Khalid Azam <[EMAIL PROTECTED]> wrote:
To: mahajanapada <[EMAIL PROTECTED]>
CC: FOIL LIST <[EMAIL PROTECTED]>
From: Khalid Azam <[EMAIL PROTECTED]>
Date: Wed, 7 Apr 2004 18:29:02 -0700 (PDT)
Subject: [india-unity] Testimonies of POTA cases presented before a 'People's Tribunal'
POTA Abuses: Untold stories
SUKUMAR MURALIDHARAN
Frontline
Volume 21 - Issue 07, March 27 - April 09, 2004
http://www.frontlineonnet.com/fl2107/stories/20040409001704400.htm
Testimonies presented before a 'People's Tribunal' in New Delhi recently bring
out the vast human tragedy resulting from the abuse of POTA in virtually every
corner of the country.
UNTRAMMELLED power is dangerous in any hand. A "People's Tribunal", which heard
a number of testimonies on the application of the Prevention of Terrorism Act
(POTA) and other special security laws in Delhi in early March, seemed quite
unequivocally to reach this conclusion.
The testimonies brought to life statistics recently compiled on the application
of POTA and they revealed certain disquieting patterns. All the 287 cases
booked under the law in Gujarat involve members of the religious minorities;
all but one involve Muslims. Of the 46 POTA cases in Uttar Pradesh, all but two
involve members of the Scheduled Castes or Adivasi communities.
Om Prakash, a ten-year old from a Dalit family in Sonbhadra district of Uttar
Pradesh, was arrested in May 2003 and charged with political extremism and
involvement in the murder of a local feudal chief. His older brother had been
killed weeks before in what was described as an armed encounter with the
police. In hiding ever since, Om Prakash surrendered to the local police
following the threat that his family's m! eagre possessions, including its home,
would be attached by judicial order. He was held in a juvenile prison for six
months and allegedly tortured before being granted bail. Today, Om Prakash
regularly walks 10 kilometres to the courthouse where his case is being heard.
With no time-frame for resolution and the infinite capacity for delay that the
police brings to the case, he sees no prospect of an early end to the agony.
This was one among at least four known cases involving the imprisonment and
continuing harassment of juveniles under POTA and other special security laws.
In Gumla district of Jharkhand, 16-year old Roopni Khari was arrested under
POTA. Terrorism has become a broad rubric under which any challenge to an
established order can be quashed. Khari's crime was to have organised the women
of her village around basic issues of subsistence they confronted in a
patriarchal order.
In Dharmapuri district of Tamil Nadu, Prabhak! aran and Bhagat Singh, aged 15 and
17 then, were arrested in November 2002, for allegedly being involved with the
Radical Youth League, an offshoot of one of the factions of the Communist Party
of India (Marxist-Leninist). Neither was given any special consideration on
grounds of being juveniles. Both were detained under a variety of provisions of
the law and only informed after their third bail hearings that they stood
accused under POTA. Both spent over a year in prisons before being granted
bail. Their cases have now been transferred to the jurisdiction of the Juvenile
Court, where they belonged from the very beginning. Quite apart from the
repressive features of the law, the case of these two juveniles from Tamil Nadu
seemed to illustrate, in the perception of the Tribunal, the dangerous
intrusion of POTA special courts into other jurisdictions.
Evidence rendered before the Tribunal indicated that for sheer promiscuity, no
State coul! d quite match Jharkhand's record. The number of persons named in the
State under POTA is an astounding 3,200. Among these, first information reports
(FIRs) have been filed in 654 cases. A fact-finding team that had extensively
travelled through Jharkhand last year found that most of the cases under POTA
were being brought against the deprived sections belonging, as a rule, to the
Dalit and Adivasi communities. POTA was also being used as an instrument of
political coercion to erode the support enjoyed by parties opposed to the
ruling Bharatiya Janata Party.
The picture from Uttar Pradesh showed a greater sense of restraint in numbers,
but an equally ready recourse to POTA to put down any agitation for basic
rights and services. Most of those arrested for alleged "terrorist" offences in
this State, the Tribunal was told, were guilty of nothing more than pressing
for land reforms and minimum wages.
In a survey of 25 instances of detentio! n under POTA in Gujarat, a study team
that presented its findings to the Tribunal reported that a period of illegal
detention invariably preceded the formal arrest of the individuals concerned.
