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The Kashmir Times, Dec 7, 2001 > By Rajindar Sachar > POTO violates human rights > > The recent incident in Srinagar sealing the house under POTO and driving out the >family consisting of women and children in the cold of Srinagar shows the ugly >reality of POTO. Though this wrong has been somewhat undone under public pressure the >potential and mischief continues to exist and this is shown by the fact that about >the same time 10 girls between 12 to 20 years were arrested by the Army purporting to >link them with the terrorists. That such a vicious act by security forces could be >justified by the invocation of POTO raises question of honour and dignity of women >under the present dispensation. It is unfortunate that in spite of the reality how >POTO is being misused, many in the Central Govt. are still purporting to justify it >by taking fallacious cover of security and integrity of the nation. In fact, it is >such like actions which will endanger the security of the nation and can only spread >indignation amongst a mass of people. > > But then the present Central Government whose credibility is being overwhelmingly >doubted has to conjure up a sense of panic in order to survive. So we witness the >spectacle of the BJP Government firing its first political salve for the Uttar >Pradesh election by promulgating the PTO. In spite of unanimous opposition to POTO at >the all party meeting, central government, is still insisting on going through the >motion. > > I suspect the government knows in its heart that there is no need for POTO. But it >cannot resist the temptation to make political capital out of public's sense of panic >generated after September 11 Trauma. It, therefore seeks to create conditions of >confrontation namely we, the custodians of integrity of nation' and 'The' the >opposition the friend of terrorists. > > The power required by the government to meet the challenge of terrorism can be >easily met, if necessary by utilizing existing legislations like the National >Security Act which permits the Government to detain a person on mere suspicion for a >period of over one year at one time. Similarly, Section 124-A, 153-A of the Indian >Penal Code are enough to proceed in cases of sedition of challenge to the integrity >of the nation. It maybe brilliant court-craft by Union Law minister to overwhelm >Congress into compliance by holding out that but for special rules of evidence under >TADA, the accused in Rajiv Gandhi murder would have gone unpunished. But this is akin >to the stratagem of speaking apparent truth like Yudhistira saying in Mahabharata >"Ashvothama, hata - naro va kunja" the later words being drowned, under spate of >official publicity without at the same time pointing out the irony that the Supreme >Court had acquitted the accused under TADA and has instead convicted them of mu! rder under existing Penal Code. > > One of the objectionable newly introduced provisions is Section 18 which has been >used to ban several organizations that have already been declared unlawful under the >Unlawful Activities Act, 1967. This provision has been included against the specific >recommendation to the contrary by the Law Commission. > > This has been done with oblique motive. SIMI, which has been banned under the 1967 >Act and whose case is still to be heard in the High Court has been included. The >result is that even if SIMI wins its case under the 1967 Act, it may continue to be >treated as a terrorist organization, even if ordinance is disapproved by Parliament. > > The argument that journalists can claim no special rights is fallacious and has been >negatived by 4 out of 9 judges of US Supreme Court, (Branzburg) which said "the right >to know is crucial to the governing powers of the people... Fear of exposure will >cause dissidents to communicate less openly to trusted reporters. And fear of >accountability will cause editors and critics to write with more restrained pens". >The intrusion of government into this domain is symptomatic of the disease of this >society. It is a power to suffocate both people and causes."> > > The whole exercise of issuing such 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 anti-national. > > The apologists of POTO are putting wrong information by trying to justify its action >by stating that USA had passed similar laws. This is false. USA has passed no such >law dealing with its citizens who are continuing to be dealt with under the ordinary >law. However, it has passed a law which covers the immigrants and has very seriously >restricted their rights under the ordinary law. In fact, there are influential voices >being raised in USA against such action who have criticised this legislation as >Kangroo justice which denies all the principle of the rule of law. The government of >India, therefore, can hardly invoke the example of USA laws., apart from the fact >that human rights rule of laws are to be determined by us in India on our own concept >and not as servile agents of USA geo-political game as the Central Government is >purporting to act. > > The alleged safeguards touted by the government namely of informing the family of >the terrorists or allowing the alleged terrorists when being interrogated to have his >lawyer with him confers no extra benefits. These rights already stand concluded by >the Supreme Court decisions as rights flowing from Article 21, namely, right to life >and liberty and right to have a fair trial. No legislation, therefore could have >denied these rights. Even if POTO had not included them specifically in view of the >decision of the Supreme Court these rights would be available to any person arrested >under POTO. > > Similarly, the right of interception of telephone is sought to be justified by >pretending that though under the Telegraph Act unrestricted telephone tapping take >place POTO has relaxed the provision by providing the competent authority, namely, >some Secretaries of the government and also review committee formed of higher >official may be chaired by the retired High Court Judge. This is suppressio veri and >suggestio falsi. This is because the Telegraph Act stands modified by the decision of >the Supreme Court in a case brought by the PUCL challenging the vires of these >provisions and which directed that condition precedent to telephone interception >would be to obtain authorization from a High powered committee of officials, as is >now being constituted. > > It is well known that many terrorists do seek journalists to put forth their point >of view which they may feel is being deliberately distorted by the government. As a >matter of fact many human rights activists have had meeting with underground banned >organizations, and most of the time with a view to reason with them to give up their >violent activities. But under the provisions of this Act even this innocent and well >meaning contact with the underground will make these people and journalist liable to >be prosecuted under POTO. > > Cynicism is writ large in promulgating ordinance by a Government dominated by the >BJP when BJP in 1994 had gone public demanding that provision of TADA had been >misused and that it should be repealed. The criticism was well founded because of >over 76000 arrested under TADA only one percent were convicted. > > Even the National Human Rights Commission has publicly disapproved the POTO. The >government if committed to the rule of law can hardly be justified in going ahead >with a law when the NHRC considers POTO a serious invasion of fundamental rights of >the citizens. To ignore the advice of the NHRC shows the arbitrariness and the lack >of bonafide on the part of the Central Government. > > I suspect that both the Government and Congress are engaged in shadow sparring and >may find it political plausible to refer POTO to select committee - the government, >trotting its commitment to combating terrorism and the Congress purporting to be >guardians of civil liberties. This the political farce will be over- only the people >would remain the endangered spec> ies under potential threat of future POTA. The only >way opposition can prove its genuineness is by moving a resolution on its own in >Rajay Sabha disapproving the ordinance on the opening day of Parliament as is >permissible under Article 123 of the Constitution, so as to prevent misuse of the >ordinance. > > (A retired Chief Justice of Delhi High Court, Rajindar Sachar is a leading human >rights activist.) > > > ==^================================================================ This email was sent to: [email protected] EASY UNSUBSCRIBE click here: http://topica.com/u/?a84x2u.a9WB2D Or send an email to: [EMAIL PROTECTED] T O P I C A -- Register now to manage your mail! http://www.topica.com/partner/tag02/register ==^================================================================
