SOUTH ASIA INTELLIGENCE REVIEW
Weekly Assessments & Briefings
Volume 2, No. 15, October 27, 2003

INDIA

POTA: Miscued Priorities
Saji Cherian
Research Associate, Institute for Conflict Management

On October 21, 2003, the Union Cabinet approved an Ordinance to amend the Prevention of Terrorism Act (POTA), 2002, to confer more powers on the Central and State Review Committees to make their decisions binding on the Central and State Governments and the police officers investigating the POTA cases. Briefing reporters on the Cabinet decision, the Parliamentary Affairs Minister, Sushma Swaraj, said the Ordinance giving statutory powers to the review committees would be promulgated by the President, and a Bill to replace it would be introduced in the winter session of Parliament.

POTA was enacted by India's Parliament on March 28, 2002, with a clear agenda and purpose of arming the state with an adequate judicial mechanism to bring terrorists to book. Inadequate strategy, lack of vision, and poor draftsmanship have often plagued the lawmakers of this country, and these were clearly reflected in POTA and its predecessor, the Terrorist and Disruptive Act (TADA), 1987. Both laws contain stringent provisions and there is no doubt that there would be room for abuse of the Act by law enforcers - though POTA does contain harsh penalties for malicious prosecution under the law. Sadly, abuse of legal processes is seen even for laws not specifically meant for terrorists, and such a situation will persist unless corrupt elements in the enforcement agencies are rooted out, and the proclivity among political parties to use legal processes to harass or punish political rivals is neutralized.

With growing complaints of abuse of POTA creeping in from States like Jharkhand and Tamil Nadu, the ruling National Democratic Alliance (NDA) Government at Delhi resolved that the misuse of the Act had to be stopped. This is ironic, in view of the fact that the Bharatiya Janata Party (BJP), the prime constituent of the alliance, was the strongest proponent and backer for POTA. A central review committee had been set up in April 2003 under the former Chief Justice of Punjab and Haryana High Court, A.K. Saharya, to look into the complaints arising out of the alleged misuse of POTA. Section 60 of POTA gives room for such a committee to be constituted at the Centre as well as at the State level. The recommendations of the Centrally-appointed Review Committee was, till now, only advisory in nature and was not binding on the enforcement authorities even if there was a finding that the law had been abused in a particular case.

Under the new Ordinance, however, if the Central Review Committee comes to the conclusion that POTA has been misused or abused in a particular case or cases, it could direct the release of the victims, the decision would be communicated to the States concerned immediately, and would be final and binding on the special POTA courts dealing with these cases. Under the new Ordinance, a provision will be incorporated in POTA stating that the decisions of the Central Review Committee on complaints scrutinised by it are binding on the Centre, the States concerned and the investigation officials. Similarly, the State Committees' decision is binding on the State Governments concerned. If there are conflicting decisions between the Central and State committees with regard to the same complaints, the Central Committee's decision will prevail. No time limit has been proposed under the Ordinance for the disposal of complaints by the Review Committees.

Three reasons appear to have precipitated the promulgation of the Ordinance. The first and most widely reported was the alleged misuse of the Act by law enforcement agencies in some States. Reports of children being arrested under POTA in Jharkhand created the deepest suspicions regarding the implementation of the Act. The apparently lopsided use of the Act is reflected in the number of cases filed under POTA in a State like Jharkhand, with relatively low levels of Left Wing extremist violence, where 130 cases have been registered, as compared to Jammu and Kashmir (J&K), with the highest intensity of terrorist violence in the country, where just 97 cases have been registered under POTA. With the ghost of TADA and its history of abuse still hanging in the air, any arrest under POTA appears to arouse suspicions of political and state high-handedness. The fact, however, is that the Act, under Section 58(1), does provide for a punishment mechanism for malicious use, a mechanism that was absent in its precursor, TADA. The section reads: "any police officer who exercises powers corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this Act, shall be punishable with imprisonment which may extend to two years, or with fine, or with both." This clause, if effectively implemented, could act as a strong deterrent against vindictive arrests under the POTA, but there is yet no case of the clause being effectively invoked.

