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Gujarat’s anti-terror law gets President nod after 16 years

The BJP, infull throttle, has been relentlessly pushing its agenda through various policies and this time it has gotten its draconian anti-terror law for Gujarat passed by the President

Sabrangindia 08 Nov 2019
Anti terror bill
Image Courtesy: AP / Ajit Solanki

Gujarat has been trying to get an anti-terror law passed since 2003, when Narendra Modi was the Chief Minister of Gujarat. Near 16 years later, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) has received the President’s assent. When it was first introduced in 2003, the law was named Gujarat Control of Organised Crime Bill.

Why was President assent needed?

The assent of the President is needed under Article 254 of the Constitution when the law being passed is concerned with a matter in the Concurrent list of the Constitution and is repugnant to an existing central law. While the constitution does not list “terrorism” per se in any of its lists under Schedule Seven, it includes defence of India as a central subject and public order as a State subject and criminal law and procedure is included in the concurrent list which means both the Centre and the State can formulate laws on this subject but the power of a State to do so is conditional, it has to receive the President’s assent if the law thus passed has an over riding effect on an existing central law.

The objections of former Presidents

The bill was first returned by the Late A.P.J. Abdul Kalam in 2004 who had raised objections to the provisions pertaining to interception of communication. Again in 2008, then President, Mrs. Pratibha Patil had returned it raising concerns over provision which made statement to a police officer to be admissible as evidence in court. Thereafter, some changes were made to the bill and it was renamed to what it stands today, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) and again it was returned by then President Pranab Mukherjee seeking clarifications on what was the fourth draft of the bill.

The Bill and its problematic provisions

The truth is GCTOC is not the only law that has such draconian and inhumane provisions. The provisions of GCTOC resonate to a great extent with MCOCA (Maharashtra Control of Organised Crime Act) and the Karnataka Control of Organised Crime Act. Both of these Acts were given Presidential assent when the BJP led National Democratic Alliance I was in power.The constitutional validity of MCOCA was also upheld by the Supreme Court in Zameer Ahmed Latifur Rehman vs State of Maharashtra since the law dealt mainly with organised crime which pertains to criminal law but also of public order which is a State subject under the Seventh Schedule. The MCOCA has similar draconian provisions but somehow it stood the test of constitutional validity even in the apex court.

The bill defines a terrorist act as an act committed with the intention to disturb law and order or threaten the unity, integrity, and security of the state. The Bill also defines organized crime as criminal activities run for a substantial profit and includes economic offences such ponzi schemes, organized betting as also offences like extortion, land grabbing, contract killings, cyber crime and human trafficking.

The bill gives investigating agencies the power to intercept telephone conversations after getting approval from an authority equivalent to additional chief secretary which can be submitted as legitimate evidence. The law also provides legal immunity to the police officers acting as per its provisions.

Even confessions made before a police officer of the rank of Superintendent of Police and above are made admissible in court, which is contradictory to the provisions of the Indian Evidence Act.  It also provides the investigating agency 180 days’ time to file a chargesheet instead of the 90 days provided for serious offences in the Code of Criminal Procedure (CrPC).

The law also puts onus of proving innocence on the accused, in contradiction to the legal principle of presumption of innocence of the accused.

For some odd reason the copy of the entire bill is not available freely on the internet, even on the official government sites.

Comparison to POTA

The Prevention of Terrorism Act, 2002 (POTA) which was later repealed by passing Prevention of Terrorism (Repeal) Act, 2004. The Act, which had similar provisions as GCTOC has, was repealed after it was believed that the law was being misused to target political dissenters and also minorities. Reportedly, in Gujarat all except one detainees under POTA belonged to Muslim minority and in Tamil Nadu and Uttar Pradesh as well POTA was being abused by police authorities without accountability. Protesters of economic policies, like GATT etc were also booked under this draconian law.

When POTA was repealed, its terrorism related provisions were incorporated in the Unlawful Activities Prevention Act (UAPA). Even this legislative act came in for sharp criticism, given that it was UPA I that incorporated these into the newly amended law. However, even then some of the most inhumane provisions, such as the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer. Ironically, these same provisions find their place in the GCTOC which has been given assent to by the President.

Politics behind anti-terror laws

The Union Home Minister, Amit Shah claimed that POTA was repealed by UPA I (United Progressive Alliance) government for vote bank politics. This claim does not hold true as, just before POTA was repealed, there was so much clamour about the misuse of POTA by states using it to target communities and settle political scores that the Bharatiya Janata Party-led government at the term set up a review committee to ensure that the law was not being abused.

Another point worth emphasizing is that while one government deemed certain provisions of a law to be inhuman and subject to probable misuse, the same provisions are being upheld by another government time and again under the guise of securing national interest and safeguarding its integrity.  It was as if the GCTOC was just awaiting a President appointed by a BJP-majority government so that it could finally get assent. Former Presidents have refused to let such a despotic bill become law.

What remains to be seen is that, if this law is challenged in the courts, whether the apex court will uphold the Constitution in accordance with its precedential interpretations or lay out a majoritarian interpretation in order to subsume and validate the new law.


Related:

State’s use of Anti-terror Laws against Dissenters also a form of Terrorism

J & K’s PSA Law: How Draconian is Draconian?

