After Four Unsuccessful Attempts, the Controversial Gujarat Anti-Terror Bill is Sent for Presidential Assent Again

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.

Special laws dealing with organised crime are in force in a number of states. These include acts in Maharashtra—subsequently extended to Delhi in January 2002—Karnataka and Chhattisgarh. Often, they are in conflict with central laws, on subjects that are in List III, such as the Code of Criminal Procedure and the Unlawful Activities (Prevention) Act (UAPA).

The first state law to deal with organised crime was the Maharashtra Control of Organised Crime Act (MCOCA), which was enacted in 1999. It enforced special measures to cope with organised crime in the state. Broadly, these measures included defining the term “organised crime” and related activities, prescribing severe punishments (including the death penalty), and undoing procedural safeguards such as one that prohibits confessions made before a police officer from being permissible in court, which the central criminal procedure code guarantees to a person accused of committing a crime. After the MCOCA was enacted, a number of other states followed suit. Not all of them were successful—Gujarat, Rajasthan and Madhya Pradesh passed state bills that failed to get presidential assent.

The Supreme Court examined the constitutional validity of the MCOCA in Zameer Ahmed Latifur Rehman vs State of Maharashtra. The law was challenged on the grounds that the legislation fell within the ambit of the central-list subject of the defence of India, and that the state did not have the jurisdiction to pass such legislation. In a judgment pronounced in 2010, the court held that the law dealt primarily with organised crime, which falls under criminal law and public order, and was therefore valid. The court noted that the overlap of the legislation in matters relating to the defence of the nation was “incidental,” and permitted.

The court’s emphasis on the overlap being incidental is important to note in order to understand the criticism of the Gujarat bill. Unlike the MCOCA, the previous drafts of the bill firmly put anti-terror provisions front and centre. It remains to be seen whether the Supreme Court, if it considers the Gujarat bill, would find this overlap with matters relating to the defence of India incidental.

Another line of scrutiny that the bill has been subject to is with respect to the rights guaranteed to an accused person under the Indian constitution. Presidential concerns with the bill have focussed on issues relating to the rights of the accused, and its divergence from the maxim “innocent until proven guilty.” Laws aimed at dealing with extraordinary circumstances, such as terrorism, have gone far in dismantling the guarantees that a person accused of a crime usually enjoys. According to the 2015 draft, the Gujarat bill focuses on “prevention and control of terrorist acts” and “coping with criminal activities by organised crime syndicates.” Among anti-terror legislations, it contains some of the most excessive provisions in that regard. Some of the procedures regarding which the bill’s previous drafts had problematic provisions include:

Under general criminal law, if an accused person confesses to a crime before a police officer, according to Sections 25 and 26 of the Indian Evidence Act, 1872, the confession is not admissible in court as evidence of the guilt of the accused person. This is an important safeguard prescribed in Indian criminal procedure. It seeks to prevent the police from coercing a confession out of an accused person. The earlier drafts of the Gujarat bill proposed that this safeguard be removed. The drafts provided that a confession made to a superintendent of police or a higher rank could be used in court. Though this provision is not included in the UAPA (the central anti-terror law), the MCOCA, as well as the now-repealed Prevention of Terrorism Act, both include provisions similar to the one in the Gujarat bill.

The anti-terror and organised crime laws in place in India make it nearly impossible for a person accused of having committed offences under these legislations to get bail. A study of anti-terror laws and judgments of India from 2001 to 2014 that I conducted, along with three other researchers, for the Vidhi Centre for Legal Policy—an independent think-tank conducting legal research—found that persons accused under these laws have to effectively prove themselves innocent before they are awarded bail.

Under regular criminal law, as prescribed under the Code of Criminal Procedure, bail is refused only if there are reasonable grounds to believe that the person has committed a serious crime punishable with death or life imprisonment. The Gujarat bill, on the other hand, borrows from the MCOCA, which requires accused persons to prove that they are not guilty. This standard effectively reverses the burden of proof from the prosecution onto the accused person, as it is usually the prosecutor’s job to prove the accusations. It is also interesting to note that in 2008, in the case of State of Maharashtra vs Bharat Shanti Lal Shah, the Supreme Court partially struck down the MCOCA bail provision. The court did so in relation to a sub-section which stated that bail could be denied if a person was out on bail under some other law, at the time of committing the offence. Although this sub-section was struck down by the court as unconstitutional, it was included in the 2015 draft of the Gujarat bill.

