What! Pota again?
Is a harsh law really necessary to put an end to "terrorism"? Past experience shows that it is not.
The Tada Acts of 1987, which lapsed in May 1995, were very stringent, but "terrorism" did not abate during the entire period of their operation. The powers exercisable under Tada Acts were made more horrendous by the official statistical revelation that not more than one per cent of those tried before the designated courts were convicted — the rest were acquitted for "want of evidence". That is, in 99 per cent of the cases the accused (who was invariably denied bail before trial) was wrongly prosecuted under Tada. Various reports of police commissions, backed by past pronouncements of the NHRC (National Human Rights Commission) show that constant political interference with the police force has seriously impaired its ability to investigate crimes freely and independently. Besides, the absence of rigorous training in forensic skills (the real need of the hour) have prevented effective investigation by the police, even when there is no outside interference.
We need an independent agency (separate from the law and order branch) to prosecute, with efficiency and expertise, terrorist-related crimes. But under the present dispensation it will be the ubiquitous public prosecutor who will be burdened with this job; and public prosecutors as a rule have not proved to be highly successful even when prosecuting ordinary crimes!
Above all, there is the problem of oppressive laws creating a climate of oppression. Never underestimate this. I was witness to its manifestation during the Emergency in 1975. I had been invited to preside at a Conference of Andhra State Lawyers at Rajamundhry way back in August 1975. Justice Krishna Iyer was to inaugurate the conference. It was expected that 2,000 lawyers would attend. Despite the June 26 proclamation of Emergency, they did. When we arrived, the organiser (a senior lawyer in the district) informed us with anguish that his son, a law student at Visakhapatnam, who was assisting him in the arrangements, had been arrested the day before our arrival under Misa — the Maintenance of Internal Security Act (predecessor of Tada). The boy was a conscientious student — almost obtusely so. When his lecturer had announced in class that they would all march in procession on a particular week-day in support of Indira Gandhi’s 20-Point Programme, he suggested that time was better spent studying in college and that the procession should be postponed to a non-working Saturday. The rest of the students shouted him down — marching in a procession would be far more fun than attending classes. There the matter rested. But then a District Magistrate, in whom wide powers of detention were conferred, chose to exercise them when he heard of this "misdemeanour"! He promptly issued an order of detention on the ground that the boy was a "danger to the security of the State" — the order of detention was served at Rajamundhry at the same time as he was whisked off in the night. Fortunately, the then law minister of Andhra Pradesh was one of the principal guests at the conference, and some of us requested him to personally look into the matter, which he graciously did. The order of detention was revoked a few days later. But the boy simply could not be found! No one knew where he was put away. He was ultimately located, after many anxious weeks, in a jail in a remote part of the state and returned to his parents. No one in Delhi instructed the District Magistrate to act as he did — in fact North Block, even in those lawless times, would have been aghast at such irresponsibility. But once laws are passed which enable untutored officials to act, then in this country (and possibly in every other country) they will do so, with hobnailed boots: as officials in some states did with Pota.
It is sometimes said that if a repressive law is oppressively implemented the citizens could turn to the courts. They could. But the courts can do little — after the constitutional validity of the Tada Acts were upheld (by a majority of judges in a seven-judge bench) in Kartar Singh’s case (1994), a truly regrettable decision, as regrettable as the earlier one in ADM Jabalpur (1976) during the Emergency era in which Chief Justice A.N. Ray infamously said that liberty itself was the gift of the law and may by the law be forfeited or abridged!
The Law Commission set up to advise the government, and the National Human Rights Commission established by the Parliament, must immediately put their collective heads together and tell us whether under present circumstances in the wider public and national interest (in these trying times), individual human rights safeguarded under our Constitution do really need to be sacrificed at the altar of another fierce anti-terrorist law — a law which will certainly be misused by some states for political ends, as was Pota and Tada before it.
We citizens will accept (as the Government must) the superior wisdom of these two august bodies. But their pronouncements must be firm and in unison. There were once acute differences in perception between the Law Commission and NHRC about the need for Pota. The citizen’s plight was then somewhat akin to the exasperation of a Judge of the Court of Appeal in England who, many years ago (when examining two conflicting opinions of the House of Lords), made the plaintive plea: "Overrule us if it please you, but at least say something clear to guide us in the future".
Fali S. Nariman is an eminent constitutional lawyer source
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