PUCL Bulletin, Sept., 2002

Is a fair trial possible under POTA ?

-- A letter by Gautam Navlakha, Kumar Sanjay Singh, Tripta Wahi, Vijay Singh


We have tried to provide, as far as we could, information on the ongoing POTA trial of the century! All of us who protested against the ordinance as well as the bill on POT were of the opinion that it turns the rule of law on its head and that abuse is inherent in it. We have of course the experience of TADA. But it is surprising that when the first trial began, in the Parliament Attack case, the media began to provide, with honourable exceptions, the prosecutor's side of the trial. It is a rare occurrence if the defence version find a place in the media. As a result key aspect of the police case that raise disturbing question about country's criminal justice system find no mention in these news reports or in the opinion pieces.

Recall that the critics had pointed out that a police force which routinely violates the rule of law would use draconian laws such as POTA as a shield to hide their lawless ways. But the Union Home Minister and the then law minister in the central government had defended POTA by claiming that the rights of the accused are protected and pointed to the procedures laid out for among other things interception, confession etc. Now the procedures are meant to lend authenticity to the, say, a tapped conversation, by ensuring that non-evidence does not become part of evidence presented before the Court. Since rules governing investigation under POTA favour the law enforcement authorities the only safeguard available to the accused are those provided for in the procedures. Now that the trial has begun in the Parliament Attack case there is need to look closely at the trial taking place before a Designated Court under POTA?

Let us look at some aspects of the Parliament Attack Case.

  1. The attack took place on December 13 2001 and brought India and Pakistan, two nuclear armed countries, on the brink of war. A million troops were deployed by the two sides and millions of land mines laid. And so far nearly 80 soldiers and scores of civilians have lost their lives due to "accidents" (land mine blowing etc). The entire media and all government and opposition leaders declared it to be a terrorist attack. Security experts had a field day holding forth. And yet the Special Cell of the Delhi Police, on December 13, they the FIR not under POTO, then in operation, but under "normal" IPC and CrPC? It was only on December 19, six days later, they invoked POTA. Why?
  2. The special cell of the Delhi police began intercepting mobile conversations on December 13 under section 5(2) of the Telegraph Act. Rules framed pursuant to the 1996 Supreme Court judgement on a petition filed by the PUCL obliges the police to undertake interception only under an authorisation signed by the Union Home Seceretary. As Manoj Mitta pointed out (Indian Express July 25, 2002) the authorisation letter were dated December 31, 2001 and January 19 2002 permitting tapping of phones (including mobiles which were by then already in police custody) prospectively for 90 days.
  3. The Telegraph Act makes intercepts inadmissible as evidence. But POTA allows it. However, POTA lays down a procedure including among other things to inform the accused ten days prior to beginning of trial/hearing/ proceedings under Section 44. But this was not done. Neither when the charge-sheet was filed nor later were the accused furnished copy of the order of the Competent Authority ten days before the trial. This was not done. But the H'nble Court ruled that such evidence are admissible in the ongoing trial. But it is unclear whether the evidence made admissible should follow the procedures laid down under section 44 of POTA or while the evidence becomes admissible under POTA the procedures can be given a go by?
  4. Now the conversation between SAR Geelani and his brother Shah Faisal was in Kashmiri. There were in all three intercepts in Kashmiri language on December 13. The person intercepting knew not a word of Kashmiri. An "expert" was brought in to translate the next day ie December 14. Now Delhi has a very large population of Kashmiris in government service as well as in trade and other professions. A qualified translator from Kashmiri to Hindi were available then as well as later. But the Special cell brought in a person who has passed sixth form, cannot write Hindi and can only read and speak it. He translated and another person wrote it down. It is this translation that is used as key evidence to charge Geelani. Intriguingly, there is no Kashmiri transcript of the intercept ie of the original Kashmiri language conversation. There is no explanation for why a transcript was not prepared. Especially when the call records show the intercept to be more than 2 minutes whereas the "translation" used by the prosecutor as evidence runs for around a minute!

The long and short of it is that a person can be incarcerated for months, prosecuted and perhaps even convicted on such flimsy "evidence". So the issue remains whether fair trial is possible under POTA.

Take another instance. Under POTA's Chapter III a procedure is laid out when an organisation is banned under it. Now Akhil Bharat Nepali Ekta Samaj, a 23 year old welfare organisation of Nepali people living and working here, was banned on July 3. On July 11 at 5.30 pm 13 persons including four Nepali citizens were abducted by the Special Cell of the Delhi Police from a public place. Nine of the Indians were let off at around 8-8.30 pm. At 11 pm the four Nepalese citizens were served 'quit India' notice and deported at 11.30 pm the same day. When habeas corpus was moved in the Delhi High Court it emerged that the police mistook P. Chhteri for B Chhetri (general secretary of Nepali Ekta Samaj).

