Anti-POTO hysteria
Delusions of Misuse

The most significant aspect of the current debate on the Prevention of Terrorism Ordinance (POTO) is its astonishing dishonesty. Political parties that even today administer similar laws, particularly special State legislation against organised crime, and seek and secure very similar powers for their fight against what is certainly a lesser threat to social order than terrorism, are now viscerally opposed to any unique law that seeks to address the escalating terrorist threat. The Congress party – the originator and architect of the notorious TADA – leads the assault on POTO, even as it implements perhaps harsher laws to target organised crime in Maharashtra. Andhra Pradesh has almost identical provisions, and a similar law for Karnataka is currently awaiting Presidential assent. In West Bengal, the CPI (M) government, in an act of manifest political opportunism, withdrew a similar Bill only after the promulgation of POTO. The current political campaign against POTO reeks of rank opportunism that borders on a betrayal of the fundamental interests of the nation’s security and integrity.

I am sure that it is no one’s case that terrorists need not be punished, and it would require the most extraordinary obtuseness to believe that terrorists can be punished under the dilatory processes and weak laws of India’s existing justice system. Not even the most efficient democracies in the world have found their existing legal framework adequate to respond to this greatest of contemporary scourges. To argue that special laws and special courts must not be used in the war against terrorism is absurd, particularly in a country where the Constitution was amended (by a Congress government) to create special courts even for the recovery of debts due to banks.

There is nothing sacrosanct about the inefficiency and incompetence of India’s existing justice system. Where the nation is confronted with an extraordinary challenge, it must forge all necessary and constitutionally valid instruments to deal with it. We cannot remain bound to the vapid ritualism of the inherited and archaic provisions of existing criminal laws and procedures. Indeed, no liberal democracy in the world that has confronted even a fraction of the terrorist threat faced by India is, today, lacking in specialised counter-terrorist legislation, and the provisions of these laws are far more stringent than the relatively toothless POTO.

The dishonesty of the campaign against POTO is visible in the self-serving and duplicitous nature of the various arguments that are being advanced against it.

The first argument is that POTO is "old wine in a new bottle" and is just a recycling of the ‘draconian’ TADA. Since TADA was widely misused, POTO will also be widely misused. But POTO, as would be evident to anyone who has read both the statutes is not TADA. It does not cover the wider offence of "disruptive activities", defines terrorism in far greater detail, and contains strong safeguards against the possibility of abuse. There are significant penalties attached to the abuse of the legal process and malicious prosecution by the police. The argument that POTO "may be misused", moreover, cannot hold water. There is not a single law on the statute book that cannot be "misused", and potential for misuse cannot be a serious argument for the exclusion or repeal of laws. It can, however, be a serious argument for the inclusion of stringent penalties for such misuse – and this has already been accommodated in POTO.

A second argument arises out of those curious "false sociologies" that are constantly advanced by the human rights lobby and by sightless advocates of the "political solution" to terrorism. This is theory of the "root causes" of terrorism – that terrorism is a result of poverty, deprivation and injustice; that it expresses the frustrations and rage of an "oppressed" people; and that it cannot, consequently, "be addressed by an anti-terrorist law, since these are political questions and not a law and order problem." These are purely theoretical positions, and I am yet to see even a shred of empirical evidence that suggests any consistent linkages between specific social, economic and political circumstances, and the emergence of terrorism in specific theatres. One commentator asks, "will POTO actually stop or reduce terrorism?" One of the leading legal minds of this country framed what is certainly the most disingenuous argument in this context: that terrorism was "one of those rare and peculiar offences that does not lend itself to treatment by law." And regarding TADA, that "From 1985 ever since the statute was passed, terrorism has not decreased, terrorism has increased in volume and in the extent of its operations. This shows that there is something wrong with your remedy." TADA was in existence for just ten years. But there has been a law against murder in every society since the beginning of human history. And yet, murder "has not decreased". No one has thought to ask whether the law against murder or rape actually stops or reduces murder and rape, and the evidence of a very long history of laws against these crimes suggests that the law certainly fails in this regard. This has not been advanced, in any serious jurisprudential discourse, as sufficient grounds to dispense with these laws. Are we, moreover, to understand that crimes other than terrorism arise without "root causes"? That murder and rape are committed by happy, prosperous, educated, well-adjusted individuals who have no legitimate grievances against society? Most – if not all – crimes of violence are committed in subjectively justifiable states of rage, of distress, of confusion and alienation. Does this mean that, until a perfect world has been created, where there are no inequalities or injustices, and where all the "root causes" have been eliminated, no such crimes are to be punished?

