Saturday, March 6, 2010

GUJCOC: A Pandora Box for Minorities in GUJARAT

In spite of there being laws to curb social crimes and terrorism, Gujarat government is determined to shape the GUJCOC Bill into an act. Abdul Hafiz Lakhani senses into it a conspiracy against the minorities of Gujarat.

Narendra Modi ---the most hated face of Gujarat 2002 riots demands for Gujarat Control of Organised Crime (GUJCOC) in his state Gujarat to control terrorism and anti--national activities. Though this GUJCOC is always under serious discussion for its anti-human rights provisions, Modi continues insisting on his stand.

Narendra Modi is widely called as the terrorist number one in the country. He is unleashing state-sponsored terrorism in Gujarat. In the name to curbing terrorism, innocent people are arrested and harassed.

Gujarat riot took place as per the instruction of Modi. He is still in power. The victims of the riot do not have any expectation for justice as long as he is in power. People have lost faith in the law and order system existing in Gujarat. It is human nature to take revenge.

When a boy sees his family members being brutally killed and is not getting justice, what will he do? Will he not become violent? Those who have been victimised should get justice, otherwise terrorism will not end.

Before analysing the Gujarat government's position and the effectiveness of a law like GUJCOCs in dealing with terrorism, let us look at some of its provisions.

Every offence punishable under GUJCOC is cognizable. Anticipatory bail provision is excessively stringent so as to keep the accused behind the bars for a substantial period of time without a trial. Confession made before a superintendent of police is admissible evidence, irrespective of how much an accused is tortured. Valid intercepted communication is also admissible evidence. An accused can be kept in police custody for up to 60 days.

The failure of police to chargesheet an accused does create a technical ground for bail.
There will be special courts and special public prosecutors to expedite the trials. The history of the accused shall have a bearing on the evidence against him. Special courts are permitted to have summary trials. Protection of witness and property of the accused will be on a reasonable ground liable to be forfeited. Having gone through some of the main provisions of GUJCOC, one question that comes to mind is “Is GUJCOC an anti-terrorist Act, meant to deal sternly with terrorism?”

Sections pertaining to interception were also scrapped from (Maharashtra Control of Organised Crime Act) MCOCA following a petition in the Mumbai High Court in the case involving film financier Bharat Shah. The GUJCOC Bill in its new avatar, too, is without these sections. Further, in sections referring to harbouring of criminals and holding property acquired from the said crime, (Prevention of Terrorism Act) POTA appears more compassionate than GUJCOC. For example, while the minimum imprisonment for harbouring a terrorist under POTA was three years, in the case of GUJCOC it is five years for harbouring a member of an organised crime syndicate. Besides, while POTA distinguishes between voluntary and forcible harbouring, GUJCOC has done away with the distinction.
Chief minister Narendra Modi may have upped his ante demanding immediate approval of the bill, but the Centre seems to have reservations on the draconian provisions it envisages that make it vulnerable to human rights abuse. Some of the controversial provisions provide for death sentence to even persons who may have unknowingly helped a criminal involved in organised crime. GUJCOC also provides for intercepting telephone calls, letters, emails and other communication and admitting them as evidence. The provisions also give wide powers to seize the property of the accused.

GUJCOC equates terrorist activity with murder and provides for death sentence or life imprisonment, besides a penalty of Rs. 10 lakh for terrorists. Gujarat Congress president Siddharth Patel has said, the BJP should tell the people the provisions that have been included in the bill. He added, "The provisions put the onus on citizens to prove themselves innocent, rather than the police proving the guilt of the criminal". It allows a police remand of 30 days without producing the culprit in the court and gives the police 180 days to frame the chargesheet.

Congress spokesperson Arjun Modhvadia called the GUJCOC law as hot as chilly and said it gave wide powers to police, something that even the British did not have during their rule in India. Like POTA, the provisions are bound to be misused, particularly against Muslims in the state. He pointed out that if one read the statement of objects given by the state of Gujarat, it did not appear to be so. It says, ‘the organised crime has for quite some years now come up as a very serious threat to our society.’ It knows no national boundaries and is fuelled by illegal wealth generation by contract killing, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering etc.

