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Terror of Law: The Gujarat Protection of Internal Security Act (GPISA)

Vidhya 14 Oct 2016

The proposed law renders any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal.


Dalit protest in Gujarat; Photo credit: NDTV

The Gujarat government is set to table the Gujarat Protection of Internal Security Act (GPISA) in the upcoming budget session of the State Assembly. A bill, various versions of which have been sent back to the state assembly, is being pushed once again by the BJP-led government in Gujarat. Inspired by the MCOCA (Maharashtra Control of Organised Crime Act, 1999) the Gujarat assembly in 2003 attempted to draft the Gujarat Control of Terrorism and Organised Crime Bill (GCTCB) ostensibly to fight internal security. It has been sent to three sitting Presidents and returned each time on grounds of conflict with existing central acts on evidence, communication and national security. Now, it is set to appear with a new name and thrust as a question of national interest.

The bill was first drafted by Modi-led state government of Gujarat in 2003. It was sent back in 2004 by the then President APJ Abdul Kalam who demanded that the clause pertaining to telephonic interception of communication be removed as it violated citizens' right to privacy. The Gujarat government tweaked this clause and sent it to the next President Pratibha Patil. Once again, in 2008, President Patil also refused to ratify this bill citing conflict with the Indian Evidence Act, which does not recognize confessions before the police as valid in court. Accepting this clause would have meant opening up the scope for torture under police custody.

These clauses pertaining to internal security were seen as falling outside the purview of the state government and thus, under the Union government as per Article 245 and 246 as well as the VIIth Schedule of the Constitution.

In September 2015, the state legislature of Gujarat once again tried to send a slightly amended version of (GCTCB) and it was hoped that with the change in central government this would be ratified. But once it became clear that President Pranab Mukherjee would not ratify a law that allowed the police to arrest merely on the basis of suspicion, the home ministry withdrew the bill. The proposed law allows the Gujarat police to remain immune from prosecution on grounds of wrongful arrest, as it insists on the “protection of action taken in good faith”.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

The ministry of information and broadcasting also challenged the bill, citing the utilisation of law to intercept private communication, a provision that could be used to fabricate cases against political opponents. In January 2016, the bill was returned to the state assembly. Despite these repeated reversals, it appears that the BJP-dominated state assembly of Gujarat is determined to pass GPISA, which defines internal security as threats posed by “proxies of a hostile foreign power” within the state. Here, it becomes crucial to understand why such a law is deemed essential for ‘internal security’.

Cursory assessments of the clauses of GPISA are reminiscent of the debates that surrounded the MCOCA, an act passed in Maharashtra to address organised crime. Inspired by MCOCA, the GPISA goes a few steps further to empower the state police force by including “challenges posed by terrorism, insurgency, communalism and even caste based violence”.

This renders any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal. The GPISA allows the Gujarat Police to nab any person(s) on the basis of suspicion of being a ‘threat to internal security’. This means that no prosecution is required against the person under suspicion as it empowers the police to define the basis of suspicion.

Under this Act, offences are punishable and would be cognisable, non-bailable, non-compoundable and can be tried by a Sessions court. Both public and private institutions fall under the purview of the GPISA and such institutions can be put under electronic surveillance. Evidence collected through the interception of wire, electronic or oral communications shall be admissible as evidence against the accused in court.

A contentious section of the bill states that confessions before police officers are admissible in court against the accused. The period of custody and for filing chargesheet in a case is extended from 90 days to 180 days. Punitive action extends from fines to imprisonment or both along with confiscation of property. This builds a veritable ground for police corruption wherein officials can extort opponents with a threat of being charged under this Act. Political opponents can be put under electronic surveillance; the police can set up security zones with special powers.

Furthermore, the government can take action against caste groups and communities for promoting ‘sectarian interests’. And remarkably, as per this bill, no legal action can be taken against the police and security agencies for wrongful arrest, as all action is deemed to be done in “good faith”, even if the arrested citizen is honourably acquitted after trial.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

Human rights organisations and activists have described the proposed law as ‘draconian’ and ‘unconstitutional’ as it takes away the right to express one’s views, builds an atmosphere of fear, and is bound to be misused, especially considering the partisan views of the existing government. Central ‘anti-terrorism’ laws or acts like Unlawful Activities (Prevention) Act or UAPA 1967 (especially after the substantive amendments made in 2012) and Prevention of Terrorism Act or POTA 2002 are already in place, and along with MCOCA, its efficacy has repeatedly come under question with regards to containing law and order, combating organised crime and fighting terror.

Instead of equipping the existing security forces with means of combating crime and terror, laws are being drafted that effectively curb human rights and civil liberties. Unsurprisingly, following the efforts of the Gujarat state assembly, other states like Madhya Pradesh and Karnataka have been pushing for such laws. Laws such as these, that propose to provide the police with unregulated powers of surveillance, arrest and even torture while letting them get away with it in the name of ‘good faith’, are inconsistent with the Constitution of India, and in some instances, they directly violate it – as in the case, with the GPISA, of the Property Act, Indian Evidences Act, CrPC and IPC. Such laws are bound to be used against the socially and economically weakest sections of society, and threaten to put in place a new method of state-sponsored extortion against every political adversary.

(Vidhya is part of the Editorial Collective at the Indian Cultural Forum).

This article was first published on India Cultural Forum.
 