The Justice Saharya committee disclosed that POTA had not been applied in 15 States and six Union Territories (UTs) of the country. However, in the remaining States, a total of 301 cases had been registered involving over 1,600 persons. Of these, 514 persons were in jail and 885 absconding from the date of the promulgation of the Act. The States which had invoked POTA were Andhra Pradesh, Delhi, Gujarat, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Maharashtra, Sikkim, Tamil Nadu and Uttar Pradesh.

Interestingly, terrorism affected States like Manipur, Tripura and Assam have not applied the law, citing the existence of other laws to tackle terrorism. The J&K Government, in a surprising move on June 4, 2003, decided that it would not invoke POTA in the State, and that detainees under the Act who had no serious cases against them were to be released. Despite some dramatic convictions under POTA, the truth is that the existence of this anti-terrorism law is still to result in significant increases in the conviction rate of arrested terrorists. On the other hand, the Constitution categorizes 'law and order' as a State subject, and this has also put the implementation of the Act in question, as the States reserve the prerogative to apply the Act as they will. Political mileage, consequently, rules the roost. Various State Governments have refused to implement the Act in order to project a 'rights-friendly' image, even while they fail to curb terrorist activities in their backyard.

Second, the working of the Central Review Committee had turned into a virtual tug of war between the Center and the States. Although the POTA Review Panel was set up in April, it had been largely ineffective in getting the States to part with information regarding POTA cases or to accept the findings of the Panel. The States have been uncooperative, citing their internal review mechanism - at least seven states (Delhi, Uttar Pradesh, Himachal Pradesh, Gujarat, Jharkhand, Tamil Nadu and Gujarat) have set up their own review committee - and have contested the Central Panel's jurisdiction. The reluctance of the States to aid the Central Review Committee in reviewing cases registered by them under POTA had forced the panel to turn to NGOs, citizen groups and the complainants themselves, even to get a copy of the First Information Report (FIR). In any case, since the Panel was only advisory in nature, none of the States had yet bothered to facilitate its operations. Most States see the Review Panel's demand for details of POTA cases as an incursion into their 'turf'. In fact, so poor has the cooperation been from the States that the Central Review Panel had to depend on Bar Associations, NGOs, political parties and the public at large to gather information. The result, of course, is that the Panel is yet to give its recommendations in any of the cases before it. Commenting on the Ordinance within this context, Justice Saharya said that the Ordinance would have little impact. ''I welcome the Ordinance and it may turn out to be useful in the long run. But it talks of making my report binding... how do I even reach the stage where I can give a finding until I don't get all the relevant data?''

With the passage of the Ordinance, the tug of war between the Center and the States appears to have been settled in favor of the former. This does not, however, signal the beginning of an easy relationship, and the compulsions of coalition politics will continue to hamper the smooth functioning of the Act; which brings up the third and most important reason for the promulgation of the Ordinance: 'political compulsions'.

The Cabinet decision comes at a time when the Dravida Munnetra Kazhagam (DMK), one of the constituents of the National Democratic Alliance Government at the Centre, had announced the programme for an agitation to be launched on December 1, 2003, seeking the repeal of POTA. Another constituent of the ruling alliance, the Marumalarchi Dravida Munnetra Kazhagam (MDMK), has been in an agitational mode against POTA since its leader and Member of Parliament, V. Gopalswamy, popularly called Vaiko, was arrested by the Tamil Nadu police and charged under POTA for allegedly making speeches supporting the Liberation Tigers of Tamil Eelam (LTTE). In a speech delivered at Thirumanagalam (near Madurai) in the southern State of Tamil Nadu on June 29,2002, Vaiko had said, "I supported the LTTE yesterday. I support the LTTE today, and I will continue to support the LTTE." The LTTE is listed as a terrorist organization under POTA and, consequently, any public meeting or declaration in its support is liable to attract charges under the Act. The ruling BJP has come under pressure from the two southern parties (DMK and MDMK) to drop the charges. The ruling party in the State is not a party to the ruling alliance at the Center, and stands to gain politically if Vaiko remains in prison, and is consequently refusing to release Vaiko. As such, the present Ordinance may be the perfect weapon to bring relief to Vaiko and his supporters.

What is lost in this political conundrum, however, is the fact that, the penalties under the Act are certainly attracted by support to a banned terrorist organisation. With the Center bending backwards to accommodate its alliance partners, the wrong precedents will inevitably be set. POTA certainly needs improvements and changes in certain clauses, but such changes should not be driven by transient political compulsions. The last thing that is needed in the war against terrorism in India is the dilution of the only comprehensive anti-terrorism legislation on its statute books.

