“PREVENTION OF TERRORISM ACT’’

FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILMENT OF THE

COURSE TITLED –

LEGAL RESEARCH AND METHODOLOGY

SUBMITTED TO:

Mr. VIJAYANT SINHA

Teacher Associate

SUBMITTED BY:

NAME: KESHAV SHARMA

COURSE: BBA. LL.B (Hons.)

ROLL NO: 2022

SEMESTER: 1ST

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA

NAGAR, MITHAPUR, PATNA - 800001

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BBA. LL.B (Hons.) Project Report
entitled “PREVENTION OF TERRORISM ACT” submitted at Chanakya
National Law University is an authentic record of my work carried out under the
supervision of Mr. Vijayant Sinha. I have not submitted this work elsewhere for
any other degree or diploma. I am fully responsible for the contents of my Project
Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: KESHAV SHARMA

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 ACKNOWLEDGEMENT

I would like to thank my faculty Mr. Vijayant Sinha Sir whose guidance helped
me a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands
that helped me out at every stage of my project.

THANK YOU,

NAME: KESHAV SHARMA

COURSE: BBA. LL.B. (Hons.)

ROLL NO: 2022

SEMESTER: 1ST

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 INDEX

INTRODUCTION

* AIMS AND OBJECTIVES

* HYPOTHESIS

* RESEARCH METHODOLOGY

* SOURCES OF DATA

* TENTATIVE CHAPTERIZATION

1. Brief Introduction about Mob lynching.

2. Reasons of Mob lynching in India.

3. Impact of Mob lynching.

4. Initiatives taken by government.

5. Role of NGO’s.

6. Recent issues of Mob lynching.

7. Recommendations and Conclusion.

* BIBLIOGRAPHY

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 PREVENTION OF TERRORISM ACT

The terrorist attacks of September 11, 2001 sent shockwaves of fear and
insecurity far beyond the borders of the United States. India in particular had
reason to be afraid, and its fear was not merely for the 250 Indian citizens who
were trapped in the burning towers of the World Trade Center. As a nation
already at war with terror, it was clear that the struggle was about to get
harder. Since gaining independence fifty years ago, India has seen the
assassination of its most prominent civil rights leader, a prime minister, a
former prime minister, and a retired Army chief. Moreover, for over ten years,
India has been fighting insurgents in Kashmir, including Islamic radicals from
Pakistan and Afghanistan .As of the fall of 2001, terrorists in Kashmir had
killed thousands of civilians, policemen, and Indian soldiers, and violence raged
on. Add to these concerns the continued separatist violence in India’s northeast,
the potential threat of the Tamil Tigers in the south, and the existence of an
organized, international crime network distributing weapons and explosives to
all of the above, and it is unsurprising that government officials felt compelled
to act swiftly and forcefully in the wake of Al Qaeda’s assault on the United
States.

India’s Union Cabinet issued the Prevention of Terrorism Ordinance (POTO)

in October 2001. The central government claimed its action was a response to
“an upsurge of terrorist activities, intensification of cross border terrorism, and
insurgent groups in different parts of the country.” The ordinance granted
state law enforcement sweeping powers to investigate, detain, and prosecute
for a wide range of terrorist-related offenses. Most notably, POTO targeted
those who allegedly incited, supported, abetted, harbored, concealed, or
benefited from the proceeds of terrorism.

To some, POTO bore an ominous resemblance to the notorious Terrorist and

Disruptive Activities (Prevention) Act (hereinafter TADA), which lapsed in
1995 after years of abuse. Despite some initial criticism, however, events in
India soon made POTO an apparent necessity to the ruling coalition and many
other legislators. On December 13, 2001, Muslim terrorists, allegedly backed by
Pakistan, attacked the Indian parliament in a failed attempt to assassinate
legislators. The Cabinet condemned the attack as targeting “the very heart of
our system of governance, on what is the symbol and the keystone of the largest
democracy in the world.” Three months later, during a rare joint session

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convened at the Prime Minister’s request, the temporary ordinance became the
Prevention of Terrorism Act (POTA).

AIMS AND OBJECTIVES

1. The researcher tends to analyse the facts of “Mob lynching’’

2. To analyse what is the root cause of Mob lynching in India.

3. To understand What needs to be done .

HYPOTHESIS

For the purpose of this research, the researcher assumes that mob lynching is a
form of gruesome collective vigilantism by majority against minority.

RESEARCH METHODOLOGY

The researcher will be relying on Doctrinal method of research to complete the

project.

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 SOURCES OF DATA

The researcher will be relying on both primary and secondary sources to

complete the project.

1. Primary Sources: Acts & Articles relating to mob lynching.

2. Secondary Sources: Newspapers, journals, cases and websites.

WHAT IS TERRORISM

Terrorism is the most henious activities in the world The term "Terrorism"
comes from the French word Terrorisme, which is based on the Latin verb
“terrere” (to cause to tremble). The Jacobins cited this precedent when imposing
a Reign of Terror during the French Revolution. After the Jacobins lost power,
the word "terrorist" became a term of abuse. In modern times "Terrorism"
usually refers to the killing of innocent people by a private group in such a way
as to create a media spectacle. In November 2004, a United Nations Security
Council report described terrorism as any act "Intended to cause death or serious
bodily harm to civilians or non-combatants with the purpose of intimidating a
population or compelling a government or an international organization to do or
abstain from doing any act". In many countries, acts of terrorism are legally
distinguished from criminal acts done for other purposes, and "terrorism" is
defined by statute.

