Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019
On November 5, 2019 President Ram Nath Kovind given his assent. It was on 25th September, the NDA government cleared the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 and sent it to President Pranab Mukherjee for his assent.
- Salient Features
- Why this bill needs President’s assent?
- Gujarat Government’s View
- Is this law different from existing anti terror laws?
- Why there is controversy?
- Are states competent to make laws on National Security?
The bill was initially introduced in 2003 in the Gujarat Assembly when Narendra Modi was chief minister of Gujarat. It was returned back earlier twice in 2004 and 2008 by then Presidents A.P.J. Abdul Kalam and Pratibha Patil.
The Then President Dr.A.P.J. Abdul Kalam didn’t Give His Assent Because Of Few Controversial Points Which Are Listed Below.
- Delete Clause 16 – Clause 16 relates to the confession made before a police officer being admissible in court
- Substitute the word “may” for “shall” after the words Special Court occurring in clause 20(2) and bring the proviso in line with the proviso to Section 43 D (2) of the Unlawful Activities (Prevention) Act(Amendment), 2008, – Clause 20 (2) deals with the extension of the detention period
- Amend Clause 20(4) to bring it in conformity with Section 43 D (5) of the UAP (Amendment) Act – Clause 20 (4) deals with the powers of the court to grant bail.
- Section 3 of this bill talks about various punishments for organized crime and terrorist activities. The punishment for any terrorist activity which may result into death of any person is death or life imprisonment; and a fine of Rs. 10 Lakh. The act provides varying amounts of punishments for persons related to any organized crime syndicate.
- The bill makes provisions for attachment and forfeiture of property of a member of organized crime syndicate under Section 4.
- It establishes special courts for trial of the terrorists under Section 5.
- Section 14 of this bill says that evidence collected through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused in the Court.
- Section 15 says that if the accused has any unaccounted property, it will be deemed to be or derived by his illegal activities. Further, if the accused has abducted any person, it will be deemed to be for ransom.
- Section 16 of this bill is most controversial. This section makes confessions before police officers admissible in court as evidence against the accused.
- Section 18 says that any movable and immovable property related to organized crime or terrorism is subject to forfeiture.
- The bill provides immunity to the Police officers from legal action done in “good faith”. This provision appears to be draconian.
- There is no bail and it extends the probe period from 90 days to 180 days.
Why this bill needed President’s assent?
- Governor can reserve any bill (other than money bill) passed by assembly of a state for presidential assent on his discretion. Since this legislation has provisions overlapping with existent national laws such as Indian Evidence Act; the state needs president’s assent for such bill to become an act.
Gujarat Government’s View
- This bill is drafted on the lines of Maharashtra Control of Organised Crime Act (MCOCA), 1999. The state government brought the bill over concerns regarding the organized criminal syndicates operating in the states whose activities may perpetuate in macro-terrorism.
Is this law different from existing anti-terror laws?
- Not substantially. We have Maharashtra Control of Organized Crime Act (MCOCA) in place which had faced similar protests. Further, central acts UAPA (Unlawful Activities (Prevention) Act) 1967 and POTA (Prevention of Terrorism Act) 2002 in place to counter terrorism and organized crime in the country. Under GCTOC, the evidence collected through interception is admissible in court whether of wire, electronic or oral communication. The state government can seek permission for interception 10 days before trial. The MCOCA act has similar provisions though, the permission process is little difficult. In UAPA, the interception provisions and process are same as GCTOC.
Why there is controversy?
- Any such stringent law faces opposition on account of human rights and fundamental rights. Those who oppose this bill say that it has draconian provisions which can be used suppress dissent. Since there is no bail and person can be detained for 180 days on the basis of phone records, this bill is susceptible to misuse by the government. If investigation recovers arm or explosives from accused or even his fingerprints from the site of incident court may draw adverse inference, unless proven otherwise.
Are states competent to make laws on National Security?
- It has been argued that the Gujarat state assembly is not competent enough to make such a law on national security, which comes under purview of the union government. The Gujarat assembly has passed the bill backing it with the argument that “Public law and order” is a state subject. We note here that Article 245 and 246 of the Constitution along with seventh schedule demarcate the law making power of union and states. In the seventh schedule, it doesn’t expressly mention “terrorism” , however, Parliament has powers to make laws related to defense of the country. Also, the Union parliament has residual powers to make laws on matters not listed anywhere in seventh schedule. On the other hand, the state legislatures have exclusive powers to make laws on “public order”. Further, “criminal law” and “criminal procedure.” are concurrent subjects on which both union and states have power to make laws.
The arguments of those who oppose this act is that the state governments have power to make laws on public order so long it does not relate to national security; while the parliament should deal with the national security issues so long as it does not impinge on public order issues that have nothing to do with national security. We note here that the MCOCA act deals with the organized crime and not terrorism exclusively; and on this ground, Supreme Court held it constitutionally valid when challenged.
Conversely, the GCTOC defines terrorism as an “act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State …..”
Thus, this particular clause may come in future under Supreme Court scrutiny and may be strike it down as unconstitutional.