Reject POTO in Toto

Siddharth Varadarajan

AS if the cold print of the law were not chilling enough, senior ministers have called critics of the Prevention of Terrorism Ordinance anti-national and accused them of encouraging terrorism.

When someone reminded L K Advani that his pronouncements were too intolerant for the home minister of a democratic country, he offered a helpful clarification: POTO’s critics were not pro-terrorist at all, they were only ‘‘wittingly or unwittingly making terrorists happy’’.

‘‘Making terrorists happy’’ is not yet an offence but POTO is so sweeping in scope that it criminalises dissent and places at risk law-abiding citizens.

POTO’s definition of terrorism suggests peaceful political activity like strikes could fall foul of the law.

In defining an act as terrorist, the Law Commission had stressed three factors: intent ‘‘to threaten the unity, integrity, security or sovereignty of India’’, or ‘‘strike terror in the people’’; mode, i.e. use of violence such as bombs, fire-arms, etc; and effect — deaths, destruction of property, disruption of essential supplies, etc.

By adding ‘‘or by any other means necessary’’ to the mode of the act, the government has produced a definition of terrorism that is not confined to the use of violence.

Faced with a bandh or strike by transport workers, governments could invoke POTO and lock up rival politicians or trade union activists. This is precisely what happened with the now defunct TADA.

Ironically, an earlier Law Commission draft had stated that ‘‘trade union activity or other mass movement without the use of violence’’ would be excluded from the purview of ‘disruptive activities’.

POTO has merged disruptive activities into terrorism but not excluded non-violent mass movements.

Thus, even writing a pamphlet calling for a bandh would be an act of terrorism since it would be an act ‘‘likely to cause...disruption of services essential to the life of the community’’.

Ironically, one crime deleted from TADA’s definition of terrorism is ‘‘adversely affecting the harmony amongst different sections of the people’’.

So while a bandh could violate POTO, a communal riot engineered by, say, the sangh parivar, would not.

Another controversial provision of POTO is section 14, obliging individuals to provide the police any ‘‘useful’’ information ‘‘in relation to’’ a terrorist offence they are suspected of possessing. Failure could lead to three years’ imprisonment.

Denying this would affect journalists, law minister Arun Jaitley claims this provision is similar to what is in the Criminal Procedure Code and in anti-terror laws elsewhere.

However, section 39 of the CrPC (‘Public to give information of certain offences’) bears no resemblance to POTO’s section 14. The CrPC provision is limited to information about ‘‘the commission of, or intention of any other person to commit, an offence’’ and is, in any case, included separately in POTO’s section 3.8.

Clearly, the Vajpayee government has something more in mind by inserting section 14, broadening the category of information individuals are obliged to furnish.

If an investigating officer ‘‘has reason to believe that such information will be useful for, or relevant to, the purposes of this Ordinance’’, he can demand virtually anything from anybody.

Nobody will complain if a bank manager is made to hand over records but the section is worded so loosely that the mother of a wanted man, for example, could be imprisoned for failing to disclose the names of her son’s friends. And journalists could be jailed for not revealing their sources.

Like the CrPC, Britain’s draconian Prevention of Terrorism Act makes it an offence for a person who ‘‘believes or suspects that another person has committed an offence’’ to not disclose ‘‘his belief or suspicion and the information on which it is based’’ to a constable.

The British law, however, differs from POTO in one key respect. It excludes information an individual obtains in a personal capacity by specifying the provision applies to those who come across such information ‘‘in the course of a trade, profession, business or employment’’.

Ironically, this ‘safeguard’ ends up targeting journalists, like POTO does, which is why the PTA has been criticised by Amnesty International, Index on Censorship and several media bodies.

In Britain, journalists have already been harassed. Ed Moloney of the Sunday Tribune was successfully prosecuted for failing to give the police notebooks relating to a Northern Ireland case he had written about.

Fortunately for press freedom, the Belfast high court ruled it was not enough for the police to say the notes contained information they might need.

A third major area of controversy revolves around POTO’s chapter on ‘Terrorist Organisations’. Section 21(1) states that a person commits an offence if ‘‘he invites support for a terrorist organisation’’.

Section 21(2) says that a person commits an offence ‘‘if he arranges, manages or assists in arranging or managing a meeting which he knows is...to be addressed by a person who belongs to...a terrorist organisation’’. The penalty under this section: up to 10 years’ imprisonment.

‘‘Meeting’’ is defined to be ‘‘of three or more persons whether or not the public are admitted’’. While Mr Jaitley insists this clause is aimed only at terrorist organisers, it is worded in such a way that a journalist who takes the initiative to arrange an interview with a member of a terrorist organisation risks being jailed for 10 years.

As for the crime of ‘‘inviting support for a terrorist organisation’’, POTO provides no definition of what this involves other than to say that this means support other than ‘‘the provision of money or other property’’ (which is prohibited under another section).

If, say, citizens feel the government acted wrongly in declaring a particular organisation terrorist, could they protest peacefully about this?

What is to prevent a policeman from deciding a newspaper article criticising, say, the ban on SIMI as ill-conceived and unfounded, is ‘‘inviting support for a terrorist organisation’’?

Even without POTO, the police have arrested students distributing leaflets criticising the SIMI ban. In Malegaon, violence started after the police snatched and destroyed ‘pro-Osama’ leaflets being distributed by some individuals.

With POTO, the police now have the power to arrest such individuals for ‘‘inviting support’’ for terrorism.

In sum, POTO is bad in law and mischievous in intent. Even the provision to punish policemen who file ‘malicious’ charges dilutes the (admittedly useless) sanction already contained in section 219 of the IPC.

The government has learned nothing from the blatant manner in which TADA was misused. Terrorism is an evil, but blunt-edged laws do little to combat this menace.

POTO is as much a threat to democracy as the terrorism it is meant to prevent. When Parliament convenes next week, MPs should ensure the law is voted out.