President Pranab Mukherjee, who will consider the Gujarat Control of Terrorism and Organised Crime Bill, 2015 again this year, is the third president to have done so since 2003. The former presidents APJ Abdul Kalam and Pratibha Patil considered and rejected various drafts of this bill—Kalam in 2004, and Patil in 2008 and then again in 2009. In January 2016, President Mukherjee sought clarifications on the fourth draft of the bill, which the home ministry had submitted in September 2015, following which the ministry withdrew the bill and once again sent it back to the state government.
The Gujarat anti-terror bill has been the subject of much back and forth between the centre and the state government under multiple administrations. Through these years, the chief points of contention have remained unchanged—perhaps until now. On 9 January 2017, the Indian Express reported that the bill had been amended and updated, and is back with the president.
Political parties, activists, and members of civil society have all criticised previous drafts of the Gujarat bill on several grounds: removal of procedural safeguards and dilution of the rights available to an accused, potential for misuse by the government, and legality of such a law being enacted by a state government. The first draft of the bill was modelled on similar laws in other states, which seek to address the issue of organised crime. These laws have also faced criticism and been challenged for being unconstitutional. The updated 2016 draft of the bill is not publicly available, and it is currently unclear what changes, if any, have been implemented. However, the 2015 draft of the bill failed to address the criticisms levelled against its previous drafts.
Whether a state law needs presidential assent depends upon the Seventh Schedule to the Constitution. This includes three categories of subjects: ones on which only the centre can legislate, under List I; ones on which only the states can, under List II; and ones on which both the state and the centre can legislate concurrently, under List III. This means that the state of Gujarat can legislate on any matter in List II. It can also pass laws to override central laws on subjects in List III, as long as it receives the president’s assent, under Article 254 of the Constitution. It cannot, however, pass laws on subjects in List I.
The framers of the Constitution did not list the term “terrorism” as a subject for legislation. Instead, it gave the centre power to make laws on the defence of India; the states on the subject of public order; and to both on criminal law and procedure. This has resulted in the possibility of conflict between the subjects in the central, state, and concurrent lists regarding legislations that address crime.