They also did not know that he had an Indian wife and child living in Sikkim. That his wife and child ought to have been provided an opportunity to meet Partha Chhetri. All four were first deported claiming Nepali authorities wanted them and subsequently changed to claiming Indian considered them "undesirable"? Why because they wrote against the autocratic monarchy in Nepal, and were sympathisers of Maoists i.e. their crime was their political views. But there were no warrants for their arrest. Their name is not among the list of 44 persons wanted by Nepal. They had committed no crime in India for which they were wanted or became "undesirable alien". Three out of four were journalists. International covenant oblige India not to send a person to hostile country where their lives could be in danger. In Nepal more than 100 journalists have been arrested and scores have disappeared the most celebrated being the custodial killing of Krishna Sen a much loved litterateur and journalist. Reporters without Borders and Committee for Protection of Journalists (US) have documented attacks on journalists in Nepal.

But above all under POTA Section a person accused of being a member of a banned organisation is entitled to be given an opportunity to show under Section 20 that he/she became a member when the organisation was not declared as a terrorist organisation, or taken part in any activities of the organisation after its declaration as a terrorist organisation or that he had ceased to be a member of the banned organisation. While no time is specified to enable a person to prove all the above, by no stretch of imagination is half an hour provided to the four persons deported under Foreigners Act section 3(92c) suffice and 108 others

Take the arrest of Yasin Malik on March 25 under POTA when he was addressing a press conference at the Hurriyat office after the police leaked news of his involvement in a 'hawala racket'. The case is ingeneous. A young man and woman from J&K returning from Kathmandu claimed to have received $100,000 from Abdul Qadir to be given to Yasin Malik. Despite intensive security checkup at Kathmandu and Delhi the couple escaped all attention until they were intercepted on the highway between Jammu and Srinagar. They promptly confessed to being carriers of 'hawala' money. Abdul Qadir denies having been to Nepal in last seven years. The man Mushtaq Ahmad on his release from jail in February 2000 ceased to be a JKLF member let alone a spokesperson he was said to be by the cops. Under section 32 of POTA "confession" of an accused against a third person is inadmissible as evidence.

Yet, this sufficed to arrest Yasin Malik while he was addressing a press conference. He was beaten up on his right ear by SP Manohar Singh of SOG while in police custody demanding that he make a "confession". His health is frail (kidney, heart and recent micro surgery in his right ear). And he was attacked by the Shiv Sena goons when he was taken to the government hospital for a medical checkup. In a final twist when the designated court gave him bail on July 25, and pointed out that since the money said to be meant for the accused never reached him and since the two accused have retracted their confession the accused should be "set at liberty" after he furnishes bail. He was promptly placed under preventive detention for two years!

The detention of Syed Geelani and his journalist son-in-law is equally ominous. His detention was much publicised for receiving 'hawala' money, was finally not charged under POTA but detained under Public Safety Act. The charges are absurd: that he is member of Jamaat-e-Islami, for criticisng US war against Afghanistan, for describing himself as Pakistani! But receiving funds illegally figures as one among 15 charges against him and not even on top of the list! His son-in-law journalist Iftekhar Geelani was detained for violation of Official Secrecy Act which is patently absurd. The evidence of Indian troop movement relates to period before 1996 are available on the internet
(http://www.issi.org.pk/). And failing to make a case against him they have charged him under the Pornographic Act!

So dear friends please understand how easy it is to frame a person on dubious ground and to convict them under POTA. At times it suffices to detain a person and deport them to hostile territory where their lives are in danger. Many a crime are being committed under the name of "national security", media told to stay away in matters of "national security" (a press conference held on July 13 at the Delhi press club attended by more than 30 reporters and journalists was blacked out. Coincidence or living under a state of "undeclared emergency" there is need for vigilance.

What can we do? Lots? Write to newspapers asking for fair coverage. Not for exclusive coverage or favourable opinion. None of that. Just requesting them to report truthfully. The fact that government has been unable to put a lid on Iftekhar Geelani's case, despite invoking national security, is because the Delhi Union of Journalists rallied behind their colleague and have kept up the pressure ensuring that newspaper editors and proprietors do not succumb to government arm twisting. Which is to say that it is possible to fight censorship by remaining vigilant. Because rule of law and justice for all is an intrinsic part of our struggle for a democratic India.

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