Libertatem Magazine

Return of Draconian Law: Gujarat Control of Terrorism and Organized Crime Bill, 2015

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TADA, POTA, AFSPA, MCOCA and now GCOTOC. While I thought that the world and particularly India is championing forward safeguarding Human Rights, my illusion faded when I found myself reading one day about this anti terror law which has been rejected thrice by the President and unsurprisingly passed four times by the Gujarat Assembly.This articles starts by clearing the air around this Act which has made it subject to heavy criticism and scrutiny with the relevant Sections and Clauses concerned. Then it discusses one of the relevant rights of the Centre to form laws on the issue of national defense and security. The impact of previous laws has been shortly giving way to the part where the author expresses her/his opinion that this law is now an issue of amalgamation of ego and pride to Modi and this Act, irrelevant of the criticism, will be passed and rest will be history. This article ends with the hope that this law will be rejected and the controversial Clauses and Sections in it will be deleted, as there is no denying the fact that slight stringent laws are necessary for the protection of citizens but at the cost of stumbling upon their own fundamental rights.

Power, this word has the capacity to turn the fundamental nature of human being into brutal and harsh and giving them the feeling the righteousness in that act. While I studied Political Science the basic approach is to start from reading Divine Origin theory where the concept of state was not present and slowly state c underwent transformation and a social contract theory was formed between individual and state which involved individuals giving up their rights in lieu of the protection of right. This concept given by Hobbes involved a monarchy followed by Locke and Rousseau which naturally changed the form of government. What the author is trying to say is that in those years the basic need was the protection of life which is still the basic human right of every citizen and when this Act will be enforced few citizens will be living in a bubble in which their lives will be secured and simultaneously Gujarat will become a Hobbesian jungle for others. The number of times the Act has been rejected by President -THREE was not enough for the Gujarat Assembly to understand the gravity of the situation and the future this anti terror law beholds once it is passed. Not surprisingly almost every State has walked on this path including Madhya Pradesh and Karnataka. This Bill is a modified version of the Gujarat Control of Organised Crime Bill (GUJCOC) with just the word ‘Terrorism’ added to it. The reason for criticism is simple, Alok Prasanna Kumar in his article“Unconstitutionality of Anti Terror laws” expresses his opinion that heavy questions and doubts have been raised by SAHDRC concerning the constitutional validity of GCTOC Bill in terms of violation of civil liberties and potential abuse of powers and due process of the state authorities. This Bill according to him is ultra vires .

State Legislatures definitely posses exclusive power to form laws on “public order” while both Parliament and State Legislatures possess concurrent power to make laws relating to “criminal law” and “criminal procedure.”While both these terms on first instance seem as overlapping concepts, “public order,”“law and order” and “security of State” are different categories of offences where the critical difference is in the gravity of offence. This Bill starts with declaring the concern of the Gujarat Assembly over the activities going on and the need to curb this activity. But the Gujarat State Assembly has forgottten that after Gujarat Riots, Gujarat as a state has been peaceful for the past 10-15 years. Author admits the presence of stringent laws to tackle unlawful activities but a Bill under which one can be in jail for 180 days on the basis of telephonic conversation and evidence being admissible in front of trial court given to superintendent while simultaneously believing absolutely on the good faith of authority is if not draconian then what else should one call it? This Bill extends the duration of custody to 180 days and it is hard to assume the extent of torture which will be rendered upon people accused of terroristic activities to compel them for confession. This violates our fundamental right to not give statement as per our own will. Under subsection 5 of S 20 the bail will be denied to the accused on the simple reason that he was out on bail under this or any other law. The most disturbing provision is Section 16 of the Act which renders confession made to be police of Superintendent position as admissible which is against the criminal fundamentals of our system. This part has been borrowed from MCOCA.S 14 allows evidence to collect through telephonic interception. S 25 of this Act believes absolutely on the good faith of state government, any officer or authority of the state government by providing them immunity for act done in pursuance of this Act. This is another similarity that it shares with MCOCA. The Bill has increased the custody period under normal law of 90 days to 180 days. The contradiction with other criminal laws and existing similarities with other Anti –Terror laws are glaring . POTA before this Act had given permission for interception of communications to collect evidence. One fact to watch out is this that twice this Bill has been introduced by Modi and it would be interesting if he expresses his opinion on this as forming laws on national defense is a central act which he violated in the past. The potential of this law to transform people’s lives is immensely large. This Bill violates our fundamental right of a fair trial and the right to be heard. It is ironical to the author that passing anti terror law is seen as a solution for our Parliamentarians and not focusing on the efficiency of Police Forces. In the leading national magazine The Frontline it was reported that the Amnesty International has stated that Around 77000 people had been arbitrarily arrested under the TADA and thousands were tortured with a view to extract confessions from them. Of these arrested 72000 were released later on. Even after a decade after the TADA lapsed 147 people are still under detention.

Even United States implemented the Patriots act after the 9/11 incident and this act underwent some changes to become more balanced with the spirit of the constitution.

In the end Author believes absolutely without any exception that this law particularly has the utmost potential of travelling the path of TADA and POTA and may be even much more than that. In the light of justice and good conscience we sometime tremble, stumble and maybe lose our path but our Parliamentarians need to trace their steps to the spirit of our constitution. .

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