dna edit: Lure of hard state

To dismiss the BJP manifesto’s promise to “revive the anti-terror mechanism dismantled by the Congress” as a conspicuous dig at the Congress misses its wider implications. Such subtle phrasing often escapes critical scrutiny but the BJP’s intention to revive the controversial Prevention of Terrorism Act (POTA) 2002 — repealed by the UPA in 2004 —  is clear. The 9/11 terror attack and the Parliament attack provided a conducive climate to enact POTA. The Punjab insurgency legitimised the equally draconian Terrorism and Disruptive Activities Prevention Act (TADA). The provisions that lend itself to rampant misuse under the TADA regime, and triggered its demise in 1995, spelt doom for POTA too.

To revive POTA when the revamped, and stringent, Unlawful Activities (Prevention) Act — beefed up after the 26/11 Mumbai attacks — is operational defies logic. It is debatable whether terrorism has intensified since 2008. Conversely, reviving POTA invites scrutiny of the BJP’s intentions, especially towards minorities. Moreover, the efficacy of draconian laws in deterring or thwarting terror attacks is doubtful. The use of TADA, POTA and UAPA to jail political dissenters and activists and brand Adivasis as Maoist sympathisers raises questions on civil liberties.

Ordinary penal law confers presumption of innocence upon the accused, but under TADA and POTA the burden of proving innocence rested on the accused. POTA also retained TADA’s most contentious section — admitting confessions made before an investigating officer — as evidence in court. Like TADA, the chances of POTA detainees securing bail was minimal. A chastised Centre dropped TADA only after instances of forced or forged confessions became impossible to ignore. With a checkered past, TADA’s reappearance in the POTA avatar culminated in its Rajya Sabha defeat in 2002. That a rare joint sitting of both Houses of Parliament then rammed the bill through, speaks volumes of POTA’s acceptability.

What strengthens the BJP’s hands are the troubling judicial reviews of TADA and POTA. In Kartar Singh vs State of Punjab 1994, the Supreme Court upheld confessions before a police officer — not below the rank of Superintendent of Police — being admissible in court. The court noted that terrorist acts engendered fear in citizen’s minds and disrupted communal peace. The apex court trusted the “greater vigilance now exercised by the public and the press, growing awareness of citizens about their individual rights under the law and increasing earnestness and commitment of the senior levels of command in the police structure, to put down such malpractice”. But can vigilance, awareness, earnestness and commitment make amends when laws sanction impunity?

Interestingly, the dissenting (minority) verdict in Kartar Singh offered stark contrasts between confessions before police officers and judges. “A judicial officer is trained and tuned to reach the final goal by a fair procedure... A police officer is trained to achieve the result irrespective of the means and method employed to achieve it. So long as the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officer”. The judgment in PUCL vs Union of India 2003, upholding POTA’s constitutionality, reposed trust in judicial wisdom to prevail over irregularities in confessional statements recorded by police officers. In effect, this implicitly condemns the accused to wait patiently behind bars for years until judicial scrutiny of incriminating confessions, recorded by police officers, can commence.

Law-enforcement agencies face several challenges in tackling terrorism, but the rights of individuals cannot be violated in the name of securing the State. In a democracy, protecting the rights of citizens is paramount. The State clamping down on individual rights is the biggest success that terrorism has achieved.