Human Rights Features (HRF) on India's terrorism ordinance POTO

HUMAN RIGHTS FEATURES

(Voice of the Asia-Pacific Human Rights Network)

(A joint initiative of SAHRDC and HRDC)

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POTO: Govt decides to play judge and jury

The events of 11 September gave the Government of India the pretext it needed to launch yet another salvo in its own “strike against terror.” Promulgated six years after the Terrorist and Disruptive Activities Act (TADA) lapsed in 1995, the Prevention of Terrorism Ordinance (POTO) was expected to come up for debate in Parliament during its winter session. The Government re-promulgated the ordinance at the end of December.

POTO is, according to the Government, “less draconian” than the defunct TADA. Other official explanations dwell on the “necessity” of new legislation to tackle “new” crimes. And for good measure, references are made to “similar” legislation in countries such as the United States of America and the United Kingdom.

Closer scrutiny however reveals the lack of foundation for these arguments. The Ministry of Home Affairs (MHA) has justified POTO by claiming “an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country”. Ministry officials, however, evidently failed to consult their own data sheets - the MHA’s Annual Report for the year 2000 actually revealed a decrease in terrorist incidents in Jammu and Kashmir, a state that remains the focus of the Indian Government's counter-terrorism measures.

Most of the provisions contained in POTO can be found in statutes such as the National Security Act, 1980; the Armed Forces Special Powers Act, 1958; the Disturbed Areas Act, 1990; the Unlawful Activities (Prevention) Act, 1967; the Prevention of Seditious Meetings Act, 1911; and several others. Furthermore, the few provisions that are not covered by the above Acts violate the Indian Penal Code, the Criminal Procedure Code, the Indian Evidence Act, and the fundamental rights chapter of the Indian Constitution. Assertions regarding POTO’s appropriateness are therefore highly questionable.

Attempts have also been made to justify POTO by reference to anti-terrorism legislation in other countries. However, the main arguments along these lines are flawed. The United States legislation, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, for example, still requires that the detention of an individual, in all cases, must be pursuant to a lawful arrest based on probable cause that the individual has engaged in criminal conduct and that an indictment must be confirmed by a judge or grand jury.

The USA Patriot Act of 2001 enacted in the aftermath of the 11 September attack does grant certain additional powers to the federal government and the Attorney General and establishes a new criminal prohibition against harbouring terrorists. However, it does not alter the criminal trial process for terrorism cases, nor does it accord the Executive powers immunised from meaningful judicial review.

Under the United Kingdom's Prevention of Terrorism (Temporary Provision) Act 1989, the detention of an individual can be extended for up to five days, but only with the permission of the Home Minister. Further, the European Court of Human Rights has held that this provision is in breach of Article 5(3) of the European Convention on Human Rights. The contrast with POTO is stark: POTO provides for extension of detention for up to 180 days. Moreover, the Prevention of Terrorism Act allows compensation under Schedule IV for wrongful forfeiture of property.

What POTO seeks to do is hold the accused for a prolonged period of detention of up to 180 days without charging him or her, and effectively subverts the cardinal principle of the criminal justice system - the presumption of innocence - by putting the burden of proof on the accused, withholding the identity of witnesses, making confessions made to police officers admissible as evidence, and giving the public prosecutor the power to deny bail. Moreover, little discretion is given to judges regarding the severity of sentences.

The Terrorist and Disruptive Activities (Prevention) Act was reviewed every two years, while POTO is not subject to review for a period of three years. POTO is also more likely to be used for preventive detention of peaceful dissenters than for tackling terrorism.

The definitions of terms in POTO are sketchy and therefore highly susceptible to misuse. For example, “terrorist acts” that bring about the death of any person incur the death penalty or life imprisonment (and a fine). Membership in “an organisation which is concerned with or involved in terrorism” (that is, according to POTO, a terrorist gang or organisation) and the holding of property derived or obtained from the commission of any terrorist act is to be punished with life imprisonment and/or a fine.

The re-promulgation of the Ordinance after the government's inability to introduce it in Parliament throws up new challenges for civil society in general and rights activists in particular. The recent suicide attacks on the Indian Parliament have reinforced the climate of fear and uncertainty, leading to a general clamour for strong-arm measures against “internal enemies.” It must be kept in mind however that short-sighted measures that pander to the so-called “national sentiment” cannot provide a long-term solution to the problem of terrorism. A sustained effort must be made to tackle the root causes of terrorism, one which is regulated by a respect for human rights and the rule of law.

With regard to the introduction of any anti-terrorist legislation, certain stipulations must be scrupulously adhered to:

- Any "anti-terror" law must be subject to international scrutiny. In the absence of a regional mechanism in Asia, the Government of India should ratify the First Optional Protocol to the International Covenant on Civil and Political Rights and ratify the Convention Against Torture. Upon ratification, India should withdraw its reservations to Articles 20, 21 and 22 of the Convention Against Torture which it entered upon signature.

- It must be subject to review by Parliament every year on the basis of a report submitted by the Review Committee to the Parliament and State Assemblies concerning the progress on every detainee's case.

- It should be withdrawn if it manifestly fails to meet its objectives.

- It must contain a limited and specific definition of terrorism, such as that contained in the Prevention of Terrorism Act of the United Kingdom.

- The time frame for detention without charge should be the same as that of other criminal offences under the Criminal Procedure Code.

- Every detainee must be produced before a judicial magistrate within 24 hours of his or her arrest. No exceptions should be admitted to this rule.

- The normal structure and jurisdiction of the courts should be restored; special courts should be abolished and the normal appeal mechanisms should be available with the normal time limits.