Recently the Gujarat Control of Terrorism and Organised Crime Bill, was passed in the Gujarat Assembly. The bill now awaits presidential assent. Here are nine reasons why the new bill is unacceptable.
1. Wide definition of terrorist act
The new Gujarat bill surpasses all existing legislation in its wide definition of what constitutes a "terrorist Act". TADA defined it as "intent to overawe the government of India". Specifically, reading political violence as central to terrorism, it added the idea of "disruption" with regards to secessionist assertions in the Punjab.
POTA, the first law drafted specifically in the context of Islamic terrorism, replaced "overawe the government" with a much more general "with intent to threaten the unity, integrity, security, or sovereignty of India". Evoking a threat to the very existence of the state itself, POTA put curbs on certain fundamental rights and legalized government snooping.
The Gujarat bill, now, collapses all distinction between crime and terrorism, as well as an adherence to the fundamental rights guaranteed by the constitution by defining "terrorist act" as "intention to disturb law and order, or public order, or to threaten the unity, integrity…"
From a group of people protesting on the road against GM crops, or those sitting on a dharna asking for drinking water – all could be characterised as a "terrorist act", entailing at least a five year jail term and a fine of Rs 5 lakh.
2. Wide definition of abetting a terrorist act
As opposed to the Indian Penal code which defines abetment as a conscious engagement in a conspiracy by performing acts of commission or omission, the Gujarat bill lowers it down to a mere "communication or association" with those "having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate".
Imagine this: if you are accused of a terrorist act – which could be anything in the first place – your chaiwalla could be accused of abetting your terrorist act. Probably because you chat with him everyday. But it doesn't stop at that. Passing or publication of "any document" that is "likely to assist" a terrorist act is again, punishable by at least five years and Rs 5 lakh. The "likely to assist" will be left to the police to interpret. It could be your office guy who delivers printouts. And possibly, in the hands of an enthusiastic policeman, the company which made the printer also.
Such a definition makes sure just one thing: nobody would like to come close to anything the government might not like. Printers would refuse. Couriers would not deliver. And in the light of what's happening with the internet, service providers might bring a new law to look into every email between clicking send and delivering. What if they are accused of abetting? They can then make use of the very provisions of this anti-terror bill itself to snoop.
3. Omnibus FIRs and never-ending trials
What is an Omnibus FIR? That which doesn't name names, and accuses big batches of people. Names can be filled in later.
In a practice perfected in the forested regions of the country , where accused have been held behind bars for years as undertrials, after which their fate is decided, the Gujarat bill, introduces the provision of the Special court "taking cognisance of any offence without the accused being committed to it for trial" on the basis of a mere police report.
Several accused, for years into the trial, might find their names added to an FIR. The trial will wait till another state’s police will take them for examination, and then another, and possibly another. The very case will not be heard for years. It has happened before. Out of the 76,000 persons arrested under TADA between 1985 to 1994, an astonishing 75,136 were found not guilty after several years of imprisonment.
4. No bail
While being available for trial purposes, a citizen has a fundamental right to be free while being tried in court. This Gujarat bill turns it upside down. Bail can be given only when the court is convinced that the accused is not guilty. Catch-22: How will any court decide till all the proceedings are dispensed with?
5. Confession to police admissible as evidence
This is one of the most controversial provisions of the bill that runs against the principles of the criminal justice system. Almost legitimising torture, the provision was widely used under POTA against minorities to put them in jail for long periods – leading to the eventual demise of POTA itself in 2004. Police stations are the fundamental site of the coercive arm of the state. Any utterings there cannot be held to have been independently delivered. That is why confessions are always to a Magistrate.
6. 180 days for filing of chargesheet
The increased time for filing of chargesheet from the specified 90 days is inexplicable. Why do the police need it? TADA offers an explanation. Out of the 76,000 arrested under TADA, 25% were never charged of any crime. It means 19,000 people were kept in prison for 6 months or more, for no reason whatsoever.
7. Legalising governmental snooping
The Gujarat bill allows for intercepted telecommunication as evidence in court. Apart from the fact that it legalises what is against the constitution, this provision has been used by the police in creative ways. For example, in the Mumbai train blast case of 2006, the only evidence claimed by the police for arresting and asking for police custody of the accused was call data records which, allegedly, implicated the accused. After taking the accused in remand on that basis, the police showed that the accused had confessed while in custody, and filed the chargesheet. In the chargesheet, the call date records were never mentioned. Now the principle evidence was the confession itself. The accused are in prison for seven years now.
8. A new kidnapping
This "anti-terror" bill lends itself directly to be used by Hindutva forces who have extensively campaigned against inter-religious marriages as it puts "probative value" (important evidential support) on a proven charge of kidnapping. If it is established that the accused has kidnapped or abducted a person with some promise, the special court will presume it to be for the purpose of extortion.
