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Unnecessary evil

By Meena Menon

Any law must provide for a fair and just investigation procedure. But under POTA, the police have powers to literally beat confessions out of people.

ON APRIL 17, 2004, 75-year-old Sayyed Khwaja Ayub died in Parbhani, Maharashtra, waiting for justice. His son, Khwaja Yunus, who was among the 27 charged under the Prevention of Terrorism Act (POTA) for planning the Mumbai bomb blasts of 2002 and 2003, died last year. His body was never found. The police claimed he escaped on January 7, 2003, while being taken to Aurangabad for questioning. Sayyed Khwaja filed a habeas corpus petition convinced his son had died in custody. The State CID investigated the case. As a result, an Assistant Police Inspector was arrested recently. Besides murder, he and some other policemen were accused of destroying evidence and framing incorrect records.

In a sense, young Khwaja Yunus' death symbolises all that can go wrong when a law such as POTA is indiscriminately used. The Maharashtra Minorities Commission report says the police arrested Khwaja Yunus because his telephone number appeared on the cell phone of another accused, Abdul Mateen.

It is nobody's case that terrorists must be allowed to roam free. Terrorism of any sort must be punished and its victims should get justice. But justice must be based on facts and not presumptions, and brutality is certainly not a means to an end.

For Khwaja Yunus, who was just 27, the three-member Review Committee on POTA, constituted on March 13, 2003 will make no difference. The Committee, headed by Justice Arun B. Saharya, started reviewing cases under POTA in 14 States in July. On April 18, the special POTA court in Mumbai released Zaheer Sheikh, who was arrested along with Yunus, after the Committee found that there was no prima facie evidence against him.

The National Human Rights Commission has held that POTA is not necessary to deal with terrorism, and that there are enough provisions in the existing criminal laws. It seems no lessons have been learnt from the misuse of its earlier version, the Terrorist and Disruptive Activities (Prevention) Act (TADA), which was withdrawn in 1995. The Act had been more abused than used and had resulted in abysmal conviction rates.

While some of the special features of criminal law are presumption of innocence of the accused and the placing of the burden of proof on the prosecution, for a person arrested under POTA, the onus of proof of innocence is on the accused, and he/she is presumed guilty even before there is a chance of rebuttal.

Further, getting bail is almost impossible under the Act. It empowers an officer not below the rank of Superintendent of Police to record confessions and such evidence is admissible in trial, unlike the provisions of the Indian Evidence Act.

The report of the Maharashtra Minorities Commission points out glaring examples of misuse of power by the police while recording confessions. In one case, the police recorded the confession and then presented a different version in court. Anas Khot, a rickshaw driver from Padgah in Thane district, adjoining Mumbai, was tortured for 10 days, forced to drink urine and perform obscene acts, before he gave a statement, says the Minorities Commission report.

Though the Congress opposed POTA, the Maharashtra Government has used it liberally and 86 persons have been arrested under the Act since last year, including tendu leaf contractors, alleged rioters, gangsters, members of armed groups, and those accused in the Mumbai blasts case.

However, the State has also been quick to backtrack on POTA. In February this year, the State Government dropped charges against 29 people accused of being involved in communal riots in Solapur, from where Chief Minister Sushil Kumar Shinde's wife is contesting for the Lok Sabha. The decision came after a high-level committee was set up to examine the cases under POTA. The State virtually admitted that its application of POTA was wrong in these cases.

In March 2004, nine accused for their involvement in the Ghatkopar blasts were discharged. But they are still in jail in connection with other cases. A senior police official says that there was no clinching evidence against the nine but they did have links with the overall conspiracy of planning four blasts, which took place in Mumbai between December 2, 2002 and March 13, 2003.

The Attorney-General, Soli Sorabjee, and others defended POTA after it was passed, saying it was a "national necessity." Is it also a national necessity to deny justice? Any law must provide for a fair and just investigation procedure. Under POTA, the police have powers to literally beat confessions out of people.

The Committee on Reforms of the Criminal Justice System, 2003, chaired by Justice V.S. Malimath, says that the primary responsibility of the police is to protect life, liberty and property of citizens. The police are charged with the responsibility of protecting the precious human rights of citizens. Under POTA that responsibility seems more an exception than the rule.

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