Gujarat's anti-terror bill: Law with a flaw

Published: Thu, 04/23/2015 - 08:30 Updated: Tue, 06/16/2015 - 09:02

The Gujarat Control of Terrorism and Organised Crime Bill is faulty legislation, sent back three times by two Presidents of India; why is Gujarat pushing its case again?

Pratik Sinha Ahmedabad 

On March 31, the Gujarat Assembly passed the GCTOC or GUJCOTOC (Gujarat Control of Terrorism and Organised Crime) Bill. This is an anti-terror law on the lines of TADA and POTA, both of which have now been repealed. This is the fourth such bid by the Gujarat government to pass an anti-terror law after attempts to pass the previous avatar of this law, called GUJCOC, were blocked by Presidents Pratibha Patil and Abdul Kalam. They sent it back mainly because of two provisions in the Bill—admissibility of confession before police as evidence and police empowerment to carry out phone surveillance. However, now that the BJP is in power both in Gujarat and Delhi, it seemed an opportune moment to bulldoze this law through while retaining these provisions.

First, it needs to be asked as to why Gujarat needs its own anti-terror-cum-anti-organised crime law when we already have the Unlawful Activities Prevention Act (UAPA 2008), enacted after POTA was repealed. The two main differences between the existing UAPA and the new GJTOC law are:

GJTOC allows confessions before the police of the rank of SP to become admissible evidence in court. UAPA has no such provision.

GJTOC allows upto six months of detention without a chargesheet, while UAPA allows only three.

But wasn’t the rampant misuse of these draconian provisions the main reason POTA was finally repealed? So why has the Gujarat government reintroduced these provisions? Why has the Gujarat government retained the provisions because of which two Presidents had returned the Bill?

Moreover, why does the Gujarat government need to import elements of MCOCA when, unlike Maharashtra, Gujarat has no history of organised crime or warlords. After the futility of the MCOCA-like law in Gujarat was pointed out, the word ‘terrorism’ was added to GUJCOC (Gujarat Control of Organised Crime) and it was renamed GCTOC (Gujarat Control of Terrorism and Organised Crime). Till now, there has been no satisfactory explanation by either the Gujarat government or the BJP regarding these issues.

Second, is there any empirical evidence of Gujarat being on the terror radar? The BJP’s argument is that Gujarat is a border state with Pakistan and hence tough anti-terror laws are required to quell the danger of terrorism. However, while the last terror attack was in 2008 when bombs were placed across Ahmedabad city, most of the other incidents up until 2007 which were drummed up as acts of terrorism have now been prima facie established as staged encounters such as the cases of Sohrabuddin, Ishrat, Sadiq Jamal, Samir Khan Pathan and so on.

The other two cases where POTA was invoked are the 2002 Akshardham Temple attack and the 2003 Haren Pandya murder case. In the Akshardham case, the Supreme Court came down heavily on the state government and police for their misuse of POTA and acquitted all the accused who were arrested under the Act and languished in jails for over a decade. The Gujarat High Court also acquitted all the accused in the Pandya murder. In both cases, confessions before police were used for the basis of conviction in lower courts before higher courts intervened and acquitted the accused. Therefore, in cases which prima facie seemed to be terror attacks, the use of an anti-terror law like POTA has proven to be counter-productive.

Anti-terror laws like TADA, POTA and GCTOC have been repeatedly misused and always end up being tools of State terror. In the past, laws like TADA, enacted by the UPA, and POTA, enacted by the NDA, have been misused against political opponents, tribals and minorities and hence
had to repealed.

The Gujarat police has had a very chequered record with regard to misuse of laws which afford them extra powers. Another law, the Prevention of Anti-Social Activities Act (PASA) which is far less regressive than the above-mentioned anti-terror laws, has been repeatedly misused by the Gujarat police. PASA gives powers to the police to detain and send a person to jail for six months in order to restrain him from any criminal activities. The Gujarat police has used it against tribals rather indiscriminately. Recently, Jairam Gamit, a tribal leader, who was locked up under PASA for several weeks, was released after the Gujarat High Court quashed the PASA order against him. According to figures quoted in 2011 by then Minister of State for Home Praful Patel, out of 3,989 people booked under PASA, 2,075 were released by the PASA board. Even the added provision of phone surveillance in GJTOC raises alarm bells, after the Gujarat government was exposed in the Mansi Soni snoopgate case when the state police was accused of using unauthorised phone surveillance to keep track of the lady, reinforcing how such laws could lead to infringement of privacy. If the GCTOC Bill in its current avatar is approved by President Pranab Mukherjee, activists, minorities and tribals across Gujarat fear that the police will use the law against them illegally and indiscriminately.

Last, a question needs to be raised regarding the efficacy of terror laws. Can terrorism be curbed by laws? Neither could TADA stop the Bombay blasts in 1992 nor could POTA stop the Parliament attack in 2001. How can terror laws ever stop a fidayeen attack?

Unless the Gujarat government provides more plausible reasons as to the need for an anti-terror law, GJTOC in its current form must be put paid to; the President must withhold assent and the Bill must have a fourth ghar wapsi.

This story is from print issue of HardNews