Thursday, January 31, 2002, Chandigarh, India


M A I N   N E W S

Tribune exclusive
Haryana plans POTO-type Act to muzzle the Press
Yoginder Gupta
Tribune News Service

Chandigarh, January 30
“The passing on or publication of without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate...”

Sounds familiar? Must be. A similar clause in the controversial Prevention of Terrorism Ordinance (POTO) had led to a loud protest by the Press as well as democratic organisations, which, ultimately, forced the Vajpayee government to drop it when the ordinance was re-promulgated.

Then why talk about it now? Because the Haryana Government refuses to learn from the experience of the Central Government. It proposes to include this clause in a law to be made on the lines of MCOCA, a Maharashtra Act which has now been extended to Delhi also. Haryana, too, is in the process of framing a similar Act.

In fact, informed sources say, the Haryana Government has already prepared a draft with the purpose of “making special provisions for prevention and control of and for coping with, criminal activity by organised crime syndicate(s) or gang(s) and to curb them effectively.”

The government says it is essential to have an Act, to be known as the Haryana Control of Organised Crime Act, 2002, in order to make provisions for stringent punishment for organised crimes and speedy trial thereof and for the attachment or forfeiture of property acquired through the commission of such crimes and for matters “connected therewith or incidental thereto”.

The aforesaid controversial clause will affect the Press the most, just as its parallel clause in POTO could have been used to curb the freedom of the Press by overzealous officers.

The controversial provision has been made while defining the word “abet”. Clause 1(a) says: “Abet, with its grammatical variations and cognate expressions, includes (i) The communication or association with any person with the actual knowledge or having reasons to believe that such person is engaged in assisting in any manner, an organised crime syndicate:

(ii) The passing on, or publication of, without any lawful authority...”.

With the threshold of political tolerance rather low in Haryana, there is every possibility of a ruling party using the Act against its political opponents. And the publication of any Press note issued by any politician whom the government accuses of being “engaged in assisting an organised crime syndicate”, can land a journalist in trouble.

An “organised crime syndicate” has been defined as a group of two or more persons which, acting either singly or collectively, as a syndicate or gang indulges in activities of organised crime.

An “organised crime” means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or perpetrating insurgency”.

Legal experts say the words “any continuing unlawful activity by an individual” leave much scope for mischief by a vindictive administration.

The draft Act says that if an organised crime results in death, it will be punishable with death or imprisonment for life and shall also be liable to a minimum fine of Rs 1 lakh. In other cases the punishment shall not be less than five years but which may extend to life imprisonment and a minimum fine of Rs 5 lakh.

All offences under the Act will be triable only by Special Courts.

It seems those who drafted the Haryana Act did not apply their mind and lifted the provisions straight from the Maharashtra Act. Clause 5(3) in the draft Act says “A Special Court shall be presided over by a judge to be appointed by the State Government with the concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint with the concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdiction in a Special Court”.

Is it copying blindly or is the Haryana Government extending the jurisdiction of the Bombay High Court to Chandigarh to the exclusion of the Punjab and Haryana High Court?

The draft Act also contains provisions relating to the interception of wire, electronic or oral communication. Of course, the authorisation to intercept communications will be reviewed by a Review Committee. Confessions made before a police officer, generally considered to be “extra-judicial confessions” and hence not admissible as evidence under the Evidence Act, can be considered under the Haryana draft Act.

The clause relating to “Special Rules of Evidence” provides that the court may take into consideration as “having probative value”, the fact that the accused was “on any previous occasion bound under Section 107 of the Criminal Procedure Code...”. It may be pointed that politicians are usually arrested under this section on the eve of any bandh or strike.

The draft Act also imposes a restriction on the release of a prisoner on parole. 

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