08 October 2002

POTA's First Trial: An Interview with Prof Rajni Kothari

October 8, 2002
The Times of India

POTA's First Trial
An interview with Prof Rajni Kothari of the S.A.R. Geelani Defence Committee

Rajni Kothari with his grandchildren
Rajni Kothari with his grandchildren

New Delhi: The December 13 Parliament attack trial currently underway in Delhi is the first to be conducted under the Prevention of Terrorism Act (POTA). While four persons are in the dock for conspiring with the actual terrorists, a number of prominent citizens have come together to defend one of the accused, Prof S A R Geelani of Delhi University. Prof Rajni Kothari , arguably India’s best-known political scientist, is chairperson of the All-India Defence Committee for Geelani. In an interview with Siddharth Varadarajan he says it is his concern for justice that led him to get involved:

By coming to the defence of one of the accused in the December 13 case, are you not giving ammunition to those who say human rights campaigners don’t care about terrorism?

While fighting terrorism, the state pays scant respect to the law of the land, even POTA. In this situation, it is the duty of a human rights activist to unravel the mix between the legally defensible and illegally imposed charges and to go to the defence of those who have been fraudulently implicated. Our demand for a fair trial of Prof Geelani and the other co-accused is to ensure that real norms of justice are followed.

— Photo: Shanker Chakravarty

OUT OF HOSPITAL: College lecturer S.A.R. Geelani, who was shot at on February 8 in New Delhi, comes out of the All-India Institute of Medical Sciences in the capital on Tuesday.

The police say they have a transcript of a phone conversation between Prof Geelani and his brother in Srinagar which allegedly proves he was involved in the December 13 plot. What is your explanation of the conversation?

The recorded conversation is the only piece of evidence against Geelani. Yet, in spite of repeated requests from the accused and his defence counsel, the court has not allowed the tape to be played in the court. The translation of the Kashmiri conversation has been disputed, as the police did not even bother to get it translated by a competent authority. Instead, they chose a fruit seller who is ‘‘a 5th or 6th standard pass’’, cannot write Hindi, and did not sign the final transcript of the translation as the police did not show it to him.

Such disregard is only compounded by the lack of attention paid to the provisions of POTA in collecting the evidence. Section 44 of POTA lays down three conditions for an interception to be admissible as evidence.

First, that the police should have applied in writing to a senior bureaucrat designated as competent authority by POTA. Second, the competent authority should have authorised the interception (in an emergency, such authorisation can be post facto). And third, copies of the application and the authorisation should be furnished to each of the accused at least 10 days before the commencement of trial. None of this was followed.

Some would say this is legal nit-picking

I would not agree. Isn’t it illogical to assume that law and order can be maintained by permitting the state and its agency to violate the law? If the situation were to come to such a pass, it will adversely affect the civil liberties of every citizen. Already, the judiciary is expressing concern over such arbitrariness. In a recent judgment in The State of Maharashtra vs Jaysingh Wadhu Singh (a case under MCOCA), the judge, while commenting on an illegal telephonic interception, said, ‘‘The plea to consider the evidence obtained by grossly violating the provisions of law on the ground that ‘it is relevant’, or that, ‘in any case, the accused did it’, cannot be accepted. No reason has been suggested for the investigating agency not following the procedural safeguards in the matter of interceptions of the communication in question. That the criminals would escape from punishment due to technicalities and that it is not desirable — as felt in some quarters — cannot result in the court allowing the evidence obtained by unconscionable violation of law to be given or considered against an accused.’’

It is said by advocates of POTA that extraordinary acts of terror like December 13 and the Akshardham temple attack require extraordinary laws.

I am also saddened by the terrorist attacks on Parliament and the Akshardham temple. And one can understand the security concerns they raise. My experience as a human rights activist has convinced me that even though extraordinary laws severely trespass on the civil liberties of the people, they are incapable of checking terror. The now infamous TADA, in spite of its unfettered powers, failed miserably in securing the conviction of those arrested under its provisions.
I, therefore, believe that ‘‘extraordinary laws’’ are not required. The Constitution and existing laws are quite capable of dealing with terrorism.

It takes courage to defend a man you perhaps did not even know before this. Are you absolutely convinced Geelani is innocent?

Till date, the police have presented more than 80 witnesses, most of them from the police department. However, none has accused Geelani of being a member of any terrorist organisation.

The shoddy investigation and the blatant violation of rules and regulations by the police while gathering evidence demonstrate that the charge is not based on any concrete enquiry or investigation. So rather than asking me if I find Geelani innocent, one should ask the police the reasons why they found him guilty.

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