9. In-camera trials, secret witnesses, and no publishing of case proceedings
In an attempt to gag any reporting on trial proceedings, the law imposes a punishment of Rs one lakh along with a one-year prison sentence.
Over the last 10 years of terrorism cases, the media has been accused of various acts of omission and commission, including, specifically, of colluding with the police in "constructing terrorists" even before the trial had started. Or paying very little attention to the trial proceedings where facts of the case have been tested by the court – revealing, at most time, disturbing contradictions, lack of evidence, etc
This gag order by the court targets the few journalists who follow the cases in court, while leaving the initial frenzy of police stories untouched. Not to mention, snuffing out public scrutiny of the government's case.
A concerted attack on liberty
Ostensibly, the new Gujarat bill is sold as a law that seeks to curb both organised crime and terrorism in the state but as should be clear from the above, in practice, it will amount to a no-holds-barred attack on free speech, including that of opposition to executive policies and governmental decisions, especially with regard to environmental policies and land grab.
The proposed legislation is draconian and will be open to use by the government against minority communities, as POTA was. In its short life of a little over two years, 287 cases were registered under POTA in Gujarat – all against Muslims, barring one case. The experience of POTA casts doubts on what the new bill GUJTOC could possibly achieve.
There is also another question: by what logic is such a law – which hands enormous powers to the police, allows surveillance, and reduces the role of judiciary in delivering justice– justified?
Between 2002 and 2006, there were 22 encounters, including that involving Ishrat Jahan, took place in Gujarat. All the cases, together, formed the crux of the threat that the state said it was facing from terrorists in Gujarat. However, all of them were found by the courts to be of questionable nature where the police, in collusion with the government, seemed to have orchestrated the very threat itself – with 22 lives lost, allegedly, in fake encounters. A few other cases of terror attacks in Gujarat are also cited, notably the Akshardham attack and the Ahmedabad serial blasts. In one of them, Akhardham, the Gujarat police falsely accused 5 Muslims from the walled city of Ahmedamad. All of them were acquitted by the Supreme Court after a decade in prison. The Ahmedabad case is still in the early stages of trial, with most of the accused from outside the state of Gujarat.
From the above, it would seem, what Gujarat needs is serious police and executive reform, and not another draconian law.
Sharib Ali is TISS fellow and is researching on terror cases across the country.
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1. Wide definition of terrorist act
The new Gujarat bill surpasses all existing legislation in its wide definition of what constitutes a "terrorist Act". TADA defined it as "intent to overawe the government of India". Specifically, reading political violence as central to terrorism, it added the idea of "disruption" with regards to secessionist assertions in the Punjab.
POTA, the first law drafted specifically in the context of Islamic terrorism, replaced "overawe the government" with a much more general "with intent to threaten the unity, integrity, security, or sovereignty of India". Evoking a threat to the very existence of the state itself, POTA put curbs on certain fundamental rights and legalized government snooping.
The Gujarat bill, now, collapses all distinction between crime and terrorism, as well as an adherence to the fundamental rights guaranteed by the constitution by defining "terrorist act" as "intention to disturb law and order, or public order, or to threaten the unity, integrity…"
From a group of people protesting on the road against GM crops, or those sitting on a dharna asking for drinking water – all could be characterised as a "terrorist act", entailing at least a five year jail term and a fine of Rs 5 lakh.
2. Wide definition of abetting a terrorist act
As opposed to the Indian Penal code which defines abetment as a conscious engagement in a conspiracy by performing acts of commission or omission, the Gujarat bill lowers it down to a mere "communication or association" with those "having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate".
Imagine this: if you are accused of a terrorist act – which could be anything in the first place – your chaiwalla could be accused of abetting your terrorist act. Probably because you chat with him everyday. But it doesn't stop at that. Passing or publication of "any document" that is "likely to assist" a terrorist act is again, punishable by at least five years and Rs 5 lakh. The "likely to assist" will be left to the police to interpret. It could be your office guy who delivers printouts. And possibly, in the hands of an enthusiastic policeman, the company which made the printer also.
Such a definition makes sure just one thing: nobody would like to come close to anything the government might not like. Printers would refuse. Couriers would not deliver. And in the light of what's happening with the internet, service providers might bring a new law to look into every email between clicking send and delivering. What if they are accused of abetting? They can then make use of the very provisions of this anti-terror bill itself to snoop.
3. Omnibus FIRs and never-ending trials
What is an Omnibus FIR? That which doesn't name names, and accuses big batches of people. Names can be filled in later.
