Who needs law when there’s Pota?

The latter law was withdrawn in 1995 after it was widely perceived to be a blot on India’s democracy and its criminal justice system, having been the main instrument for putting 77,000 people in prison, with an abysmal conviction rate of around 2 per cent. Both Tada and Pota, we know, violate two cardinal principles in criminal law, that of certainty and of presumption of innocence unless proved guilty.

There is, presently, no clear number of people who have been booked under Pota. During the course of the debate that saw its passing, the home minister had said that ‘‘over a hundred’’ have been arrested under the ordinance.

Four months later, his ministry came up with the figure of 257. It is anybody’s guess what today’s figure is, but there are very good reasons to presume that it stands at several times the earlier figure, with at least two state governments, Gujarat and Jharkhand — both incidentally BJP-ruled — taking recourse to mass arrests under this law, much in the manner that Tada was deployed in the late eighties and nineties.

In Gujarat, all 123 of those accused in the Godhra case are Pota detainees. As for the state of Jharkhand, media reports that teenagers and 80-year-olds now find themselves under its net here have forced the National Human Rights Commission to order an inquiry.

A human rights team, which had toured several districts of the state between January 29 and February 3 this year, concluded that in Jharkhand ‘‘all the laws of the land are replaced by Pota’’.

They had very good reasons to say this because they discovered that 654 persons in the state have had FIRs against them filed under this act, 202 have been arrested so far, and the total number of those named under Pota has touched 3,200.

The last figure tells a story of widespread police intimidation in some of the most illiterate and impoverished pockets of India. The team noted that in cases which only merit sections of ordinary law — and we must please note here that there are many laws for the purpose ranging from the National Security Act of 1980 to various provisions of the Indian Penal Code — the police have deployed Pota. Their intention is simply to terrorise people.

Ironical this, isn’t it, that a law meant to defeat terror ends up perpetuating terror? But need we be surprised? There are, after all, 77,000 reasons why we shouldn’t be, because — as in the Tada instance — under Pota, too, confessions extracted in the privacy of police chambers can be cited as admissible evidence. Much was made out of the ‘safeguard’ within Pota which specifies that such confessions have to be endorsed by a magistrate. In actual practice, as civil liberties activists have pointed out, few magistrates stick their necks out and intervene on behalf of the accused.

In any case, magistrates cannot grant bail so the prisoner, who continues to remain in custody, would therefore have some very powerful reasons not to contradict the evidence cited by the police.

There are two kinds of individuals who have come to adore Pota over the year since it became law because it suits their purposes so perfectly. The first, the men in khaki, who are in any case an absolute law unto themselves and now have an absolutist law for themselves.

The other is the politician in power, who finds the bail provisions of Pota irresistible because it allows them to lock up their political opponents and forget about them for a year at least.

Again there are provisions in Pota to ensure against such misuse, but ask Jayalalithaa if she cares. She has ensured that her bete noire, Vaiko of the MDMK, has been incarcerated since July for ‘‘the mere expression of sympathy for Tamils in Sri Lanka’’, as his writ petition so pitifully put it.

Vaiko’s friends in the NDA, notably Law Minister Arun Jaitley, who initially attempted to defend him have subsequently learnt the value of the old adage that discretion is the better part of valour. Their lips have been sealed by the superglue of political compulsion and utter helplessness.

At present, in fact, the promoters of Pota are no longer the enthusiastic horde, the avenging conquerors of the joint session of March 2002. They have reason to be severely embarrassed by the use of Pota in Uttar Pradesh, where a triumphant Mayawati has done a Jayalalithaa in the best traditions of sisterly politics by locking up under the act Raju Bhaiyya — former BJP state minister and shining symbol of Thakur pride — along with his father.

Now bombarded by UP’s enraged Thakur supporters, Deputy Prime Minister L.K. Advani, who just 12 months ago could perceive no flaw in Pota, has conceded tamely in Parliament that ‘‘Pota is meant to deal with terrorists and not ordinary criminals. However, the Centre cannot intervene to check its misuse by state governments. Judicial intervention is the only remedy.’’

Yesterday, the government, in response to the general outcry, announced the constitution of a review committee. But whether such a body would be able to independently address misuse of Pota at the national level is doubtful.

From what Advani stated in Parliament, it will function largely in an advisory capacity. Certainly, individual Pota detainees will not be able to make representations to this body.

Pota, rather curiously, has a life span almost co-terminous with that of the NDA government. If the BJP does not come to occupy the treasury benches after the 2004 general election, we may yet see those who had argued so brilliantly and passionately for the validity of such an act doing the precise opposite.

There is nothing like being outside the close circuit of power to make one realise the dangers of regarding civil liberties as expendable decorative devices in a democratic edifice rather than its very cornerstone.