July  2004 
Year 10    No.99


Terrorising the innocent

Extracts from a report of The People’s Tribunal on POTA and Other Security
Legislation, Delhi, March 13-14, 2004

I today regret that I supported POTA and I reposed faith in the sincerity and honesty of the politicians who told us that it is not to be misused. I have no doubt at all that it has been misused, and I have no doubt at all that we don’t need it, and I have no doubt as my other friends said that it must go lock, stock and barrel."

— Former Union law minister, Mr. Ram Jethmalani, speaking at the People’s Tribunal on POTA and Other Security Legislation.

The People’s Tribunal on POTA and Other Security Legislation ("Tribunal") was conducted on March 13-14, 2004, in Delhi. The Tribunal documented cases of illegal custody, solitary confinement, forced confessions, sexual and religious humiliation, encounter killings and disappearances. Over 200 people attended the public hearing at Delhi and witnessed testimonies by victims and family members.

The history of ‘special’ security legislation such as POTA is a litany of torture and gross misconduct by police and paramilitary security forces, all done with complete impunity. The significance of this Tribunal is that it brought together victims of security legislation from ten states in India, which provided a national framework to contextualise security legislation and its selective use against the weakest sections of society: the poor, the minorities, juveniles, the otherwise marginalised.

The targeting of juveniles and minorities is especially egregious. The following are a few specific examples of cases where children have been branded "dreaded terrorists" and arrested under POTA and other security legislation:

Ø Bhagat Singh and Prabhakaran, both teenagers, were arrested by Tamil Nadu police and charged under POTA. Why? Because the police couldn’t find their fathers, the boys were picked up as proxies for their absent fathers. Now the teenagers continue to live with the stigma as police officials keep a tab on their activities and warn employers about offering them a job. Arrested at the age of fifteen, Prabhakaran said, "We were all made to strip and remain in our undergarments. In Kallavi police station I was beaten with lathis and was questioned by a Q Branch police official. I was not informed of the case against me at any point of time nor did I sign an arrest memo. The police then videographed me."

Ø Ten-year-old Om Prakash was branded a Naxalite and arrested under the Arms Act. On hearing that the police were looking for him, Om Prakash was on his way to court to surrender when the police nabbed him. The police physically abused him and threatened him with dire consequences if he didn’t give them information. Om Prakash said, "I used to study earlier, but now because of the case, I have stopped. I was in the 5th Standard. Now I fight the cases against me."

The adult victims of torture are too numerous to even recount, but the following cases are representative of police excesses:

Ø Senior Advocate Majeed Memon described how Khwaja Yunus was beaten to death by police after being arrested under POTA. Yunus’ co-accused, Dr. Mateen had seen him vomiting blood after the police hit him in the chest. Yunus was never seen after that incident.

Ø Mr. Nasir Mulla from Maharashtra described the arrest and detention of his son, Atif Mulla. He stated that the police had taken forced confessions: "Another way in which the police extracted confessions was to threaten that their wives, mothers and sisters would be brought, stripped and raped."

The deliberate communal bias in the application of security legislation is evidenced by the fact that Muslims form an overwhelming majority of POTA detainees. Gujarat provides a particularly shocking example of this communal bias: over 99 per cent of the POTA detainees are Muslims. Mr. Bharat Jhala, an activist who interviewed several families in Gujarat, described the fear that members of the minority community felt: "The Muslims in Gujarat are so scared that even though 307 may be in jail, all those who are out live almost as though they have been arrested under POTA… the Muslim community of Gujarat is suffering under POTA whether they are in jail or outside it."

There is something very wrong with a system where an old grandmother, Halimabibi Mansuri of Gujarat, feels compelled to stand at the podium and say: "We are loyal to the State, it is the government which is disloyal to us." Or where a Muslim father from Gujarat has to ‘prove’ his son’s loyalty: "He has never gone to Pakistan." Or a brother states, "I can never think of doing anything against my Bharat Desh. In fact, I had burnt an effigy of the Pakistan Prime Minister!"

