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Can POTO tackle terror?

The question itself reflects a complete lack of understanding of the nature of law, and is part of the distortions so-called ‘human rights’ campaigners are trying to impose on the debate. This perspective was most convincingly elaborated by one of the leading legal minds of this country in 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." The implication of this trend of argument is that, unless the "root causes" of terrorism are not addressed, no legal remedy is of any use.

But TADA was in existence for just ten years. There has been a law against murder in every society since the beginning of human history. 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; 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 all the "root causes" have been eliminated, no such crimes are to be punished?

Another argument that is advanced against POTO is that it 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 contains strong safeguards against abuse and significant penalties against 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.

Another argument is that the conviction rate under TADA, at less than 2 per cent, is 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. 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.

Many of the apprehensions regarding specific provisions of POTO – such as the widespread misconcpetion that POTO would victimise journalists – are based on misunderstandings, both of these provisions, and of the law in general. The main point that is being missed, however, is that a law against terrorism has become an inescapable imperative in present circumstances, and is mandated even by international conventions, including UN Resolutions, that impose a duty on member nations to legislate appropriate counter-terrorism laws. It must be understood, moreover, that the absence of legal remedies can only contribute to the adoption of extra-legal remedies. POTO may not "solve" terrorism – it is not meant to – but a counter-terrorism law is an essential instrument in the legal arsenal that the state needs to confront the problem.

We must, finally, squarely confront the dishonesty of the political parties who are currently opposing POTO even while they have been advocating, or have adopted, similar and often more stringent legislation against organised crime in the States they rule.

(Published in The Economic Times, November 20, 2001)





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