How UP's Act to Control Organised Crime Violates Constitution, Human Rights

Provisions of the Uttar Pradesh Control of Organized Crime Act, 2017, more stringent than the existing anti-terrorism law, promote human rights abuses and torture.

In fact, the UP police ranks on top in terms of human rights violation according to data provided by the National Human Rights Commission. Credit: PTI

The Uttar Pradesh government recently passed the Uttar Pradesh Control of Organized Crime Act (UPCOCA) 2017, a draconian law with provisions harsher than the existing anti-terrorism law called the Unlawful Activities (Prevention) Act, 1967. The UPCOCA gives the police such powers as have not been granted by any law in the state till now. The Adityanath government introduced the Bill in the state assembly and cleverly passed it through voice vote. Most of the legislators and members of the opposition were not even provided a copy of the Bill and they remained oblivious to its provisions that clearly violate not only the constitution but human rights as well. As a result of this ignorance, they could neither discuss the Bill in the assembly nor raise questions about it. The opposition only spoke of how the law could be used against Dalits and Muslims and failed to argue about the rights extended to the police under the Act.

The press also spoke only of the government’s tall claims of controlling organised crime through the Act and allegations of how it could be misused against members of the opposition. No one in the media discussed the stringent provisions of the law nor raised objection against the limitless powers it granted the police.

At present, the Bill has passed from the state assembly to the legislative council, and has been referred to a select committee. If the Bill is passed by the council, it will go to the president for approval, which in all possibility it will get. It is known that under Mayawati, who is currently opposing it, the Bill was passed in the assembly and the council in 2008 and reached the president’s office, where it was rejected.

The present Bill has not been opposed by the opposition in a correct and strict manner which is why it passed very easily in the legislative assembly. The only point of contention the opposition raised was regarding its misuse against Dalits and Muslims but did not argue about the other harsh provisions of the Bill nor the unlimited powers given to the police. As a result, it was easy for the Bharatiya Janata Party (BJP) to resist the opposition.

UP chief minister Adityanath. Credit: PTI

We must worry about the provisions of the Bill that are highly likely to be misused. The most stringent provision of the Bill is section 28 (2) where the judicial custody of a person arrested under the Act has been increased from 15, 60, and 90 days according to the nature of crime as provided in Code of Criminal Procedure (CrPC) section 167 to 60, 180 and 365 days respectively. It means if a person is arrested under the Act, he might remain imprisoned for one whole year before the case begins in a court. Normally, the duration was maximum 90 days. In contrast, this period is 30, 60 and 90 days respectively under the anti-terrorism law. It makes UPCOCA more stringent in terms of imprisoning the arrested person. Now, if a person accused under UPCOCA is acquitted in a case, he may still have to stay in jail for 365 days during the consideration period. It is common knowledge that in many cases the police arrest innocent people and put them behind bars. With this law in place, the arrested men may have to stay in jail for a longer period.

Also read: The Many Criminal Injustices of India’s Police and Investigating Agencies

Another draconian provision of the Act is regarding police remand. Currently, the maximum duration of police remand for common crimes is 15 days. However, under Section 28 (3a) of this act the period has been increased to 60 days. As opposed to this, the maximum period of police remand under the anti terrorism law is 15 days. It is commonly known that on a remand the police torture arrested men, which in some cases results in the person’s death. In our country, a lot of complaints are made regarding torture in police custody and the number of custodial deaths reported is also very high. In fact, the UP police ranks on top in terms of human rights violation according to data provided by the National Human Rights Commission. According to the data, 44% complaints were made from UP alone in 2013-14 and 2015-16. Celebrating International Human Rights day, on December 10, the Uttar Pradesh Human Rights Commission also said that 67% of human rights abuse complaints were made against the police. By increasing the duration of remand from 15 to 60 days, the Act gives a free rein to the police to carry out its torture practices.

Not only this, the newly enacted law renders the process of meeting an inmate more stringent. Under section 33 (c), meeting can be arranged only after permission from the district official not more than twice a week.

Similarly under section 28 (d) of the Act, the accused cannot get anticipatory bail from any court. Under section 3 (b) and (e) of the law, the court may ban the publication of court proceedings in any case. Violation of this order will be punishable by one month imprisonment and a fine of Rs 1000. In this way, the law restricts the freedom of expression of the press. Similarly, under this law there is also provision for extension of punishment for a person already convicted in another case.

Clearly, although UPCOCA can be useful to some extent in curbing organised crime, it emerges that by increasing the period of judicial custody from 90 days to one year, and that of police remand from 15 to 60 days, promotes human rights abuses and torture. Several provisions under this Act are more stringent than the existing anti-terrorism law and can be misused.

S.R. Darapuri is a former IG Police and Convener, Jan Manch, Uttar Pradesh.

Translated from the Urdu original by Naushin Rehman. You can read the Urdu version here.