Guest Post – Rohit Prajapati & Trupti Shah

The Gujarat Control of Terror and Organised Crime Bill, 2015 (“the GUJTOC Bill”), now awaiting for the President’s assent, violates principles of civil liberties and the constitution both in spirit and its fine print.

It draws heavily from the now repealed Terrorism and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA), both of which faced criticism and were ultimately repealed because of allowing the state to violate principles of civil liberties and human rights. The present GUJTOC Bill, however, is even worse and goes a step further in mortgaging civil liberties as compared with the repealed TADA, POTA and the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”). Arun George, writing for news portal, www.firspost.com rightly points out that the GUJTOC Bill is a revamped version of the Gujarat Control of Organised Crime (GUJCOC) Bill that was returned unsigned by the president on two earlier occasions.

The BJP led Gujarat government had tried and failed to get the GUJCOC Act passed since Narendra Modi took over as the chief minister of Gujarat in 2001. Then president APJ Abdul Kalam and Pratibha Patil both rejected the bill in 2004 and 2008, respectively, after Government suggested amendments in provisions related to telephone interception and confessions made to a police officer would be admissible as evidence in court. The new Gujarat bill is veiled as a law that seeks to curb both organised crime and terrorism in the state, but as should be clear from the above, in practice, it will amount to a no-holds-barred attack on free speech, and due to its vague language, the act will be a codified a means for police intimidation to squash opposition to executive policies and governmental decisions could be construed as a “terrorist act.” This is particularly relevant in the current climate of contentious environmental & labour policies and government/corporate land grab dividing the current government and ordinary people.

The proposed legislation is draconian and will give the government not only a means to intimidate minority communities as was seen during the POTA era, but also a means to suppress all dissenting voices, opposition mass movements, effectively crushing people’s voice against government’s anti-people policies. It will open the flood gates for state repression and state-sponsored terrorism. POTA, in its short life of a little over two years, was the legal means to register 287 cases in Gujarat – all against Muslims, barring one case; a similar pattern was observed with TADA, which was misused heavily in Punjab as well as in Gujarat to large extent.

In 2015, the opposition abstained from voting on the bill in the Gujarat state assembly, yet the GUJTOC bill made its way through brute majority and now awaits President’s assent.

In brief, we are opposing this proposed act because it violates every principle of civil liberty, human rights and Indian Constitution. The most worrisome aspects of the proposed GUJTOC are:

    1. Poor, deliberate ambiguous definition of legal terms. The language of the act makes no distinction between acts of terrorism, criminal activity and legitimate protest against the government anti-people policies. It defines “terrorist act” as “intention to disturb law and order, or public order, or to threaten the unity, integrity…”. Sections 2(1)(d), (e), and (f) respectively all refer to one another in a circular manner and offer little clarity. The definition of “terrorist act” in Section 2 (h) is long winded, logically inconsistent and misleading. In effect, any opposition to anti-people amendment or new laws related to labour, environment, land acquisition, or anti-people project, could be construed as an actual act of terrorism, and a concerned citizen expressing dissent can be prosecuted. This proposed draconian law would allow for prosecution, amounting to persecution, which if successful, entails at least a five year jail term and a fine of Rs 5 lakh. As Sharib Ali, a legal activist explains, from a group of people protesting on the road against GM crops, or those sitting on a dharna asking for drinking water – all could be characterised as engaging in a “terrorist act”.
    2. Sections 5 allows for special courts dedicated to prosecution under this act. The state government, with the concurrence of the Chief Justice, will be allowed to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Section 10 reproduces verbatim from MCOCA, stating that trials before a special court shall have precedence over trials before any other courts, and imposes a de factostay on all other proceedings for the period of the trial. The Gujarat bill, introduces the provision of the Special court “taking cognisance of any offence without the accused being committed to it for trial” on the basis of a mere police report.
    3. Section 14 of the proposed law allows evidence collected through the “interception of wire, electronic or oral communication” admissible in the court against accused. The first provision of the section requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. But the second provision, partially nullifies the first provision as it gives the judge the discretion to waive the period of ten days. Thus the law effectively sanctions spying on Indian citizens by the Indian government.
    4. Section 16 allows a confession that was recorded before a police official of Superintendent of Police rank to be admissible in a trial against the accused or any of the other accused in a case. This overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. This provision opens the door to violations of human rights while extracting confessions from persons detained under its provisions. Manish, legal activist and alumnus of NLSIU, Bangalore pointed out in a paper howthe Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless.  According to him, this section appears to be an elaborate ruse for legitimising confessions to the police, as under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.
    5. Section 17 contains provisions for the protection of witnesses that could lead to effectively “secret” trials that are not put in front of public scrutiny. This provision is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”.  In an attempt to gag any reporting on trial proceedings, the law imposes a punishment of  Rs one lakh along with a one-year prison sentence. This gag order by the court will penalize the few journalists who follow the cases in court, while leaving the initial frenzy of police stories untouched. Not to mention, snuffing out public scrutiny of the government’s case.
    6. It allows for the period of investigation to be extended to 180 days so that the police have more time to keep an accused in custody. Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and Unlawful Activities (Prevention) Act (UAPA), it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively.
    7. It prevents an accused from getting bail while in custody. Clause 20 (3) removes the option of anticipatory bail and clause 20 (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause 20 (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutionalby the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.
    8. Section 21 of the Bill, which is identical to Section 22 of ‘MCOCA’, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.
    9. The act would legally permit torture of the accused. It provides immunity to the state government officials so that no suit or prosecution can be initiated against the government for any act done in “good faith”. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice. The Act would bend over backwards to protect those with authority while disregarding the basic civil rights of the common person accused.
    10. The proposed law leads to the possibility of filing an omnibus FIR. According to legal activists, an omnibus FIR does not name specific names, and accuses big batches of individuals allowing for specific names to be filled in later. Looking at the history of the counter Naxalite insurgency in this country, we have seen that it is common practice individuals to have their names added to the FIR many years into an ongoing trial. The trial will wait till another state’s police will take them for examination, and then another, and possibly another. And the very case will not be heard for years, leaving the fate of the accused in limbo.

Governments and the Indian State have de-facto declared a war against any opposition, and in doing so, it is a war against all such organisations and activists who have taken up the struggle to defend the cause of Justice and Human Rights on various people’s issues. Through its many vices—including the loose definition of “terrorist act,” the constitution of special courts that trump the rest of the legal system, the legally sanctioning spying and torture of citizens, low bar of evidence (i.e. police-obtained confession), lengthy custody with the prevention of bail, presumption of guilt—this act is a danger to democracy. The Government is trying to create legal mechanisms to suppress people’s movements by enacting such laws.

It is time for all movements, organisations and activists to give a united fight against such laws. It is time to show our united strength against the fascist forces.

We, the concerned citizens and activists resolve to continue our fight for Justice and Truth, to uphold the values of Human Rights, to stand up and speak-out for the oppressed against injustice of all kinds, unafraid of all consequences.