POTA detainees include writers and thinkers who wrote or thought things with which the State disagreed. For instance, in Andhra Pradesh, Mr. Valeti Arvind Kumar, who writes under the pen name "Rivera," was found in possession of literature deemed revolutionary and was arrested. Others detained under POTA in Andhra included poor tailors, a photographer and a doctor. K. Balagopal commented, "These statutes claim to be legal instruments for counter insurgency. They are, in fact, political instruments of the Indian states’ policies of counter insurgency dressed up as legislative instruments… the only method that the Indian State has had of meeting this challenge is to attack the social base — the communities or classes of society — in whom, among whom, and purportedly for whom, these activities take place. This is a policy that should be unacceptable to any notion of democracy."

Though the government in Kashmir announced in the Common Minimum Programme that POTA would not be used, other security legislation, viz., the Public Safety Act (PSA) and the Armed Forces (Jammu & Kashmir) Special Powers Act (AFSPA) are used to the same chilling effect.

As one of the Tribunal panellists, Ms. Syeda Hameed, observed, "Listening to the victims through the two days, it struck me that with the exception of the politicians from Tamil Nadu, every person who deposed before the Bench was ragged and wretched." Ms. Hameed pointed out that the State’s view seems to be that "terror is spread only by the poor and marginalised. The rich and famous, by definition, are peace-loving loyalists while the poor, by the same definition, are anti–national terrorists…"

Not only are the individual testimonies heard by the Tribunal compelling, their combined effect is so chilling that we are all forced to ask ourselves if we have been so driven over the edge by our fears that instruments of the State that exist to protect its citizenry have really been used to target the powerless in society, including religious minorities, because they make such convenient scapegoats.

How does one repeal POTA? Does the UPA’s promise of repeal include withdrawal of all proceedings initiated under POTA? Normally the repealing act should withdraw specifically all pending prosecutions under the provision of POTA but may allow prosecution for offences either under the Penal Code, Explosive Substances Act, or the Arms Act if such prosecution is possible on the basis of material available on record. The government should publish the total number of cases prosecuted under POTA, the results and the pendency, region-wise, and the total number of accused involved. It should also publish a region-wise list of the property confiscated and any claim proceedings brought against such confiscation. Citizens have a right to this information. The banning of organisations must be on the basis of objective criteria and not merely on the basis of some unverified intelligence reports. The organisations included in the schedule are the offshoot of political problems unresolved by the country’s government over a long period of years. This can only be resolved politically and not by enacting terrorist laws or by banning organisations. The panel conducting the Tribunal made a number of recommendations, starting with the steps needed to repeal POTA and compensate its victims, and going on to outline critical reforms that are needed to overhaul the criminal justice system as a whole.

"(Terrorist violence) has its political roots. So we have to address ourselves to these political roots. When you say ‘War on Terrorism’, it is a war that cannot be negotiated into peace because you do not know with whom to talk. So there is a necessity for us to try to find out. It is not sufficient to say that this (POTA) is to be withdrawn. We have to go a step further and find out how to address these political and social roots of terrorism."

— KG Kannabiran

Panel Recommendations

1. Repeal of POTA

Experience has shown that anti-terrorist laws like TADA or POTA have neither prevented the occurrence of terrorist acts nor acted as deterrents to the use of violence for dispute resolution. The conviction rate for TADA cases was less than two per cent. Ironically, political organisations led by the BJP were at the forefront of the opposition to TADA, even during the height of violence in Punjab. A review of the testimonies of the accused under POTA heard by the Tribunal reveals the same pattern as was prevalent in the widespread abuse of the universally discredited TADA. Innocent people, rather than terrorists, have once again been the victims. We do not believe that such laws can be reformed or ‘improved upon’. They must be repealed lock, stock and barrel. POTA, in particular, should be repealed retrospectively, deleting all charges framed under it.

Our review of victim and expert testimony shows that the misuse of the Act is inseparable from its normal use. It is a statute meant to terrorise not so much the terrorists as ordinary civilians — and particularly the poor and disadvantaged such as Dalits, religious minorities, Adivasis and working people. We have no hesitation, therefore, in recommending that POTA be repealed and that too in such a manner that the POTA charges are deleted from all existing investigations and trials. These may continue, if the State so desires, under other laws and charges. While repealing POTA, special care must be taken to ensure that, in the amending Act, a specific provision is made to bar the use of confessions taken under POTA for any trial that is to be continued under the normal law of the land.

