Prevention of Terrorism Act (POTA)

The Terrorist And Disruptive Activities Act (TADA) 1987 lead to thousands of people being arbitrarily detained, arrested and tortured. It was enacted in 1987 and remained in force till May 1995. There were widespread allegations of human rights violations and TADA was finally allowed to lapse after extreme criticism by national and international human rights organisations, the United Nations and the National Human Rights Commission (NHRC) as well as lawyers and government ministers and officials. People are still tried under TADA today, as it applies retrospectively.

Since the lapse of TADA successive governments have tried to introduce new legislation, derogating from international law, to deal with alleged terrorist activities and now they have been successful. In 1999 the Indian government asked the Indian Law Commission to "undertake a fresh examination of the issue of a suitable legislation for combating terrorism and other anti-national activities." The Law Commission supporting this, in April 2000 produced as part of its 173rd Report, draft legislation named the Prevention of Terrorism Bill 2000 (POTB). Due to heavy opposition from the NHRC, human rights organisations and political parties the bill was not introduced in parliament.

A factor of concern in the human rights movement was the lessons taught by TADA and its misuse, which do not appear to have been learnt from. Taking advantage of the events of the 11th of September and the worldwide cry for a "war against terrorism", the Central government on the 15th October 2001 approved a new ordinance, the Prevention of Terrorism Ordinance (POTO), which gave the Indian police immense powers of arrest and detention. POTO became POTA on March 26, 2002. POTA is a modified version of TADA, with similar inconsistencies in protection of human rights.

One of the reasons given by the government as to why an Ordinance was passed instead of a Bill was that parliament was not in session at the time (16th October 2001) and the issue was urgent. However, parliament was to reconvene on the 19th November. It is widely thought that the real reason for passing these severe rules in the form of an Ordinance was to avoid public debate. This fast track procedure also allowed the government to ignore the NHRC negative opinions expressed on the similar text of the POTB in July 2000, affirming

"that there is no need to enact a law based on the Draft Prevention of Terrorism Bill, 2000 and the needed solution can be found under the existing laws, if properly enforced and implemented, and amended, if necessary. The proposed bill, if enacted, would have the ill effect of providing unintentionally a strong weapon capable of gross misuse and violation of human rights which must be avoided particularly in view of the experience of the misuse in the recent past of TADA."

The Indian Ministry of Home Affairs (MHA) warranted the initial Ordinance by asserting that "an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country." However, this contradicts the MHA's own Annual Report for the year 2000 which reported a reduction in terrorist incidents in Jammu and Kashmir, one of the state's that is the main concentration of the Indian government's counter terrorism measures.

On March 26, 2002, a joint session of India's Parliament voted in favour of the controversial Prevention of Terrorism Act (POTA), which opposition party leaders have deemed draconian and a grave threat to civil liberties. Prime Minister Atal Behari Vajpayee, head of the ruling Bharatiya Janata Party (BJP), called the rare joint session after the bill was rejected by the upper house.

POTA became law with 425 votes for the Act and 296 against, after a 10-hour debate. The opposition raised the issue of the BJP's recent failures in preventing the escalation of violence in Gujarat, and feared that POTA would be used to target minorities and to carry out political vendettas. Commentators have criticised the government for using POTO to cuff charges on Muslims accused of initiating the Gujarat massacre, but not against Hindu extremists responsible for violent retaliation against their Muslim neighbours. Though the charges were eventually dropped, the BJP's political foes still believe that the new law is crammed with religious discrimination.

The Act is in violation of non-treaty international human rights standards, which provide the framework for the international protection and promotion of human rights. It is also incompatible with international human rights standards and treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), to which India is a Party. India has signed but has not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); therefore it is obligated under international law not to do anything that would defeat the object and purpose of the treaty.
The significance of international human rights standards has been highlighted by the Supreme Court of India in a number of cases, particularly in Vishaka & Others vs. State of Rajasthan & Others (1997(6) SCC24), where it was stated that "…now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law occupying the field."

POTA suspends certain safeguards involving human rights, for those individuals detained under it, and is thus incompatible with fundamental rights, as they no longer remain fundamental if they can be altered.

There are many issues of concern under POTA, some of which are listed below, which include vague definitions, insufficient pre-trial and trial safeguards, threats to freedom of association and freedom of expression.

VAGUE DEFINITIONS
Section 3(5) of the POTA, while criminalizing membership of a "terrorist gang" or a "terrorist organisation," does not clearly define what these terms mean. The section does not require for example proof that the accused person has been involved in a criminal act such as a murder, the crime is considered complete upon proof of membership, which is not defined. So therefore people may be committing a criminal act without being aware that they are doing something unlawful.

Thus POTA provides for criminal liability for mere association or communication with suspected terrorists or expressing political opinions without the possession of criminal intent. Therefore, the section may violate the right to freedom of association enshrined in Article 22 of the ICCPR.

Section 3(8), punishes those in possession of information of material assistance in preventing a "terrorist acts". Failure to provide such information is punishable by up to three years imprisonment.

Section 4 of POTA is similar to Section 5 of TADA in laying out a legal presumption that if a person is found in unauthorized possession of arms in a "notified area," he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic international right to be presumed innocent until proven guilty.

ARREST
Section 48(2) provides for the option of pre-trial police detention for up to 180 days. It would appear that this provision contradicts Articles 9(2) and 9(3) of the ICCPR which require that all arrested people be promptly informed of the charges against them and that they be entitled to trial within a "reasonable time" or release.

This section raises fears that long periods of detention without charge or trial will lead to misuse of the section by the police, as occurred under a similar provision in TADA which led to a extremely low percentage below 2% of cases actually reaching the trial stage. Police officers reportedly arrested persons knowing that there was insufficient evidence for the actual arrest under TADA, and detained individuals up to the maximum period allowed as a means of intimidation.

TORTURE
There are also fears that the detentions under POTA are dangerously long, as torture in police custody is a fact recognized to be widespread by the authorities.
Section 32 provides that confessions made to police officers are to be admissible in trial. This is contrary to the Indian Evidence Act, therefore indicating that torture to extract confessions is acceptable in certain types of cases. It is well documented that torture is used in police custody as a means of extracting confessions.
Stating its observations on an identical section (section 27) in the Prevention of Terrorism Bill 2000, the NHRC stated that:

"This would increase the possibility of coercion and torture in securing confessions and thus be inconsistent with Article 14(3) (f) of the ICCPR which requires that everyone shall be entitled to the guarantee of not being compelled to testify against himself or to confess guilt. This provision [of the ICCPR] is consistent with article 20(3) of the Constitution of India. Making confessions before a police officer admissible would also imperil respect for Article 7 of the ICCPR that categorically asserts, "no one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Section 56 of the Ordinance provides immunity from prosecution for "any authority on whom powers have been conferred under this Ordinance, for anything which is in good faith done." Therefore the section provides for protection from punishment and blanket immunity is provided to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. The term 'in good faith' is not clearly defined or who carries the burden of proving it. Article 2(2) of the CAT distinctly states that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as justification of torture." So therefore POTA appears contradictory with India's repeated statements that it is dedicated to eradicating torture.

There is to be no review of POTA provisions for three years from the date of enactment.

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