In a practice perfected in the forested regions of the country , where accused have been held behind bars for years as undertrials, after which their fate is decided, the Gujarat bill, introduces the provision of the Special court "taking cognisance of any offence without the accused being committed to it for trial" on the basis of a mere police report.
Several accused, for years into the trial, might find their names added to an FIR. The trial will wait till another state’s police will take them for examination, and then another, and possibly another. The very case will not be heard for years. It has happened before. Out of the 76,000 persons arrested under TADA between 1985 to 1994, an astonishing 75,136 were found not guilty after several years of imprisonment.
4. No bail
While being available for trial purposes, a citizen has a fundamental right to be free while being tried in court. This Gujarat bill turns it upside down. Bail can be given only when the court is convinced that the accused is not guilty. Catch-22: How will any court decide till all the proceedings are dispensed with?
5. Confession to police admissible as evidence
This is one of the most controversial provisions of the bill that runs against the principles of the criminal justice system. Almost legitimising torture, the provision was widely used under POTA against minorities to put them in jail for long periods – leading to the eventual demise of POTA itself in 2004. Police stations are the fundamental site of the coercive arm of the state. Any utterings there cannot be held to have been independently delivered. That is why confessions are always to a Magistrate.
6. 180 days for filing of chargesheet
The increased time for filing of chargesheet from the specified 90 days is inexplicable. Why do the police need it? TADA offers an explanation. Out of the 76,000 arrested under TADA, 25% were never charged of any crime. It means 19,000 people were kept in prison for 6 months or more, for no reason whatsoever.
7. Legalising governmental snooping
The Gujarat bill allows for intercepted telecommunication as evidence in court. Apart from the fact that it legalises what is against the constitution, this provision has been used by the police in creative ways. For example, in the Mumbai train blast case of 2006, the only evidence claimed by the police for arresting and asking for police custody of the accused was call data records which, allegedly, implicated the accused. After taking the accused in remand on that basis, the police showed that the accused had confessed while in custody, and filed the chargesheet. In the chargesheet, the call date records were never mentioned. Now the principle evidence was the confession itself. The accused are in prison for seven years now.
8. A new kidnapping
This "anti-terror" bill lends itself directly to be used by Hindutva forces who have extensively campaigned against inter-religious marriages as it puts "probative value" (important evidential support) on a proven charge of kidnapping. If it is established that the accused has kidnapped or abducted a person with some promise, the special court will presume it to be for the purpose of extortion.
9. In-camera trials, secret witnesses, and no publishing of case proceedings
In an attempt to gag any reporting on trial proceedings, the law imposes a punishment of Rs one lakh along with a one-year prison sentence.
Over the last 10 years of terrorism cases, the media has been accused of various acts of omission and commission, including, specifically, of colluding with the police in "constructing terrorists" even before the trial had started. Or paying very little attention to the trial proceedings where facts of the case have been tested by the court – revealing, at most time, disturbing contradictions, lack of evidence, etc
This gag order by the court targets the few journalists who follow the cases in court, while leaving the initial frenzy of police stories untouched. Not to mention, snuffing out public scrutiny of the government's case.
A concerted attack on liberty
Ostensibly, the new Gujarat bill is sold as a law that seeks to curb both organised crime and terrorism in the state but as should be clear from the above, in practice, it will amount to a no-holds-barred attack on free speech, including that of opposition to executive policies and governmental decisions, especially with regard to environmental policies and land grab.
The proposed legislation is draconian and will be open to use by the government against minority communities, as POTA was. In its short life of a little over two years, 287 cases were registered under POTA in Gujarat – all against Muslims, barring one case. The experience of POTA casts doubts on what the new bill GUJTOC could possibly achieve.
There is also another question: by what logic is such a law – which hands enormous powers to the police, allows surveillance, and reduces the role of judiciary in delivering justice– justified?
Between 2002 and 2006, there were 22 encounters, including that involving Ishrat Jahan, took place in Gujarat. All the cases, together, formed the crux of the threat that the state said it was facing from terrorists in Gujarat. However, all of them were found by the courts to be of questionable nature where the police, in collusion with the government, seemed to have orchestrated the very threat itself – with 22 lives lost, allegedly, in fake encounters. A few other cases of terror attacks in Gujarat are also cited, notably the Akshardham attack and the Ahmedabad serial blasts. In one of them, Akhardham, the Gujarat police falsely accused 5 Muslims from the walled city of Ahmedamad. All of them were acquitted by the Supreme Court after a decade in prison. The Ahmedabad case is still in the early stages of trial, with most of the accused from outside the state of Gujarat.
From the above, it would seem, what Gujarat needs is serious police and executive reform, and not another draconian law.
Sharib Ali is TISS fellow and is researching on terror cases across the country.