The Gujarat Control of Terrorism and Organised
Crime Bill is the latest effort at the devolution of authoritarianism.
This article discusses four draconian provisions, which seem like a
throwback to the days of the Terrorist and Disruptive Activities
(Prevention) Act of 1987 and the Prevention of Terrorism Act of 2002.
There is an old saying that a bad craftsman blames his tools. India
has no dearth of laws to deal with violent activity. In addition to the
Criminal Procedure Code (CrPC) 1973 and the Indian Penal Code (IPC)
1860, there are numerous other laws that are equipped to deal with
terrorist offences. Among them are,
(i) National Security Act, 1980; (ii) Armed Forces (Special Powers)
Act, 1958, as amended; (iii) Disturbed Areas Act;(iv) Disturbed Areas
(Special Courts) Act, 1976; (v) The Unlawful Activities (Prevention)
Act, 1967, as amended 2008; (vi) Prevention of Seditious Meetings Act,
1911; (vii) The Religious Institution (Prevention of Misuse) Ordinance,
1988; (viii) The Anti-Hijacking Act, 1994; (ix) The Suppression of
Unlawful Acts against the Safety of Civil Aviation Act, 1982; (x)
Disturbed Areas (Special Courts) Act, 1976; (xi) Foreign Exchange
Management Act, 1999; (xii) The Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act, 1980; (xiii)
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988; (xiv) Indian Telegraph Act; and (xv) Information
Technology Act, 2000.
The number of state acts are too many to enumerate here.
The Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill is
the latest effort at devolution of authoritarianism. As passed, it has
many problems. Considering a few of the provisions is educative.
Detention without Charge
(1) It brings back the detention of suspects for up to 180 days
without charge. This is far beyond the maximum length permitted under
Section 167(2)(a) of the rPC, which is 90 days.
Use of Confessions
(2) It has reincarnated one of the most dangerous aspects of the
Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1987,
which allowed confessions before a police officer admissible in
evidence. Section 32 of the Prevention of Terrorism Act (POTA) had a
similar provision.
Confessions made by a person before a police officer of rank not
lower than a superintendent of police become admissible as evidence
during the trial. This flies in the face of Article 20(3) of the
Constitution, which proscribes the state from compelling a person to be a
witness against himself. Even though the substantive content of this
constitutional guarantee has been read down over the years, the
admissibility of such confessions as evidence in trial is nevertheless
inconsistent with the present exposition of the law. In addition, it is
directly contrary to the intention of the provisions of the Indian
Evidence Act. Under the Evidence Act, confessions made to a police
officer or in police custody are not admissible in evidence on the
ground that such provisions may lead to the use of torture and other
coercion by the police to obtain evidence. Section 27, which is an
exception to the above rule, carves a limited opening of admissibility
if a fact discovered pursuant to a confession in police custody can be
independently corroborated.
The GCTOC does not explicitly prohibit statements made to the police
and extracted under torture from being admissible in evidence against an
accused. This provision also violates the right of an accused set out
in Article 14(3) (g) of the International Covenant on Civil and
Political Rights (ICCPR)—that of not being “compelled to testify against
himself or to confess guilt.” India has ratified the convention.
The prohibition of torture is absolute. However, India does not appear to be committed to bringing an end to it.
The experience of TADA is instructive. One of the draconian
provisions of TADA was Section 15 that made confessions to a police
officer admissible as evidence. A challenge to this provision was made
on the ground that it violated Article 14 of the Constitution relating
to equality before the law and Article 21 relating to protection of
personal life and liberty. The court answered the matter of Article 14
by saying that terrorism was a special category of offences and the
legislature was therefore competent to prescribe a special procedure for
such offenders. On Article 21, it pointed out that the confession had
to be recorded by a superintendent of police and that this would ensure a
fair trial. This is the only section in TADA that prompted two of five
judges to give dissenting judgments
.1
The dissenting judgments seemed to appreciate the spirit behind Articles 14, 20(3), and 21 of the Constitution.
2
Justice K Ramaswamy in his dissenting judgment was of the opinion that
Section 15 was unconstitutional on the ground that it violates Articles
14, 21, and 50. He was of the opinion that the legislature could enact a
different procedure for dealing with terrorists. However, the procedure
must still meet the test of Article 21.
Justice Ramaswamy held that a confession to a police officer was
unconstitutional because a superintendent of police has a vested
interest in solving a crime and was liable to take all kinds of harsh
measures. If a police officer is entrusted with recording a confession,
the appearance of objectivity in discharging his statutory duty would be
suspect and not inspire public confidence. Such erosion was against the
rule of law. Therefore the judge held that the standard of fairness in
recording confessions under Section 15 did not meet constitutionally
sustainable standards.
Justice R M Sahai in his dissenting judgment took a tougher stand.
