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Published in the 1-15 Jan 2005 print edition of MG; send me the print edition

UAPA raises eyebrows 

By Rizvi Syed Haider Abbas

Lucknow: Public memory is short but can democracies afford this? Perhaps then, it would be inconsequential to be reminded of Congress backed motion in Rajya Sabha (Upper House) Summer Session 2002 under Article 355 to control the situation in riot-torn Gujarat and the erstwhile Bhartiya Janta Party (BJP) External Affairs Minister Jaswant Singh concurring to it in both ‘letter and spirit’! Why? The reason was to avert defeat as BJP led National Democratic Alliance (NDA) lacked the numerical superiority in Upper House. This magnanimity, of course, was surely out of place as only two days earlier the same motion was opposed and brought down in the Lok Sabha (Lower House) by the same BJP-where it enjoyed a majority, and that - in this melee the nation could not see both of the debates on television as Prasar Bharti gave a specious argument that it did not have a dedicated 24- hour news and current affairs channel since Republic Day last (Jan 26, 2002) when the one it had was closed down! ‘How then was the debate on Prevention of Terrorism Ordinance (POTO) telecast live in March 2002,’ wrote Bharatputra in Radiance (May 12,2002). The answer, perhaps, lies in the suitability/vulnerability of the government and accordingly the POTO promulgation on Oct 24, 2001, could become an Act, albeit, after the Joint Parliament Session in March 2002 was called in. 

The promulgation, it is believed, got encouraged in India, as it did in many other countries too, the enacting of strict domestic security laws in the wake of the attack on the twin towers in New York, USA on Sep 21, 2001. The ultra-nationalist BJP government just promulgated the law without stopping a while to ponder that it took six-weeks for USA to painstakingly draft its anti-terrorism law, (USAPATRIOT) followed by discussion on it by bipartisan committees, after which it was put to vote before House of Representatives and then through the similar excretes in the Senate, and ultimately, President George W. Bush approved for its promulgation. The Opposition led by Congress, quite understandably had decried the move particularly when the lapsed Terrorist and Disruptive Activities Prevention Act (TADA) had proved to be both horrendous and draconian in its application.

The figures of TADA, detainees between 1985-95 were telling as out of 77,571 persons detained under TADA it was found that there were more cases from Gujarat (there were no riots then) as compared to Jammu & Kashmir and Punjab where insurgency was rampant. The number of arrests in J&K were 11,616; 15,314 in Punjab while 18,686 were reported from Gujarat- with an overall conviction rate of less than two percent! Thereby, proving the victimisation and settling of scores through political vendetta. But, the government ruled out any such motive as only the security of nation is top priority. That was 2002.

Now, this is 2004 and there is a change of government at the Centre. There is Congress led United Progressive Alliance (UPA) since May 14, 2004. Finally a book, The Terror of POTA and other Security Legislation: A report on the Peoples Tribunal Act and other Security Legislation (New Delhi, March 2004, edited by Preeti Verma, Published by Human Rights Law Network, New Delhi and Peoples Watch, Madurai), has arrived, highlighting the nightmarish details of the misuse of POTA in the past two-years. No sooner, the UPA government was sworn-in it had promised to repeal POTA in its Common Minimum Programme.

The book runs into 600 pages and is prepared by eminent persons like Ram Jethmalani, KG kannabiran, Justice Hosbet Suresh, DK Basu, Mohini Giri, Arundhati Roy and Praful Bidwai. It was simultaneously released in Mumbai and Delhi in August last and is an outcome of the proceedings of the Peoples Tribunal on POTA held in New Delhi in March early this year. The POTA Review Committee has enumerated the cases and complaints until January 12 (2004) and has listed as many as 1,376 detainees in 10 states with newly formed Jharkhand (previously a part of Bihar) topping the list with 745 persons in jail under POTA! Followed by J&K (181), Gujarat (158), Maharashtra (87) Delhi (66), Tamil Nadu (50), Uttar Pradesh ( 44) and Andhra Pradesh ( 36).

The high figures from Jharkhand led to the formation of a team of ten representatives from Civil Liberty groups touring Jharkhand and discovering POTA to have been used indiscriminately against illiterate tribal folks and on those who belonged to Scheduled Castes (untouchables) and Other Backward Classes.

