By Abhishek Jha:
About five months after the Bill was passed by the Gujarat Legislative Assembly, the Gujarat Control of Terrorism and Organised Crime Bill, 2015 (GCTOC) has been cleared by the Home Ministry and sent to the President for his assent. The Home Ministry had asked for some clarifications on the Bill in July after some issues were raised by the IT Ministry. The only change that it has brought to the Bill is that the final authority on interception of phone calls will rest with the Union Home Secretary instead of the State Home Secretary, reports say.
When the Bill in its present form (GUJCOC, the earlier version, has been rejected thrice by presidents Abdul Kalam and Pratibha Patil) was passed by the Gujarat Assembly this year, we had discussed whether Gujarat needs this Bill at all. Continuing this discussion, it would be beneficial to learn what is in store for us if the President accepts the Bill.
In Narendra Modi’s own words, it’s a ‘xerox-copy’ of the MCOCA. However, MCOCA (Maharashtra Control of Organised Crime Act) was put in force after the Mumbai serial blasts. The ‘teeth and nails’ that Modi wanted during his time in Gujarat were neither required then, nor are required now. In fact, Gujarat has zero instances of ‘offences against state’ and ‘sedition’ for the year 2014 according to NCRB’s statistics. It also has no instance of any offence under the Unlawful Activities (Prevention) Act for 2014. There is no cause that one can possibly link to the enacting of this law. Yet the state is about to assume powers that go beyond those provided by the Evidence Act and the Code of Criminal Procedure (CrPC).
These extra powers that the state wants- modelled on the MCOCA- were first tested when Terrorist and Disruptive Activities (TADA) and Prevention of Terrorism Act (POTA) were in force. Both these acts are no longer in force. There was a good reason for that. The two most contentious aspects of GCTOC are the provisions that make confessions made before police officers of the rank of SP and above admissible in court as evidence and the extension of the time required for filing chargesheet to 180 days. Both these special powers come without any improvement in the methods and means of investigation available to the police. We know what this resulted in when TADA was in force. A PUDR report says that between 1985 and 1990, 11,657 people were arrested in Gujarat under it, of which only 18 were convicted in TADA offences i.e. only 0.15% of people tried under this act had committed an offence required to be tried under TADA. Despite that, the police could arrest these people and keep them in lock up for an entire year without bail. This is because no bail could be granted before the accused could prove his innocence, and that could not happen until a chargesheet was filed, which the police could do in a period of one year. This period is 180 days in GCTOC, which is still the double of what is mandated by CrPC. All these caveats have no checks on them. On the other hand, very much like the provisions of AFSPA, section 25 of this Bill provides 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 and the rules or any order made thereunder.’
The admissibility of confessions made before the police too is likely to result in eroding of the sub-section that follows the provision in the Bill, which provides that the confession ‘shall be recorded in the atmosphere free from threat and inducement’. Since the Evidence Act makes confessions before police officers irrelevant, there is little room that a confession will come to be used in court that has been made under threat. This accountability gone, the investigation is likely to become shoddier in cases that require rigorous work, precisely the one of organised crime and terrorism. This makes one wonder whether GCTOC is just another bill being tested in the laboratory along with MCOCA, before we have another draconian law hanging over us. That TADA and POTA were discontinued shows that it is a step back in time and can only set bad precedents for the future.