Maya opens can of definitions

by the fact that she did not spare even his aged father, Raja Uday Pratap Singh. A feisty Mayawati refused to withdraw the Pota case which, she said, was based on the recovery from Raja Bhaiyya’s palace of an AK-56 with three magazines, a telescopic rifle, explosives and revolvers. Besides alleging that the father-son duo had conspired to kill her on Republic Day, Mayawati laid bare their long criminal records. About 20 criminal cases were already booked against Raja Bhaiyya. Though the senior Raja has been facing more than 50 cases over four decades on serious charges such as murder, abduction and extortion, this is the first time he has been incarcerated.

The break in the pattern of impunity is all thanks to Mayawati’s decision to invoke the special terrorist law. Not surprisingly, BJP leaders have urged Mayawati to act against the Rajas only under the ordinary law. One more case under the ordinary law would have made little difference to the influential Rajas. BJP leaders know only too well that Pota, on the other hand, is nothing if not a detention law. Its arrest provision is so rigorous that an accused cannot be granted bail unless the judge himself vouches for his innocence in writing. That is why Vaiko, the first political casualty of Pota in the country, has been languishing for so many months in a Tamil Nadu jail. But to be fair to Jayalalithaa, she did not call Vaiko a terrorist. He has been accused only of extending support to LTTE, which has been banned under Pota as a terrorist organisation. The Vaiko case therefore led to a debate on the limited question as to whether Jayalalithaa was right in interpreting Vaiko’s pro-LTTE speeches as an offence under Section 21 of Pota. The controversy over Raja Bhaiyya’s arrest, however, goes to the core of the law as it has raised questions over the definition of ‘‘a terrorist act’’ under Section 3 of Pota.

The definition is rather loosely worded: it has one sentence running into 278 words. Given the manner in which Pota has been used since it was promulgated in October 2001, there may be nothing exceptionable about Raja Bhaiyya’s case other than the fact that he is the first politician to be accused under it of committing a terrorist act. Indeed, Raja Bhaiyya’s may be a wrong case to question Pota’s definition of a terrorist act. But the issue bears scrutiny because there is so little clarity on it. The Supreme Court had an opportunity to make an authoritative pronouncement in 1994 when it upheld the constitutionality of Tada, which is Pota’s equally notorious forerunner. And since Section 3 of Pota is largely a replica of Section 3 of Tada, one could have very well taken the guidance of the 1994 Supreme Court judgment to figure out whether Mayawati overstepped the law in accusing Raja Bhaiyya of committing a terrorist act.

Unfortunately, the Supreme Court proved unequal to the intellectual challenge of laying down what distinguishes a terrorist act from an ordinary criminal offence. This despite the fact that the judgment mentioned that the legality of Section 3 was challenged on the ground that it contained ‘‘no guiding principle’’ on when the executive could proceed under the ordinary laws and when it could take recourse to the special terrorist law. But all that the apex court said to provide such a guiding principle was this banality: the trial judge should ensure that ‘‘those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.’’

If you go by the Supreme Court’s formula, such as it is, then people like Raja Bhaiyya and his father seem to fall very much within the express language of the statute. Contrary to the claims of the BJP leaders, Raja Bhaiyya can be booked under Pota even if he is not a deshdrohi. The intention to ‘‘threaten the unity, integrity, security and sovereignty of India’’ is not a necessary condition to come under the ambit of Section 3. The provision also deals with an alternative scenario: a terrorist act could have been committed merely ‘‘to strike terror in the people or any section of the people.’’ Surely, nobody can deny that the evidence against Raja Bhaiyya and his father does suggest that they have struck terror in a section of the people.