With Leeway for Misuse, Gujarat’s New Anti-Terror Law Could Be Worse Than POTA

Among the biggest concerns is the law's provision allowing confessions recorded by police as admissible evidence, increasing chances of custodial torture.

New Delhi: On November 5, sixteen years after it was first introduced in the Gujarat assembly by the then-chief minister of state Narendra Modi, President Ram Nath Kovind gave his assent to the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, a controversial anti-terror law. The Bill was passed in the state assembly in March 2015 and was waiting for assent from the president of India to become law.

Announcing the presidential assent, Gujarat’s home minister Pradipsinh Jadeja termed it as a “realisation of PM Modi’s dream”. “The dream of Prime Minister and former Gujarat chief minister Narendra Modi for controlling organised crime and terrorism in this border state will now be fulfilled,” he said. “The GCTOC will help in curbing terrorism, will enhance Gujarat’s security cover at state and national level and will also strengthen the police force,” he added.

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However, those aware of the functioning and history of anti-terror laws in India believe that the new law is bound to be misused, as has been witnessed in other cases under other anti-terror law such as TADA, POTA and MCOCA. The law, earlier known as the Gujarat Control of Organised Crime (GUJCOC) Bill, and modelled after the much-misused Maharashtra Control of Organised Crime Act, 1999 (MCOCA), has thrice been turned down by previous presidents since it was first introduced.

Interception, confession as evidence

One of the key features of the new law is that intercepted telephonic conversations can be considered as evidence. Further, the law also provides provisions for the creation of a special court as well as the appointment of special public prosecutors. Other provisions of the Act include the admissibility of confession made before a police officer as evidence.

Speaking to The Wire, Ahmedabad-based lawyer Shamshad Pathan called the law yet another tool to stifle dissenting voices. Referring to the definition of ‘organised crime’ in the law, Pathan exclaimed that the definition is so broad that it can easily be used against those involved in the people’s struggle. Citing examples of the Patidar Movement (2015) and the Dalit Movement of Una, he was of the view that since issues related to law and order are also covered under it, GCTOC could easily be used against movements in the name of curbing and preventing ‘terrorist acts’.

According to the law :

A ‘terrorist act’ means an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State or to strike terror in the minds of the people…or likely to cause death or injury to any public functionary or any person or loss due to damage or destruction of property or disruption of any supplies or services essential to the life of the community or detains any person and threatens to kill or injure such person in order to compel the State Government to do or abstain from doing any act.

The law also states ‘continuing unlawful activity’ means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly. Pathan stated that the law violates the basic principle of criminal justice as it presumes the person to be guilty before s/he goes through a fair trial, and puts the burden of proof on the accused instead of the prosecution.

Also Read: Why Wrongful Prosecution Should Become an Electoral Issue

He further said that with the provision of confessions recorded by the police becoming admissible evidence, there are higher chances of torture in order to procure the same, and torture has had a direct connection with custodial death. “This is extremely worrying,” said Pathan, adding, “because there have been numerous cases of custodial deaths in the state.”

A Times of India report says data compiled from NCRB’s annual ‘Crime in India’ publication shows that over a 16-year period between 2001 and2016, Gujarat was one of the five states where more than 100 custodial deaths were recorded. Despite 180 custodial deaths being recorded in Gujarat during this period, not a single policeman has been convicted.

Custodial torture and other ill-treatment are widespread in India. Credit: Reuters

Gujarat has one of the worst records when it comes to custodial deaths in India. Photo: Reuters

‘More draconian than UAPA’

According to Manisha Sethi, academic and author of Kafkaland: Prejudice, Law and Counterterrorism in India, this law is more draconian than the amended Unlawful Activities (Prevention) Act (UAPA). She said unlike the central law, GCTOC normalises custodial confession by making it admissible evidence.

“It is a clear case of infringement on individual liberty guaranteed in the Constitution and is bound to be misused,” Sethi told The Wire. Referring to earlier rejections by the president, she claimed that none of the objections and concerns raised by the president have been addressed. “In fact, it will not be addressed because a law like this fits into the vision of the current dispensation, as is clearly seen during the amendment of UAPA.”

Questioning the very need of a law such as the GCTOC, Ahmedabad-based activist Nirjhari Sinha wrote in 2015, after the Bill had been passed in the state assembly, “Gujarat, unlike Maharashthra, does not have a history of organized crime network because of the absence of an underworld economy.”

Also Read: ‘Our Only Mistake Was Being Born Muslim’: A 25-Year Fight Against Terror Charges

Sinha also questioned why Gujarat needed such stringent legislations against organised crime when Modi himself has, on several occasions, claimed that he has “successfully defeated” whatever underworld lobby there might have been in Gujarat during his regime. As per Sinha, the GCTOC is a combination of laws like TADA, POTA and MCOCA.

It can be noted that both TADA and POTA were repealed owing to their misuse. In the wake of the Gujarat violence in 2002, POTA was used exclusively against Muslims. No Hindus were charged under it in connection with the post-Godhra violence against Muslims. Similarly, there are allegations that MCOCA is being used to target a particular community and an overwhelming number of people charged under MCOCA are Muslims. Earlier this year, 11 Muslim men were acquitted after 25 years of being charged under TADA.

Makes bail virtually impossible

According to Pathan, another draconian provision of the GCTOC is that it makes availing bail virtually impossible. The law states, “The accused shall not be granted bail if it is noticed by the Special Court that he was on bail in an offence under this Act, or under any other Act on the date of the offence in question.” Moreover, provisions of the law related to the interception of conversations and making them admissible in the court are seen as problematic. “This is a clear case of violation of the right to privacy, especially after the Supreme Court’s Puttaswamy judgment,” Pathan told The Wire.

The law also provides immunity to the government and police, in case something goes wrong. Section 25 reads:

“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.”

Sethi believes that this section of the GCTOC makes it worse than POTA, which theoretically provided relief in the case of malicious prosecution. “This section will guarantee wholesale impunity to frame, witch-hunt and incarcerate innocent people in the name of fighting terror,” she said.