2. Encounter killings

The numerous testimonies we heard disclose the modus operandi of the police. In many cases, persons were killed by the police in cold blood. A chargesheet was then filed under POTA against the deceased, labelling him a terrorist. The case is then shown as abating on account of the death of the accused. As one expert at the Tribunal stated, persons whom the police believe to be terrorists are often eliminated and no person genuinely believed to be a terrorist is actually brought to trial. Only those on the periphery of a crime, or those whom the police suspect not to be hardcore terrorists, are ever brought to trial. Many such liquidations take place through ‘encounters’, many, if not most of them, fake. In all cases of encounter deaths, an FIR should be registered by the police against the officers responsible for the encounter. A chargesheet must be filed against them and it ought to be left to the trial court to decide, after the police specifically set out a plea of self-defence, whether the accused are guilty of murder or not. In such a trial, relatives or friends of the deceased, or any other concerned persons, including human rights organisations, ought to be permitted to appear and assist the court. The NHRC’s recommendations and guidelines issued in 2003 in respect of ‘encounter deaths’ should be strictly followed.

3. Torture

Torture is routine in India. It is the principal forensic tool of the police; in many cases its only tool. In the name of fighting terrorism, torture by the police has spread to every corner of this country. It is a far greater danger to the constitutional fabric of this country than terrorism. People are brutalised, often without any reason, and frequently for petty crimes. The various decisions of the Supreme Court refusing to punish policemen and instead ordering payment of compensation in cases of torture, executions, disappearances and the like, have made the police force believe that they can get away with anything through the payment of money.

Testimonies of Muslims at this Public Hearing show that the torture can take very extreme forms where prejudices against the religion and culture of the person work to completely degrade and demonise him or her. In all instances of torture, executions and disappearances, where a prima facie case is established, the court ought to have the power to direct the removal of the policemen responsible from service forthwith in exercise of power granted by Article 311(2) of the Constitution of India. These orders ought to be made in addition to the sentences imposed under the Criminal Procedure Code.

4. Impunity

Police and paramilitary forces operating under special laws like POTA and the Armed Forces (Special Powers) Act are under the impression that they are immune from the reach of the law. They must be systematically disabused of this impression. It is, of course, essential that individual politicians are not permitted to interfere with routine police work. But at the same time, civilian control over the police must be clearly established and maintained. We therefore recommend that a high-level board of civilians be established, inter alia, to look into all issues relating to police misconduct and further, that a special mechanism be established to receive, and inquire into, complaints of police misconduct in such a manner that the complainant is protected and the inquiry proceeds in an impartial fashion.

5. Repeal of the Armed Forces (Special Powers) Act applicable to the Northeast of India and the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990.

The criminal justice system has broken down in the Northeast and Jammu & Kashmir. So too has the rule of law. The police are afraid to register FIRs against the armed forces. Very few who suffer these atrocities approach the courts. The public has little faith in them. Those who attempt to file a case find the armed forces menacing them once again. The Do’s and Don’ts set out by the Supreme Court while reviewing the Constitutionality of the Armed Forces (Special Powers) Act have been forgotten. Civilian control over the police and the armed forces must be re-established. The high courts of the Northeastern states must strive to regain their pre-eminent position in the constitutional scheme of things and uphold the rule of law. Only then will the faith of the people in the judiciary be restored. Disappearances in Jammu & Kashmir have been neglected for too long. A high-powered independent investigation by persons in whom the people of Jammu & Kashmir have confidence ought to be initiated.

6. Godhra

In Gujarat, POTA has been used against Muslims alone (barring one Sikh). POTA charges have not been levelled against any person involved in the far more serious and destructive post-Godhra carnage. This is a clear case of discrimination on grounds of religion. POTA charges must be dropped in all cases. Trials should proceed under normal criminal law, not relying upon any confessional statement obtained under POTA.

7. Juveniles

Testimonies disclose that the use of POTA is so indiscriminate and wanton that even totally innocent juveniles were victimised. All juveniles ought to be charged in accordance with the provisions of the Juvenile Justice Act alone. Accordingly, no juvenile ought to be kept even for a single day in a jail with undertrials and convict prisoners.

