By Abhishek Jha:
In what seems to be a measure in the direction of “good governance”, the Gujarat Assembly has yet again passed a controversial anti-terror bill already rejected twice in its previous formats by previous presidents, APJ Abdul Kalam and Pratibha Patil. The reason that the Gujarat Control of Organised Crime bill was sent for amendments by the presidents in 2004 and 2008 is that it had provisions for accepting telephone interceptions and confessions made before the police as evidence in court.The rechristened version (while GUJCOC is still pending approval by the President after it was passed again in 2009) does nothing better.
Does Gujarat Really Need This?
Crime statistics published by the NCRB in 2012 showed that between 2007 and 2011 incidents of total cognizable crimes (IPC) in Gujarat were neither the highest nor were always increasing. With the rate of total cognizable crimes (IPC) at 216.6, the state in comparison to other states did not supersede the national average of 195.3. There doesn’t, therefore, appear any express necessity to pass a legislation in line with TADA and POTA, both of which have been scrapped because of misuse. If the GUJTOC is to exist in contravention of the Code of Criminal Procedure or the Evidence Act, it needs to establish that the existing laws are terribly failing at curbing crime in the state. This is because neither the statistics nor the opinion of the government or people seem to suggest that Gujarat is under any sudden exigency.
Is The Bill Legitimate?
Confessions And Phone Tapping: There is reason why permissions have to be sought for tapping phones and confessions contested as evidence in the rest of the country. These provisions of the bill are being opposed because they have been misused when part of other acts. For instance, the acceptance of telephone conversation as evidence in court led to misuse under the Maharashtra Control of Organised Crime Act. Chaggan Bhujbal, who was deputy chief minister at the time when MCOCA was passed, himself had the following to say about the law in an interview in 2010: “Once MCOCA is used against a person, he is behind bars for a year. He does not get bail; there is no provision for it. And after that, if the court decides there is no case against the person and discharges him, still a year is gone. His family life is totally ruined.”
Little accountability for the state: The GUJTOC also makes offenses under it non-bailable. With confessions acceptable as proof, an accused may languish in jail even when little proof exists against the person. Reeking of the draconian AFSPA it also states that “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.” This almost seems like an invitation to indulge in extra-judicial proceedings as long as one does it in good faith.
And Narendra Modi, now honourable Prime Minster of India, when pushing for the law said that his government was presenting only a “xerox copy” of MCOCA when it was rejected by the UPA government. This photocopying, which in addition to aforementioned provisions doubles the probe period allowed before filing charge sheet to 180 days and reduces the amount of investigation needed, needs serious questioning.
Possible Misuses: What Does This Mean For Those Who Are Critical Of The State?
“If there is no bail and period of probe is lengthened, it effectively means that a person can be detained for 180 days merely on the basis of phone records,” Gautam Thaker, general secretary of the People’s Union for Civil Liberties (PUCL), Gujarat said, according to a Hindu report. He also voices fears about the act being used against dissenting activists. His concerns are not unfounded as we have been seeing, quite recently, crusades being made against Priya Pillai (a Greenpeace activist) and Teesta Setalvad (a journalist and civil rights activist). The government has only to tie up disagreement with the government’s views and actions to nationalist discourses to invoke “good faith” or vague things like “intended to be done in pursuance of this Act”. This can wreak havoc for anybody who wishes to voice concerns when the state itself is working against its people.
Justice precludes the conviction of the innocent. So, it is about time that rickety investigations were strengthened instead of sidestepping procedure. Acts like GUJTOC make a lot of innocent people confess to crimes that they never committed and their conviction creates the facade that the government is working. On the other hand, that acts like GUJTOC exempt the police from proper methods of investigation means the bigwig remains free. There is little doubt then that GUJTOC, in its present form, needs to be booted and shown the door.