NHRC Chairperson Questions the need for POTO

Mr. Justice J.S. Verma, Chairperson, NHRC, has said that certain provisions of the Prevention of Terrorism Ordinance, 2001 were seen to possess dangerous potential of misuse by the enforcement agencies, posing great threat to the human rights of those who were innocent. Justice Verma was delivering the Bodh Raj Sawhny Memorial Oration on “Combating Terrorism under the Rule of Law”.

Speaking of whether or not a stricter new law was needed to combat terrorism, the Chairperson observed that the debate on such a law, generated in the wake of the proposal to enact the Prevention of Terrorism Bill, 2000, impelled the NHRC to give its opinion on the subject. The Commission had earlier opposed the continuance of the TADA. On both occasions, the Commission had referred to the existing laws on the subject and had emphasized that the real deficiency was in their implementation, and not their content. The proposal for the enactment of the new law was shelved. However, after the incident of 11 September 2001, and the global `fixation’ with the war against terrorism, the issue had resurfaced and the Prevention of Terrorism Ordinance, 2001 was promulgated. The need for enactment of such a law and that too by an Ordinance was a debatable issue.

Referring to some of the salient features of POTO, the Chairperson stated that the reversal of burden of proof for bail for a period of one year and before filing of a charge sheet, is contrary to a basic principle of criminal jurisprudence, apart from the unfair requirement from the accused to perform the impossible task of proving at that stage that he is not guilty. Admissibility in evidence of the statement recorded by a police officer for a grave offence under POTO, when the Evidence Act continues to make it inadmissible for any offence under the general law, is incongruous. The provision for general immunity for any action taken in the course of any operation directed towards combating terrorism, in addition to that under the existing law for bonafide acts of public servants with the need of prior sanction to prosecute, have the propensity to further degenerate the existing tendency of custodial torture. The definition of the offence is also vague and nebulous, enlarging the scope of misuse of power, given the earlier experience under MISA and TADA. There is no attempt made at systemic reforms inspite of long pending recommendations made in the National Police Commission Reports and Supreme Court decisions.

Justice Verma went on to state that the experience in the working of such laws has shown that there is need to make systemic reforms in the functioning of enforcement agencies, and the police force being the main enforcement agency, in its constitution, autonomy and accountability. The experience of the working of stringent laws like MISA during the emergency and TADA in the recent past with no improvement in the performance and police culture is a lesson to be remembered while devising new strategies to combat terrorism. If the so-called stricter TADA did not serve the purpose, as is well known, how can the POTO, professed as a milder version do better in the same hands? The Chairperson felt that it was difficult to appreciate the professed hope. Inefficacy of TADA to combat terrorism was self-evident from the statistics. The substantial area of deficiency lay in the implementation of the laws. “Quarrel with the tools without improving efficiency and integrity of performance is meaningless”.

Justice Verma emphasized the need for identification of the real areas of deficiency in the implementation of the existing laws together with the assurance of speedy trials. He said that enactment of more stringent laws, which transferred judicial powers into executive hands and resulted in the denial of a fair trial to the accused with the added potential danger of harassment of the innocent and violation of their human rights, was not a remedy. The performance of the enforcement agencies has to be improved with effective accountability to prevent misuse of public power.

The Chairperson also stated that there was need to identify the causes for the rise in the phenomena of terrorism, other than that which has trans-border genesis and support. Good governance ensuring realization of the constitutional promise of promoting socio-economic justice, eradicating causes which give rise to a genuine sense of injustice must be seriously addressed as effective strategies. To combat terrorism in the true sense, the strategies adopted must not be confined merely to identification of terrorists and their elimination by revenge, not justice, but must extend to diagnosis of the malady and finding a permanent cure. A limited approach will help eliminate some present terrorists but not the causes or the phenomenon which produces terrorists; and that too at the cost of violation of human rights of many innocents. A proper balance between the need and the remedy requires respect for the principles of necessity and proportionality. “Performance of this balancing trick is the mission of the rule of law to which our nation is committed. Let us not be carried away by possible short-term gains at the cost of long-term interests. The war against terrorism must be won under the rule of law. “

(Full text of speech available on www.nhrc.nic.in)