INDIA

Sikkim: Lull Before the Storm?
Wasbir Hussain
Associate Fellow, Institute for Conflict Management, New Delhi; Consulting Editor, The Sentinel, Guwahati

New Delhi may not be exactly euphoric, but will definitely have heaved a sigh of relief when Chinese officials told the Indians, just before the meeting between Prime Minister Atal Behari Vajpayee and Premier Wen Jiabao at Bali on October 8, 2003, that their Foreign Ministry website had stopped showing Sikkim as a separate country. Prior to this, Beijing used to mention Sikkim as a separate nation with a one-line comment saying, "The Chinese government does not recognize India's illegal annexation of Sikkim."

This Himalayan stretch of 7,000 square kilometers came to be a part of India following an agreement in 1973, and became its 22nd State on April 26, 1975, with the Parliament passing the Constitution 36th Amendment Act.

If the current turn of events in this strategic border State of more than half-a-million people is any indication, New Delhi cannot afford to sit back and relax. It is not a revolt yet, but serious discontent is brewing within Sikkim's 100,000 strong indigenous Bhutia-Lepcha ethnic group over their identity and political rights. Leading the community with its demand for Constitutional safeguards, in what has so far been a democratic movement, is the Sikkim Bhutia-Lepcha Apex Committee (SBLAC). Significantly, this organization has in its ranks several leaders belonging to the Sikkim Democratic Front (SDF), the party that is in power in the State. Thus, Tseten Tashi Bhutia, one of the convenors of the SBLAC, is a ruling SDF legislator.

For the indigenous Bhutia-Lepchas of Sikkim, trouble started with the Constitution (Sikkim) Scheduled Tribes Order, 1978, that clubbed eight non-Sikkimese Bhutia communities under the category of 'Sikkimese Bhutias.' A recent SBLAC bulletin says that, instead of conceding the longstanding demand to remove these eight non-Sikkimese Bhutia communities from the category of 'Sikkimese Bhutias,' the Indian Government, by its Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002, has included two more communities, Limbus and Tamangs, in the Scheduled Tribes list in the State. The inclusion of the Limbus and Tamangs, who are part of the majority Nepalese community, into the Scheduled Tribe list has been generally welcomed, but indigenous minority groups like the Bhutia-Lepchas fear a further dilution of their distinct identity and political rights.

The Bhutia-Lepchas dominated Sikkim's population until about 1875, despite the British taking Darjelling out of the Kingdom in 1860. However, when the British appointed their first political officer in Sikkim in 1887, the Crown encouraged the entry of a large number of Nepalese migrants to work as labourers. This was the beginning of a drastic change in this pristine Himalayan region's demography, and today, the Nepalese form the largest ethnic group, with a population of about 300,000, in the State.

Bhutia-Lepcha leaders like Tashi Bhutia disclosed last week, during telephone interviews from Gangtok, Sikkim's capital, that the representation that the community now has in the Sikkim Legislative Assembly (the State Legislature) was 'not a genuine representation.' An SBLAC document details the community's argument: "Presently, the 12 seats reserved for the Bhutia-Lepchas (in the 32-member Sikkim Assembly) are of no use to them, as a majority of voters in these constituencies belong to the majority community. Due to the inclusion of the eight non-Sikkimese Bhutia communities within the definition of 'Sikkimese Bhutia' in the 2002 Scheduled Caste/Scheduled Tribe Act and the Representation of People Act, 1980, seats reserved for the indigenous Bhutia-Lepchas under Article 371F (of the Indian Constitution), which has been upheld by the Supreme Court, have become meaningless, as non-Sikkimese Bhutia-Lepchas are legally permitted to contest from the 12 seats reserved for the indigenous communities of Sikkim."

Understanding the historical considerations and compulsions for a special treatment to Sikkim and its people is extremely important if one is to put current tension in perspective. Sikkim's close association with India, despite the Chinese claim on it, led to the signing of the historic Tripartite Agreement on May 8, 1973, between the Government of India, the Chogyal of Sikkim and leaders of three major political parties representing the three ethnic communities (Bhutia, Lepcha and Nepalese). Elections to the Sikkim Assembly were held in April 1974 in accordance with the May 8, 1973, Agreement. After the polls, New Delhi passed the Government of Sikkim Act, 1974. Now, the 1973 Agreement and the 1974 Act, while paving the way for a more democratic set-up in Sikkim also made clear-cut provisions for safeguarding the political rights of the Sikkimese people through seat reservation for the three ethnic communities in the Sikkim Legislative Assembly.