There is no universal agreement on the definition of terrorism. Various legal

systems and government agencies use different definitions. Moreover,
governments have been reluctant to formulate an agreed upon and legally
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binding definition. These difficulties arise from the fact that the term is
politically and emotionally charged. In the United States of America, for
example, Terrorism is defined in Title 22 Chapter 38 U.S. Code § 2656f as
"premeditated, politically motivated violence perpetrated against non combatant
targets by subnational groups or clandestine agents." According to Matusitz
(2013), terrorism includes the following:

 It is the use of violence or threat of violence in the pursuit of political,

religious, ideological or social objectives.

 It can be committed by governments, non-state actor, or undercover

personnel serving on the behalf of their respective governments.

 It reaches more than the immediate target victims and is also directed at
targets consisting of a larger spectrum of society.

 It is both mala prohibitia (i.e., crime that is made illegal by legislation)

and mala in se (i.e., crime that is inherently immoral or wrong).

The following criteria of violence or threat of violence fall outside of the

definition of terrorism:

 Wartime (including a declared war) or peacetime acts of violence

committed by a nation state against another nation state regardless of
legality or illegality that are carried out by properly uniformed forces or
legal combatants of such nation states.

 Reasonable acts of self-defence, such as the use of force to kill,

apprehend, or punish criminals who pose a threat to the lives of humans
or property.

 Legitimate targets in war, such as enemy combatants and strategic

infrastructure that are an integral part of the enemy's war effort.

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  Collateral damage, including the infliction of incidental damage to non-
combatant targets during an attack on or attempting to attack legitimate
targets in war.

HISTORY OF TERRORISM IN INDIA

Terrorism in India is started before India got independence on 1947 but that
times terrorist activities aim create a fear among the British Ruler and not killed
the general People. So we not called these freedom fighters as a terrorist but
after 1947 the terrorism activities to kill the innocent people. In early times the
Kashmir, Punjab and North East Frontier part was affected of terrorism. But in
current scenario the terrorism scope has been increase. The regions with long
term terrorist activities today are Jammu and Kashmir, Mumbai, Central India
(naxalism) and Seven Sister States (independence and autonomy movements).
In the past, the Punjab insurgency led to militant activities in the Indian state of
Punjab as well as the national capital Delhi.

In Indian concern for the terrorism, it is the main attribute of the terrorist
activities in form of religious terrorism. Religious terrorism is terrorism
performed by groups or individuals, the motivation of which is typically rooted
in the based tenets. Terrorist acts throughout the centuries have been performed
on religious grounds with the hope to either spread or enforce a system of
belief, viewpoint or opinion. The terrorist activities in India primarily
attributable to Islamic, Hindu, Sikh, Christian and Naxalite radical movements.
In current scenario the domestic and external terrorist activities is increasing in
India.

Recent incident of terrorist attack in India

Since 1947 India got independence till that time, at least 232 of the country’s

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608 districts were afflicted, at differing intensities, by various insurgent and
terrorist movements. In current situation there are as many as 800 terrorist
organizations operating in the country.

The major incident of terrorist attack on India is

12 March 1993 - Series of 13 bombs go off killing 257
14 March 2003 - Bomb goes off in a train in Mulund killing 10
29 October 2005 Delhi bombings
2005 Ram Janmabhoomi attack in Ayodhya
2006 Varanasi bombings
11 July 2006 - Series of seven bombs go off in trains killing
26 November 2008 to 29 November 2008 - Coordinated series of attacks killing
at least 170.
This data shows that after 1980, the terrorist activities are increased in India.
India has fought a war against the terrorism and in these wars we have lost more
than 6000 people. We have already lost more than 70000 civilians. In addition,
we have lost more than 9000 security personnel. Almost six lakh people in this
country have become homeless as a result of terrorism.

Laws related to terrorism in India

Terrorism has immensely affected India. The reasons for terrorism in India may
vary vastly from religious cause and other things like poverty, unemployment
and not developed etc.

The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab
[1994] 3 SCC 569, where it observed that the country has been in the firm grip
of spiralling terrorist violence and is caught between deadly pangs of disruptive
activities..

Anti-terrorism laws in India have always been a subject of much controversy.

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One of the arguments is that these laws stand in the way of fundamental rights
of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws
have been enacted before by the legislature and upheld by the judiciary though
not without reluctance. The intention was to enact these statutes and bring them
in force till the situation improves. The intention was not to make these drastic
measures a permanent feature of law of the land. But because of continuing
terrorist activities, the statutes have been reintroduced with requisite
modifications.

