Gujarat’s draconian way to counter terror

AFTER a prolonged wait, Gujarat is on the threshold of getting its own anti-terror act . The insistence of the Anandiben Patel government on the presidential assent for the Bill, albeit with some dilution,  shows that even after sending its very own Narendra Modi as the Prime Minister, Gujarat has not given up its one-upmanship on the Centre. 

 

Piloted vigorously by him when he was the Chief Minister, Narendra Modi as Prime Minister too did not want to stop the Bill that was a prestige issue for him against the then Congress-led Centre. Reportedly, the futility of the measure, especially when strong Central Acts are already are in place to fight terrorism was explained to him by officials. The Centre, however, succeeded in convincing the Patel government not to insist on giving the state Home Secretary the final authority to empower the police to intercept communication channels, as provided in the original Bill, in contravention of the Indian Telegraph Act. The authority would remain with the Union Home Secretary who has the powers to delegate the authority to the state, if necessary. 

 

“The Gujarat Control of Organised Crime” (GUJCOC), as the Bill was originally called, was based on the pattern of the “Maharashtra Control of Organised Crime Act, 1999,” (MCOCA). It  was initially drafted as a knee-jerk reaction to the gruesome terrorist attack on the Akshardham temple in Gandhinagar in September, 2002, in which 32 people were butchered. The anger and the sense of insecurity generated from the terror attack guided the then law makers to incorporate several stringent provisions, some of them running even contrary to central laws. Even Modi's erstwhile “political guru” LK Advani, the then Union Home Minister, who had saved him from the wrath of the then Prime Minister Atal Bihari Vajpayee in the aftermath of the infamous 2002 Gujarat communal riots, could not approve the Bill in its original form. When the Congress-led UPA government refused to recommend the measure for presidential assent, Modi took it as a prestige issue and linked it to his "fight against the Centre for Gujarat's pride."

 

The Congress-led Centre insisted that Modi appoint a Lokayukta to oversee the functioning of the state government, he retrieved the GUJCOC from the files as a counter measure. Under a new nomenclature, the "Gujarat Control of Terrorism and Organised Crime" (GCTOC), was bulldozed  through in the state Assembly in 2008 and yet again in 2009 in the absence of entire opposition. None of the controversial provisions were removed in the new Bill and Modi knew well that the Centre would not give its approval. Perhaps that is what he wanted. In the 2012 state assembly elections, the rejection of the GCTOC became one of Modi's major weapons of attack on the Congress for the Centre's alleged "step-motherly treatment" of Gujarat. It went down well with the voters in the state. Similar laws existed in Congress-ruled Maharashtra and Karnataka,so why not in Gujarat? They voted overwhelmingly in his favour “to continue to fight to safeguard Gujarat's pride.” After he became the Prime Minister, Modi's successor Anandiben Patel passed the Bill for the fourth time in March, this year, apparently with Modi's consent. The Union Home Minister, Rajnath Singh, apparently had no option but to recommend it to the Rashtrapati Bhavan for presidential assent which had been refused thrice in the past. 

 

Many of the security experts agree with Gujarat's contention of the need for a strong anti-terror law because of its shared common borders with Pakistan. However, unlike Mumbai, barring the 2002 Akshardham temple attack and the serial bomb blasts in Ahmedabad in July, 2008, both believed to be a “revenge” for the Muslim killings in communal riots, Gujarat never suffered other major terror attacks. Most “acts of terrorism,” as claimed by the state police, particularly the alleged attempts on Modi's life like Sohrabuddin or Ishrat Jahan cases, were later found to be well-planned fake encounters to provide the then Chief Minister political mileage. Gujarat cannot afford to ignore security issues because the vast desert terrain on the Kutch border and the virtual unguarded creeks in the Gulf of Kutch make the state vulnerable to terror attacks from across the border through both land and sea routes. The question often asked is can only law prevent terror attacks and how can any law, howsoever stringent, successfully deter a suicide bomber?

 

Any terrorist from across the border, if arrested, can be dealt under the Unlawful Activities Prevention Act (UAPA), enacted by the Centre in 2008 to replace the repealed Prevention of Terrorism Act (POTA). A strong proponent of a measure like the POTA, Modi drafted the GCTOC by incorporating all the stringent provisions of the POTA and insisted that the Centre approve. Human rights activists are opposing provisions of the Bill due to the apprehension of these being misused, particularly against the minorities and the tribals. It can even be used to settle scores with political opponents. In violation of natural justice, the Bill gives unbridled powers to the police to arrest, detain or harass anyone on the mere suspicion of he or she being even remotely connected with a terror organisation. In the urban areas, the Bill faced opposition because of its provision to give powers to the state police to intercept any telephone communication or internet connection. This has been diluted to maintain the status quo in which the Union Home Secretary remains the final authority in such matters as provided in the Indian Telegraph Act, 1885.

 

What is worst, the police has been granted immunity against any penal action even if it is found guilty of deliberately misusing its provisions to harass anybody. The Bill also provides for taking as “evidence” in the court any “statement or confession” by an accused made before a police officer of the rank of a superintendent of police or above. This may give an opportunity to the police to extract confessions through torture or duress in violation of the Evidence Act. The Centre, however, allowed the provision to remain in the GCTOC, since the MCOCA too has similar provisions. In contravention of the limit of 90 days set by the criminal procedure code to complete investigation and file a charge-sheet against an accused, the GCTOC give powers to the police to keep any suspect up to 180 days in custody, without any trial, under the garb of “conducting inquiry.” The prevailing central act to curb terror activities, the UAPA, does not have any such provisions.  

 

Senior police officers dispute the concerns of the human rights activists who have branded the Bill as "draconian." They claim that stringent provisions are necessary in the changed scenario where the terror organisations, particularly those across the border and in Islamic countries, have acquired modern facilities and are scaling new heights in barbarism. A similar Act in  neighbouring Maharashtra has stood the test of time for over 15 years, without any serious complaints of misuse. The police records during the Modi era betray confidence placed on the Gujarat police. The higher courts struck down both the Akshardham Temple attack and Haren Pandya murder cases where the POTA was applied in 2003, because the lower courts had convicted the accused on “confessions” made before the police. The police have been repeatedly found to have blatantly misused the provisions even in case of the less-regressive “Prevention of Anti-Social Activities Act” (PASA), where they have the powers to detain and send a suspect to jail up to six months without trial, to prevent him from conducting any criminal activity.

 

According to official records, in a single year in 2011, of the 4,000-odd people detained under the PASA, the review board found that in more than 50 per cent of the cases the Act had been wrongly used and the accused held in detention without any reason. Not that the Gujarat police is unique in using or misusing its powers. So long such stringent acts remain on the statute book in any state, innocent persons are bound to suffer.