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Published in the 16-31 Oct 2004 print edition of MG; send me the print edition

POTA repeal: myth and reality

By Rajindar Sachar

A rose will smell the same by any other name, while Prevention of Terrorism Act (POTA) 2004, will stink by any other name, I am reminded of this by the cosmetic exercise of UPA Government in purporting to repeal POTA - but ironically providing at the same time that notwithstanding the repeal any investigations, legal proceedings may be instituted, continued, enforced and any penalty or punishment may be imposed as if the said Act had not been repealed. Put simply, it means that all action taken by NDA Govt. and even false cases instituted against Muslims in Gujarat have been given the cloak of legality permitting Narender Modi to continue to harass the minorites. At present the position is that 217 cases (involving 1600 persons) are being investigated under POTA and 116 of them are being tried (involving 500 people). Many of them are in jail for over 2 years but the trial has not yet even commenced. What does one now tell them that UPA Govt. though proclaiming its opposition to POTA in the past now feels that all pending cases should continue to be tried subject to being reviewed by Central Review Committee, (which was set up by NDA Govt.) and until it finds in favour of detenues they must remain in jail. What a demonstration of UPA Govt. of its secular commitment and safeguarding of civil liberties at the threshold of its governance. What prevents UPA Govt. straightaway to withdraw all cases considering the immediacy shown in withdrawing the case against Raja Bhaiya of UP, even when POTA was in existence.

A large number of objectionable features of POTA have been retained by the not so clever exercise of amendments made in Unlawful Activities (Prevention) Act, 1967 Ordinance 2004.

The blanket power to the Govt. to declare any association as terrorist has been retained but the remedy in the Unlawful Activities (Prevention) Act, 1967 to have the matter inquired by a sitting judge of High Court on facts has been dispensed with by providing for limited jurisdictional remedy by a Review Committee consisting of a majority of officials though headed by a sitting or a retired High Court Judge. The definition of unlawful activity is common to both 1967 Act and the Amendment Ordinance to mean an association which either by words spoken or otherwise acts so as to disrupt the sovereignty and integrity of India. The offence being the same but the remedy being less favourable under the Ordinance as against that provided under 1967 Act, no court can uphold such patent discrimination and the unfettered power of Central Government to pick and choose between two associations accused of the same crime. Such action is totally illegal.

By Section 7 of Amendment Ordinance, new Chapter IV, V, VI and Schedule of POTA have been bodily lifted from the repealed POTA and incorporated in 1967 Act. The result is that terrorist organizations declared by NDA Govt. are accepted and continue to be so as such by UPA Govt. to be terrorists. Is it not tragically amusing that the governmental mantle makes fiercast opposing political parties think and behave in the same manner against common citizens. 
There has been so much clumsiness in drafting that though provisions of admissibility of evidence collected through interception of wire, electronic has been bodily lifted from POTA but the procedural safeguards put in POTA (which in fact were necessitated under compulsion of judgment earlier given jn PUCL case filed by us challenging telephone tapping). The Supreme Court though it upheld the legality of telephone tapping but subject to certain safeguards. Unexplainably these safeguards have been omitted. Further clumsiness that while incorporating a requirement of the order of competent authority permitting interception to be supplied to the accused before trial, the definition of "competent authority" given in POTA has been omitted - the result is to make this provision unworkable because no interception can be legally done unless with prior authorisation by competent authority, and as no competent authority has been provided by the Ordinance any interception will be illegal and inadmissible - the whole purpose of this provision will remain a dead letter. Moreover, in POTA there was a review committee formed to review the order of competent authority. This also is omitted in Amendment Ordinance.

I do not know what is the thinking of Govt. in omitting this Chapter. As the Supreme Court upheld the power of interception subject to safeguards so as to comply with the requirement of Article 19 (Right of Privacy), the deletion will make all such interceptions unconstitutional and inadmissible. It is to be noted that without such safeguards, the power of the Govt. to abuse this power was so prevalent that Govt. agencies used to intercept communications of even former Prime Ministers and Central Ministers as noticed in PUCL case. Does UPA Govt. wish to go back to such arbitrary police powers. 

A very objectionable feature in POTA of permitting the court to keep the identity of witness secret has been retained and incorporated as such in Amendment Ordinance. Such a provision has been held to be unconstitutional by Inter American Human Right Court and evidence thus obtained is not admissible. Even the Supreme Court has accepted in PUCL case challenging POTA that keeping secret the identity of witness is a deviation from the usual mode of trial - but still Amendment Ordinance retains this provision thus denying fair trial to the accused, the very accusation made against the provision in POTA by the UPA Constituents. 

Of course, credit must be given to the Government for keeping inadmissibility of confession before Police in the same way as general law of the land but then again it will not benefit the existing detenues who will continue to be governed by objectionable law of POTA which the Govt. itself feels denies safeguard to the detenues to defend himself/herself. 

No credit need be taken by the Government in purporting to suggest accused can apply for bail in the first year. This position was laid down by the Supreme Court while disposing the PUCL case challenging POTA that even under POTA it was open to the accused to apply bail in first year. As a matter of fact, the Central Government had conceded this position before the Supreme Court. No relaxation has therefore been made and the Government cannot take any kudos in this behalf. 

How clever you may try to become but reality will always catch up with you is an ancient maxim but Governments continue to ignore it at their peril.
The writer is a former chief Justice of Delhi High Court, UN Special Rappoetuer on Housing and former president of PUCL

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