At present, the legislations in force to check terrorism in India are the National
Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There
have been other anti-terrorism laws in force in this country a different points in
time. The measure laws are that

Unlawful Activities (Prevention) Act, 1967

The UAPA was designed to deal with associations and activities that questioned
the territorial integrity of India. The ambit of the Act were strictly limited to
meeting the challenge to the territorial integrity of India. The Act was a self-
contained code of provisions for declaring secessionist associations as unlawful,
adjudication by a tribunal, control of funds and places of work of unlawful
associations, penalties for their members etc. The Act has all along been worked
holistically as such and is completely within the purview of the central list in the
7th Schedule of the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

The second major act came into force on 3 September 1987 was The Terrorist &
Disruptive Activities (Prevention) Act 1987 this act had much more stringent
provisions then the UAPA and it was specifically designed to deal with terrorist
activities in India. When TADA was enacted it came to be challenged before the

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Apex Court of the country as being unconstitutional. The Supreme Court of
India upheld its constitutional validity on the assumption that those entrusted
with such draconic statutory powers would act in good faith and for the public
good in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569.
However, there were many instances of misuse of power for collateral purposes.
The rigorous provisions contained in the statute came to be abused in the hands
of law enforcement officials. TADA lapsed in 1995.

The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)

Other major Anti-terrorist law in India is The Maharashtra Control of Organised
Crime Act, 1999 which was enforced on 24th April 1999. This law was
specifically made to deal with rising organized crime in Maharashtra and
especially in Mumbai due to the underworld. For instance, the definition of a
terrorist act is far more stretchable in MCOCA than under POTA. MCOCA
mention organized crime and what is more, includes `promotion of insurgency'
as a terrorist act. Under the Maharashtra law a person is presumed guilty unless
he is able to prove his innocence. MCOCA does not stipulate prosecution of
police officers found guilty of its misuse. .

FEATURES OF POTA 2002

CHAPTER I

Preliminary

1. Short title, application, commencement, duration and savings.-

(1) This Act may be called the Prevention of Terrorism Act, 2002.

(2) It extends to the whole of India.

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(3) Every person shall be liable to punishment under this Act for every act or
omission contrary to the provisions thereof, of which he is held guilty in India.

(4) Any person who commits an offence beyond India which is punishable
under this Act shall be dealt with according to the provisions of this Act in the
same manner as if such act had been committed in India.

(5) The provisions of this Act apply also to—

(a) citizens of India outside India;

(b) persons in the service of the Government, wherever they may be; and

(c) persons on ships and aircrafts, registered in India, wherever they may be.

(6) Save as otherwise provided in respect of entries at serial numbers 24 and 25

of the Schedule to this Act, it shall be deemed to have come into force on the
24th day of October, 2001 and shall remain in force for a period of three years
from the date of its commencement, but its expiry under the operation of this
sub-section shall not affect—

(a) the previous operation of, or anything duly done or suffered under this Act,
or

(b) any right, privilege, obligation or liability acquired, accrued or incurred

under this Act, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence

under this Act, or

(d) any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

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and, any such investigation, legal proceeding or remedy may be instituted,
continued or enforced and any such penalty, forfeiture or punishment may be
imposed as if this Act had not expired.

CHAPTER II

Punishment for, and measures for dealing with, terrorist activities

3. Punishment for terrorist acts.-

(1) Whoever,—

(a) with intent to threaten the unity, integrity, security or sovereignty of India or
to strike terror in the people or any section of the people does any act or thing
by using bombs, dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or noxious gases or
other chemicals or by any other substances (whether biological or otherwise) of
a hazardous nature or by any other means whatsoever, in such a manner as to
cause, or likely to cause, death of, or injuries to any person or persons or loss of,
or damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community or causes damage or destruction
of any property or equipment used or intended to be used for the defense of
India or in connection with any other purposes of the Government of India, any
State Government or any of their agencies, or detains any person and threatens
to kill or injure such person in order to compel the Government or any other
person to do or abstain from doing any act;

(b) is or continues to be a member of an association declared unlawful under the

Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an
act aiding or promoting in any manner the objects of such association and in
either case is in possession of any unlicensed firearms, ammunition, explosive

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or other instrument or substance capable of causing mass destruction and
commits any act resulting in loss of human life or grievous injury to any person
or causes significant damage to any property, commits a terrorist act.

Explanation.—For the purposes of this sub-section, "a terrorist act" shall

include the act of raising funds intended for the purpose of terrorism.

(2) Whoever commits a terrorist act, shall,—

(a) if such act has resulted in the death of any person, be punishable with death
or imprisonment for life and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for life and
shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or

incites or knowingly facilitates the commission of, a terrorist act or any act
preparatory to a terrorist act, shall be punishable with imprisonment for a term
which shall not be less than five years but which may extend to imprisonment
for life and shall also be liable to fine.

(4) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal

any person knowing that such person is a terrorist shall be punishable with
imprisonment for a term which shall not be less than three years but which may
extend to imprisonment for life and shall also be liable to fine:

Provided that this sub-section shall not apply to any case in which the harbour
or concealment is by the husband or wife of the offender.

(5) Any person who is a member of a terrorist gang or a terrorist organisation,

which is involved in terrorist acts, shall be punishable with imprisonment for a

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term which may extend to imprisonment for life or with fine which may extend
to rupees ten lakh or with both.

Explanation.—For the purposes of this sub-section, "terrorist organisation"

means an organisation which is concerned with or involved in terrorism.

