Gujarat anti-terror Bill: Why you should be scared

The BJP government in Gujarat has gone ahead and passed the controversial Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) - despite it being rejected on three earlier occasions by two presidents (President APJ Abdul Kalam and President Pratibha Patil) for violating basic principles of justice. In the absence of objective, bi-partisan and intelligent commentators, particularly those in the media, I can foresee the debate surrounding this Bill, degenerate into one of those rhetorical binary optioned slanging matches, that will end up calling one's patriotism into question. Give it time and someone, in his or her George W Bush moment, will tweet or have his or her 9pm court make that pronouncement "Do you stand with terrorists or against them?" Pointing out the major flaws in this Bill should not be viewed as "minority appeasement " or "standing with terrorists " or "being soft on terror". Communalising and politicising this issue will only help obfuscate the real issues.

Before the partisan voices jump in, let's rewind to 2004. A central government headed by the BJP's very own Bharat Ratna Atal Behari Vajpayee, had sought the return of this bill back to Gujarat government, asking for "major changes". The Congress led UPA government later on, continued with position taken by the previous NDA government. The Bill in question is Modi's pet law. Modi, as chief minister not only pioneered this law but pursued it as an article of faith and that saw Gujarat government pass the law four times in 12 years - 2004, 2008, 2009 and 2015.

So why is this Bill so controversial?

This Bill gives the police far reaching powers to make arbitrary arrests, present confessions in custody as evidence as per clause 16 which is currently inadmissible as such and to even intercept phone calls as per clause 14. The Bill provides for extending the period of investigation from the stipulated 90 days to 180 days. It makes offences under the Bill non-bailable.

Modi's law would encourage police officers to use torture to extract confessions or would encourage them to make indiscriminate use of snooping and phone taps in the name of "security concerns", sometimes in the case of political rivals and dissenters too and not just anti-national elements. Protection against self-incrimination is guaranteed by Article 20(3), right to privacy and protection from illegal phone tapping, protection from arbitrary arrests is safeguarded against by Article 21 which clearly states that "No person shall be deprived of his life or personal liberty except according to procedure established by law".

The Bill also grants, vide section 25, immunity from legal action to the state government and its officers against suits, proceedings and prosecutions for anything they do in "good faith in pursuance of the Act". They would end up making Gujarat a "police state" no different from China and North Korea. Except that we are India and not North Korea or China. And our constitution is the standing testament to the commitment "We, the People" made with the ideas and ideals of liberty, equality and freedom.

A prima facie reading of these provisions itself shows that these provisions are not just an assault on our commitment to civil liberties, enshrined in the Constitution and United Nation Conventions, to which we are a party but also violative of the guarantees of fundamental rights, which are an inalienable part of the constitution. How is this law any different than the one that empowered the Gestapo in Nazi Germany to make arbitrary arrests, snoop, incarcerate and punish without having any legal recourse against those who offend basic rights?

This Bill could not have found a worse time to be passed. Today, there is a genuine fear of majoritarianism trampling all over religious and other individual freedoms and civil liberties of minorities including sexual minorities, in this country. We have had a government that seems to be wanting to ban everything it is uncomfortable with - from beef to environmental activists to documentary films and usage of innocuous words in movies. In the midst of this shrinking space for fundamental freedoms and right to choice, we have the state pushing down our throats, a law that defies our continuation as a democratic state. 

Giving law enforcement agencies the tools they need to investigate suspicious activities is one thing and it's the right thing; but doing it contrary to constitutional safeguards and without application of mind, seriously jeopardises the rights of all Indians and the ideals our nation stands for. While introducing this law, the Gujarat home minister said this bill was the "need of the hour" to fight terror especially with Pakistan becoming the epicentre of world terror". It betrays the sense of fear and communal politics that has driven the passage of this bill. Fighting terror cannot happen with laws that curb our very freedoms, that strike at the foundations of our democracy and risk damage to our social fabric by their unequal and unfair application.

Beware of the false choices that will be peddled in the midst of this debate "Either we protect our people from terror or we protect our most cherished principles." We don't have to settle for this bill, which is essentially a replica of "POTA or TADA with saffron lipstick". We don't have to settle for a law that sacrifices our liberties or our safety. We can have one that secures both. This one unfortunately does neither.