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Indian parliament passes terror law amid widespread opposition
By Zafarul-Islam Khan
New Delhi, March 26: Despite stiff opposition inside and outside Parliament, the BJP-led Indian government was able to get the Prevention of Terrorism Ordinance (POTO) passed by a joint session of Parliament Tuesday night after a day-long heated debate between the supporters and the Opposition over the controversial Bill. Opposition members staged a walkout after the Deputy Speaker of Parliament Mr PM Sayeed announced the result.
The Opposition severely attacked the Bill and called it a "black" measure for its partisan politics "to terrorise minorities and the Opposition". Participating in a discussion on the bill in the joint sitting, opposition leaders said the "draconian" piece of legislation was a declaration of war against ordinary people of the country.
Father of the terrorism bill, Home Minister LK Advani, flagged off the debate claiming that the government was convinced to bring out such a law as it felt that state-sponsored cross-border terrorism was a kind of war and not just a law and order problem.
CPI-M leader Somnath Chatterjee said the whole object of bringing forward the controversial legislation was not to tackle terrorism but to carry out a virulent propaganda and to pull down the edifice of the Constitution. "We suspect the bonafides of this Government. We cannot accept the bonafides of this Government on the black bill," he said, adding that October 24 last year when the POTO ordinance was promulgated, was the "blackest day" for Indian democracy. Questioning the rationale behind the bill, he said it went against the federal structure of the country.
Chatterjee wondered as to how the Government would be able to enforce the law in view of the fact that 20 states were ruled by Opposition parties, and many states have already said that they will not enforce this controversial law. Apart from the centre, the BJP rules only three states out of a total of 28. The Congress Party, which rules more than half of the Indian states at present, made it clear that states under its rule will disregard this law.
Leader of Opposition and Congress Party president Sonia Gandhi, on the other hand, said that supporting POTO was like supporting terrorism. She said Congress’ opposition to POTO was due to its anti-democratic nature and the Bill was unacceptable to the party in its present form.
"POTO, I am afraid, will create a parallel system. It will create a separate system of legal procedure of evidence and, of course, it will bypass the normal criminal justice system. It will, in other words, not be a system of justice; it will be a system of
injustice and such a system is repugnant to the fundamentals of democracy. Proposed legislation is unacceptable because it violates the basic human rights of the individuals," Sonia Gandhi told the joint session.
"POTO, I suspect, will become an instrument in the hands of this government to suppress political opponents, religious minorities, ethnic groups, weaker sections of our society and the trade unions," she added.
Mulayam Singh Yadav, chief of the Samajwadi Party which has emerged as the largest party in Uttar Pradesh in the recent elections, made a strong protest against the POTO Bill, saying the misuse of such a law in the hands of an "untrustworthy" BJP-led government was a foregone conclusion. The government would use it against minorities, the poor and political opponents, he added. Yadav appealed to the government not to divide the country, which was what, he said, POTO was doing. Most people in the country, he said, were against POTO.
The government resorted to a joint session of the two houses of Parliament (the elected and the upper houses) after the bill was defeated on 21 March in the upper
house where BJP-led National Democratic Alliance (NDA) is in a minority. Therefore, the government resorted to the extraordinary measure of calling a joint session - first time since 1978 and only the third time since independence in 1947 -- as it commands a majority only when the two houses sit together. The bill was earlier passed by the elected house (Lok Sabha) on 18 March but it cannot be enforced until the other house too passes it.
The Prevention of Terrorism Ordinance (POTO), announced after the September 11 attacks in the United States, sets strict new rules for arrest, interrogation and investigation and allows suspects to be held for 30 days without appearing before a court. It allows for imprisonment without trial for three years. Opposition parties and human rights groups have attacked the bill, saying it could be used to harass innocent people and to the Muslim minority or opponents of the government. This was already witnessed last week when it was disclosed that all the 66 persons arrested in Gujarat for their alleged role in burning a train on 27 February were Muslims who were booked under POTO while over 800 persons arrested in the riots that followed that attack were booked under ordinary laws. After an outcry, POTO was dropped from those persons.