(6) Whoever knowingly holds any property derived or obtained from

commission of any terrorist act or has been acquired through the terrorist funds
shall be punishable with imprisonment for a term which may extend to
imprisonment for life or with fine which may extend to rupees ten lakh or with
both.

(7) Whoever threatens any person who is a witness or any other person in whom
such witness may be interested, with violence, or wrongfully restrains or
confines the witness, or any other person in whom the witness may be
interested, or does any other unlawful act with the said intent, shall be
punishable with imprisonment which may extend to three years and fine.

4. Possession of certain unauthorized arms, etc.-

Where any person is in unauthorised possession of any—

(a) arms or ammunition specified in columns (2) and (3) of Category I or

Category III (a) of Schedule I to the Arms Rules, 1962, in a notified area,

(b) bombs, dynamite or hazardous explosive substances or other lethal weapons

capable of mass destruction or biological or chemical substances of warfare in
any area, whether notified or not, he shall be guilty of terrorist act
notwithstanding anything contained in any other law for the time being in force,
and be punishable with imprisonment for a term which may extend to
imprisonment for life or with fine which may extend to rupees ten lakh or with
both.
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Explanation.—In this section, "notified area" means such area as the State
Government may, by notification in the Official Gazette, specify.

5. Enhanced penalties.-

(1) If any person with intent to aid any terrorist contravenes any provision of, or
any rule made under the Explosives Act, 1884 (4 of 1884), the Explosive
Substances Act, 1908 (6 of 1908), the Inflammable Substances Act, 1952 (20 of
1952) or the Arms Act, 1959 (54 of 1959), he shall, notwithstanding anything
contained in any of the aforesaid Acts or the rules made thereunder, be
punishable with imprisonment for a term which may extend to imprisonment for
life and shall also be liable to fine.

(2) For the purposes of this section, any person who attempts to contravene or
abets, or does any act preparatory to the contravention of any provision of any
law, rule or order, shall be deemed to have contravened that provision, and the
provisions of sub-section (1) shall, in relation to such person, have effect subject
to the modification that the reference to "imprisonment for life" shall be
construed as a reference to "imprisonment for ten years".

6. Holding of proceeds of terrorism illegal.-

(1) No person shall hold or be in possession of any proceeds of terrorism.

(2) Proceeds of terrorism, whether held by a terrorist or by any other person and
whether or not such person is prosecuted or convicted under this Act, shall be
liable to be forfeited to the Central Government or the State Government, as the
case may be, in the manner provided under this Chapter.

7. Powers of investigating officers and appeal against order of Designated

Authority.-

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(1) If an officer (not below the rank of Superintendent of Police) investigating
an offence committed under this Act, has reason to believe that any property in
relation to which an investigation is being conducted, represents proceeds of
terrorism, he shall, with the prior approval in writing of the Director General of
the Police of the State in which such property is situated, make an order seizing
such property and where it is not practicable to seize such property, make an
order of attachment directing that such property shall not be transferred or
otherwise dealt with except with the prior permission of the officer making such
order, or of the Designated Authority before whom the properties seized or
attached are produced and a copy of such order shall be served on the person
concerned.

(2) For the removal of doubts, it is hereby provided that where an organisation
is declared as a terrorist organisation under this Act and the investigating officer
has reason to believe that any person has custody of any property which is being
used or is intended to be used for the purpose of such terrorist organisation, he
may, by an order in writing, seize or attach such property.

(3) The investigating officer shall duly inform the Designated Authority within
forty-eight hours of the seizure or attachment of such property.

(4) It shall be open to the Designated Authority before whom the seized or
attached properties are produced either to confirm or revoke the order of
attachment so issued:

Provided that an opportunity of making a representation by the person whose

property is being attached shall be given.

(5) In the case of immovable property attached by the investigating officer, it

shall be deemed to have been produced before the Designated Authority, when

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the investigating officer notifies his report and places it at the disposal of the
Designated Authority.

(6) The investigating officer may seize and detain any cash to which this
Chapter applies if he has reasonable grounds for suspecting that—

(a) It is intended to be used for the purposes of terrorism;

(b) It forms the whole or part of the resources of an organisation declared as

terrorist organisation under this Act:

Provided that the cash seized under this sub-section by the investigating officer
shall be released not later than the period of forty-eight hours beginning with
the time when it is seized unless the matter involving the cash is before the
Designated Authority and such Authority passes an order allowing its retention
beyond forty-eight hours.

Explanation.—For the purposes of this sub-section, "cash" means—

(a) Coins and notes in any currency;

(b) Postal orders;

(c) Traveller’s cheques;

(d) banker’s drafts; and

(e) Such other monetary instruments as the Central Government or, as the case
may be, the State Government may specify by an order made in writing.

(7) Any person aggrieved by an order made by the Designated Authority may
prefer an appeal to the Special Court and the Special Court may either confirm

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the order of attachment of property or seizure so made or revoke such order and
release the property.

8. Forfeiture of proceeds of terrorism.-

Where any property is seized or attached on the ground that it constitutes

proceeds of terrorism and the Special Court is satisfied in this regard under sub-
section (7) of section 7, it may order forfeiture of such property, whether or not
the person from whose possession it is seized or attached, is prosecuted in a
Special Court for an offence under this Act.

