Masquerades as an Anti-Terrorism Ordinance
-- By Rajindar Sachar
The BJP Government has fired its first political salvo for the Uttar Pradesh
elections by promulgating the Prevention of Terrorism Ordinance (POTO).
The purported justification of immediacy to meet the challenge of terrorism
is hollow. Ever since the lapse of TADA in 1995, no Government has felt
such a necessity.
Even POTO, vetted
by the Law Commission, and "basically modeled on repealed TADA"
was with the Government for the last one-year. Yet, the Government dared
not introduce it because of opposition. Now, it has cynically taken advantage
of the September 11 attacks in the United States.
Political motivation is writ large in the indecent haste in issuing the
Ordinance before Parliament meets on November 19. Article 123 and 213
of the Constitution empower the President/Governor to promulgate the Ordinance.
However, in this regard, the Supreme Court has said: "The power conferred
on the Governor to issue ordinances is in the nature of an emergency power,
for taking immediate action". The apex court has also emphasised
that "the primary law making authority under the Constitution is
the legislature and not the executive".
Considering the openly expressed adverse opinion from opposition parties
and the Government's inability to pass the Ordinance in the Rajya Sabha,
POTO will cease to operate, as mandated by Article 123, after the expiry
of six weeks from the reassembly of Parliament.
One of the objectionable newly introduced provisions is Section 18, which
has been used to ban several organisations that have already been declared
unlawful under the Unlawful Activities Act, 1967. This provision has been
included against the recommendation of the Law Commission, which categorically
stated, "We have not suggested herein any amendments providing, for
banning of unlawful organisations and for confiscation of their assets
in as much as there is already an enactment in force, viz., the Unlawful
Activities (Prevention) Act which deals with the said aspects."
The case of Deendar Anjuman, where the high court had even heard the matter
under 1967 Act and reserved its judgment has also been included. This
action borders on interference with the judicial process and amounts to
contempt. It's a different matter that the high court has now upheld the
ban against the organisation.
Similarly, SIMI, which has been banned under the J967 Act and whose case
issti1l to be heard in the high court, has been included. Even if SIMI
wins its case under the 1967 Act, it may continue to be treated as a terrorist
organisation, paradoxically even after the Ordinance has been disapproved
This is because the Supreme Court ruled in 1985 in a decision of doubtful
correctness that "an ordinance shall not become void from the commencement
of its ceasing to operate as a result of the Legislature's disapproval
of it". It also held that the expression "shall cease to operate"
in Articles 123(2) and 213(2) means an ordinance, even if it has been
disapproved by Parliament, will continue to be effective till as long
as it was originally meant to last. A mere disapproval by Parliament of
an ordinance cannot, however, revive closed or completed transactions.
This means that even if the Ordinance is disapproved, the organisations
already proscribed under it will remain banned. Of course, it is open
to Parliament to provide that while disapproving the ordinance. It may
pass a law operating retrospectively to the effect that the disapproval
of the Ordinance will also mean disapproval of the ban imposed under it
on the so-called terrorist organisations.
POTO is designed to serve the NDA Government's agenda of banning an organisation
without any accountability. For, some safeguards provided under the 1967
Act, wherein any notification declaring an association to be unlawful
shall have to be confirmed within six months by a tribunal consisting
of a sitting high court judge. However, a change has been made in the
ordinance empowering the Central Government to constitute a review committee
of three members comprising either a sitting or a retired judge. The objectionable
part is the other two, members, whose qualifications are still to be prescribed.
This provision is liable to be misused because the concurrence of the
High Court is necessary for the appointment of the chairperson but not
for that of the other members.
Thus the two members, handpicked by the government, making a mockery of
impartial adjudication, could overrule the chairperson. I doubt whether
any self-respecting judge would like to be associated with such a committee.
Section 30 says if the special court is satisfied that the life of a witness
is in danger, it is empowered to take any measure it deems fit to keep
the identity and address of the witness secret. A deliberate omission
has been made here: the Supreme Court, while examining the constitutionality
of TADA, held that non-disclosure of identity will put the accused to
disadvantage in effective cross-examination. As Dr B.R. Ambedkar had said:
"defending includes cross examination".
Also, the Supreme Court criticised such a provision, saying, "Whatever
may be the reasons for the non-disclosure of witnesses, the fact remains
that the accused persons to be put up for trial under this Act which provides
severe punishments, will be put to disadvantage."
A confession made before the police is made admissible, even when a Supplement
Court judge described this provision in an earlier TADA decision in 1994
as "unfair, unjust and unconscionable, offending Articles 14 arid
l of the Constitution".
The whole exercise of issuing such an ordinance is to create psychological
terror, so that the arbitrary actions of the government are glossed over
and a climate is created wherein opposition to such actions may be considered