The duration of this illegal detention varied between three and 25 days. There
were cases when family members of targeted individuals were detained for days
together, to pressure the main accused to surrender. The typical mode of
operation is for the police party to raid the premises of the accused under
cover of night to ransack and intimidate and even to seize documents - such as
ration cards - which may confer certain civic entitlements on the accused. The
embitterment of the religious minorities had gone deep, said a legal activist
from Gujarat. POTA, in this regard, should more appropriately be called the
"Production of Terrorists Act".
SPONSORED by the Human Rights Law Network, the Tribunal consisted of two
retired High Court Judges, D.! K. Basu and Hosbet Suresh. The senior advocate and
former Union Law Minister Ram Jethmalani brought a greater depth of juristic
expertise to the body. Others on the Tribunal were the veteran civil rights
campaigner K.G. Kannabiran, Mohini Giri and Syeda Hameed, who have both served
on the National Commission for Women, the renowned writer Arundhati Roy, and
the journalist Praful Bidwai.
Summarising his impressions after two days of hearings, Jethmalani confessed
that he had been grievously in error in supporting the enactment of POTA. "POTA
came after a Security Council resolution asking all members of the U.N. to
legislate against terrorism," he said. "I did support the enactment of POTA but
I did it because it was done in obedience to the resolution of the Security
Council. I today regret that I supported POTA. I had reposed faith in the
honesty of the politicians who told me that it would not be misused. Today, I
have no doubt that we do! not need (it) and that it should go lock, stock and
barrel."
Arundhati Roy for her part called for the repeal of POTA since it was no more
than an accessory in the mission of "dispossessing the poor". "The misuse of
POTA," she said, "is a clear illustration of how terrorism and poverty are
intertwined."
The well-known cases of the Tamil Nadu politicians, Vaiko and P. Nedumaran,
came in for extensive discussion at the Tribunal. Though the latter was
present, he was obliged by the judicial order governing his release on bail to
avoid any public utterances on his case. What the two days of testimonies
proved is that beyond the media spotlight which has been almost exclusively
focussed on prominent personalities whose liberty has been threatened by POTA,
there is a vast human tragedy of the abuse of special security laws unfolding
in virtually every corner of the country. When the Prevention of Terrorism Bill
was first drafted in 20! 00, the National Human Rights Commission (NHRC) in its
advisory jurisdiction described it as unnecessary on virtually all counts. The
categories of offences that the Bill dealt with were covered by various other
existing acts, it pointed out. What was required for a credible fight against
terrorism was a firmer commitment to the rule of law, rather than the expansion
of the powers of the police. After evaluating the 1990s experience with the
Terrorist and Disruptive Activities (Prevention) Act (TADA), considering the
range of powers conferred by existing laws and factoring in the provisions of
international covenants to which India is a party, the NHRC in complete
unanimity, affirmed that the Bill was uncalled for.
The Bill lapsed into some obscurity following this decisive intervention by the
country's highest human rights watchdog and the conspicuous failure of
political consensus. The terrorist attacks in the U.S. in September 2001
impar! ted a new life to it. The NHRC remained resolute in its opposition.
Justice J.S. Verma, then NHRC Chairman, forcefully articulated this viewpoint
in November 2001. In its approach to terrorism, he urged, the government should
balance the "dignity of the individual with national security". Any law enacted
to tackle terrorism must be very closely scrutinised and "must muster the
strict approval of constitutional validity, necessity and proportionality".
Care should be taken, he warned, to respect the human rights of citizens and
avoid harassment of the innocent, "lest the entire action be
counter-productive".
The NHRC's counsel found a receptive audience across much of the political
spectrum. It took an unprecedented joint sitting of both Houses of Parliament
to pass POTA into law. It took just over a year of its operation to bring home
the unavoidable message that the only use of POTA was its abuse. The Union
government responded with a Re! view Committee to examine cases booked under the
Act and set the innocent at liberty. But as the Tribunal in Delhi was told, the
Review Committee has remained hamstrung in its operations, often unable to
obtain necessary information and documentation from the police authorities.
Halfway measures serve little purpose. The Tribunal's finding that the act
should be repealed in its entirety, is now backed up by extensive documentary
evidence. But for those who opposed POTA from its conception, vindication has
come late and after great human cost.
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