9. Issue of show cause notice before forfeiture of proceeds of terrorism.-

(1) No order forfeiting any proceeds of terrorism shall be made under section 8
unless the person holding or in possession of such proceeds is given a notice in
writing informing him of the grounds on which it is proposed to forfeit the
proceeds of terrorism and such person is given an opportunity of making a
representation in writing within such reasonable time as may be specified in the
notice against the grounds of forfeiture and is also given a reasonable
opportunity of being heard in the matter.

(2) No order of forfeiture shall be made under sub-section (1), if such person
establishes that he is a bona fide transferee of such proceeds for value without
knowing that they represent proceeds of terrorism.

(3) It shall be competent for the Special Court to make an order in respect of
property seized or attached,—

(a) directing it to be sold if it is a perishable property and the provisions of

section 459 of the Code shall, as nearly as may be practicable, apply to the net
proceeds of such sale;

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(b) nominating any officer of the Central or State Government, in the case of
any other property, to perform the function of the Administrator of such
property subject to such conditions as may be specified by the Special Court.

10. Appeal.-

(1) Any person aggrieved by an order of forfeiture under section 8 may, within
one month from the date of the receipt of such order, appeal to the High Court
within whose jurisdiction, the Special Court, who passed the order appealed
against, is situated.

(2) Where an order under section 8 is modified or annulled by the High Court or
where in a prosecution instituted for the contravention of the provisions of this
Act, the person against whom an order of forfeiture has been made under
section 8 is acquitted, such property shall be returned to him and in either case if
it is not possible for any reason to return the forfeited property, such person
shall be paid the price therefor as if the property had been sold to the Central
Government with reasonable interest calculated from the day of seizure of the
property and such price shall be determined in the manner prescribed.

With modernity, there is growth of individualism and an erosion of

associational life.

 Associations encourage us to appreciate others culture and moderate our

aggressive instincts.

MISUSE OF LAW

The curious case of the Union Minister of State for Non-conventional Energy
Sources, M. Kannappan, should have woken the country to the problems being
created by the use and misuse of the draconian Prevention of Terrorism Act
(POTA) but it evidently has not. At any rate, not sufficiently.
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Mr. Kannappan may thank his stars that he has not yet become a POTA
detainee like the leader of his party, the MDMK, Vaiko, who has been
languishing in prison for nearly 15 months. The Union Government, manifestly
sympathetic to him, is unable to do anything about it. But Mr. Kannappan has
got only a respite, not reprieve.

The Tamil Nadu Chief Minister, Jayalalithaa, has held her hand only until she
receives the Prime Minister, Atal Bihari Vajpayee's reply to her September 22
epistle. In it she has asked Mr. Vajpayee to drop Mr. Kannappan from his
Council of Ministers so that the State Government can take the necessary action
against the latter under POTA for his ``open support'' to the banned LTTE. This,
according to her, is an ``anti-national act''.

Ms. Jayalalithaa has added, for good measure, that even if the Prime Minister,
for ``compelling political reasons,'' cannot drop the Minister, there is no law that
can prevent the Tamil Nadu Government from arresting Mr. Kannappan. Mr.
Vajpayee has referred Ms. Jayalalithaa's letter to the Law Ministry and has
again gone abroad soon after his return from an extended stay in Ankara and
New York. Even so, the nettle will have to be grasped sooner or later.

Whenever that happens and whatever Mr. Vajpayee decides, he and the country
are bound to learn to their dismay that POTA, once expected to be a panacea for
the scourge of terrorism, looks like turning into a classic case of the remedy
being worse than the disease.

Soon after Mr. Vaiko's arrest, the Union Law Minister, Arun Jaitley, had argued
that a ``mere speech'' in support of the LTTE (and presumably any other
terrorist outfit) was not a ground for action under POTA. But this did not pass
muster in any of the POTA courts. Nor is it fair to blame special POTA judges.
For, the relevant section of the law is worded so loosely that it is virtually

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impossible to escape its clutches. Nobody knows why the safeguard of every
POTA case being reviewed by a judicial board has also proved utterly
ineffectual.

Here a slight digression is called for. The hyper-controversial POTA was

opposed tooth and nail by the entire Opposition, all civil rights organisations
and an impressive array of legal luminaries. It was rejected by the Rajya Sabha
and was passed at a joint sitting of the two Houses. Remarkably, every single
Tamil party represented in Parliament had voted for it, Mr. Vaiko being among
its most eloquent champions. How ironic it is that he should have been POTA's
first victim in Tamil Nadu.

In other States

Tamil Nadu, however, is not the only State groaning against POTA's improper
use. Its misuse in some other States has been even more shocking because
politicians in power there have found this extraordinarily harsh law to be the
most convenient instrument to lock up their opponents. Before ceasing to be
Chief Minister of Uttar Pradesh, Mayawati, had demonstrated this vividly in the
notorious case of Raja Bhaiya. As if to prove that provenance of action or
inaction under POTA is political motivation, Ms. Mayawati's successor,
Mulayam Singh Yadav, immediately released Raja Bhaiyya. But the POTA
court summarily rescinded Mr. Yadav's arbitrary order that was meekly carried
out even before he was sworn in.

