An anti-terror law that can be fine-tuned

To make a claim or take the position that an anti-terror law such as the one Gujarat is now steering will eliminate terror would be dishonest and hypocritical. At the same time, to portray GCTOC as being diabolical and a tool to serve the ruling dispensation’s political ends would also be unfair and preposterous

Updated - August 31, 2016 12:33 pm IST

Published - April 04, 2015 02:57 am IST

The Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, which was passed by the Gujarat Legislative Assembly on March 31, 2015, is now a reality and the reactions have been on predictable lines. The Bill, interestingly, is in its fourth ‘avatar’ — the earlier versions having been rejected by the President of India in 2004, 2008 and 2009 respectively — and will now be sent to Rashtrapati Bhavan for presidential assent. While parties other than the Bharatiya Janata Party (BJP) have been crying foul saying that the Bill is politically motivated and can subvert the freedoms guaranteed by the Constitution, the BJP, on the other hand, has been trying to hard sell it as being the right step forward in fighting terrorism and organised crime more seriously than before, and at a time when these threats loom large over all of us.

Prime objections The Bill’s detractors point to at least four provisions which they say will promote police tyranny and the abuse of the law in order to settle political scores especially using ruling party-driven law enforcement. In their eyes, the most obnoxious of these is the empowerment of an investigating agency to continue with the investigation for 180 days, as against the permitted 90 days under the Code of Criminal Procedure (Cr.P.C). In this period, the accused may or may not be in judicial custody. Police custody is normally for very short periods and with a magistrate’s permission. However, this has to be considered in conjunction with the designation by the Bill of all offences under GCTOC as being non-bailable. The term “non-bailable” itself does not mean no bail at all but that “bail” is not automatic, and has to be given by the appropriate magistrate or judge after being convinced of the grounds on which it is being sought. The second feature of GCTOC that has drawn ire is the one that makes confessions made to senior police officers — of the rank of Superintendent of Police and above — admissible in evidence, something analogous to a provision in the infamous and now extinct Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). The Indian Evidence Act makes confessions before the police inadmissible in evidence, except when they lead directly to the discovery of a fact that is material to the offence under investigation. Activists feel that the new sanctity accorded to confessions made to law enforcement by an accused will be grossly abused, and confessions will be extracted by the police under duress and torture.

The next provision that those who cherish individual privacy are up in arms against is the Bill’s authorisation of interception of telephonic conversations and their admissibility in evidence. The criticism is in tune with the perception that government agencies indulge in snooping all the time. What the critics forget is that the normal procedure, of the police obtaining the Home Secretary’s permission, has still to be observed under GCTOC.

Security concerns The last objection is with regard to Section 25 of the Bill that makes the government immune from any legal action for “anything which is in good faith done or intended to be done in pursuance of this Act.” There is anxiety that the Executive will exploit this section and become less accountable to the law for its commissions and omissions.

We would not like to take the position that a law such as the one Gujarat is now steering will carry such a lot of deterrence as to liquidate all terrorism forever. Extravagant claims would be downright dishonest and hypocritical. At the same time, we believe that to portray GCTOC as being wholly diabolical and a mere tool to serve the ruling dispensation’s political ends is being unfair and preposterous. Such reckless thinking ignores two relevant facts. First, GCTOC replicates what has stood the test of time — 15 years — in Maharashtra. Second, criticism of the proposed Gujarat legislation grievously misreads what is happening all over the world in the form of mindless savagery spearheaded by the Islamic State of Iraq and Syria (ISIS). The terror organisation has scaled new heights of barbarism and violence, and is luring youth from all over the world, including India, to join its ranks. If India remains relatively untouched by its influence, it is only because the Muslim community has held steadfast to its values. The absence of any major incursion by IS into India is also a tribute to the alert state of our intelligence agencies, especially the Intelligence Bureau, and the responses of police formations at grass-roots level. However, we are not sanguine that this comforting scene will remain so in the years to come. There is actually everything to indicate that the situation could change for the worse with a little more instigation from our hostile neighbours and more audacity and desperation by undetected sleeper cells on our soil which Pakistan’s Inter-Services Intelligence (ISI) and outfits like the Lashkar-e-Taiba (LeT) and the Jaish-e-Mohammed (JEM) nurse and fund from across the border. It is this hard reality that makes us uneasy and persuades us to commend GCTOC as a welcome move.

Not new We should also take into account that GCTOC is not new and copies what a few other nations battling terrorism have done. The Patriot Act of 2001, which came as a swift response to 9/11 from United States President George W. Bush and the whole of U.S. polity acting in unison, was roundly criticised by many in that country as also the judiciary. Therefore, it had to undergo many changes in order to make it more acceptable to a cross section of American society. If the U.S. has remained reasonably free from terrorist machinations, an obvious reason is the ability of that country’s law enforcement agencies to act firmly, and sometimes ruthlessly, even at the cost of alienating influential segments of the human rights community, both at home and abroad. It is our belief that the Gujarat Bill, if and when it becomes an Act, will undergo many such course corrections egged on by the judiciary and the many social watchdogs which have stood out for their vigilance.

The Gujarat Bill borrows heavily from its parallel in Maharashtra, the Maharashtra Control of Organised Crime Act (MCOCA), 1999, with the difference that, in the latter, there is no reference to terrorism. In fact, the legal sanction and respectability that MCOCA has acquired over the years explains the spurt in much similar State legislation. Karnataka and New Delhi are examples that come to mind.

Safeguards Under MCOCA and GCTOC, there are several safeguards for the citizen, prime among them being the stipulation that the permission of a Deputy Inspector General of Police (DIG)/Additional Commissioner of Police (ACP) is required for registering a case. Also, the investigating officer will have to be of the rank of Deputy Superintendent (DSP). The permission of an Additional Director General of Police (ADGP) is required for charge sheeting an accused before a court. A heartening feature of MCOCA is that, among those charged under it till now, only a small number is from the minority communities. The Dharmadhikari Committee, which was appointed by the Maharashtra government to go into the working of MCOCA, found no major shortcomings or criticism that would detract from the merits of the Act. Facts such as there being an average of about 40 cases registered annually and about 6-7 persons arrested in each case, especially in a large State like Maharashtra, are testimony to the fact that the use of MCOCA has been extremely selective and not indiscriminate as was the case with TADA or POTA. If the Gujarat Police pattern themselves after their Maharashtra counterparts, half the battle against those who oppose GCTOC will have been won.

Being situated on the border with Pakistan, Gujarat has every reason to protect itself as well as it can, and the new piece of legislation fits into the scheme of things in the State. In the final analysis, while GCTOC is definitely not a perfect work of art, it certainly deserves to be viewed as a piece that would hone itself over the years in the hands of those in authority who are level-headed and who uphold order and peace in society as their principal concerns.

(Dr. R.K. Raghavan is a former CBI Director and D. Sivanandhan is a former Commissioner of Police of Mumbai and a former DGP of Maharashtra.)

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