2015-04-18 , Issue 16 Volume 12
In focus Several top officers of the Gujarat Police were implicated in fake encounter cases, Photo: AFP
In a hark back to what was attempted in Gujarat, but spurned by Presidential decree, the Gujarat government has reverted to confessions before police officers being admissible as per the recently passed GujaratControl of Terrorism and Organised Crime (GUJTOC) Bill. Gujarat is risking inviting the ire of legal and civil rights activists by going ahead with the controversial Bill.
Legal experts say that the Bill has striking similarities with the repealed Prevention of Terrorism Act (POTA). The Bill is a slightly modified version of an earlier Bill that was passed by the Gujarat Assembly during Narendra Modi’s chief ministership, but rejected thrice by the President in 2004, 2008 and 2009.
The Bill is a pet project of Modi, who made his political fortunes by a clever mix of hyper-nationalism (accompanied by Gujarati sub-nationalism) punctuated with ‘jihadi terror’. The previous version — first introduced in 2003, a year after the Gujarat riots — was named the Gujarat Control of Organised Crime Bill and was modelled after the Maharashtra Control of Organised Crime Act, 1999, better known as MCOCA.
For an insight into the implications of draconian anti-terror and sedition laws, take for instance the story of two young Muslims who were branded as terrorists by the Special Cell of the Delhi Police, only to be exonerated by a CBI probe later.
On 9 February 2006, the Special Cell, picked up Md Irshad Ali and his friend Maurif Qamar, accused them of sedition and sent them to Tihar Jail. Security experts as well as most sections of the media hailed the action of the police.
In a letter to the then prime minister Manmohan Singh, Irshad wrote, “My only fault is that I refused to go along with them [the intelligence agencies] too long… With great distress, I am pained to say, our courts too fall in line… Fire can never douse fire. It needs water. Your security agencies are dousing fire
Their lawyer Sufian Siddiqui says, “Irshad was coerced into doing dangerous work for the intelligence agencies. After he became a father, he refused to continue the dangerous job, but then he got arrested as a terrorist out to destroy India.”
When the Gujarat Bill was rejected in 2008, a worried Modi requested the Gujarati community worldwide to send emails and letters to Manmohan Singh urging him to clear the Bill.
Modi’s position on controversial clauses such as confessions before the police being admissible evidence became clear in June 2009 when the Centre sent the Bill back to the state once again and suggested some amendments. The then Gujarat CM, however, thought the amendments would take the very bite out of the legislation. Modi’s guru-turned-bête noire LK Advani, too, has a track record of fiercely arguing in Parliament for including confessions before police as admissible evidence.
According to legal experts, this Bill will not stand judicial scrutiny. “In the Zameer Ahmed vs State of Maharashtra case, the Supreme Court ruled that only the Centre can formulate legislations on matters concerning the defence of India. Terrorism is a subject on the Union list and no state can make laws on it,” says Yug Mohit Chaudhuri, a senior lawyer with expertise in terror cases.
“It cannot be that Modi and his coterie are not aware of the technicalities. Their agenda is to generate a one-dimensional debate and fear psychosis on terrorism. The Gujarat law should be seen as a curtain raiser. The larger aim will be to enact a draconian Central law and suppress all forms of dissent in the name of terrorism. Gujarat is acting as the laboratory,” says Manisha Sethi, author of Kafkaland, which exposed the ugly face of counterterrorism in India.
The Bill has provisions such as considering confessions made before police officers above the rank of superintendent of police as admissible evidence in court, special rights to do telephonic interceptions, attaching property of the accused and extending the custody of an accused from the current 90 days to 180 days without filing a chargesheet.
It is also relevant that Gujarat had a troubled past in the implementation of draconian laws. A recent report by the Centre for Equity Studies on anti-terror legislations in India says, “In Gujarat, all but one of the cases registered under POTA by the end of 2003 were against Muslims.”
The same report also says that by 1993, 19,263 persons were arrested under TADA in Gujarat and “a majority of them were anti-dam protestors, trade unionists and those belonging to religious minorities”.
This selective targeting was recently evident when the Gujarat Police arrested a respected tribal farmer leader Jayram Gamit using provisions of another stringent law Prevention of Anti Social Activities Act (PASA). His crime was to protest against land acquisition through democratic methods.
“Supporters of the Bill assume that police officers above the rank of superintendent of police would be loyal to the rule of law. But what is Gujarat’s track record? Several senior IPS officers in Gujarat have been involved in fake encounters and custodial torture. In case after case, one finds the entire hierarchy of the police bureaucracy hand in hand in frame-ups,” says Prathik Sinha of Jana Sangharsh Manch.
Sethi gives the example of the Akshardham bomb blast case in this regard. “In the Akshardham case, the accused Adam Ajmeri was sentenced to death by the POTA court — a sentence upheld by the Gujarat High Court. The centerpiece were the confessions of the accused, recorded first by DCP Sanjay Gadhvi and the then chief judicial magistrate. The case was ‘cracked’ by investigating officer
GL Singhal on the basis of information provided by DIG DG Vanzara. While acquitting Ajmeri, the Supreme Court used the words ‘perverse’, ‘injustice’, ‘manifestly unreasonable’, ‘a gross violation of fundamental rights and basic human rights’ to refer to the judgments of the lower courts in the case.”
“It is also said that Section 15(3) of Chapter IV of the new Bill can be used by right-wing organisations, which oppose inter-religious marriages, against couples who fall in love against the wishes of their family members and elope to get married. The section reads like this: ‘If it is established that the accused has kidnapped or abducted a person with some promise, the special court shall presume it to be for the purpose of extortion’,” say ‘Truth of Gujarat’ activists. “The court will presume it to be a case of kidnapping by the boy for the purpose of extortion.”
The history of terror laws in the country is synonymous with human rights violations, trials that seem to go on forever and low conviction rates. Most people who are jailed under the anti-terror laws belong to the marginalised sections of society, and their numbers are disproportionate to their share in the population.
Will this reality act as a deterrence for the ruling BJP and stop it from enacting one more draconian Central law? The present trajectory of the government, which is going all out with aggressive economic reforms, hints otherwise. A draconian law can be used to curb all forms of dissent be it by Adivasis, Dalits, minorities, workers or farmers.
The special interest demonstrated by India Incorporated’s big guns like CII and FICCI in stringent anti-terror laws (at the cost of human rights violations!) and manifested in official documents like ‘Task Force Report on National Security and Terrorism’ will encourage the bjp’s dream to have more such laws in place. Then, it will be a classic example of “security agencies dousing fire with petrol”, as Irshad’s touching letter reads. Our police forces, anyway, have had no qualms about presenting Urdu poetry and verses from the Quran as “incriminating evidence” heroically captured from terrorists.