To the BJP Ministry in Jharkhand goes the dubious distinction of having

arrested under POTA over 700 persons, several of them schoolgirls whose
parents are too poor to bail them out. According to a New Delhi wag, we seem
to be moving ``from quota raj to POTA raj''.

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As in other cases so in this respect, Gujarat's is a case apart. Here the Narendra
Modi Government has invoked POTA against 123 Muslims arrested for the
horrific Godhra outrage but not against any of the Hindus involved in the
savage anti-Muslim pogrom that followed.

One painful question must be raised. Whatever the legal position, is it proper for
a member of Mr. Vajpayee's Council of Ministers to proclaim his sympathy for
a monstrous terrorist organisation that has committed unspeakable crimes not
only in Sri Lanka but also in this country? The assassination of the former
Prime Minister, Rajiv Gandhi, was one of its barbaric acts.

Sadly, talking out of turn and utterly irresponsibly has become one of
ministerial perquisites. Only the other day, the Defence Minister, George
Fernandez, made the absurd statement that the Line of Control in Jammu and
Kashmir had not been clearly defined — a standard Pakistani line that was
demonstrably demolished during the Kargil War. Would the Prime Minister
please enforce some discipline on his wayward colleagues?

IMPACT AND REPEAL

Two years from the enactment of the POTA, a number of issues as to the
possibilities of misuse of the provisions of the anti-terror law including the
targeting of minorities and using it against political opponents had arisen. In
Gujarat, all except one of the POTA detainees are from the Muslim minority
and in Tamil Nadu and UP too the ostensible anti-terror law has been abused to
book, without lucidity and accountability, political opponents and
underprivileged communities respectively.

A decade long experience with a previous national anti-terror law, the infamous
Terrorist and Disruptive Activities Prevention (TADA) that was in force

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between 1985-1995 gives legitimacy to the fear that the misuse of such laws
evoke among human rights activists, political dissenters and minorities. Under
the TADA, the conviction rate was less than 1%, despite the fact that the
confessions made to the police, even though being given under torture, were
admissible as evidence.

The developments after the enactment of the POTA, including the responses
received by the POTA review committee show that the POTA is worse then
TADA. POTA provides for criminal liability for mere association or
communication with suspected terrorists without the possession of criminal
intent (Section 3(5) of the POTA). Section 4 of POTA is similar to Section 5 of
TADA in laying out a legal presumption that if a person is found in
unauthorized possession of arms in a notified area, he/she is automatically
linked with terrorist activity. Section 48(2) provides for the option of pre-trial
police detention for up to 180 days. As under the TADA, where 98% of the
cases never reached the trial stage, this Section 48(2) could also be misused by
the police by keeping an accused for long periods of detention without charge or
trial.

Special courts for trials are established under POTA which are given the
discretion to hold trials in non-public places, like prisons, and to withhold trial
records from public scrutiny, thus preventing the independent monitoring of
special court sessions. Section 32 provides that confessions made to police
officers are to be admissible in trial, which has increased the possibility of
coercion and torture in securing confessions.

The provisions contained under the POTA were mostly contained in existing
laws, except those, which were contained in the Criminal Procedure Code, the
Indian Penal Code, the Evidence Act or the Constitution of India. The Act

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effectively undermines the fundamental tenet of the criminal justice system by
putting the burden of proof on the accused. But the Act also had some
provisions, which were not attacked for being against human rights. These
provisions stated that Confessions must be recorded within 48 hours before a
magistrate, who will send the accused for a medical examination if there is a
complaint
of torture. Further a legal representative of the accused can be present for part of
the interrogation. Moreover police officers can be prosecuted for abusing their
authority. The POTA also provided that victims could be paid compensation.

But these provisions could not act as an effective shield to protect the Act from
the criticism it received for its other provisions abusing human rights. Those
opposed to POTA had argued that existing laws were sufficient to deal with
terrorism. Within a year POTA had already built up a dubious record and in
some states it was already dreaded as its predecessor. State governments,
including opposition-ruled ones, had not hesitated to use POTA to fix political
opponents.

At the Peoples Tribunal on POTA and Other Security Legislation at the Press
Club in New Delhi on July 16,2004 a 629-page report based on depositions
made before the Tribunal by victims and their families from ten states in India,
as well as expert depositions by lawyers and activists, showed that such security
legislations grant sweeping powers to authorities, which has led to misuse of
these powers and severe restriction of basic rights. At the same time, such
legislations do not address the political, social and economic roots of the
problem.

The tribunal concluded that the review of victim and expert testimony showed
that the misuse of the Act is inseparable from its normal use. The tribunal stated

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that the 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. Thus the tribunal recommended that POTA be
repealed and that too in such a manner that the POTA charges are deleted from
all existing investigations and trials. But, if the state so desires, these may
continue under other laws and charges.

