulty on several grounds. He says that we don’t need more laws but effective implementation of existing legislation. He adds that we fail against terrorism not because of lack of TADA or POTO but because of lack of proper intelligence, faulty policy and absence of sufficient extradition treaties. Former law minister HR Bhardwaj says an extraordinary law should contain adequate safeguards to protect the innocents. He says that there is no guarantee that the ordinance would not be used for political purpose like TADA was used.

Mushtaq Ahmad, a Supreme Court lawyer, says that the new law is harsher than its earlier form TADA. He says that the ordinance has everything to suppress media and restrict human rights in the country.

Though the ordinance has been promulgated after the approval of the President, it is unlikely that it will be approved by the Parliament without some major amendments. The Congress, which was guilty of promulgating the TADA, is today dead against the POTO. Its leaders have made it clear that the party has learnt from its past experience with the TADA and would under no circumstances repeat the mistake. The Congress leaders have also questioned the government’s intention as the notification of the POTO has come just a few hours before the notification for the beginning of the winter session of the Parliament where it is sure to be defeated in the Rajya Sabha.

The Congress, Left parties, Samajwadi Party along with allies like Rashtriya Janata Dal, Janata Dal (S) and Indian Union Muslim League have clear majority in the Rajya Sabha. Mulayam Singh Yadav has denounced the ordinance saying that ‘the ordinance will violate the human rights of this country’s citizens and will give the police unbridled power to harass the common man. It is nothing but the draconian TADA with a new name. We cannot allow this ordinance to become law.’ The Samajwadi Party supremo said that his party will not only oppose the ordinance in the Parliament but also organize agitations to expose the government’s conspiracy to curtail the human rights of innocent citizens. Left parties have also made it amply clear that they will not allow the ordinance to be passed in the Parliament. CPI leader D Raja told this correspondent that, ‘there are no safeguards against the misuse of the provisions of the ordinance’. He added that he was sure that it will be put to heavy misuse as was the case in TADA and will cause suffering to innocent masses.

Several NDA allies have also made it clear that they will not back the POTO in its present form. DMK has said that it will not back passing of the POTO in the Parliament. Telugu Desam Party (TDP), the second largest party in the NDA has also made it clear that it will not back POTO in its present form. TDP Parliamentary Party chief Yerren Naidu when contacted told this correspondent that he will convince the NDA partners to go for major amendments in the ordinance. He said that the new law in its present form stands major chances of being misused.

Minority organizations have come forward to denounce the newly promulgated ordinance. Muslims who were the main victims of TADA and in whose mind the memories are still afresh have made it amply clear that they will never back such ordinance as it stands very high chances of being misused. Maulana Ahmad Ali Qasimi, the general secretary of Mushawarat (Salim Qasimi group) told this correspondent that the ordinance is a conspiracy to harass the minorities in the country. He said that the government is already harassing Muslims and their institutions and organizations and the new law will give it sweeping powers to behave as it wishes. Syed Shahabuddin has also opposed the ordinance. Jamaat-e-Islami, Jamiat Ulama-e-Hind, Milli Council and all other organizations have also condemned the ordinance calling it anti minority and anti Muslim.

Other minorities including Sikhs and Christians have also condemned the ordinance. Gurcharan Singh Tohra of Shiromani Akali Dal said that the POTO was painfully reminiscent of TADA. He charged that its draconian provisions are in fact targeted at members of minority communities. He added that not one of the majority Hindu organizations like the Bajrang Dal and VHP who were guilty of openly defying Supreme Court directives have been included in the list of banned organizations and added that it has naturally fuelled speculation regarding the real intentions of the government. Christian organizations have also come forward to criticize the new ordinance calling it draconian and anti minority.

Meanwhile Home Minister LK Advani has said that all those who oppose POTO would wittingly or unwittingly be appeasing terrorists. His comment has received widespread criticism from all corners. On the other hand, the BJP has made it clear that it intends to make POTO and terrorism its main election agenda in the forthcoming elections in UP.

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