Hotline Asia Urgent Appeals -- UA011123(11)

Action Requested || Sample Letter || Background
update

Summary

The government of India is on the verge of enacting legislation that will reinstate a modified version of the Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985. According to human rights activists in India, tens of thousands of politically motivated detentions, torture, and other human rights violations took place under the TADA. In the face of extensive opposition to the Act, the Indian government of that time acknowledged these abuses and consequently let the TADA lapse in 1995.

However, citing "national security" concerns while relations with Pakistan deteriorate, violence increases in Kashmir, as well as the events of 11 September 2001, the government of India has justified the need to launch yet another "salvo" in its own "strike against terror." Promulgated six years after the TADA lapsed in 1995, the Prevention of Terrorism Ordinance (POTO) is expected to come up for debate in Parliament during its winter session on 7 December 2001.

The POTO can be used by the state to silence peaceful political dissent and to target minorities. The dismal history of national security legislation in India attests to the likelihood of such abuse.

Please respond not later than 14 December 2001

In order to build pressure on the debate, please write polite letters to express concern about the introduction of the Prevention of Terrorism Ordinance (POTO), urging that, in the interest of justice, the POTO is rejected and the recommendations given in the sample letter below are offered.

Sample Letter

Background

The Prevention of Terrorism Ordinance (POTO) sets forth a broad definition of terrorism that includes acts of violence or disruption of essential services carried out with "intent to threaten the unity and integrity of India or to strike terror in any part of the people." Existing laws have been extended so that it is a crime to not provide authorities with "information relating to any terrorist activity."

According to human rights activists in India, previous Indian governments used the Terrorists and Disruptive Activities (Prevention) Act (or TADA) as a tool to fight trade unions, detain Muslims, Sikhs, Dalits, and political opponents. If enacted, the POTO threatens to be put to similar misuse. The POTO violates a multitude of due process rights guaranteed both by the Indian Constitution and international human rights treaties - most prominently, the International Covenant on Civil and Political Rights (ICCPR). India ratified the ICCPR in 1979. Moreover, contrary to government rhetoric suggesting that the POTO contains safeguards to prevent abuses committed under the TADA, the POTO will likewise facilitate illegal detentions.

Section 4 of the POTO mimics Section 5 of the TADA in setting out a legal presumption that if a person is found in unauthorized possession of arms in a "notified area," he or she is automatically linked with terrorist activity. This and other provisions undermine one's right to be presumed innocent until proven guilty.

Section 3 (3) makes punishable, the act of abetting a terrorist but does not spell out the requisite intent. Certain provisions of the POTO are even more draconian than those operational under the TADA, particularly those seeking to curb the right to information and freedom of statement. Section 3(8) of the POTO, for example, punishes those in possession of information of material assistance in preventing a "terrorist act". Failure to provide such information would render a person subject to punishment of up to three years imprisonment. Section 14 empowers investigating officers to extract information from individuals whom they suspect of having such information.

Journalists and media organizations throughout India have criticized these provisions arguing that it places upon them a burden to disclose any information gathered in the course of their investigations.

The definition of terms in the POTO is sketchy and therefore highly susceptible to misuse. For example, "terrorist acts" bringing about the death of any person, incur the death penalty or life imprisonment (and a fine). Conspiracy, attempts at committing or the advocating, abetting, advising, inciting or knowing facilitation of the commission of "terrorist acts" or "any act preparatory to a terrorist act" call for imprisonment of no less than five years, extendable up to life imprisonment (and a fine). Imprisonment for three years can result from any attempt to harbour and conceal a person known to be a "terrorist", unless a husband-wife relationship exists between the "terrorist" and the harbourer/concealer. Membership in "an organisation which is concerned with or involved in terrorism" (that is, according to the POTO, a terrorist gang or organisation) and the holding of property derived or obtained from commission of any terrorist act is to be punished with life imprisonment and/or a fine.

The POTO has been strongly criticized by leading civil rights groups-including the People's Union for Civil Liberties-academics, lawyers, opposition parties, media organizations, and both religious and secular institutions.

[With acknowledgement and thanks to the Communalism Watch and Governance Monitor and Human Rights Features]

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