Interpreters of the Draconian:
An analysis of the POTA judgement and POTA Amendment Bill 2003

On 7 January 2004, the Review Committee of the Prevention of Terrorism Act, 2002 (POTA) is scheduled to hear the petition of Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader, Vaiko. He was arrested on 11 July 2002 for a speech he delivered at Tirumangalam, Madurai, Tamilnadu in June 2002 allegedly supporting the Sri Lanka's Liberation Tigers of Tamil Eelam, banned under the POTA. With the Tamilnadu state government questioning the competence of the Review Committee, the latest remedial measures - the adoption of the Prevention of Terrorism (Amendment) Bill, 2003 by the parliament and Supreme Court's clarifications on Section 20, 21 and 22 of POTA on 16 December 2003- have failed at the outset.

There is an uncanny link between the adoption of the Prevention of Terrorism (Amendment) Bill, 2003 and the Supreme Court judgement [With W.P. (Crl.) 39/2002, W.P. (Crl.) 129/2002, W.P. (Crl.) 28/2003 & W.P.(Crl.) 48/2003] upholding the constitutional validity of POTA of 16 December 2003. Both are tailored to suit the demands of political leaders detained under POTA but who matter to the power-wielders at the Centre or in the States.

The Supreme Court while justifying the need for POTA stated, "Our country has been the victim of an undeclared war by the epicenters of terrorism with the aid of well-knit and resourceful terrorist organizations engaged in terrorist activities in different States such as Jammu & Kashmir, North-East States, Delhi, West Bengal, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh."

There is no reference to Jharkhand, which has become synonymous of the mis-use of the POTA. Till February 2003, 218 persons were arrested under POTA in Jharkhand, the heartland of India's indigenous peoples. Another 59 persons have reportedly been arrested since then. After the public outcry against the mis-use of the Act against victims as young as 12 years and as old as 81 years, Jharkhand government asked its Crime Investigation Department (CID) to review the cases filed by the Jharkhand Police. The CID has so far reviewed 84 cases against a total of 142 cases lodged with police stations of Jharkhand, involving 1109 persons. Out of 84 cases reviewed, CID found insufficient evidence in 41 cases. Out of 277 persons arrested, 71 persons have been granted bail. The Review Committee constituted by the state government discharged 114 persons.

There are 440 persons currently "behind the bar" under POTA. The maximum number of 93 POTA accused in jail are in Maharashtra, followed by 90 in Jharkhand, 83 in Gujarat, 46 in Delhi, 42 in Tamil Nadu and 36 in Andhra Pradesh. POTA is presently applicable in 10 states namely Andhra Pradesh, Delhi, Gujarat, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Maharashtra, Sikkim, Tamil Nadu and Uttar Pradesh.

The Supreme Court in its judgement on 16 December 2003 upheld the constitutional validity of all the provisions of the POTA except clarifying that a mere speech in support of terrorist organisations without the criminal intent of committing terrorist offences cannot be considered as terrorist activities. The Supreme Court states, "The prominent method of understanding the legislative intension, in a matter of this nature, is to see whether the substantive provisions of the Act requires mens rea element as a constituent ingredient for an offence. Offence under Section 3(1) of POTA will be constituted only if it is done with an "intent". If Parliament stipulates that the 'terrorist act' itself has to be committed with the criminal intention, can it be said that a person who 'profess' (as under Section 20) or 'invites support' or 'arranges, manages, or assist in arranging or managing a meeting' or 'addresses a meeting' (as under Section 21) has committed the offence if he does not have an intention or design to further the samples of handwriting, finger prints, foot-prints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of an offence under the Act. The Curt can also draw adverse inference if any accused refuses to do so….. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities."

After the Supreme Court expectedly upheld the constitutional validity of the POTA, the focus is on the Review Committee set up by the Central government on 13 March 2003, in the words of Home Minister L K Advani, to "take a comprehensive view of the use of the legislation in various States and give its findings and suggestions for removing shortcomings in the implementation of POTA". About 180 complaints respectively 40 from Tamilnadu, 5 from Gujarat, 28 from Delhi, 26 Uttar Pradesh, 15 from Jharkhand, 39 from Maharashtra, 16 from Jammu and Kashmir have been filed with the Review Committee. The State governments, most notably Tamilnadu, adopted the time-tested stratagem of procrastination and the Review Committee has so far failed to deal with any complaint conclusively.

In order to ensure compliance of the State governments with the Review Committee, on 16 December 2003, the Lok Sabha adopted POTA Amendment Bill, 2003 to amend Section 60 of POTA. However, the government seemed to have over stepped the side of the judiciary. Section 60(7) of the POTA Amendment Bill, 2003, which is presently waiting for President's signature, provides that "Where any review committee is of opinion that there is no prima facie case for proceeding against the accused and issues directions, then the proceedings pending against the accused shall be deemed to have been withdrawn from the date of such direction." In other words, once the review committee orders the withdrawal of a case pending trial, the proceedings are ''deemed'' to have been withdrawn with or without the consent of the court concerned. However, the Supreme Court in 1996-in the context of Terrorist and Disruptive Activities (Prevention) Act, held that the withdrawal of a case at the instance of a TADA review committee is ''not to be permitted mechanically by the court on an application by the public prosecutor.'' It also held that ''the public prosecutor has to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the court for that purpose.'' The Supreme Court in its ruling on 19 December 2003 also held that State governments can not set free a POTA accused without the consent of the Central government. Under Section 321 (1) of the - Criminal Procedure Code, a public Prosecutor can seek withdrawal of the case relating to a central law only with the consent of the Centre. The ambiguity continues.

The Supreme Court in its judgment on 16 December 2003 once again held "mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional". As the POTA is tailored to suit the demands of political leaders who matter to the power-wielders at the Centre or in the States, there is no succour for the innocent victims.