PUCL Bulletin, April 2003

National Human Rights Commission position on POTO
-- 21 February 2003

A needless controversy has been raised as if the remarks made by Dr. Justice A.S. Anand, new Chairperson, NHRC, shortly after assuming charge of his office, full text whereof is contained in Annexure 'A' herewith, reflects a change in the stand of NHRC on POTA. While reiterating that there is no shift in its stand, the Commission considers it appropriate to reaffirm its position on the issue, which is as follows:

1. The Commission has, over the years, developed a consistent position in respect of anti-terrorism legislation. This position has been celebrated in greatest detail in the Opinion that it wrote on 14 July 2000 and 19 November 2001, in respect of the Draft Prevention of Terrorism Bill, 2002 it opposed, as it had, in February 1985, opposed the continuance of the Terrorist & Disruptive Activities Act (TADA). The full text of the Opinions of the Commission may be seen on its web-site www.nhrc.nic.in.

2. The essence of the Commission's view is expressed in its Opinion of 19 November 2001, in which it is, inter alia, stated:

"Undoubtedly, national security is of paramount importance. Without protecting the safety and security of the nation, individual rights cannot be protected. However, the worth of a nation is the worth of the individuals constituting it. Article 21, which guarantees a life with dignity, is non-derogable. Both national integrity as well as individual dignity are core values in the Constitution, and are compatible and not inconsistent. The need is to balance the two. Any law for combating terrorism should be consistent with the Constitution, the relevant international instruments and treaties, and respect the principles of necessity and proportionality.

The National Human Rights Commission, therefore, reiterates its earlier view in respect of the Ordinance also."

3. Subsequent to the promulgation of the Prevention of Terrorism Ordinance, 2001, an effort was made to replace it by Prevention of Terrorism Bill, 2001. That Bill, however, could not be introduced and considered by the Lok Sabha during its winter session before Parliament was adjourned sine die on 19 December 2001. The Prevention on 30 December 2001. Thereafter, on 26 March 2002, the Prevention of Terrorism (Second) Ordinance 2001 was enacted into a Law following a Joint Session of Parliament.

4. The Commission therefore took the position that it respects the constitutional process leading to the adoption of this Act, even though it had made known its opposition to the contents of the Act before it was enacted. The Commission retains the responsibility under its own Statue to ensure that the Act is not implemented in a manner that is violative of human rights, the Constitution and the treaty obligations of the country.

5. The Commission has noted in this connection that, when compared with TADA, the Prevention of Terrorism Act does contain some provisions that are aimed at providing safeguards against its possible misuse. The Commission, however, is of the view that these safeguards are insufficient. It therefore remains the duty of the Commission to monitor the implementation of the Act with vigilance and to ensure that the provisions of the Act are not abused or human rights violated.

6. The Commission, therefore, reiterates that there is no change in the stand that it has taken earlier in respect of the Prevention of Terrorism Act

-- Justice A .S. Anand, Chairperson; Justice Sujata V. Manohar, Member; Virendra Dayal, Member

Annexure 'A'
Responding to a question relating to POTA, Justice A.S. Anand stated:
'It did have some provisions to safeguard against its misuse though those provisions may not be enough. Care has to be taken to see that the provisions of POTA are not abused.'

'There are apprehensions that POTA can be misused. Any law can be misused. What we have to see is whether there is an inbuilt mechanism to safeguards that are required to be provided against its abuse.'

'The rights of a person in uniform are equally important as those who belong to civil society and a balanced approach to both was necessary.'

'No civilized country could allow terrorism to flourish, but one has to differentiate between a criminal and a terrorist. While all terrorists are criminals, it does not necessarily mean that all criminals are terrorists.'

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