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An open appeal to all those…

28. February 2002

…concerned with the future of democracy in India


In a few days from now India´s parliamentary system of democracy will face one of its gravest challenges. Not by an attack on Parliament from the outside, but ironically from the very people who presently preside over it by virtue of an opportunistically cobbled together alliance that seems devoid of any coherent programmes and principles, save one, sticking to power at all costs. In fact many of its constituents, including the Samata Party, the BJP-Sena alliance, the DMK, the TMC, the Akali Dal etc have lost elections at the state level after assuming power in Delhi. Most recently in fact, the leading party in this alliance, the BJP, has been defeated in the elections in UP, even though the party had made its …‘anti-terrorist´ nationalism a major election plank.

These forces, who go by the name of the National Democratic Alliance, but neither seem concerned about the national interest or real democracy, have recently declared their intention to push through what is undoubtedly one of the most regressive pieces of legislation ever drafted by a government of this country – the Prevention of Organised Terrorism Ordinance, POTO during the present session of Parliament.

They are quite aware that given their present strength in both Houses, such a task is exceedingly difficult, but they have nevertheless threatened to throw to the winds the safeguards built into the Constitution by its authors, and bulldoze the legislation through during a joint sitting of both Houses, earlier envisaged only in exceptional situations.

The clearest indication of their unwillingness to allow serious and informed debate on such an important subject is evident from their resort to the convenient shortcut of promulgating the POT Ordinance twice, earlier when a Parliament session was less than a few weeks away, and later after their inability to get it passed in the, albeit truncated, winter session of both the Houses.

These are the very people who raised loud protests against an “Ordinance Raj” in Bihar, when they were members of the Opposition!

Let us take a brief look at the past to understand just how serious this attempt to scuttle a serious debate is. A central law to tackle terrorism is being promulgated seven years after its earlier avatar was unanimously rejected.

POTO´s predecessor, the infamous TADA, was allowed to lapse by Parliament when it came up for renewal in 1995, after having been renewed four times before that. This step was not because of technicalities and was despite the fact that the Supreme Court had earlier upheld the …‘constitutional validity´ of TADA. It only occurred because of the vast body of evidence that the Act, though technically within the framework of the Constitution, actually violated all democratic norms and principles in actual practice. According to estimates, 77,511 arrests were made under TADA between 1984 and 1995, out of which 72,000 were those who were let off without trial after being kept in jail for periods from 2 to 10 years.

Instead of tackling `terrorism´, in fact TADA was nothing but a tool in the hands of the authorities to terrorise the people. Not only was there a massive democratic protest from the people at large, but even a government body like the NHRC and a large number of MPs had joined the chorus against the Act.

In the six years since then the government tried to bring in Criminal Law Amendment Bill, (CLA) in 1995 itself and again later in 1999 and POT Bill in 2000. But each time it was forced to beat a retreat in the face of democratic opposition from a cross section of people. Finally the events of Sept. 11 and Dec 13 came in handy, and within weeks, a legislation that had been pending for a number of years was rushed through twice in the form of an Ordinance without even a semblance of a debate.

But the undemocratic way in which POTO was promulgated is only one of the reasons why all democratic minded people should oppose it being converted into a full-fledged law. More importantly the law goes against the fundamental principles on which the Indian and most other democratic systems of jurisprudence are based. It

denies the basic principle that a person is presumed innocent till found guilty.
virtually denies the accused any chance of being released on bail pending trial – bail can only be granted when the magistrate is reasonably certain that the person is innocent, a criteria that would lead to discharge from the case under most ordinary laws.
ushers in a parallel system of criminal justice based on arbitrary criteria and summary procedures – charge sheet can be filed after one year, confessions while in detention are accepted, witnesses identity can be kept secret, electronic interceptions (easily doctorable tapped conversations etc) can be introduced as evidence
provides scope for misuse against political opponents by its vagueness of definition and enhanced punishment – even individuals and organizations creating public opinion or staging peaceful protests can be brought under its purview on the basis of a police officer´s interpretation of intent, despite the strong objections from the Law Commission to such a clause in an earlier draft, etc.
These are only a few of the most glaring examples of the undemocratic nature of the new law. Ironically, however the one crime deleted from TADA´s definition of terrorism is …‘…‘adversely affecting the harmony amongst different sections of the people´´.

Is POTO really necessary? The NHRC, consisting of the former Chief Justice of India, Mr. J. S. Verma, and two Supreme Court judges (Justices Mrs. Sujatha Manohar and Mr. K. Ramaswamy) have pointed out that the need for POTO is “substantially taken care of under the existing laws“ – including provisions of the Indian Penal Code relating to the sovereignty and integrity of India (Ss. 153B), conspiracy to overawe by criminal force (Sect. 121A), collecting arms and ammunition (Sect. 122), sedition (Sect. 124A), promoting enmity between groups (Sect. 153A, 295A) offences against body Chap. XVI) and property (Chapter XVII), offences under the Arms Act 1959, Explosives and Explosive Substances Act (dealing with weaponry), Armed Forces Special Power Act 1958 (for disturbed areas), Unlawful Activities Act 1967, anti-Hijacking Act 1972, Preventive Detention statutes of all descriptions, the Narcotic Act 1988, etc.

It is clear that there are enough statutes in the books to tackle any form of terrorist crime. It is even clearer that mere laws are not a safeguard against such acts – the December 13 incident in Parliament took place despite POTO being in force.

Allowing such a law to be passed will only provide the government with another weapon to use against its political opponents. And their number is growing day by day – whether it is farmers affected by the lifting of import restrictions under WTO rules, peasants and tribals who are being thrown off their lands by imperialists sponsored …‘development´ projects, workers who are losing jobs through disinvestments, closures and MNC led …‘industrial restructuring´, minorities being terrorised by lumpen proponents of …‘Hindutva´, apart from dalits, women, student and other sections of people.

Already 25 organisations have been named and banned under the Act, and an unspecified additional number of …‘fronts´ of some of these groups have been banned without being named! If the experience of the Emergency and TADA are anything to go by, the day is not far away when almost any political opponent of the ruling alliance may be put behind bars. What the British did to Bhagat Singh, Sukhdev, Rajguru, Azad and others will be repeated over and over again.

We appeal to all democratic minded individuals and organizations to raise strong protests against the Act, and create public opinion to ensure that this attack on Indian democracy is not allowed to be passed.


All India People´s Resistance Forum (AIPRF)
All India Committee