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Pota & its Phantom Limbs
Democracy Wall | By Harsh Mander, Hindastan Times.com
India
September 24, 2004
'It is usually after midnight that there is violent knocking on your door. Before you realise it, 20-30 policemen storm into your house, hurling abuses, kicking and beating even women and children, smashing furniture, ransacking papers. Amidst the terror, finally a man is picked up. You watch helplessly as he is taken away. For questioning, you are told by the policemen. You plead desperately, and ask for reasons. You are given only abuses and threats.'
There is a sickening monotony to the testimonies of families whose loved ones have been detained under the Prevention of Terrorism Act (Pota) 2002, in Gujarat, used exclusively against Muslims. As human rights activist Zakia Jowher says, "There is no reprieve against the might of a State determined to brand an entire community as terrorists."
With the UPA government recently redeeming its pledge by repealing the law barely weeks before it would have died a natural death, there is some belated succour. Its demise will be unmourned by democratic opinion. And yet there is trepidation and disappointment that the repeal has not been with retrospective effect. This means that hundreds detained without bail, trial or hope in prisons by a law acknowledged by the government of the day to be unjust, will continue to be incarcerated and will be charged and tried under its inequitable provisions.
In the undeclared war being waged by the state of Gujarat against its minorities, the government has deployed a wide arsenal of weapons. Among these are genocide, sustained demonisation, ghettoisation and economic boycott.
Human rights lawyer Mukul Sinha, who has steadfastly campaigned against Pota, analyses how it is systematically used to create and perpetuate the communal divide in Gujarat. The Muslims, badly battered by the pogrom, are now utterly terrorised and demoralised. In the eyes of the majority Hindu community, they are further demonised, as newspapers regularly report the arrest of hundreds of 'dreaded Muslim terrorists'. The government emerges as the only saviour of the Hindus of Gujarat from these 'hardcore terrorists' bent on destroying Gujarat. Leaders of the Sangh parivar alleged to be targets of Muslim terrorist conspiracies, emerge as heroes defending the majority community.
Apart from gutting a train compartment in Godhra, allegations under the Pota cases usually are for conspiracies rather than any actual crime. Eighty-two people have been charged and 44 arrested for the general charge of 'waging war and conspiracy to do a terrorist act'. Another seven are charged for planning to kill VHP and BJP leaders, including Narendra Modi. The list goes on and the cases are open-ended. No one knows how many more people will be charged with these vaguely defined crimes.
In a survey of more than 25 cases by human rights activists, a common pattern emerges. The accused are almost invariably with no previous criminal record. Most are from working class backgrounds, self-employed young Muslim men, including electricians, drivers and radio and TV mechanics. Some are religious teachers and relief workers. Most are violently arrested from their homes, usually at night.
If the accused can't be found, even old women and children are thrashed, and elderly people or youngsters detained illegally as hostages until the accused surrenders. In all cases, people report illegal detention from 3-25 days. Pota itself allows the police to detain the accused for up to 180 days, even before charges are filed.
The most unjust feature of Pota was that it makes admissible in evidence confessions of the accused before a police officer. Even the colonial British administration banned confessions recorded by police officers as admissible on the grounds that "torture by the police is widespread, routine and uncontrollable". By restoring this provision, Pota enabled the police to torture anyone they choose to charge them as a 'terrorist', and then manufacture the 'evidence' by coercing him to sign a 'confession'. Even apart from physical torture, the continued illegal detention of an ageing father who has never seen the inside of a police station, or a teenaged brother or son, or repeated summons to a young pregnant wife to the police station, or threats of encounter killings, compel the accused to sign their confessions.
Two teenaged girls from Godhra lost their father in jail, while he was detained under Pota. Their mother had died earlier, and they struggle to feed their younger brothers and sisters. "We miss him unbearably," they told us. "But now we are not afraid. After that, what is there left for us to fear?" But fear has been made a way of life for the entire Muslim community in Gujarat. Habib Karimi, 65, who was illegally detained as a hostage until his son was picked up, says, "There may be 307 of our boys in jail under Pota. But the entire Muslim community is under Pota in Gujarat in their homes."
The weak-kneed repeal of Pota without retrospective effect by the UPA government will not secure freedom for his son - and hundreds of others incarcerated for years without trail. The BJP has announced its resolve to promulgate laws like Pota in the states that they govern. Even the UPA government says that it will introduce some provisions of Tada into existing laws. Elementary justice remains mortally threatened in democratic India.
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