Pre-election promise of repealing POTA. After the elections, declaration of withdrawal of POTA in the Common Minimum Programme (CMP) of the ruling alliance. But a clever sleight of hand at the time of implementation. Through ordinances issued on September 21, 2004 POTA was repealed and in its place an amendment was made in the Unlawful Activities (Prevention) Act 1967 (henceforth UAPA). These ordinances are to be replaced by Acts for which bills have already been approved by the Lok Sabha in the winter session of Parliament. The amendment in UAPA to replace POTA lays bare its real character. An infamous legislation, hated by the people, has been withdrawn and its provisions has been transferred to another Act. What can be expected from a Congress led Government supported by CPM, whose whole effort is to give a human face to loot and repression?

POTA 2002 was brought in place of an earlier draconian legislation TADA and now Unlawful Activities (Prevention) Act is being amended in place of POTA. At the time of enactment of POTA (and its earlier version as an ordinance, POTO), provisions of TADA were scanned and its “necessary provisions” were incorporated into POTA. At that time the then opposition parties – Congress, CPM and others – had opposed it and to overcome their opposition, the ruling NDA had got it passed in a joint session of Parliament. Amendments to UAPA prove that opposition of Congress (which had earlier enacted the infamous TADA) and CPM was to the name and NDA and not to POTA itself. Hence those provisions are being renamed and brought into another Act.

Even after the withdrawal of POTA, the cases made under this dreaded Black Act will continue as in the case of cases made under TADA which are still continuing. According to Section 2(2) of the Prevention of Terrorism (Repeal) Ordinance 2004,

“This repeal of the said Act shall not affect

(a)        the previous operation of, or anything duly done or suffered under the said Act, or

(b)        any right, privilege or obligation or liability acquired, accrued or incurred under the said Act, or

(c)        any penalty, forfeiture or punishment incurred in respect of any offence under the said Act, or

(d)        any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the said Act has not been repealed.”

According to the repealing Ordinance, “No court shall take cognigance of an offence under the repealed Act after the expiry of one year.” In this one year all pending cases shall be reviewed by a review committee provided for in the POTA.

It is well-known that POTA was a hated Black Act that trampled the democratic rights of the people underfoot. Besides its widespread misuse, its very provisions were against the democratic rights of the people. And, now all the cases will continue to be tried under the same POTA. This is how Congress and CPM are respecting the wishes of the people! This is how they are reinstating the democratic rights!

Not only this. The real game of the new alliance is incorporation of the provisions of POTA in the UAPA 1967. Thus on the one hand a show of respecting the wishes of the people has been enacted, and on the other hand the dangerous provisions of POTA are being kept alive.

Amendments to the Unlawful Activities (Prevention) Act 1967

The intentions of the ruling alliance are clear from this fact alone, that the amendment changes even the name of the earlier Act. The Ordinance had a provision that in the long form of the name of the Act, after the word ‘associations’ the words “and for dealing with terrorist activities” shall be inserted. This itself undermines one of the objections raised against POTA and the earlier TADA – that there are already a plethora of laws to deal with criminal activities and all this branding of ‘terrorism’ is a question of political hounding. From here begins again the process of bringing the essentials of POTA under the form of amendments. Of the 53 provisions of POTA, 43 are back in identical wording in the form of these amendments to the Unlawful Activities (Prevention) Act, 1967.

Many provisions of POTA reappear – bringing ‘crimes’ committed outside India under the purview of Indian courts, punishment prescribed for ‘terrorist’ activities, punishment provisions for ‘abatment’ of terrorism and also for giving shelter to terrorists, punishment provisions for gathering funds for ‘terrorist’ activities and others. The Central Government continues to be enabled to declare any organization a terrorist one under the provisions transferred as amendments into the 1967 Act. Evidence collected by ‘interception’ of communication channels will continue to be valid, as this provision is also among those transferred into the Act (it is Point 46 of the Ordinance) and reads, “Notwithstanding anything contained in the Indian Evidence Act 1872 or any other law for the time being in force, the evidence collected through the interception of wire, electronic, or oral communication under the provisions of the Indian Telegraph Act 1885 or the IT Act 2000 or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case.” The lifting over of this provision is especially significant as the whole country saw to what deadly end it was misused by the prosecution in the case of S.R. Geelani, lecturer in a college under Delhi University. An innocent man was sentenced to death on the basis of misuse of “evidence” ostensibly collected under this provision alone, till the High Court of Delhi rejected the gross misrepresentation. But the ruling alliance is moving to only change the brand name and thus hopes to befool people about its real intentions.

Among other malafide provisions retained intact are in camera trial and submission by witnesses, including right to withhold identity of witnesses if they are ‘under threat’ (as though some parallel state is running in India). In fact, everyone has a special right to ‘protection’ except the accused – who it is thereby clear, will continue to actually be a condemned from the day of arrest just as it was in POTA or TADA days. Everyone else has provisions which give license for actions (deemed to have been done in good faith).

Another important issue is of the definition of terrorism. This provision also has been lifted intact from POTA and brought as an amendment into the unlawful Activities (Prevention) Act 1967. It may be relevant to ask of the Congress and CPM, that when no real change was to happen to the POTA provisions then are all these antics of ‘withdrawal’ only to change the name bequeathed by NDA to the same, hated law?

The POTA had a provision for seizure of the proceeds of terrorism (including both cash and property). The investigating officer of the police had to report the confiscated proceeds before the Designated Court within 48 hours of any seizure. The misuse of this provision was one widely criticized aspect of POTA. The amendments now have a provision that the investigation officer has to take the permission of the DIG before going for confiscation in addition to reporting the same before the designated court/authority within 48 hours. One is moved to ask the CPM at least, what is the message they want to send through this provision – that very senior police officers protect the innocent? The revisionists, by their very nature, are ‘more loyal than the king’ towards the system. Incidentally this provision is being propagated by the ruling alliance as a big concession.

POTA had a provision for a “Review Committee”, a machinery which could issue orders regarding any case where it found that the FIR against the accused was not sufficient for applying POTA. The provision was not there in the POTO ordinance and was brought in after widespread criticism and opposition that there was no provision for justice to the falsely accused. Weak an answer as it was to this charge, this is one of the provisions deleted from the transferred provisions. There is thus no scope for review of cases registered under the amended Unlawful Activities (Prevention) Act, 1967.

Provisions pertaining to defending Central State and District Govt. officers (especially all Central and State Govts., armed forces and police from being prosecuted for misusing this Act and absolving them of responsibility for any action taken, have been faithfully transferred as amendments from POTA into the Unlawful Activities (Prevention) Act, 1967.

It is crystal clear that CPM and Congress have both chosen to forget their own pronouncements and propaganda of the time when they were opposing enactment of POTA. It is also clear that the sword of this black law will continue to hang over movements albeit in a new name. Only a powerful agitation may perhaps, bring back the lost memories of the CPM and Congress.