Filling India's anti-terrorism
void By Sudha Ramachandran
BANGALORE - India has decided to repeal a
controversial piece of anti-terrorism legislation, the
Prevention of Terrorism Act (POTA). The move, while
welcomed by those who believe the legislation is
draconian and were criticizing its misuse, has raised
concern over how the government now proposes to tackle
the problem of terrorism in the country.
At a
meeting chaired by Prime Minister Manmohan Singh last
week, the cabinet decided to promulgate an ordinance to
repeal POTA. POTA was India's response to United Nations
Security Council Resolution 1373, which required all
governments to enact specific anti-terrorism
legislation. But it was a response too to India's battle
against terrorism. The terrorist attack on the Indian
parliament in December 2001 added urgency to the effort
to enact anti-terrorism legislation.
POTA was
controversial from the start. Its provisions, the manner
in which it was bulldozed through parliament in the face
of opposition, and the way it was implemented proved
contentious and deeply polarized the country.
Among its controversial provisions was that it
provided for detention of a suspect for up to 180 days
without the filing of charges in court. It also allowed
law-enforcement agencies to withhold the identity of
witnesses.
Under POTA, confessions made to the
police could be used as evidence in court, as could
communications secretly intercepted and recorded. What
is more, POTA required the accused to prove his
innocence rather than the prosecution to prove guilt.
As feared by its detractors, POTA was misused.
It was used to settle scores with political rivals. In
the hands of any government POTA would have been
dangerous. In the hands of the Bharatiya Janata Party
(BJP), a party with an exclusivist ideology and an
anti-Muslim agenda, POTA proved deadly. Thirty-two
organizations were labeled terrorist and banned under
POTA, most of them Muslim. None of the Hindu extremist
outfits such as the Bajrang Dal, a fraternal
organization of the BJP, which unleashed terror on
Muslims in Gujarat in 2002, were banned.
About
280 cases were booked under POTA in Gujarat - all
against Muslims. In Jharkhand, about 250 impoverished
tribals, allegedly supporters of ultra-left outfits,
have been booked under POTA. Like its predecessor, the
Terrorist and Disruptive Activities (Prevention) Act
(TADA) that was enacted by a Congress government in 1985
and allowed to lapse by another Congress government in
1995, POTA is believed to have victimized many innocent
people.
The misuse of POTA was an important
election plank of the Congress party and its allies in
the recent general election. After its victory in the
election, the Congress-led United Progressive Alliance
(UPA) promised to repeal POTA. The cabinet decision last
week is a fulfillment of that pledge. But repealing POTA
was the easy part. Now the government has to come up
with an effective legal instrument to tackle terrorism
in the country and to also meet the requirements of
Security Council Resolution 1373.
POTA's
provisions and enforcement might have been flawed, but
security analysts insist that it has helped security
forces wrest the advantage in the battle against
terrorism. It is said to have helped the government act
against those financing and channeling funds to
terrorist outfits operating in states such as Jammu and
Kashmir.
An assessment by the Home Ministry
under the previous BJP-led government described POTA as
"an effective instrument in tackling the overground
support base for the terrorist". There is therefore
understandable concern in the country that the repealing
of POTA will facilitate the resurgence and revival of
terrorist organizations. The BJP has accused the
government of going soft on terrorism and compromising
on national security. Reacting to claims by critics of
POTA that India has other legislation to tackle
terrorism effectively, former law minister Arun Jaitley,
under whom POTA was enacted, argued that POTA has seven
key components unique to an anti-terrorism act.
"Terrorism is not defined in any other law. When the
assassins of [former prime minister] Rajiv Gandhi were
booked under TADA, the act was found to be insufficient.
"The issue of terror funding is another area
[not adequately covered by other legislation]. POTA
provides for attachment of property acquired through
terror funds," he said.
Home Minister Shivraj
Patil has dismissed charges that POTA's repeal
compromised India's fight against terrorism. He has
clarified that the government will soon strengthen the
Unlawful Activities (Prevention) Act passed in 1967.
According to Patil, the older law will, on amendment,
include such POTA features as the banning of terrorist
organizations and their support systems, including
funding. In fact, he said, all 32 militant organizations
banned under POTA will continue to be declared illegal.
Officials believe that the government is also
considering amending the Foreign Exchange Management
Act, India's most stringent law dealing with
foreign-exchange transactions, to make it even tougher.
Meanwhile, analysts have stressed the need for a
clearer definition of terrorism in the proposed
legislation. An editorial in the Deccan Herald, for
instance, says: "The government should ensure that the
new legislation that succeeds POTA should have greater
clarity, in order to eliminate the scope for misuse and
abuse against innocent citizens. While effective
legislation is necessary to combat terrorism, the need
to provide justice is equally important for good
governance."
The Congress-led UPA government has
a tough task ahead. The concerns of the armed forces and
the police, which are in the front lines of the battle
against terrorism, cannot be ignored. The UPA cannot be
seen to be soft on terror, as that will strengthen the
BJP's campaign against it. The amended or the new
anti-terrorism legislation would therefore need to be
stringent. On the other hand, its allies in government
are of the view that that "the only use of
anti-terrorism legislation is its misuse".
The
BJP has announced that in BJP-ruled states such as
Gujarat and Madhya Pradesh, special laws dealing with
crimes relating to terrorism will be enacted. Gujarat
Chief Minister Narendra Modi has said that his
government has decided to bring in a law to control
organized crime and terrorist activities along the lines
of the Maharashtra Control of Organized Crime Act
(MCOCA), which is in operation in the western state of
Maharashtra.
Meanwhile, human-rights groups are
demanding the scrapping of legislation such as the
Public Security Act and the Armed Forces Special Powers
Act used extensively to fight insurgencies in Kashmir
and in northeastern India that are more draconian and
more misused than POTA.
The UPA's repealing of
POTA might have been motivated by concern over its
misuse. However, it is hard to dispel the feeling that
this has a lot to do with electoral politics and the
need to score points against the BJP. If POTA's
provisions are being incorporated into other laws, why
repeal POTA? Surely POTA's unacceptable details could
have been amended. Why have anti-terrorism legislation
that is merely old wine in a new bottle, and with a new
name? Besides, POTA would have lapsed on its own in
October. Why did the government have to repeal it?
It is likely that the UPA wanted to be seen to
have acted decisively to do away with POTA. Allowing it
to lapse would not have had quite the same impact on the
public. State assembly elections are due in Maharashtra
next month and the repeal of POTA could draw in Muslim
votes for the Congress.
The need for stringent
anti-terrorism legislation means that POTA's provision
will stay in one form or another. It does seem likely
that what emerges from all this debate is the return of
POTA - renamed and repackaged.
But ultimately
what governments need to wake up to is that
anti-terrorism legislation by itself cannot end
terrorism. Anti-terrorism legislation might aim at
ending the problem of terrorism but often, by
victimizing innocent people, it becomes part of the
problem. The anger it stokes ends up providing the ideal
breeding ground for terrorists.
Sudha
Ramachandran is an independent researcher/writer
based in Bangalore, India. She has a doctoral degree
from the School of International Studies, Jawaharlal
Nehru University, in New Delhi. Her areas of interest
include terrorism, conflict zones, and gender and
conflict. Formerly an assistant editor at the Deccan
Herald (Bangalore), she now teaches at the Asian College
of Journalism, Chennai.
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