A third argument is that the conviction rate under TADA, at less than 2 per cent, was too low to justify the existence of such a law. But what is the conviction rate for all crimes in this country? 6.5 per cent, with processes of litigation that extend over decades. And more significantly, what are the conviction rates, under normal laws, for terrorist crimes in the regions afflicted by widespread terrorism? These would probably be less than 0.001 per cent. If the inefficiency and incompetence of India’s criminal justice system are to be accepted as an argument against the existence of specific laws, we would have to throw the entire book of criminal statutes into the dust bin.

A fourth suggestion is that POTO seeks to secure extra-constitutional powers for the state. This is arrant nonsense. The constitutional validity of TADA had been upheld by the Supreme Court, and there must be no doubt whatsoever that the much diluted POTO would withstand a constitutional review by the Supreme Court.

A second line of attack has been against some specific powers and provisions supposedly under POTO. The most oft repeated is the clause [32 (1)] by which certain confessions made to police officers not below the rank of Superintendent of Police are admissible as evidence. This, it is loudly protested, will lead to widespread torture and forced confessions. What is invariably missed out in these protestations is any description of, or focus on, the four sub-clauses that follow, and according to which the confessions have to be voluntary; recorded in an atmosphere free from threat or inducement; these confessions have to be confirmed by the accused before a judicial authority within 48 hours; and in case there is any complaint of torture, such a magistrate would be bound to order a medical inquiry. Section 57, moreover, provides for specific penalties, including jail and fines, against "any police officer who exercises powers corruptly or maliciously," and also provides for compensation to be awarded It is difficult to understand what further safeguards can be provided within any rational framework of criminal justice administration.

Another clause that has caused great – and misplaced – misgivings, particularly among Press persons whose knowledge of the law is evidently and severely limited, relates to the obligation to furnish information relating to the commission of a terrorist act, "without reasonable cause". It is evident that such "reasonable cause" would be judicially determined, and that terror and intimidation would be so considered. More significantly, what is missed out is the fact that such an obligation already exists under the CrPC, and the language of the clauses under the "normal" law is, in fact, harsher than that of POTO. Under Section 39 of the CrPC, the burden of proving the "reasonable excuse" for failure to provide information regarding the commission lies "upon the person so aware." The idea, moreover, that journalists are now going to be thrown into jail for taking interviews with terrorists is ludicrous for many reasons. Such interviews seldom contain operational information relating to specific plans for criminal action; the places at which such interviews are held would not be the permanent hideouts of the terrorists, and this information is not, consequently, of any worth for counter-terrorist action; and most importantly, the history of police relations with the Fourth Estate does not suggest that there is going to be a rash of criminal prosecutions against journalists who are simply doing their jobs. In any event, as Arun Shourie noted at a recent International Seminar on the Threat of Global Terrorism, no government that has specifically targeted the Fourth Estate through criminal prosecutions has ever survived in India, and it would be suicidal for any government to seek to abuse this law to victimise the Press.

There is another curious aspect of the arguments against POTO that are being advanced. Surprisingly, even as critics assert that the provisions of POTO are "draconian", they simultaneously argue that the powers that are created through this ordinance "already exist" in the "normal laws" under the IPC and CrPC, and in other legislation such as the National Security Act, ESMA, the Disturbed Areas Act, the Army (Special Powers) Act, etc., and that these powers include provisions for preventive detention. But if this is the case, what is the possible objection to bringing the relevant clauses together in a single law that focuses specifically on terrorism? And that provides for some enhanced penalties for what is certainly the most dangerous pattern of criminal conduct to threaten the contemporary social and political order, not only in India, but across the world?

There are several other, and equally spurious, arguments that have been advanced agaiist POTO in an entirely negative campaign that ignores a number of critical advances that the Act constitutes. It lays the basis for a formal identification of terrorist organisations, and this is a preliminary requirement if any effort is to be made to dismantle the elaborate overground support structures that each such organisation benefits from. Purely criminal financial reasons have become a primary motive and engine for the persistence of terrorist movements in many parts of the country, and the ability to hold on to the proceeds of terrorism is at the root of such motives. POTO creates clear powers to deprive the beneficiaries of the proceeds of terrorism – though there are numerous safeguards here to ensure that the law is not applied maliciously or indiscriminately. Not only POTO, but a far more elaborate web of counter-terrorism legislation, will be necessary before the state’s agencies acquire the necessary legal teeth to deal effectively with the overwhelming threat of terrorism that, today, menaces the entire world.

There may, of course, be some disagreement on the narrow specifics of certain clauses under POTO. Where some refinements are needed, the required amendments should be widely and openly discussed within a rational framework, and not in the atmosphere of near hysteria that is currently being whipped up for purely partisan and questionable reasons. It is absurd, however, to continue to argue, under the circumstances currently prevailing, that there is no need for a law against terrorism, and that no such law should be promulgated.

(Edited version published in Tehelka.com, November 12, 2001.)