Terror of Law: The Gujarat Protection of Internal Security Act (GPISA)

The proposed law renders any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal.


Dalit protest in Gujarat; Photo credit: NDTV

The Gujarat government is set to table the Gujarat Protection of Internal Security Act (GPISA) in the upcoming budget session of the State Assembly. A bill, various versions of which have been sent back to the state assembly, is being pushed once again by the BJP-led government in Gujarat. Inspired by the MCOCA (Maharashtra Control of Organised Crime Act, 1999) the Gujarat assembly in 2003 attempted to draft the Gujarat Control of Terrorism and Organised Crime Bill (GCTCB) ostensibly to fight internal security. It has been sent to three sitting Presidents and returned each time on grounds of conflict with existing central acts on evidence, communication and national security. Now, it is set to appear with a new name and thrust as a question of national interest.

The bill was first drafted by Modi-led state government of Gujarat in 2003. It was sent back in 2004 by the then President APJ Abdul Kalam who demanded that the clause pertaining to telephonic interception of communication be removed as it violated citizens' right to privacy. The Gujarat government tweaked this clause and sent it to the next President Pratibha Patil. Once again, in 2008, President Patil also refused to ratify this bill citing conflict with the Indian Evidence Act, which does not recognize confessions before the police as valid in court. Accepting this clause would have meant opening up the scope for torture under police custody.

These clauses pertaining to internal security were seen as falling outside the purview of the state government and thus, under the Union government as per Article 245 and 246 as well as the VIIth Schedule of the Constitution.

In September 2015, the state legislature of Gujarat once again tried to send a slightly amended version of (GCTCB) and it was hoped that with the change in central government this would be ratified. But once it became clear that President Pranab Mukherjee would not ratify a law that allowed the police to arrest merely on the basis of suspicion, the home ministry withdrew the bill. The proposed law allows the Gujarat police to remain immune from prosecution on grounds of wrongful arrest, as it insists on the “protection of action taken in good faith”.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

The ministry of information and broadcasting also challenged the bill, citing the utilisation of law to intercept private communication, a provision that could be used to fabricate cases against political opponents. In January 2016, the bill was returned to the state assembly. Despite these repeated reversals, it appears that the BJP-dominated state assembly of Gujarat is determined to pass GPISA, which defines internal security as threats posed by “proxies of a hostile foreign power” within the state. Here, it becomes crucial to understand why such a law is deemed essential for ‘internal security’.

Cursory assessments of the clauses of GPISA are reminiscent of the debates that surrounded the MCOCA, an act passed in Maharashtra to address organised crime. Inspired by MCOCA, the GPISA goes a few steps further to empower the state police force by including “challenges posed by terrorism, insurgency, communalism and even caste based violence”.

This renders any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal. The GPISA allows the Gujarat Police to nab any person(s) on the basis of suspicion of being a ‘threat to internal security’. This means that no prosecution is required against the person under suspicion as it empowers the police to define the basis of suspicion.

Under this Act, offences are punishable and would be cognisable, non-bailable, non-compoundable and can be tried by a Sessions court. Both public and private institutions fall under the purview of the GPISA and such institutions can be put under electronic surveillance. Evidence collected through the interception of wire, electronic or oral communications shall be admissible as evidence against the accused in court.

A contentious section of the bill states that confessions before police officers are admissible in court against the accused. The period of custody and for filing chargesheet in a case is extended from 90 days to 180 days. Punitive action extends from fines to imprisonment or both along with confiscation of property. This builds a veritable ground for police corruption wherein officials can extort opponents with a threat of being charged under this Act. Political opponents can be put under electronic surveillance; the police can set up security zones with special powers.

Furthermore, the government can take action against caste groups and communities for promoting ‘sectarian interests’. And remarkably, as per this bill, no legal action can be taken against the police and security agencies for wrongful arrest, as all action is deemed to be done in “good faith”, even if the arrested citizen is honourably acquitted after trial.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

Human rights organisations and activists have described the proposed law as ‘draconian’ and ‘unconstitutional’ as it takes away the right to express one’s views, builds an atmosphere of fear, and is bound to be misused, especially considering the partisan views of the existing government. Central ‘anti-terrorism’ laws or acts like Unlawful Activities (Prevention) Act or UAPA 1967 (especially after the substantive amendments made in 2012) and Prevention of Terrorism Act or POTA 2002 are already in place, and along with MCOCA, its efficacy has repeatedly come under question with regards to containing law and order, combating organised crime and fighting terror.

Instead of equipping the existing security forces with means of combating crime and terror, laws are being drafted that effectively curb human rights and civil liberties. Unsurprisingly, following the efforts of the Gujarat state assembly, other states like Madhya Pradesh and Karnataka have been pushing for such laws. Laws such as these, that propose to provide the police with unregulated powers of surveillance, arrest and even torture while letting them get away with it in the name of ‘good faith’, are inconsistent with the Constitution of India, and in some instances, they directly violate it – as in the case, with the GPISA, of the Property Act, Indian Evidences Act, CrPC and IPC. Such laws are bound to be used against the socially and economically weakest sections of society, and threaten to put in place a new method of state-sponsored extortion against every political adversary.

(Vidhya is part of the Editorial Collective at the Indian Cultural Forum).

This article was first published on India Cultural Forum.
 

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