According to him, there is a basic difference between the approach of a
police officer and a judicial officer. A judicial officer is trained and
tuned to reach the truth by a fair procedure. A police officer is
trained to achieve the result irrespective of the means that are
employed. He knows what end he should reach—making the best case
possible against the accused. So long as the goal is achieved, the means
are irrelevant. This philosophy is the same for a constable and a
superintendent of police. The problem, he further noted, does not lie in
the personnel but in the culture. This is exactly the reason why
statements made to the police are not allowed to be used in a trial of
any offence under investigation at the time such a statement was made.
3
The investigation being known to be afoot, the police may be in a
position to influence the maker of a statement. The accused, therefore,
must be protected against such likelihood of prejudice.
4
POTA made the pretence of providing safeguards against the abuse of
this provision. Though Section 32(3) of POTA stated that “confessions
shall be recorded in an atmosphere free from threat or inducement,” it
did not specify the criteria for such an atmosphere.
In normal circumstances, confessions made in police custody are not
admissible as evidence under Section 25 of the Evidence Act. No amount
of safeguards can prevent “torture” of the accused so long as a
confession made to a police officer, whatever the rank may be, is
admissible as evidence.
This provision also violates the right of an accused set out in
Article 14(3)(g) of the ICCPR—that of not being “compelled to testify
against himself or to confess guilt.”
Interception of Phone Calls
(3) The GCTOC permits the
interception of telephone conversations and their admissibility in evidence.
The POTA had provisions governing surveillance measures, and authorised police officers to intercept communications.
The Indian Telegraph Act 1885 provides for the cessation,
interception, or detention of any message transmission if required in
the interests of the sovereignty and integrity of India and the security
of the state. It also authorises the government to tap the phones or
communications of terrorist organisations or organised crime syndicates.
Though the police were previously authorised to tap phones under the
Indian Telegraph Act 1885, under POTA, they had to abide by specific
safeguards to justify their encroachment on the privacy of the
individual, including: the submission of an application by a
superintendent of police detailing the facts to justify interception.
The permission could be granted only by a specially appointed “competent
authority,” which in turn was required to submit this order to the
Review Committee; an order of interception was strictly limited to 60
days; and misuse carried with it a penalty of imprisonment for up to one
year. The GCTOC has done away with these safeguards in their entirety.
Obtaining the home secretary’s permission, as the GCTOC suggests, is no
protection. We are painfully aware that the bureaucracy in Gujarat
crawled when it was merely asked to bend.
Such unregulated power has created an aperture for future misuse and
may become a cause of serious violations of the right to privacy.
Article 17 of the ICCPR also provides for the right of every person to
be protected against arbitrary or unlawful interference with his/her
privacy, family, home, or correspondence.
Immunity from Prosecution
(4) There is a major problem with
Section 25 of the GCTOC Bill
that makes the government immune from any legal action for “anything
which is in good faith done or intended to be done in pursuance of this
Act.” The Unlawful Activities (Prevention) Act 2004 granted immunity
from prosecution to the union and state governments, and their
employees. The 2008 amendments did not alter the provisions in the 2004
Act on immunity from prosecution for government officers and authorities
and for members of the armed forces. Thus, an individual wrongly
arrested, detained, and/or imprisoned under the GCTOC has virtually no
legal recourse to seek compensation or combat impunity.
The bail provisions are outlined in Section 20(4) of the bill. Under
the provisions, as in TADA, at a bail hearing the judge is forced to
make a preliminary judgment of the guilt of the accused. In ordinary
bail proceedings, a judge is supposed to weigh various factors—such as
ties to the community, reputation, employment status—that would indicate
the likelihood of absconding, rather than simply likelihood of guilt.
5
In addition, under Section 20(4.b) of the bill as in TADA, when the
public prosecutor opposes a bail application, no suspect may be released
on bail unless the court is satisfied that there are reasonable grounds
for believing that he is not guilty of the offence of which he is
suspected, and that he is not likely to commit any offence while on
bail.
6 By reversing the ordinary burden of proof, the task of
the accused to show reasonable grounds of innocence at such an early
stage of the proceedings is made unreasonably difficult. The National
Human Rights Commission of India in its opposition to TADA had observed
that such provisions were contrary to the principle of the presumption
of innocence, and were exceptional by reference to the ordinary penal
code.
7
It should be noted that the principle of the presumption of innocence
has been enunciated by the Supreme Court of India on numerous
occasions. In
Kali Ram vs State of Himachal Pradesh, the apex court stated that
the burden of proving the guilt of the accused is upon the prosecution
and unless it relieves itself of that burden, the courts cannot record a
finding of the guilt of the accused.8
The Supreme Court further stated that
every criminal trial begins with the presumption of innocence in favour
of the accused; and the provisions of the Code [of Criminal Procedure
1973] are so framed that a criminal trial should begin with and be
throughout governed by this essential presumption.9
As Parliament and the
corporate-owned media cede democratic space in the name of fighting
terrorism, the deep state wants more. A bloated security establishment,
which is increasingly more powerful than Caesar, seeks untrammelled
power.
