At the time, the Congress-led Opposition staged a walkout, with then Congress president and Leader of Opposition Sonia Gandhi opposing the bill for its “anti-democratic” provisions.
Shah then alleged that in 2004, the Congress government “weakened” India’s fight against terrorism by repealing POTA. “POTA was against the terrorists, but the Opposition wanted to save the terrorists by stopping POTA for vote bank politics,” he said.
Anti-terror laws in India have historically been introduced in response to terrorist attacks.
POTA was India’s response to the 1999 IC-814 hijack and the terror attack on Parliament in December 2001. The Unlawful Activities (Prevention) Act, 1967, (UAPA) was amended in 2004 and again in 2008, the latter in response to the 26/11 Mumbai terror attack.
The Congress remained opposed to POTA and its repeal was the party’s prominent electoral promise in the 2004 general election. The law has often drawn criticism for its alleged misuse and has acquired the dubious label of being a “draconian” piece of legislation.
However, in its place, the UPA government only brought back the anti-terror law in a more stringent amendment to the UAPA in 2004 and 2008.
“The restrictions on liberty, and in particular the grant of bail, were first introduced in TADA, legislation brought by the Congress government. They were replaced by POTA only to be repealed and metamorphose into the UAPA by the amendments, which increased the scope of the term ‘terrorism’,” senior advocate Saurabh Kirpal told ThePrint.
“It’s a case of plus ça change, plus c’est la même chose, the more things change, the more they remain the same,” he added.
What was POTA, how was POTA repealed, and what are the similarities and differences between POTA and the Unlawful Activity (Prevention) Act, which was amended in 2004 and 2008 to function as an anti-terror legislation? ThePrint explains.
POTA v/s UAPA
Analysts have often said that several provisions of POTA found their way to UAPA through subsequent amendments, even making the latter law stricter. The 2004 amendment to UAPA largely adopted the definition of “terrorist act” from POTA.
Both POTA and UAPA 2004 punished any acts “with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people”.
Both laws focused on acts that cause death, injury, loss or damage or destruction of property, disruption of any supplies or services essential to the life of the community, and damage or destruction of any property in India or in a foreign country.
In 2008, this definition was fine-tuned to include any act that “overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary”.
However, remnants of the definition of a “terrorist act” under POTA remain even in the current definition.
Under Section 53 of POTA, the court could direct an accused to give samples of handwriting, fingerprints, footprints, photographs, blood, saliva, semen, hair and voice on the request of a police officer. But if the accused refused to give such samples, the court could draw an “adverse inference” against the accused.
Under Section 43E of UAPA, as introduced through the 2008 amendment, such a refusal would not just lead to an adverse inference, but a presumption that the accused had committed the offence, unless the contrary was shown. This reversal of burden also makes the UAPA more stringent compared to POTA.
Kirpal said that not only UAPA, but even the stringent provisions of the Prevention of Money Laundering Act 2002 were introduced by the Congress government. He added that offences under the Customs and Excise Act were made non-bailable by the UPA after the Supreme Court had ruled otherwise.
“The examples abound. The tendency of the state is to accumulate power and is a feature of all governments, irrespective of which political party they belong to,” he added.
A more stringent bail regime
Like POTA, UAPA also allows extended detention of an accused for up to 180 days, without filing a chargesheet against them. Both laws also don’t allow anticipatory bail.
Stringent bail conditions were added to the UAPA through the amendments in 2008.
Section 43D(5) of UAPA makes bail virtually impossible. It says that nobody accused of terror offences under the act will be released on bail, if, after examining the case diary and police report, the court “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.
In comparison, POTA said that if the public prosecutor opposes the grant of bail to an accused, the court could grant bail only if it was satisfied that there were grounds for believing the accused was “not guilty”.
The Supreme Court had earlier interpreted the bail provisions under POTA to allow for conditional bail. It held that courts could grant bail after hearing the public prosecutor and determining that there were grounds to believe the accused was not guilty, but only for up to a year of detention.
However, after an accused had been in detention for a year, ordinary criminal jurisprudence on bail would apply and the additional requirements were no longer necessary.
UAPA’s bail provisions are, therefore, considered significantly more stringent than POTA.
One big difference between the two laws is that while confessions to the police were admissible under POTA, they remain inadmissible under the UAPA.
Confessions made in police custody are usually inadmissible in court because it is presumed that all such confessions made to police officers are coaxed out of the accused.
Under the ordinary law of evidence, as under UAPA, only confessions made before a magistrate are admissible as evidence.
‘Comprehensive legal framework’
Consecutive amendments to UAPA have consistently made the law stricter.
Senior advocate Vikas Pahwa told ThePrint that as a practitioner of criminal law, he has observed the legislative journey of India’s legal response to terrorism closely—from the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) to UAPA.
He pointed to key amendments made to UAPA over the years, from introducing the definition of “terrorist act” in 2004 and incorporating provisions from the repealed POTA, to introducing stringent bail conditions in 2008, and widening the definition of terrorist activities to include threats to economic security and extended provisions to cover the financing and logistics of terrorism in 2013.
He said that the most “far-reaching” amendment to UAPA came in 2019, empowering the National Investigation Agency (NIA) to investigate UAPA offences across the country without prior state consent.
“Additionally, it enabled the Central government to designate individuals, not just organisations, as terrorists, marking a significant policy shift,” he added.
“Cumulatively, these amendments reflect a consistent and determined approach by successive governments to build a comprehensive legal framework that can effectively deter and prosecute terrorism. The UAPA, as it stands today, is a robust and efficacious statute—equipped with the tools required for enforcement, while remaining subject to constitutional discipline and judicial scrutiny,” Pahwa told ThePrint.
However, he also asserted that it is equally important to ensure that the law is “applied judiciously and sparingly, with a continuing commitment to the constitutional guarantees of fair trial and personal liberty”.
“The delicate balance between national security and civil liberties must always be preserved in a democratic society governed by the rule of law,” he said.
How was POTA repealed
POTA provided a definition of terrorist acts, allowed confessions made to the police to be admissible as evidence, and prescribed enhanced punishments for terrorism. The law had an in-built expiry date. It was to remain in force only for three years and so was set to lapse in October 2004. However, the law was repealed months before this expiry date through an ordinance brought by the newly elected UPA government.
In 2004, a Ministry of Home Affairs release said that the UPA government, which came into power that year, had been “concerned with the manner in which POTA has been misused”.
“However, there will be no compromise in the fight against terrorism,” it asserted, pointing out that while the government had promulgated an ordinance to repeal POTA in 2004, another ordinance was being promulgated to amend the Unlawful Activities (Prevention) Act 1967, “for dealing with the various facets of terrorism”.
While UAPA had been in place since 1967, provisions related to terrorist activities were added to the law only through an amendment in 2004.
In 2003, then Deputy Prime Minister L.K. Advani announced the formation of a review committee to give its findings and recommendations on the functioning of the law, after noting concerns about the law being used against people who do not fall under its ambit.
Congress MP Manish Tewari asserted during a parliamentary debate in 2019 that the allegations that POTA was repealed for vote-bank politics had “no truth”.
“An effort to rectify the Act had been started by the BJP itself. Then Home Minister L.K. Advani had said that POTA was being misused. And then a POTA review committee was made … After it gave its recommendations the NDA government issued an ordinance to make its recommendations mandatory for the Centre and the states,” Tewari was quoted as saying.
This was in response to Shah’s allegations that POTA was repealed by the UPA government for “political purposes”. The comments were made during a parliamentary debate on amendments to the Unlawful Activities (Prevention) Act.
(Edited by Sugita Katyal)