NarendraModi's Gujarat Anti-Terror Bill Finally Gets Presidential Nod

The Daily Fix: Amit Shah is wrong – even Advani admitted that POTA was misused

POTA was repealed for vote bank politics: Amit Shah

Gujarat law against terror — its long journey, and similar laws in other states

Gujarat’s anti-terror law gets President nod after 16 years

The BJP, infull throttle, has been relentlessly pushing its agenda through various policies and this time it has gotten its draconian anti-terror law for Gujarat passed by the President

Anti terror bill
Image Courtesy: AP / Ajit Solanki

Gujarat has been trying to get an anti-terror law passed since 2003, when Narendra Modi was the Chief Minister of Gujarat. Near 16 years later, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) has received the President’s assent. When it was first introduced in 2003, the law was named Gujarat Control of Organised Crime Bill.

Why was President assent needed?

The assent of the President is needed under Article 254 of the Constitution when the law being passed is concerned with a matter in the Concurrent list of the Constitution and is repugnant to an existing central law. While the constitution does not list “terrorism” per se in any of its lists under Schedule Seven, it includes defence of India as a central subject and public order as a State subject and criminal law and procedure is included in the concurrent list which means both the Centre and the State can formulate laws on this subject but the power of a State to do so is conditional, it has to receive the President’s assent if the law thus passed has an over riding effect on an existing central law.

The objections of former Presidents

The bill was first returned by the Late A.P.J. Abdul Kalam in 2004 who had raised objections to the provisions pertaining to interception of communication. Again in 2008, then President, Mrs. Pratibha Patil had returned it raising concerns over provision which made statement to a police officer to be admissible as evidence in court. Thereafter, some changes were made to the bill and it was renamed to what it stands today, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) and again it was returned by then President Pranab Mukherjee seeking clarifications on what was the fourth draft of the bill.

The Bill and its problematic provisions

The truth is GCTOC is not the only law that has such draconian and inhumane provisions. The provisions of GCTOC resonate to a great extent with MCOCA (Maharashtra Control of Organised Crime Act) and the Karnataka Control of Organised Crime Act. Both of these Acts were given Presidential assent when the BJP led National Democratic Alliance I was in power.The constitutional validity of MCOCA was also upheld by the Supreme Court in Zameer Ahmed Latifur Rehman vs State of Maharashtra since the law dealt mainly with organised crime which pertains to criminal law but also of public order which is a State subject under the Seventh Schedule. The MCOCA has similar draconian provisions but somehow it stood the test of constitutional validity even in the apex court.

The bill defines a terrorist act as an act committed with the intention to disturb law and order or threaten the unity, integrity, and security of the state. The Bill also defines organized crime as criminal activities run for a substantial profit and includes economic offences such ponzi schemes, organized betting as also offences like extortion, land grabbing, contract killings, cyber crime and human trafficking.

The bill gives investigating agencies the power to intercept telephone conversations after getting approval from an authority equivalent to additional chief secretary which can be submitted as legitimate evidence. The law also provides legal immunity to the police officers acting as per its provisions.

Even confessions made before a police officer of the rank of Superintendent of Police and above are made admissible in court, which is contradictory to the provisions of the Indian Evidence Act.  It also provides the investigating agency 180 days’ time to file a chargesheet instead of the 90 days provided for serious offences in the Code of Criminal Procedure (CrPC).

The law also puts onus of proving innocence on the accused, in contradiction to the legal principle of presumption of innocence of the accused.

For some odd reason the copy of the entire bill is not available freely on the internet, even on the official government sites.

Comparison to POTA

The Prevention of Terrorism Act, 2002 (POTA) which was later repealed by passing Prevention of Terrorism (Repeal) Act, 2004. The Act, which had similar provisions as GCTOC has, was repealed after it was believed that the law was being misused to target political dissenters and also minorities. Reportedly, in Gujarat all except one detainees under POTA belonged to Muslim minority and in Tamil Nadu and Uttar Pradesh as well POTA was being abused by police authorities without accountability. Protesters of economic policies, like GATT etc were also booked under this draconian law.

When POTA was repealed, its terrorism related provisions were incorporated in the Unlawful Activities Prevention Act (UAPA). Even this legislative act came in for sharp criticism, given that it was UPA I that incorporated these into the newly amended law. However, even then some of the most inhumane provisions, such as the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer. Ironically, these same provisions find their place in the GCTOC which has been given assent to by the President.

Politics behind anti-terror laws

The Union Home Minister, Amit Shah claimed that POTA was repealed by UPA I (United Progressive Alliance) government for vote bank politics. This claim does not hold true as, just before POTA was repealed, there was so much clamour about the misuse of POTA by states using it to target communities and settle political scores that the Bharatiya Janata Party-led government at the term set up a review committee to ensure that the law was not being abused.

Another point worth emphasizing is that while one government deemed certain provisions of a law to be inhuman and subject to probable misuse, the same provisions are being upheld by another government time and again under the guise of securing national interest and safeguarding its integrity.  It was as if the GCTOC was just awaiting a President appointed by a BJP-majority government so that it could finally get assent. Former Presidents have refused to let such a despotic bill become law.

What remains to be seen is that, if this law is challenged in the courts, whether the apex court will uphold the Constitution in accordance with its precedential interpretations or lay out a majoritarian interpretation in order to subsume and validate the new law.


Related:

State’s use of Anti-terror Laws against Dissenters also a form of Terrorism

J & K’s PSA Law: How Draconian is Draconian?

NarendraModi's Gujarat Anti-Terror Bill Finally Gets Presidential Nod

The Daily Fix: Amit Shah is wrong – even Advani admitted that POTA was misused

POTA was repealed for vote bank politics: Amit Shah

Gujarat law against terror — its long journey, and similar laws in other states

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