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POTA 3.0: India's New Terror Law
Shows Old Genes

By Binu Karunakaran

20 December, 2008

In a country were human rights activists can be incarcerated for months without bail the introduction of a new 'tougher' anti-terror law should be no news.

Successive governments and architects of anti-terror laws in India have shown scant disregard for human rights and lack of vision in evolving a successful counter-terrorism strategy based on the values of democracy.

Instead they have focussed their energies in formulating laws that look like regurgitated versions of one another oscillating between notions of soft and hard based on which side of the political spectrum you are.

Experience over the years has shown us that ordinary Indian citizens do not remain immune from the ambit of such laws sculpted to suit the agenda of state repression.

The only golden thread is the government statement that an independent authority will be set in place to review the registration and investigation of the case registered under the Unlawful Activities (Prevention) Act (UAPA).

Not much of a concession when you realise the draconian provisions contained in this piece of legislation enacted in 1967 and infamously utilised to target PUCL leader Binayak Sen.

Almost all the draconian provisions in POTA except the admissibility of confessions, in accordance with the Indian Evidence Act, seems to be back in the amended version of the UAPA posing a serious credibility problem for India's criminal justice system. When POTA was allowed to lapse in 2004 everyone thought India was turning a new leaf in its quest for being a civilised nation. The amendments brought to UAPA in 2004 showed notable improvements, but a closer scrutiny revealed that several provisions from POTA were retained verbatim.

The 2008 amendments made to UAPA show that several POTA genes have been transplanted.

Clauses added to section 43 of the Principal act now blatantly asks the courts 'to presume, unless the contrary is shown, that the accused has committed such offence' if evidence suggesting the involvement of the accused has been found at the site.

Suspects can be detained without bail for up to 180 days (The longest pre-charge detention period sanctioned by a democracy), the dreaded special courts of POTA are back and so is the obligation to furnish information sought by the investigating officer.

The failure to furnish the information called for or deliberately furnishing false information shall be punishable with imprisonment for a term, which may extend to three years or with fine or with both.

A suspect spending six months in jail risks not just losing his job but also the trust of the community, his friends and even the members of family.

Even if a statute for judicial supervision or parliamentary oversight of terrorism cases exist, clauses that enable cops to detain suspects for unusually long periods will inevitably turn legalised instruments of psychological torture.

India has a long history of detention related human rights abuses and it is common knowledge that officials often resort to coercing people into confessions instead of conducting fair and diligent police work. Long pre-charge detention also facilitates physical torture, because evidences like body marks are likely to fade away making it difficult to prove such charges afterwards.

These provisions also come in the way of effectively challenging the ideologies that extremists believe can justify the use of violence. In the long run they tend to turn counterproductive, as every actual and perceived acts of injustice will transform into propaganda material at the hands of terrorists.

According to UK Home Office statistics, 669 out of 1,228 individuals arrested as part of terrorism investigations between September 11, 2001, and March 31, 2007, were released without charge. It wouldn't be hard to imagine the scenario in India where people from the minority Muslim community and Naxal sympathisers are regularly picked up with impunity, tortured under detention and released without charge.

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