BANGALORE - The Congress-led United Progressive
Alliance (UPA) government in India is set to repeal the
Prevention of Terrorism Act (POTA) that its predecessor
government had enacted in 2002. But the deadly attack by
militants on Sunday in the violence-ridden state of
Jammu and Kashmir (J&K) raises questions as to how
the government proposes to tackle terrorism if POTA is
scrapped.
Less than a day after the swearing in
of the new government in Delhi, militants of the Hizbul
Mujahideen struck with deadly precision in Kashmir. They
detonated a landmine along the Srinagar-Jammu highway,
ripping apart a bus carrying personnel of the
paramilitary Border Security Force (BSF) and their
relatives. The explosion left 15 BSF soldiers and 18
civilians dead, and several critically injured.
Home Minister Pranab Mukherjee said that the
government would continue dialogue with separatists in
the Kashmir Valley while simultaneously streamlining the
security arrangement to repulse attacks, such as the one
on Sunday. He said the government would deal firmly with
terrorist activity across the country. The government
has also announced that the third round of talks with
the All Parties Hurriyat Conference - Kashmir's main
separatist alliance - will take place as scheduled,
likely in the first week of July. Signaling an element
of continuity with regard to its approach of the Kashmir
problem, the government has announced that N N Vohra,
the previous government's interlocutor with the
Kashmiris, will play the same role under the new
government.
What is likely to change in the
coming months is the way the government tackles terror.
The Common Minimum Program, released Thursday, of the
new government states that POTA will be repealed and
that existing laws will be enforced strictly. POTA was
controversial right from the start, having as much to do
with its its provisions as it was about the process by
which the Bharatiya Janata Party (BJP)-led National
Democratic Alliance (NDA) government enacted it.
The ordinance was passed in the Lok Sabha (the
lower house of parliament), where the ruling alliance
had a majority, but rejected in the Rajya Sabha (the
upper house), where it did not. Determined to steamroll
this legislation, the government convened a joint
sitting of parliament, where it mustered the requisite
number of votes to enact the ordinance.
The
convening of a joint session is not unconstitutional.
But what got the opposition's goat was that the
government resorted to it in a bid to hustle through an
unpopular piece of legislation. The ruling coalition had
done little to build a consensus through negotiation
with the opposition parties and addressing the many
valid flaws they had pointed out in the ordinance.
Even more controversial are POTA's provisions.
Like its predecessor, the Terrorist and Disruptive
Activities (Prevention) Act (TADA) that was enacted
under a Congress government in 1985, many felt that POTA
would victimize innocent people through unwarranted
detention. In the process, it would provide an ideal
breeding ground for more terrorism. Action under POTA
can be taken even if a terrorist act has not actually
been committed. It is enough that organizations labeled
terrorists under POTA or individuals found to
"encourage" terrorism or are "otherwise involved" in it,
to be prosecuted and severely punished.
POTA has
been found to be a dangerous weapon in the hands of the
police and parties in power. Fears that it would be
misused against political rivals and directed against
certain religious communities, all in the name of
fighting terrorism, have proved true in the two years
since its enactment.
POTA in the hands of any
regime would be worrying. In the hands of the BJP, a
party with an anti-minority agenda, it proved deadly.
The list of organizations that were labeled terrorist
under POTA included the Student Islamic Movement of
India, Deendar Anjman, the Harkat-ul-Mujahideen and the
Hizbul Mujahideen. The list did not include the BJP's
fraternal organizations such as the Vishva Hindu
Parishad, the Rashtriya Swayamsevak Sangh or the Bajrang
Dal that have unleashed terror on Muslims and
Christians.
POTA's misuse by the BJP became more
apparent when the Gujarat government arrested scores of
people (all Muslims) under the act in connection with
the attack on a train at Godhra carrying Hindu
activists, but refrained to charge the Sangh Parivar
hoodlums under POTA, who terrorized thousands of Muslims
in Gujarat.