Finally on September 17, 2004 the Union Cabinet in keeping with the UPA
government's Common Minimum Programme, approved ordinances to repeal
the controversial Prevention of Terrorism Act, 2002 (POTA) and amend the
Unlawful Activities (Prevention) Act, 1967. Home Minister Shivraj Patil said
that the government would provide a sunset period of one year during which all
cases pertaining to POTA would be reviewed by the Central POTA Review
Committee. He added, There would be no arrests made after the ordinance is
promulgated. To fill the lacuna that have been created due to the repeal of the
Act, adequate amendments were being brought to the Unlawful Activities
(Prevention) Act, 1967 to define a terrorist act and provide for banning of
terrorist organisations and their support systems, including funding of terrorism,
attachment and forfeiture of proceeds of terrorism, etc. All terrorist
organisations banned under POTA would continue to remain banned, under the
Unlawful Activities Act, after the repeal of the Act. Some of the clauses
contained in POTA, which will be completely dropped in the amended
Unlawful Activities Act, are: the onus on the accused to prove his innocence,
compulsory denial of bail to accused and admission as evidence in the court of
law the confession made by the accused before the police officer.

The BJP government has slammed the Cabinet decision to repeal POTA as
politically motivated and compromising of the essentials of national security.
BJP spokesperson and former Law Minister Arun Jaitley said if the

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amendments brought out under the existing laws after the repeal of POTA are
found to be inadequate, the BJP-ruled states would be asked to come out with
their own legislations filling up the lacuna. But till such a step is taken many
innocent victims of the POTA can take a sign of relief and thank their stars that
the reign of terror under the stringent anti- terror law POTA has come to an end.

IMPORTANT CASES

THE CASE OF VAIKO

Tamil Nadu politician and Marumalarchi Dravida Munnetra Kazhagam
(MDMK) party leader Vaiko was arrested on Monday on charges of sedition
which was filed against him in 2009. After being presented before a magistrate
he was sent to 15 days of judicial custody. In 2009, Chennai police registered a
sedition case against Vaiko for his comment regarding the banned outfit
Liberation Tigers of Tamil Eelam (LTTE), when he said that India would not
remain a united single country if the war against LTTE in Sri Lanka was not
stopped.

Following the arrest of Vaiko, his travelling passport was also reportedly seized.
The arrest of the MDMK leader was made today and he was produced before a
magistrate and he did not furnish a bail bond.

In 2009, a first information report (FIR) was lodged against Vaiko under the
Unlawful Activities Prevention Act. Apart from that he has also been charged
for inciting people to take part in violence. He also reportedly made comments
about ‘bloodbath’ in India if anything happened to the then leader of LTTE V
Prabhakaran. He in the same note said that there was nothing wrong in the
joining of the youth in the armed struggle against the Sri Lankan army. The case
against him began after he release the book ‘Naan Kutram Sattugiren’ (I am
accusing you), which was a compilation of letters exchanged between Vaiko

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and former Prime Minister Manmohan Singh in 2009. The police charged Vaiko
for his alleged seditious speech under Section 124(A) of the Indian Penal Code
(IPC). The police reportedly conducted an investigation and filed a chargesheet
against him in 2010. However, there was no sign of trial in the case after 2010.

The TOI also reports that Vaiko appeared before XIII metropolitan magistrate
Gopinath on Monday and filed a surrender petition.When Vaiko refused to be
bailed and did not even file a bail application, which left the magistrate with
only the option of sending the MDMK founder to judicial remand.

SAR GEELANI’S CASE

Syed Abdul Rahman Geelani, of Kashmiri origin taught Arabic at a college in

Delhi during the time of his first arrest. He openly supports the idea of Kashmiri
self-determination. Geelani was a suspect in the 2001 Parliament attacks along
with Afzal Guru, Shaukat Hussain and Navjot Sandhu.

Three of the accused including Geelani were handed the death penalty while,
Navjot Sandhu was acquitted of all charges except one under Section 123 of the
Indian Penal Code (concealing with intent to facilitate design to wage war) —
she was then sentenced to five years rigorous imprisonment for five years,
according to this earlier First post report

However, Geelani’s conviction led to a “massive legal and civic campaign”,

claimed Outlook in an oped. Geelani was tortured in police custody and was
branded as guilty by the media. His wife and children were illegally detained.

His wife was told, “Your husband is in jail We will kill you. We will kill the
children. You better tell him to come clean.”

After a relentless battle fought by his legal team, the Delhi High Court set aside
his conviction and acquitted Geelani on all charges — the court found there was
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“no evidence to the effect that Gilani was maintaining personal or telephonic
contacts with any of the deceased terrorists. There is no evidence of any
participative acts in connection with or in pursuance of the conspiracy.