The same government which had once ignored the apprehensions of the Opposition, during the March 2002 debate on POTA that it was pre-ordained for misuse was in power in Jharkhand and the team from Civil Liberties alleges that BJP government in the State used POTA against all Opposition parties particularly Jharkhand Mukti Morcha and Rashtriya Janta Dal. There were 3,000 odd people booked under POTA in Jharkhand but none of them could qualify to be an accused under the Act, the fact finding team came to the conclusion that illiteracy and poverty proved to be salt on the wounds as the victims firstly could not understand the law and secondly their paltry income was too small to meet the expenses incurred for court proceedings. G.N. Saibaba, a member of the team, told Peoples Tribunal that they could see among the detainees, a number of children, including girls, government employees and even journalists.

Gujarat experience with POTA is discriminatory because probably all of the 280 persons booked under POTA in Gujarat are from the minority community: accused of waging war and conspiring to carry out terrorists acts, for their involvement in a series of low-intensity bombs that ripped through Ahmedabad or being a part of killing former BJP Minster Haren Pandya or accused of planning to kill high-profile Vishwa Hindu Parishad (World Hindu Council) and BJP leaders as a revenge for Gujarat 2002 riots. " There is no end to the victimisation of Muslims in Gujarat. The tragedy is that when victims of the Gujarat riots were overwhelmingly Muslims, the rioters killed in police action should have been overwhelmingly Hindus but no, the majority of those shot-dead by police also happen to be Muslims.The Gujarat police under CM Narendra Modi has set new records in atrocities against minorities and the attitude still persists," said Mohammad Azam Khan UP Parliamentary Affairs Minster on the post Gujarat riots scenario. 

The report deals quite elaborately on this attitude in Gujarat, "All that is required is a good story of Muslim Youth going to Pakistan to take arms training in order to take revenge for the killing of Muslims in the post Godhra case," describes the findings of the Tribunal. Godhra case is famous for the burning of a coach of Sabarmati Express on Feb. 28, 2002 at Godhra station in Gujarat.

In Tamil Nadu Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader Vaiko, whose party was part of NDA govt. was booked under POTA, for sympathising with Liberation Tigers of Tamil Elam (LITE) and has now been granted bail and likewise Raja Bhaiyya, an MLA of BJP in UP was booked under POTA by the state government which was running on BJP’s support! He too has got POTA revoked by the new CM of UP Mulayam Singh Yadav. He has now deserted the BJP.

Meanwhile, on Sep 21, President APJ Abdul Kalam promulgated an ordinance to repeal POTA and another ordinance to amend the Unlawful Activities (prevention) Act (UAPA) in order to fill in the vacuum created after POTA’s repeal but ‘the ordinance only allows the Review Committee constituted by the Centre under section 60 of the repealed Act to review all the cases registered under it in order to ascertain whether a prima facie case existed for proceeding against the accused, " wrote V. Venkatesan in Frontline (Nov 5).

UAPA, therefore, is now set to replace POTA after the Review Committee gives its report in an year from now. It would then be found that the repealing of POTA in totality, but instead, coming up with a slightly toned down version as what would be more of a concern to human rights activists the Ordinance namely UAPA which seeks to amend POTA has left section 32 of POTA untouched which is perhaps the most draconian part of POTA! This section permits the court to consider as admissible evidence certain confessions made to police officers-which under POTA could only be admissible when made to an officer of at least the rank of superintendent. This point does not find credence in the Indian Evidence Act as it does not consider such admissions, as evidence, on the ground that the police may have tortured the accused. (Evidence given duress)

The retention of Section 32, along with the provisions relating to bail under POTA where a Judge was required to conclude that the accused had not committed the offence in order to grant bail, and the slightly diluted Section 21 of POTA which deals with offence relating to support given to a ‘terrorist organsation’ ( Vaiko case in Tamil Nadu) has belied the hopes of human rights group all over the nation.

UAPA, moreover, has already agreed to ban the 32 organisations, banned under POTA without investigating their involvement in terrorists offences and has added three new chapters dealing with the punishment for terrorist activities, thereby, almost echoing the NDA remonstration that existing laws are incompetent to deal with terrorist acts.

The UAPA promises to generate some confidence in law-enforcing agencies as the first six months of the new government has not as yet shown a case of settling scores with the outgoing government by invoking POTA and this is where there is hope.

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