The BJP government in Gujarat passed the contentious Gujarat Control of Terrorism and Organized Crime Bill (GCTOC) on March 31. Rejected on three earlier occasions by two Presidents (President Kalam and President Pratibha Patil) for violating basic principles of justice, this bill is a modified version of the 2003 law that originated during Modi's regime as chief minister. Before this issue degenerates into the typical either/or debate: Either we protect our people from terror or we protect our most cherished principles let me state this unequivocally that this is a false choice. Here's why.
It would be pertinent to note that in 2004, the central government headed by BJP's very own Bharat Ratna Atal Behari Vajpayee, had sought the return of the bill back to Gujarat government, asking for 'major changes'. The Congress-led UPA government later on, continued with position taken by the previous NDA government and when the bill was passed this time around, in the Gujarat Assembly yet again, the Congress abstained from voting. The BJP has a majority in the Gujarat Assembly and hence the bill sailed through, notwithstanding the boycott by the opposition and the larger questions on legality and constitutional propriety, that remain unaddressed!
The bill in question has Modi's fingerprints all over. Modi not only pioneered this law but pursued it as an article of faith and that saw Gujarat government pass the law four times in 12 years- 2004, 2008, 2009 and 2015! In all these instances, despite the reservations expressed by the President, the Gujarat government continued to push with provisions in the bill, that prima-facie seemed ultra vires the constitution and violative of fundamental rights and civil liberties. The current bill is old wine in new bottle and in many ways worse than POTA and TADA which had been repealed. The worrying provisions continue to remain in the bill.
The bill seek to give police far reaching powers to make arbitrary arrests, present confessions in custody as evidence as per clause 16 which is currently inadmissible as such and to even intercept phone calls as per clause 14! The bill provides for extending the period of investigation from the stipulated 90 days to 180 days. It makes offenses under the bill non-bailable. It also grants, vide section 25, immunity from legal action to the state government and its officers against suits, proceedings and prosecutions for anything they do in 'good faith in pursuance of the Act'. A prima facie reading of these provisions itself shows that these provisions are not just an assault on our commitment to civil liberties, enshrined in the Constitution and international/ United Nation Conventions which have been ratified by India but also violative of the guarantees of Fundamental Rights, which are an inalienable part of the constitution. Modi's pet law would encourage police officers to use torture to extract confessions or would encourage them to make indiscriminate use of snooping and phone taps in the name of 'security concerns', sometimes in the case of political rivals and dissenters too and not just anti-national elements! They would end up making Gujarat a 'Police state' no different from China and North Korea!
Protection against self incrimination is guaranteed by Article 20(3), right to privacy and protection from illegal phone tapping, protection from arbitrary arrests is safeguarded against by Article 21 which clearly states that 'No person shall be deprived of his life or personal liberty except according to procedure established by law.' This provision is our equivalent of USA's 'due process' clause. Judicial review by the High courts and Supreme Court, of executive action and policy is also part of the basic structure of our constitution. Making laws which run contrary to these would immediately make them vulnerable to being struck down as 'ultra vires' and unconstitutional. This is exactly what the Supreme Court did in the case of Section 66A as well.
Giving law enforcement agencies the tools they need to investigate suspicious activities is one thing and it's the right thing; but doing it without any real oversight or contrary to constitutional safeguards seriously jeopardizes the rights of all Indians and the ideals our nation stands for. This bill will only alienate scores of minorities who have in the past, as per hard data and records, been at the receiving end of illegalities of such bad laws. It will hurt the trust quotient and social cohesion in our society that is essential to fight terrorism. While introducing this law, the Gujarat Home Minister said this bill was the "need of the hour" to fight terror especially with " Pakistan become the epicentre of world terror ". It betrays the sense of fear and communal politics that has driven the passage of this bill. Fighting terror cannot happen with laws that curb our freedoms and damage our own social fabric. We don't have to settle for this bill, which is essentially a replica of "POTA with saffron lipstick". We don't have to settle for a law that sacrifices our liberties or our safety. We can have one that secures both. This one does neither.
(DISCLAIMER - Shezhad Poonawalla is a known Congress supporter and lawyer. Views are personal and not that of CNN-IBN and IBNLIVE)
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