In the southern state of Tamil Nadu,
chief minister J Jayalalitha ordered the arrest of
political rival Vaiko of the Marumalarchi Dravida
Munetra Kazhagam (MDMK) under POTA for his alleged
support to the Liberation Tigers of Tamil Eelam in Sri
Lanka. Vaiko spent 18 months in jail. It is Vaiko and
his MDMK who are now spearheading the campaign for
scrapping of POTA. Ironically, Vaiko, once a close ally
of the BJP in the NDA, supported POTA during the debate
on its enactment.
POTA's protagonists argue that
the legislation has been effective in ensuring the
speedy trial of those accused of indulging in or
abetting terrorism. They insist that the security forces
have gained the upper hand in fighting terrorism in
Kashmir, thanks to POTA. Defending POTA, the deputy
inspector general of the BSF, K Srinivasan, said: "There
is an aggression and determination [in the security
forces] because of POTA. If someone is suspect, at least
we have the powers [to act against him]. POTA has been
useful against militancy. The morale of the forces is
high." The NDA government had claimed in parliament that
implementation of POTA had led to "significant
achievements in detection of funding channels to
terrorists operating in Jammu & Kashmir". The Home
Ministry's assessment was that "POTA has been an
effective instrument in tackling the overground support
base for the terrorist."
But there are problems
with repealing POTA. Ajai Sahni of the Delhi-based
Institute of Conflict Management writes on the South
Asia Terrorism Portal that all UN member countries are
now bound to pass and implement suitable laws for the
prevention and suppression of terrorism, including
financing, the provision of safe haven and so on. He
points out that "an added problem with abandoning POTA"
is that "India would be open to accusations that it was
failing to pull its own weight at a time when it was
stridently demanding action against terrorism from other
countries and from the international community. Within
this context, it is useful to note that the Indian
record of convictions for acts of terrorism - under both
'special' and 'normal' laws - remains abysmal."
While POTA's proponents boast of its significant
role in tackling terrorism in J&K, it appears that
in reality POTA has been sparingly used in this state
since 2002 compared to its use in other parts of the
country. One reason for this might be the opposition of
the parties in government in J&K to POTA. Another is
that the security forces prefer another legislation, the
more draconian Public Safety Act in Kashmir.
There is understandable concern in the country
over the repealing of POTA. Analysts fear that the fight
against terrorist organizations will be weakened in the
absence of stringent legislation to fight terrorism.
Sunday's attack in Kashmir that left 33 people dead is a
grim reminder of the reality of terrorism in this
country and the difficult road ahead.
The BJP
has signaled that it will oppose the repealing of POTA.
The UPA's common minimum program states that the
"government will take the strictest possible action ...
against all those individuals and organizations who
spread social discord, disturb social amity and
propagate religious bigotry and communal hatred". The
Sangh Parivar can be expected to stir up emotions in the
country that the UPA is soft on terror, hard on communal
violence; in other words, that it is appeasing
minorities.
If the UPA constituents are, as
claimed, concerned over the misuse of POTA then they
should take steps to ensure its better implementation,
rather that throwing simply throwing out POTA. Manoj
Mitta writes in the Indian Express that one way to
prevent POTA abuse is for the government to give the
POTA Review Committee more powers. Legal experts are
suggesting that the government draw ideas from the
Criminal Law Amendment Bill 1995, which the Congress had
drafted to replace TADA. This bill sought to bring
communal violence within the ambit of terrorism by
defining a terrorist act as a crime committed "with
intent" among other things "to alienate any section of
the people or to adversely affect the harmony amongst
different sections of the people."
Rather than
rushing in to repeal POTA, the government should amend
it, including safeguards to prevent its misuse and to
bring communal violence under the ambit of terrorism.
However, it does seem that the new government will like
its predecessor simply bulldoze its way through
parliament without listening either to the people or to
the security forces, who are at the frontlines battling
terrorism.
(Copyright 2004 Asia Times Online
Ltd. All rights reserved. Please contact content@atimes.com for
information on our sales and syndication
policies.)
