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What we talk about when we talk about law

The BJP’s consistent chorus has been that the Unlawful Activities (Prevention) Am-endment Act, 2004 (Act of 2004) is inadequate in dealing with terror.

The BJP’s consistent chorus has been that the Unlawful Activities (Prevention) Am-endment Act, 2004 (Act of 2004) is inadequate in dealing with terror. They eulogise certain provisions of the POTA. I have already indicated that a harsh legislative framework is no panacea in dealing with terror. An exhaustive, effective legislation to prosecute terrorists, consistent with our constitutional ethos is necessary. In essence, the difference between the POTA and the Act of 2004 relates to the following :

1. Confessional statements of an accused before a police officer were admissible as evidence under the POTA. The act of 2004 contains no such provision.

2. Under the POTA, an accused can be detained for custodial interrogation for up to 180 days. Under the act of 2004, the maximum period of such detention has been reduced to 90 days.

3. Under the act of 2004, the accused are free to apply for bail under the Code of Criminal Procedure, 1973. This was permissible under the POTA after 1 year.

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4. Under the POTA, there is a presumption of guilt and the accused has to prove his innocence whereas under the 2004 act, the prosecution has to discharge the burden of proving the accused guilty.

In order to understand the rationale of not incorporating the harsh provisions of the POTA in the act of 2004, it is necessary to deal with each of the above differences seriatim:

1. Confessional statement to a police officer made admissible

Under the POTA, hardly any convictions were based on any meaningful investigation. The confessional statement of an accused in custody of a police officer was often the basis of his conviction. Such a provision of law is not even applicable against non-citizens under the Patriot Act, 2001 in the US or under the Terrorist Act, 2006 in the UK. Secondly, even in colonial India, confessional statements to a police officer were inadmissible under the Evidence Act, 1872. Why a democratic free India needs such a provision, needs to be understood. The only possible explanation can be that investigating agencies are unable to gather evidence against terrorists other than confessional statements. Such inability cannot provide a rational basis for invoking such a provision: an easy tool in the hands of investigating agencies. The rampant abuse of this provision led to targeting of the minority community. Even women and children were not spared. Despite this, the success rate of convictions under the POTA was abysmally low.

2. Period of custodial detention:


Reduction in the period of custodial detention from 180 days to 90 days under the Act of 2004 ensured expeditious investigation of terrorist offences. In England, the Counter Terrorism Bill, 2008 was introduced in the House of Commons seeking to increase the maximum period for custodial detention from 28 to 42 days. This was passed by a majority of 315:306, suggesting how contentious this issue is. The matter is now pending consideration with the select committee in the House of Lords. The Patriot Act, 2001 of the US applies only to non-citizens, where the maximum period of detention is 7 days, before production in court. This period, however, can be extended by 6 months at a time, provided the Attorney General renders an opinion that the “release of the alien will threaten the national security of the United States, safety of the community, or any person”. Such provisions do not apply to their citizens.

3. Bail Provisions :

The relevant provisions of the Code of Criminal Procedure, 1973, apply to all accused under the Act of 2004. Under the POTA, an accused could not be released on bail for a period of one year after arrest, unless the prosecution consented and the Court was satisfied that the accused would not commit a similar offence. After one year, the provisions for bail in the Code of Criminal Procedure applied. Yet, Godhra accused in Gujarat have not been granted bail for 6 years. There is nothing to suggest that under the act of 2004, accused have been released on bail in the absence of harsh provisions for bail under the POTA. Again, no similar provision like the one for bail under the POTA exists in any other democratic nation governed by the rule of law.

4. Presumption of guilt:

There are several provisions in the Evidence Act, 1872, which allows presumptions to be made. Those are still applicable in the prosecution of terrorists under the Act of 2004. However, to presume an accused under the POTA guilty, till he proves his innocence, is a burden that can rarely be discharged. Even under the US Patriot Act, non-citizens who are prosecuted are not subject to such a disability. Neither does such presumption exist in UK or any other democratic nation.


Even with the repeal of the POTA, India can, under the present legal framework of the act of 2004, claim to have the harshest law dealing with terrorists.

The reason why the POTA was repealed was because of rampant misuse of its provisions for settling political scores, targeting a minority community, and arresting innocent citizens during the NDA regime. Tamil Nadu CM Jayalalithaa invoked the POTA for booking MDMK leader Vaiko; UP Chief Minister Mayawati used it against Raghuraj Pratap Singh and Gujarat CM Narendra Modi used it as a tool to book persons belonging to a particular community. In Jharkhand more than 300 persons were arrested under the POTA, which included women and children.

Our constitutional ethos requires Parliament to enact laws, which on the one hand should be effective instruments in dealing with terrorists and on the other hand, ensure that the foundation of our constitutional values and our adherence to the rule of law does not falter. This government believes that wherever it can be demonstrated that certain provisions need to be strengthened or that the ambit of the law should be widened to allow investigating agencies to access evidence, in the legitimate exercise of power, that should indeed be done. Terrorism, which has taken roots here, needs to be combated with determination. The strategy is two-fold. One, enact laws which allow you to combat terror by use of technology, electronic devices, interceptions, satellite networks and management systems. Two, having access to such information, to deal with terrorists through a legislation which is effective and inspires public confidence consistent with our constitutional ethos.

The threat is real. The remedy requires a mature response. Partisan politics has no place in this debate. It is time for the BJP to reflect rather than accuse; to consider national interest rather than short-term political gains. The nation must stand together in this hour of crisis.

The writer is Union minister for science and technology and earth sciences (Concluded)

First published on: 24-09-2008 at 12:01:11 am
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