Why Gujarat's anti-terror bill marks the beginning of a totalitarian regime in India

Pawan Khera
Pawan KheraJun 06, 2015 | 22:15

Why Gujarat's anti-terror bill marks the beginning of a totalitarian regime in India

It was not a funny prank that made many feel like fools on April 1, 2015. But the headlines declaring the passing of Gujarat Control of Terrorism and Organised Crime (GCTOC) bill, 2015 by the state's Assembly seemed nothing short of a cruel joke made at the expense of the country's cherished founding principles. While tyrannical acts like POTA and TADA have been repealed amidst fears of abuse and constitutional violation, GCTOC is a Pandora's box of unfair propositions that pretends to hard sell the threat of terror cells and criminal syndicates.

Under this proposed law, both investigation and prosecution end up becoming an exercise to prove a theory and not to find out the truth.

When such statutes are invoked, all that they end up being used is for settling political, religious or ideological scores or used for "ethnic cleansing".

Architects of such laws make the fundamental mistake of confusing "law" with "policing". When an understanding of the word "law" does not flow from a rational analysis, the output is bound to be one filled with prejudices and one which might at times pander to public opinion or political bias.

If we look at other similar laws, we realise that the state in its hurried wisdom has been attempting to bring in blind laws to contain organised crime. Curbing its misuse should be the governing principle behind any such law.

Let us take a look at other similar interventions introduced the past.

Maharashtra Control of Organised Crime Act, 1999 (MCOCA)

The law was enacted by Maharashtra in 1999. The mandate was to combat organised crime and terrorism. The MCOCA too had provisions which evoked opposition from various human rights lobbies. These were:

1. Confessions before senior police officers are admissible in the court of law.

2. Even the confession made against the other accused in the same case is admissible in the court.

3. There is no provision for granting anticipatory bail for six months to the accused.

Karnataka Control of Organised Crimes Act, 2005

The bill came into effect in January 2002 but no cases were filed under the act until it was evoked in 2009 by the ruling BJP government. In fact, it was the chief minister BS Yeddyurappa who had called on the state police to invoke the Karnataka Control of Organised Crimes Act, 2005.

Among the provisions of the KCOCA, the most questionable are:

1. Authority exercised by the investigation officer to go about arresting the suspects without a warrant. 2. The KCOCA amendment defines terrorism to include the death or injury to any person/s or loss, damage or destruction to property. 3. Extension of police remand from 15-30 days. 4. In special cases, the period for filing charge sheets could also be extended from 90-180 days. Further if the investigation is not able to be completed within 180 days, the Court is authorised to extend the period up to 365 days. 5. Therefore, the accused may have to wait till an year to get bail in case police fails to file charge sheet.

POTA, 2002

The Prevention of Terrorism Act, 2002 (POTA) was passed by the BJP-led NDA government in 2002. Though the bill was defeated in the Rajya Sabha by a 113-98 vote, but was passed in a joint session, as the Lok Sabha has more seats. It was only the third time that a bill was passed by a joint session of both houses of Parliament.

The act was repealed in 2004 by the United Progressive Alliance coalition.

The provisions were:

  1. Suspects could be detained for up to 180 days without the filing of charge sheet in court.
  2. Police/CBI/law enforcement agencies could withhold the identities of witnesses.
  3. Confession made to the police as an admission of guilt.

The law, however, was reported to have been grossly abused soon after it was enacted. Only four months after its enactment, state law enforcement officers had arrested 250 people nationwide under the Act.

In mere eight months later, seven states applying POTA had arrested over 940 people, at least 560 of whom were languishing in jail.

Even the Supreme Court had come down heavily ripping apart Gujarat Police while acquitting all the six "accused" in the 2002 Akshardham terror case. The investigation in Akshardham was conducted by encounter specialist team of DG Vanzara and GL Singhal. In its May 16, 2014 judgement, the bench of justice AK Patnaik and justice V Gopala Gowda said:

"There was a perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us.

Before parting with the judgement, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing."

