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An anti-terror law that can be fine-tuned

Apr 4, 2015 02:57 AM , By R. K. Raghavan and D. Sivanandhan

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 dispensations political ends would also
be unfair and preposterous
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 Bills 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 magistrates permission. However, this has to be considered
in conjunction with the designation by the Bill of all offences under GCTOC as being nonbailable. 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
Bills 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 Secretarys 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 dispensations
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 Pakistans 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 countrys 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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