The promulgation of POTO has revived the debate on the need to have a special law when its precursor TADA (Terrorist and Disruptive Activities (Prevention) Act) was allowed to lapse in light of its misuse. Former Supreme Court judge, Justice Kuldeep Singh and Rajiv Dhawan, Supreme Court advocate say that the prevailing acts on preventive detention were adequate enough. "If the Government wants, it could make the existing laws more stringent. The need is the will to control terrorism," opines Justice Singh.
The Prevention of Terrorism Ordinance (POTO) is being pushed by the Vajpayee Government as part of the larger anti-minority agenda of the Sangh Parivar (RSS family of extremist Hindu outfits). The POTO cannot be applied against foreigners and India's terrorism problems mainly stem from cross-border terrorism. In the wake of the banning of Students Islamic Movement of India (SIMI) under POTO, and given the track record of TADA, which was notorious for its anti-Minority misuse, POTO would again be used to target the minorities.
Prime Minister Vajpayee and Union Home Minister LK Advani had been harping on a consensus, prior to their decision to push ahead with POTO. The POTO law does not address the concerns expressed by the National Human Rights Commission (NHRC). The NHRC wanted to know the justification for a separate anti-terrorism law and how the existing laws were insufficient to deal with the menace.
In fact, there are preventive detention laws like the National Security Act (NSA), and the Disturbed Areas Act in border areas. Then, to choke the channels of funds flowing in for the terrorists, there is the money-laundering law. Similarly, there were separate laws for checking the narcotics menace, which is also linked to terrorism. Neither an adequate case was made out on the need for a separate anti-terrorist law nor a national debate preceded the move. All of a sudden, under the cover of the September 11 attacks in the United States, amid an atmosphere of fear-psychosis, Vajpayee government pushed POTO.
The Vajpayee government has not satisfied even its allies, not to mention the Opposition. The allies, like the Trinamool Congress, the Dravida Munnetra Khazagam (DMK) and the Janata Dal-United have been pressing for adequate safeguards against the misuse and abuse of POTO. The Opposition charge has also remained unanswered - that the anti-terrorism law was more prompted by the September 11 attacks in the United States, than by the emergent scenario in the country.
One of the major concerns expressed not only by the Opposition but also by the Allies of the BJP is that the sweeping powers vested in the police will result in misuse. The Indian police is noted for its application of third-degree and illegal methods and fabrication of evidences. No adequate safeguards have been spelt out. Even an anti-terrorist legislation must have a human face, opponents say.
The BJP-led government had introduced POTO last October from the back door in the first place. It did not wait for the parliament which was on a short holiday and rushed the law as an ordinance signed by President KR Narayanan on 24 October and on its expiry re-promulgated it on 31 December. After that POTO had to be passed by the parliament in order to remain effective beyond a total of six months.
A similar 'law' was enacted in 1985 under the name of TADA which was widely misused especially against Muslims. Due to widespread protests it was allowed to lapse in 1995. The percentage of indictment under TADA was very low which meant that the vast majority of the detainees were simply subjected to state terrorism.
Out of the 77,000 persons arrested under TADA only 8,000 were finally tried and out of these only 725 persons were indicted, that is only 0.81 percent were really found 'terrorists' by courts. Police found it convenient to book ordinary offenders or even innocent people under TADA which ensured their imprisonment without trial for long periods. Although TADA lapsed over six years ago, about three thousand people are still behind bars suffering under the wheels of the slow-moving Indian judicial system.
TADA was mainly misused in Punjab and Kashmir. In Punjab, for instance, out of the 18000 cases registered during the decade-long militancy, 11,000 cases were brought before courts, the rest were cancelled. So far 8,700 cases have been decided in Punjab with convictions in 188 cases only and acquittals in 8,300 cases. At present 478 people are still facing trial under TADA in Punjab. Misuse of TADA was most reported from states which had no history of terrorism like Gujarat where at one time 19,000 persons were booked under TADA although that state did not experience terrorism.. With the kind of corrupt and inefficient police and vindictive system, it is foregone conclusion that POTO will be widely misused, especially against the minorities and weaker sections.