He was not connected with the procurement of hideouts, chemicals and other
incriminating articles used by the terrorists. Speaking from the point of view of
probabilities and natural course of conduct there is no apparent reason why
Geelani would have been asked to join conspiracy,

SYED AL SHAH GEELANI’S CASE

On 8 June 2002, former All Parties Hurriyat Conference chairman and leader of
the fundamentalist Jamaat-e-Islami and his son-in-law were arrested under the
Prevention of Terrorism Ordinance (Pota) in Kashmir. Geelani's arrest revealed
the nexus between Kashmiri separatist leaders and Pakistan's ISI in receiving
money through hawala channels and then distributing them to different militant
organisations in Kashmir. The arrests followed raids by the Indian Income Tax
department and the Jammu and Kashmir police at Geelani's residence and nine
other places in the Kashmir Valley and New Delhi. Geelani was arrested and
has since been lodged in Central Jail, Ranchi in Jharkhand to prevent him from
continuing anti-national activities. The raids were carried out at around 5 am on
8 June 2002 at the residences of Geelani, his son-in-law Altaf Fantoosh,
women's separatist outfit Dukhtran-e-Millat chief Asiya Indrabi and another
person in Srinagar and Baramulla in Jammu and Kashmir. Police have however,
been unable to arrest Indrabi who has since gone underground. According to
media reports, the raids at Geelani's led to the recovery of Rs 10,25000 in cash,
$10,000, vouchers relating to the purchase of large number of jewellery items
and documents relating to the purchase of two properties in Rawalpora on
Srinagar airport road. Two computers with details of transactions and list of

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militants and secessionist propaganda literature were also recovered from
Geelani house.

According to Jammu and Kashmir police chief, A.K. Suri, Geelani, in his
returns filed in the last two years, had shown he received a monthly pension of
Rs 7,100 per month from the Jammu and Kashmir Assembly for being a former
MLA and Rs 10,000 as agriculture income. However, the approximate monthly
expense of Geelani worked out to more than Rs. 1,50,000. One diamond
studded watch with the inscription "From Pakistan government" and two
vehicles purchased out of unaccounted sources were also recovered from
Geelani's residence. Geelani also maintained 14 servants at his house who were
paid Rs. 2,000 each. Geelani's wife on interrogation revealed she was given Rs
25,000 per month for kitchen expenses, and said the house was on rent but did
not specify the rent amount and to whom it was being paid to. Geelani's driver
and close confidant, G. M. Baba also possessed a truck worth Rs.2,40,000 and
a drilling machine worth Rs. 1,40,000 besides documents relating to mining
contract business of stone quarries. Baba has not been filing his income tax
returns. On 10 June 2002, police in New Delhi arrested Iftikhar Geelani, son-in-
law of Syed Ali Shah Geelani. Police and income tax officials raided Iftikhar
Geelani's residence in New Delhi and seized a computer which had a file of five
pages with information about the strength of troops of the Indian Army and
paramilitary forces in Jammu and Kashmir. Geelani, a correspondent with a
Kashmir-based daily has also been charged under the Official Secrets Act.

The latest raids were carried out after the Jammu and Kashmir police launched
an operation to halt the funding sources of militant organisations in Kashmir.
Earlier on 25 May 2002, another Kashmiri journalist, Imtiyaz Bazaz was
arrested on charges of channelling funds to militant organisations from UK-
based President of the World Kashmir Freedom Movement, Ayub Thukar. The
raids on Geelani's premises were carried out after Bazaz's interrogation and
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reports indicating that Pakistan-occupied Kashmir-based supreme commander
of Hizbul Mujahideen Syed Salahuddin had been sending money to his
commanders in the state through UK-based Kashmiri expatriate Ayub Thakur
and Geelani. Salahuddin had reportedly sent a consignment totalling Rs.
48,00,000 to Syed Ali Shah Geelani in the beginning of 2001 through Ayub
Thukar. In January 2002, Dukhtaran-e-Millat chief Asiya Indrabi's husband
Qasim Faktu was arrested. Faktu was the financial chief of the Jamiat-ul-
Mujahideen and his arrest was a severe blow to the militant organisation, which
had been facing a financial crunch since then. Asiya Indrabi had reportedly
started getting funds from Ayub Thukar through Imtiyaz Bazaz to provide
finances to the Jamiat-ul Mujahideen and the Dukhtaran-e-Millat for carrying
out their militant and subversive activities.

CONCLUSION
After reading the whole view, Various suspicion and voices have been raised by
people NGO's under the pretext of constitution, constitutional provisions, and
equality before law and civil rights. All these organizations must keep in mind
that provisions are there in the constitution where reasonable restrictions can be
enforced even upon the liberty of people and there is need to stringent law to
tackle the terrorism. We also need to bear in mind that much as terrorist keep
apace with emerging technology- the current phenomena being termed as fourth
generation warfare and certainly India also need to fine tune and adopt their anti
terror legislation to fought to the changing time. The mandate is particularly
relevant in India on one hand it states identified as an emerging economic
growth which is harassing it resource to take it appointed place in the heierachy
of nation at the other hand its dramatic prograss it this direction is sought to be
stymied by the enemies by carrying out repeated terror attacks right across the
country. Even as proactive executive means of copying with terror( intelligence,
organizational, technical and human capital related) fall into place, we need not

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just law that tackle to terrorism but more important what new generation of
people who must be educated an what it means to fight terror in a democratric
set up. In the view of the misuse of power, we can make develop a system to
stop it misuse.

Lord Denning said: “The freedom of individual must take second place to the
security of the state”. Recently, no less a person than the Chief Justice of India
said that the international community could not fault India if it chose to enact
tough measures to deal with the menace of terror.

So there is needed to make stringent law to tackle terrorism.

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