8. Surrendered militants

The widespread police practice of employing ‘surrendered militants’, and of giving them guns and money, and permission to operate on behalf of the police as vigilantes, is creating serious law and order problems in many states. These criminal elements operate unchecked, committing dacoity, rape and murder. While they may eliminate a few people who the police may consider undesirable, they legitimise extra-judicial killings and in the process of doing so undermine the rule of law. Secret funds immune from normal accounting procedures and audit fuel such criminal activities and egregious corruption. A terrible underground system based on ‘surrendered militants’ has been set up and operated by the police to perpetuate violence, which is unaccountable to the judiciary. The government and the judiciary ought to review this practice of funding and recruiting ‘surrendered militants’ and discontinue this practice forthwith.

9. DK Basu guidelines violated

Every testimony before the Tribunal confirmed the routine violation of the DK Basu guidelines approved by the Supreme Court. For instance, many people spoke of how they were not informed of the charges levelled against them. Their relatives were not informed of their arrest and the place of detention. Medical examinations were rarely done and legal aid was hardly ever provided. The Supreme Court is currently reviewing the implementation of the DK Basu Guidelines. It is imperative that it issues further guidelines so that the services of policemen who violate the guidelines can be terminated on the spot in exercise of power under Article 311(2) of the Constitution. This ought to be in addition to the Court’s already existing order that breaches of the guidelines constitute Contempt of Court and may be punished as such.

10. Freedom of speech and expression

No court, least of all the Supreme Court of India, ought to permit any security legislation, even remotely and indirectly, to impact the freedom of speech of an individual with respect to the legislation itself or to the conduct of the government in its campaign against terrorism. It is inherent in a vibrant democracy that citizens will complain publicly, and often correctly, that a statute to combat terrorism is being misused for a collateral purpose, or that in the guise of combating terrorism, the State is arming itself to inflict terror on its people. Others may, with varying degrees of justification, attack the very classification of groups as terrorist organisations. Why do most of them relate to minority groups? Why are groups representing the majority community, which are openly communal and advocate violence, not on the list of banned organisations? Why are left wing organisations that advocate for armed struggle but represent the poorest of the poor not treated in a different fashion by the State through an understanding of the history and the social roots of the rebellion? Surely, they don’t seek to overthrow the State but merely attempt to redistribute the nation’s wealth in favour of the dispossessed.

Freedom of speech and expression in such circumstances is paramount. No statute should have a chilling effect on the exercise of that right in any manner. POTA and kindred laws have had just that effect. Therefore, when POTA is repealed it should not be replaced with any other similar legislation. The Tribunal noted with concern that the Madras high court has contributed to this chilling effect through its ‘gag orders’ — which prevent the accused, including political leaders, from addressing any public meeting (barring election meetings during the Lok Sabha poll campaign) or commenting in public, in writing or orally, on POTA and its merits or demerits. Such ‘gag orders’ are legally untenable.

11. Political vendetta

POTA has sometimes been used as a tool of political vendetta. This is clear in the case of Tamil Nadu chief minister J. Jayalalitha’s treatment of her political opponents. Security legislations should never be allowed to be used for such purposes. When a court finds that the statute has in fact been used for a collateral purpose, the individuals concerned ought to be immediately punished and the victims compensated.

12. Combating terrorism

Terrorism is indeed a matter of grave concern. There is no doubt that the nation must face the terrorist threat firmly. It is, however, necessary to note the different categories and distinguishing features of what is usually branded as ‘terrorism.’ One kind of terrorism is that of the fanatic who will use force to intimidate the general population. Strong security measures, prompt and efficient police investigation and competent prosecution are necessary to ensure that such fanatics are punished.

But there is another kind of militancy, which is carried out, in a crusade-like fashion on behalf of Adivasis, Dalits and the dispossessed. The roots of such militancy lie in the exclusion of a large part of the poor from democratic processes and systems. To treat this kind of militancy on a par with terrorism of the first type is a grave error, but one that has been committed by the State for decades. The answer to this kind of terrorism has traditionally been the arming of the police and paramilitary forces and the use of terror against the people and their armed representatives. This is a mistake of the gravest kind. The solution lies in large-scale radical reforms, including land reforms. Politically, despite the extreme levels of hostility between the State and these groups, democracy requires that space be created for all points of view to be heard and sympathetically considered. Branding such organisations as terrorist and putting them on the banned list has not helped in the slightest to curb their activities; if anything, the exclusion of the poor has been exacerbated.

