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Fight terror, not POTO

Over six thousand people were killed in a single day in co-ordinated terrorist strikes in the US; we live, today, under the menace of a global and escalating threat that has left no part of the world untouched, as terrorists experiment with the use of chemical and biological weapons that could devastate entire nations.

And yet, in India, there are so many voices, so many "responsible" political parties that insist that we do not need – indeed, must not have – any "special law" to address the problem. No matter that there is not a single nation in the world that has suffered even one-thousandth of the casualties that have occurred in India as a result of terrorism, and that does not already have such a law. No matter that the counter-terrorism laws even of the most liberal nations in the West are far more stringent than the much-maligned Prevention of Terrorism Ordinance (POTO). No matter that the United Nations has itself mandated that all states must adopt necessary legal instruments "to prevent terrorism and to strengthen international co-operation in combating terrorism".

The stubborn and entirely irrational opposition to any anti-terrorism legislation raises crucial questions. Who do the "obstructionists" speak for, and what are their motives? And do the arguments they advance have any real merit, or are they – as I would suggest they are – self-serving postures intended to secure partisan advantage or other personal or professional benefits? What, precisely, is it that the obstructionists find objectionable in POTO? A review of the most prominent of these is immensely revealing.

The first and most voluble argument is that POTO is a reincarnation of the ‘draconian’ TADA, and TADA was widely misused; ergo, POTO will be widely misused. But POTO, as would be evident to anyone who has read both the statutes (and very few who engage in this debate actually have), is not TADA. It contains far greater safeguards against the possibility of abuse, and there are significant penalties attached to cases of malicious prosecution. One wonders, moreover, where all the human rights activists and the activist courts were when the Gujarat government arrested over 17,000 farmers and political protestors under TADA? Did India’s legal system provide no remedy for this transparent and gross abuse of the law? There is, moreover, 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 have become the stock source and justification of terrorism among muddled intellectuals. This is the 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 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". On this logic, would it not be reasonable to suggest that murder is also a "peculiar offence that does not lend itself to treatment by law"? And throw the law against murder out of our criminal statutes? And are we 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? I am certain that these would 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.

It has also been suggested 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.

There are several other, equally specious, arguments currently being advanced against POTO, and it is not possible to deal with each of these here. It is important, however, to emphasise that there are certain issues that must be kept above petty partisan and electoral considerations. In case the opportunistic opposition to this law persists, a time will come – and not very far in the future – when the people of this country will accuse those groups and parties who obstruct the state’s initiatives to deal with terrorism within the ambit of the Constitution, of having betrayed the most fundamental and abiding interests, not only of the nation, but of civilisation itself.

(Published in Hindustan Times, November 5, 2001)





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