There will be no compromise in the fight against terrorism. But given the abuse of Pota that has taken place, the UPA government will repeal it, while existing laws are enforced strictly.This is the exact promise made by the Common Minimum Programme (CMP). Do the two ordinances promulgated last week in connection with Pota comply with the CMP? We are entitled to expect compliance, especially since the government makes such a show of swearing by that document.The CMP’s commitment on terrorism has two parts to it. While one says that Pota will be repealed, the other asserts that the fight against terrorism will be carried on with the “existing laws”. Yes, it clearly implied that the existing laws were adequate to meet the challenge of terrorism. All that was needed, according to the CMP, was that the existing laws be “enforced strictly”. Going by its logic, there should have been only one ordinance last week — to repeal Pota. By promulgating the other ordinance as well, the government has actually reneged on the CMP.Rather than making do with “existing laws”, as promised in the CMP, the government has strengthened them. For, it grafted the bulk of Pota provisions into a 37-year-old law called the Unlawful Activities (Prevention) Act (UAPA). If the ever-so-vigilant Left parties did not make an issue of this particular infraction of their compact with the UPA, it is a tacit admission that much of the attack on Pota was rhetorical.It puts in perspective the joint sitting of Parliament that had to be specially convened in 2002 — for the third time ever — to pass Pota. The NDA government had to resort to that extraordinary option because the Congress party and its present-day allies then professed to have a fundamental objection to “the black law”. They were not prepared to enter into any debate on whether any amendments would make Pota acceptable to them. In retrospect, that was just posturing. Because, minus a few controversial provisions, the UPA government has now embraced that much maligned law, although under a different name. Welcome to pragmatism.It would however be simplistic to suggest, as some critics did, that the new law has retained all “the operational teeth” of Pota or it has made only “cosmetic changes”. The difference between Pota and UAPA is substantial even as a lot of provisions are in common. The government has reformed the two procedural aspects of Pota that are said to have been misused the most: stringent bail and legal admissibility of confessions to the police. It was on account of those two provisions that the process itself had worked as a punishment under Pota.In another major departure from Pota, the government has removed all traces of “strict liability”. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question. So, Vaiko, for instance, will not be liable under UAPA unless the police have evidence to show that he spoke in favour of LTTE “with intention” to further its terrorist activities.But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given more scope than before to plant evidence in the form of interceptions.Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning “terrorist organisations” and “unlawful organisations”. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. But the problem is that the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot, for instance, ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to “hide” special provisions in an ordinary law.