A third category of militancy branded as terrorism relates to parts of the country such as the Northeast, where the armed resistance may not have anything to do with externally funded militancy. These are areas where introspection by the armed forces and the paramilitary forces with respect to their way of functioning is long overdue. The Indian army and the paramilitary forces are not supposed to turn their weapons against ordinary citizens. They are there to defend the nation against external aggression. The excesses committed by certain sections of these forces have carried on for so long that they have now almost become a way of life. It is therefore necessary that political and civilian control is re-established, and that the army and paramilitary forces be assigned only legitimate tasks of national defence against external aggression. Instances of abuse brought to the notice of the authorities over the last decade ought to be investigated by an impartial, high-level, civilian body. It is only when the general population sees that justice is being done in a transparent fashion that their faith in Indian democracy will be restored.

The notion that militancy should only be met with, and can be effectively countered by, force is only partially valid. Benevolence, understanding and a welfare approach are equally effective against militancy and can neutralise it. The poor, working people, slum-dwellers, Dalits and Adivasis have begun to strongly resent the strong-arm tactics of the functionaries of the State. They angrily rebel against torture, corruption and severe deprivation in respect of food, education and health services. The State must therefore re-orient its policies and uphold the rights of the poor to food, free public education, free health services, etc. Torture by the police, which people experience in their everyday life, must be quickly ended. Only then will there be a permanent solution to social discontent and strife, and lasting internal peace.

13. Prosecution of terrorists

The forensic investigation capabilities of the police have degenerated over the last decade because they place overwhelming reliance on torture. Serious cases relating to terrorism are handled in such a slip-shod fashion that they fail the standards of a fair criminal trial in any civilised society. The recording of coerced confessions, the fabrication of evidence, lying on oath, production of false witnesses and the like result in such trials being reduced to a farce. The police need to be converted into a professional force. The quality of persons recruited must be reviewed and modern techniques of investigation learnt. Most important, as in South Africa after the Apartheid regime, the police must be told that torture is simply unacceptable. The setting up of an alternative method of investigation, coupled with a prohibition on torture, will see a new and professional approach by a police force that will be respected by the general population. Only then will the people co-operate with the police in the investigation of crimes. Only then will people come forward as witnesses in a criminal trial. Radical police reform is a prerequisite of a successful fight against terrorism.

14. Reparation and compensation

Thousands of innocent people have been traumatised and may have languished in jail because of the indiscriminate and often malafide use of POTA and other security legislation. Even while repealing these laws, the State must recognise that it owes the victims monetary compensation and other reparation for their brutalisation and the disruption of their lives by the State.

15. Other security legislation

What has been said above in respect of POTA, the Armed Forces (Special Powers) Act and TADA applies in principle to the various security legislations enacted both by the Centre and the states. The observations made above, therefore, apply in respect of these security legislations as well.

16. Overrule Kartar Singh

If there is any single factor that has continued to cause the degeneration of the criminal justice system, it is the judgement of the Supreme Court in Kartar Singh’s case. If there is any single aspect of this case that has reinforced the police’s inclination to torture, it is the finding that the clause relating to confessions made to the police is constitutionally valid. This renders all refined forensic tools and proper investigation processes totally redundant. The police can simply proceed to use brute force and barbaric methods. What is the need for scientific investigation when the end can be achieved with a baton and electric shocks?

The recommendations of the Malimath Committee show that there is an inclination at the highest levels to negate the fundamental principle of ‘innocent until proved guilty’ and introduce coercive methods even in normal criminal law. Nothing could be more dangerous for this nation. The courageous dissent of Justice Ramaswamy in this case sets out the law correctly. The Kartar Singh judgement must be reviewed and the majority decision overruled.

17. Initiate peace talks

Since the inception of the Constitution we have been treating the trouble in the Northeast, Jammu & Kashmir and other states as a law and order problem. Fifty-five years of use of this method has not provided a solution to the militant situation. It is time we realised that these are political issues to be resolved politically. We urge the government to initiate a peace process with all the militant groups instead of granting unaccountable immunity to the army and the paramilitary forces. n

Ram Jethmalani KG Kannabiran

H Suresh DK Basu

Mohini Giri Syeda Hameed Arundhati Roy Praful Bidwai

For copies of The Terror of POTA and Other Security Legislation contact: People’s Tribunal on POTA and Other Security Legislation.

Email: [email protected] or [email protected]

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