THE Gujarat assembly passed the Gujarat Control of Terrorism and Organised Crime Bill, 2015 (hereafter GUJCTOCA) on March 31, 2015. This is the state government’s third attempt at getting a Prevention of Terrorism Act, 2002 (hereafter POTA) like law passed in the state. It is significant that the same Bill has been rejected by the president on two previous instances when the ruling party had got the consent of the legislature in 2003 and 2009. Therefore it is important to ask why the BJP state government keeps making desperate attempts to enact this draconian law which subverts the basic principles of the Indian constitution. An analysis of the scope and character of this Bill shows why a police state is needed to advance the interests of both Hindutva and corporate capitalism. In this sense the passage of this Bill also reflects a new facet of the Gujarat model, the success of whose corporate Hindutva depends on the curbing of dissent and freedom of speech.

CONTEXT AND

GENESIS OF THE BILL

The first attempt to get the Bill, the Gujarat Control of Organised Crime Act (hereafter GUJCOCA) was made in 2003 immediately after the Gujarat pogrom of 2002. While the victims of the riots struggled to even get their cases registered, the Modi government prepared a law in order to curb the basic freedom of speech and dissent. Under this Bill a confession made before the police, intercepts and electronic mails were to be admissible as evidence. Further bail could be refused to the accused if the public prosecutor opposed the application. This Bill avoided the term ‘terrorism’ because the POTA was still in force when it was first introduced in parliament. However its provisions were to ensure that any one opposing the state government would face stringent action. This version of the Bill was sent back by the president and the Modi government made another attempt in 2009. The state government argued that an anti-terror law was needed since POTA was repealed and therefore it added ‘terrorism’ to the Bill. But the Bill was once again sent back by the president.

In this context, the then chief minister Narendra Modi retaliated that the UPA government was playing politics with the security of his state. This statement came in the wake of increasing protests by local groups on corporate land acquisition and the continued attempt by the victims of 2002 to get justice from an insensitive Modi government. Hence the context of the 2009 Bill was largely one where all dissent against the state was being repressed in the interests of dominant middle castes and corporate capital. Further the growing spate of fake encounters and false cases against minorities resulted in illegal actions by the state, whose public and police officials were being shielded by the government. The introduction of the Bill in this situation was nothing but an attempt to justify and facilitate the illegal intentions of a discriminatory state government.

REPRESSIVE AND

ANTI-DEMOCRATIC BILL

The main thrust of the current Bill is to clear the way for arbitrary state action and curb the civil liberties of ordinary citizens. The defense of the BJP is that Maharashtra and other Congress ruled states also have similar laws. But this is a weak argument and it has been opposed and protested by most democratic forces in the country. But despite this repeated criticism and protest, the GUJCTOCA surpasses the Maharashtra bill and POTA in its scope and anti-libertarian content. The Maharashtra law deals with organised violent crime and the POTA deals specifically with ‘terrorism’ which threatens the unity, integrity and security of the country. But GUJCTOCA deals with both these aspects together. While it takes the definition of “terrorism” from POTA, it widens the scope of “organised crime” to include land grabbing, gambling, prostitution, cyber crimes and economic offences of all kinds by either an individual or by an organised syndicate. The term “economic offences” refers to large-scale betting, extortion, marketing and multi-level ponzi schemes that are started with an attention to defraud. The term ‘unlawful activity’ refers to any activity where imprisonment has taken place for more than three years and more than one charge-sheet filed before a competent court within the preceding ten years. In the Gujarat context, these conditions are not hard to meet considering the state government is known to target dissenters and protesters who oppose it.

Apart from the broadening of its scope, the Bill also seeks to override the principles of natural justice as laid down by Criminal Procedure Code. In its Statement of Objective and Reasons, it explicitly states that “the existing legal framework ie, penal and procedural laws and the adjudicatory system have been found to be rather inadequate to curb or control the menace of organised crimes. It is therefore, considered necessary to enact a special law with stringent and deterrent provisions including in certain circumstances to intercept, wire, electronic and oral communication to control the menace of organised crime”. To this end, the Bill gives the police and government officials overriding powers to act against the offenders. It further adds that no police official or government servant will be liable for any action “done in good faith under this law”. Further the Bill also compels state and police officials to work under the directions of superior police officials even if they have illegal intentions. It states that under this law, if any official intentionally refuses to obey his/her superiors then he/she is likely to be imprisoned and fined. These provisions are clearly aimed at justifying the illegal actions of the policemen and ruling classes that have been organising the harassment of minorities. It is also important to note that such provisions are being enacted at a time when officers accused of fake encounters in the Ishrat Jahan and other cases have been let out on bail, while activists like Teesta Setalvad seeking justice for the victims are being targeted by the Gujarat government.

There are also other provisions in the Bill that completely subvert the criminal justice system of the country. Under this law, a person is presumed to be guilty unless he/she can prove that they are innocent. All offenses under the Act will be non-bailable and any confession made before the police will be considered as evidence against the accused. Further any email or electronic evidence will also be considered as valid evidence before the special court under this law. These provisions clearly replicate the POTA which has been repealed at the central level and also subvert the rights of the accused as laid down in the constitution. In this sense the proposed Bill goes against the constitution and also attacks the civil liberties of citizens.

Finally, any law has to be seen in the social and political context in which it is framed. The Gujarat government’s record in respecting the constitution and the rights of minorities has been suspect in the period after the Gujarat riots. Its repression of movements opposing corporate takeover of lands has also shown that it will not tolerate any opposition to the interests of big business. In this context, a law like GUJCTOCA is likely to be misused by the government. Hence there should be a widespread campaign to ensure that the president once again refuses assent to this Bill.