GCTOC: An act drawn by vague definitions and power abuse

Gujarat's vulnerable coastline, coupled with proximity to Pakistan has underscored the Anandiben Patel government's aggressive pitch of the law. It was contended that the present acts face limitations in dealing with organised crime and terror activities. The fact that India faces difficult security issues with both external and internal elements posing threats is well understood, and appropriate legislation serves as a critical safeguard in maintaining peace and order. However, legitimate concerns have arisen over the bill's contentious provisions that not only contradict national laws but also create a visible power misbalance that leaves much room for misuse. It should be noteworthy that the act, first introduced by then Gujarat chief minister Narendra Modi in 2003 as Gujarat Control of Organised Crime (GUJCOC), has been rejected thrice by presidents. Former President APJ Abdul Kalam turned it down twice (including once when NDA was in centre), and Pratibha Patil refused to clear the bill seeking further changes.

Doublespeak at the heart of Orwellian move

Any terror-related legal solution must allow for coexistence of two core values - the value of liberty and the value of safety. Overzealous provisions often seem to overlook the same, and sadly GCTOC 2015 is one such example. Some of the key contentious features of the bill are examined here.

1. Definition of abettor - Till today, a lawyer was protected in his fiduciary role vis a vis his client. His duty is to assist the court in dissemination of truth, by advancing his client's points of defence. If a lawyer who is informed or not informed, but if he just agrees to represent an accused can be charged under the Act being an abettor.

2. Section 16 - It makes confessions made to police admissible in the court of law. It stipulates, "A confession made by a person before a police officer not below the rank of superintendent of police… Shall be admissible in the trial of such accused, co-accused, abettor or conspirator". In a legal system notorious for being used to settle scores, this section raises very relevant questions of breaches and exploits. Given the corrupt track record of law enforcement, it is not stretched imagination by any measure.

3. Section 25 - It strips the Big Brother of any accountability, providing immunity to the government on the unclear pretext of "Good Faith". "No suit, prosecution or other legal proceeding shall lie against the state government or any officer or authority of the state government for anything which is in good faith done or intended to be done in pursuance of this Act." Put in a nutshell, absolute power in the hands of authority, and they can get away with anything.

4. The bill extends the period of investigation from the centrally stipulated 90-180 days. Not only that, anyone accused of an offense punishable under this act will not be released on bail or on his own bond.

5. Section 14 allows any evidences collected through surveillance interception. "Notwithstanding anything contained in the code or in any other law which is in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused in the court during the trial of the case." Goodbye privacy!

It is not too difficult to draw conclusions. You can be booked on the basis of a phone call, put in a jail without a charge sheet for the next six months, no scope of a bail in place, and your case will only be tried in a special court. The contradictions are glaring. India Evidence Act categorically states that only a statement made in front of a magistrate is admissible. These unconstitutional violations were precisely the reason why President Kalam turned down the bill; he had specifically objected to Section 14. While the bill was later amended by removing Section 14, President Patil rejected it too asking for amendments to the controversial Section 16. The continuous resistance shown by the ex-presidents is a clear testimony that the anxieties and apprehensions are not without reason.

Course Correction

Public accountability, judicial oversight and objective definitions serve as important checks and balances in sensitive anti-terror law. Following 9/11 attacks, the United States hurriedly implemented the notorious Patriot's Act. At the time of its introduction, the act was criticised from all quarters for giving indiscriminate command to the office of POTUS. But even this law has undergone systematic modifications to become more balanced and with the fundamental spirit of liberty at the heart of reforms. If the US, which on account of its global interventionist policies is on the receiving end of retaliatory acts of terrorism, can relook at a kneejerk law, there must not be any hesitation on the part of Indian administration and judiciary to have a complete relook at the Gujarat terror law and ensure that security and democratic rights go hand in hand. The laws that we make today will set the context for the future that India shapes into. Public watchdogs, civil society and eminent members of judiciary must guide the course corrections. Undoubtedly, level-headed vigilance assisted by the willingness of authority will be crucial to the process. Meanwhile, President Pranab Mukherjee should firmly intervene and make sure that his assent doesn't come until the larger questions of the bill's constitutional propriety get addressed. Otherwise, we would be staring at the grand curtain-raising of a totalitarian regime.

Last updated: June 06, 2015 | 22:15
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