Under the Code of Criminal Procedure, a person cannot be detained by the police for more than 24 hours, without being brought before a magistrate. After the police have brought a person who is suspected of committing a crime before a magistrate, they can file an application seeking permission to keep the accused person under police custody for a period of 15 days. For very serious crimes—where the punishment is not less than ten years’ imprisonment—police custody can be extended up to 90 days. While the UAPA allows extension of the custody period to up to 180 days, allowing such an extension is left to the discretion of the court. The previous drafts of the Gujarat bill made it mandatory for a Special Court, which the bill seeks to establish for the trial of its offences, to allow a person to be detained for up to 180 days if the prosecution files an application seeking it.

While phone-tapping is allowed under the central Telegraph Act and the MCOCA, under the latter, such surveillance practices are subject to the safeguards included in the legislation to keep a check on the potential misuse of this power. The Telegraph Act does not include any such safeguards. These safeguards include a detailed application process for the authorisation of wiretaps, and specific limitations to be imposed on the extent of the interception. The previous drafts of the Gujarat bill, however, allowed for the admissibility of information obtained through interception without these safeguards as evidence.

It is not just the complex legal issues that make the Gujarat bill so controversial—the government’s persistence in bringing it about has spanned more than a decade, and it has therefore seen many political twists and turns. The original version of this bill, passed by the Assembly in 2003, purported to deal only with organised crime, not terrorism. The then president Abdul Kalam rejected it in March 2003, at a time when the National Democratic Alliance government was in power. He objected to the provisions related to the interception of communications. The Gujarat assembly then passed a new version of the bill in 2004 which addressed these concerns, and it was sent back to Delhi for Presidential assent.

Pratibha Patil, who was the president at that time, sent the pending bill back in 2008, with three specific suggestions. All of these dealt with the rights of the accused person—regarding police confessions, bail and pre-charge detention periods. The Modi-led Gujarat assembly did not pay heed to these recommendations. It reintroduced and passed the bill, unchanged, in July 2009. In the same year, Patil rejected this draft of the bill.

In 2015, the Gujarat assembly, under Chief Minister Anandiben Patel, passed the bill again. It was renamed the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015, and foregrounded terrorism as a concern. The contentious provisions on the basis of which it had been rejected earlier, remained largely unchanged. The provision regarding interception of communications had been added again, and confessions before a police officer were still admissible under the bill. The only concession the bill included was that, for a confession to be admissible in court, it had to be made to a superintendent or an officer of a higher rank.

When this bill was sent for presidential assent, the Modi government pointed out objections relating to interception of communications. The Gujarat assembly changed the bill accordingly such that the state home secretary was no longer permitted to authorise the interception of telephone calls. The revised draft of the bill removed the provision empowering interception of communication under the Gujarat bill, but retained the provision allowing for the admissibility of intercepted information obtained under any other law.  As a result, any information obtained under the Telegraph Act—without the protection of the safeguards included under the MCOCA—would be admissible as evidence in a trial of an offence prescribed in the Gujarat bill. The union government approved this version of the bill and forwarded to the office of the president, Pranab Mukherjee, in September 2015. However, Mukherjee did not sign it, and reportedly requested the home ministry for clarifications about the bill. In January 2016, according to a report in The Hindu, the home ministry withdrew the bill from the President’s office to “rework it with additional inputs from the state government.”

It is this reworked version that the government is yet to make publicly available. Two factors, however, point towards the conclusion that nothing of significance will have changed in the new bill. Firstly, the Gujarat government has refused to make major changes to this law in the past. Secondly, the evolution of this bill has edged along further in the direction already set by past or current anti-terror laws. The Terrorist and Disruptive Activities (Prevention) Act, the POTA, the UAPA and the MCOCA have all weakened criminal justice safeguards relating to bail, confessions, pre-charge detention etc. Whenever they have been challenged, they have been largely upheld by the courts. Given these circumstances, it is likely that the version presented to the president in 2017 will persist with the same controversial issues that plagued his predecessors.