Pota: it continues to be TADA reincarnated

The upholding of Pota by the Supreme Court comes as no surprise, given the upholding of TADA by the Court in 1994. Challenging the draconian...

The upholding of Pota by the Supreme Court comes as no surprise, given the upholding of TADA by the Court in 1994. Challenging the draconian law seems only to have got the stamp of judicial approval for it. The upholding has come at an opportune moment for the Centre to silence critics of the Act in Parliament. A third of the judgement is devoted to the question of Parliament’s competence to enact the law — ground already covered in the TADA case. The expectation that there would be a detailed exposition with regard to the features introduced for the first time in this law is belied.

The distance of the judiciary from the life of an ordinary citizen is nowhere clearer than in the upholding of the pernicious provision penalising with three-year imprisonment the withholding of information. Custodial torture and death are rampant, given the police’s favoured method of investigation is by extracting confessions from the accused and by harassing his/her relatives and friends. The provision for the first time legitimises such harassment. Laws like TADA and Pota, which make confessions to the police admissible, lead to them being used even for ordinary crimes, resulting in shoddy investigations and low conviction rates.

Ignoring issues of right to life, liberty and right against self-incrimination, the judgment states that lawyers and journalists have no “sacrosanct right” and declares that nothing prevents citizens from resorting to other legal remedies if their rights are violated during investigation.

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Similarly, short shrift has been given to the questioning of the Centre’s power to declare an organisation “terrorist”. The lack of requirement to produce any material before the declaration has in fact resulted in the banning of organisations like the Akhil Bhartiya Nepali Ekta Samaj, working for the welfare of the hundreds of Nepalis workers in India.

The much-touted concession by the government and the reading of criminal intent into the provision regarding arranging meetings, still leaves a large grey area giving arbitrary power to the Executive as, in addition to “intent to further terrorist activities”, it still includes “intention to further the activities of a terrorist organisation”.

In one of the first uses of the provisions relating to attachment of property, we were witness to a weeping old woman pushed out on to the cold streets of Srinagar in the winter as her house had been seized with with the arrest of her son. Mystifyingly, the judgment says that it is not necessary to pronounce on the constitutional validity of this provision. The provisions with regard to electronic interception and admissibility appear to have not been assailed in the petitions and possibly await pronouncement in the Parliament attack case.

Cases like Vaiko amply illustrate the arbitrary power vested in governments under POTA and the scope to play politics through the use of law.