During the 1974 elections the seat reservation was as follows: 15 seats for Sikkimese Bhutias and Lepchas, 15 seats for Sikkimese Nepalese, one seat for Sanghas, representing the monasteries, and one seat for Scheduled Castes. When Sikkim became a full-fledged state in 1975, the Parliament, through an Amendment, inserted Article 371F, giving Sikkim a special place within the Indian Union, taking into account its unique historical and constitutional background. After all, Sikkim became close to New Delhi by remaining a Protectorate of India when the British left in 1947, and ultimately merged into it in 1975 at the end of the 332-year rule by the Namgyal dynasty.

On the seat reservation issue, Article 371F states: "Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provisions for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the Assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim."

Four years after Sikkim's merger with India, on May 18, 1979, the Parliament amended the Representation of the People Act and made the seat reservation in the Sikkim Assembly as follows: 12 seats for Sikkimese Bhutia-Lepchas, 17 seats general, 2 seats for Schedules Castes of Sikkim and one seat for the Sangha. A prominent Nepalese political leader challenged the reservation of seats for the Bhutia-Lepchas and the Sangha in court on the ground that race and religion had no place in secular India. The Supreme Court rejected the argument and said: "…Historical considerations and compulsions do justify inequality and special treatment… The departures are not such as to negate fundamental principles of democracy."

Armed with the laid down Constitutional provisions and the Supreme Court ruling, the SBLAC has intensified its movement with the following key demands: (1) Restoration of the original definition of 'Bhutia' by amending the Scheduled Tribes/Scheduled Castes Orders (Amendment) Act, 2002, and (2) safeguarding the political rights of the Bhutias by delimiting the Assembly constituencies in those 12 reserved seats for Sikkimese Bhutia-Lepchas in accordance with Article 371F.

Interestingly, the SBLAC has linked up their movement with the possible fallout of what looks like an improvement in Sino-Indian ties. Last week, on the eve of Prime Minister Vajpayee's National Security Adviser Brajesh Mishra's meeting with the visiting Chinese Vice Minister in the Foreign Ministry, Dai Bingguo, SBLAC leaders urged New Delhi not to reopen the Nathu-la trade route, linking Sikkim with China's Tibet region, saying that this would lead to a further influx of outsiders, and alter Sikkim's demography. "Trade through Nathu-la will encourage influx. Before taking any final decision towards reopening of the trade route through Nathu-la, due cognizance must be given to the facts relating to the changing demography of Sikkim. Besides, we have seen that infrastructure development like hydro power stations, roads and airstrips have displaced and cornered the Bhutia-Lepcha community," the SBLAC said in a communication faxed to Brajesh Mishra on October 22, 2003. The two countries, however, appear to have agreed to reopen this traditional trade route.

The SBLAC communiqué added that the Bhutia-Lepcha community's 'love for India' and their 'sense of belonging to this country' has gone a long way in making China change its position and accept Sikkim as a part of India. Against this backdrop, the organization said, it wants New Delhi not to open the Nathu-la route simply to boost trade by 'ignoring' the threat of large-scale influx of people from across the border. "We are greatly concerned that the number of outsiders is growing at an explosive and unsustainable pace. The present rate of population growth (32.98 per cent during 1991-2001 as against 28.47 per cent in 1981-1991), if not moderated, has frightening implications on socio-political security of the minority Bhutia-Lepcha people in particular and Sikkimese people in general," the group said.

An audience outside Sikkim, not to speak of the international community, may find it difficult to appreciate the Bhutia-Lepcha community's fears and apprehensions. But New Delhi, on its part, would do well to see the writing on the wall and act judiciously to prevent yet another violent front opening up on yet another frontier. Sikkim, after all, is too strategically located an area - wedged between China's Tibet region in the north, Bhutan in the east, Nepal in the west and the Indian state of West Bengal in the south. And, as some Bhutia-Lepcha leaders have said, none but the Indian Government would be responsible should a section of their agitators give up the democratic form of the movement, following the example set by other States in India's Northeast, to take up guns.