The illegal wealth and black money generated by organised crime is huge and has serious adverse effects on economy. It is noticed that the organised criminal syndicates make common cause with terrorist gangs and foster macro terrorism extending beyond the national boundaries. There is reason to believe that organised criminal gangs are operating in the state and thus, there is immediate need to curb their activities. It further states that the existing legal framework is inadequate to curb the menace of organised crime.

Does the statement of object not read more like justification for seeking a new law against organised crime than terrorism? Is it meant to deal with Dawood Ibrahim and his friends in Mumbai and not a bunch of Jamia Millia Islamia students who have no criminal history? But should not an Act that is being touted as Gujarat's answer to terrorism focus on these faceless, nameless men who are killing innocent people, seeking to avenge what they perceive to be collective failure of the state to protect religious minorities?
Do we mean to say that the terrorists in India are involved blowing up trains, killing innocent people in crowded markets, hospitals and theatres for pecuniary benefit and to get undue economic advantage? The answer is no. Terrorist and Disruptive Activities (Prevention) Act (TADA) was in force when terrorists killed more than 35,000 people, POTA could not prevent suicide bombers. Therefore, the question “are blasts taking place across the country because we do not have a law to deal with terrorists, or because of a failure on the part of state to respond to this new threat from those who actually belong to us?”

If the Gujarat police want to keep the accused behind the bars without prosecution, it has preventive detention laws. If it wants to prevent anti-socials from committing crimes, Gujarat has the Prevention of Anti-social Act. If we want to deal with terrorism we have the Unlawful Activities (Prevention) Act, which was amended at the time of repeal of POTA and which can further be amended. What we need is strengthening of the existing preventive, prosecuting and punishing mechanisms in India. We need to strengthen the institutions that can prevent young men from taking to terrorism. We need to strengthen the institutions that can effectively prosecute those who stray. And this can happen only when every individual who has not lost any near and dear one in a terrorist act feels the pain of those who did. And he or she should understand that we will continue to lose our loved ones to terrorist acts if we do not act like a citizen of India.

The country needs to collectively respond to this national problem beyond the politics of the two national parties, BJP and Congress and their everyday engagement in allegations and counter-allegations. There may be many a slip before the Gujarat Control of Organised Crime (GUJCOC) (Amended) Bill, 2003, passed in the State Assembly and becoming an Act.

Framed on the lines of the Maharashtra Control of Organised Crime Act (MCOCA), 1999, it may be the Modi government's riposte to the Centre, but the birth pangs were evident when former President A.P.J. Abdul Kalam directed the deletions of all sections pertaining to communication interception when the NDA was still in power at the Centre.

Vipul Vijoy Singh says, “People involved in terrorist activities usually advocate some ideology and are not mercenary, while the motive in organised crime is money. But now underworld dons like Dawood Ibrahim have begun supporting terrorist organisations.”

Vadodara-based rights activist Rohit Prajapati refers to the attitude of the Gujarat government during the 2002 riots and says, “I have a strong feeling that in the name of countering “terrorism” Gujarat is becoming a terrorist state by looking for indiscriminate power in its hands.” According to him, the GUJCOC Bill will “legalise state terrorism.”

Now, President Pratibha Patil is still undecided about a green signal to this GUJCOC. Unlike MCOCA, whose raison detre is explained as tackling organised crime “fuelled by illegal wealth generated by contract killing, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc,” GUJCOC does not bother to explain what comprises organised crime.
POTA also clarifies (which GUJCOC does not) that the sub-section on harbourers shall not apply to any case in which the harbouring is done by the husband or wife of the offender.

POTA says, “Whoever knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable” whereas GUJCOC does not mention the term “knowingly”. GUJCOC reads much like POTA, with only “terrorism” and “terrorist organisation” being replaced by “organised crime” and “organised crime syndicate”.

After deletion of 12 sections pertaining to interception of communication and its treatment as evidence, GUJCOC's section 27, like POTA, allows a confessional statement by an accused before an officer not below the rank of superintendent of police, to be admitted in a court for trial, but is being severely opposed. Says Gujarat High Court lawyer Mukul Sinha, “the fact that they were eager to enact this law shows that it might be misused, just like POTA to differentiate their scope”.


Meanwhile the union home minister, Mr P. Chidambaram, has recommended to the President Pratibha Singh Patel that the GUJCOC Bill, which was passed by the Gujarat Assembly for the fourth time on July 28 last year, should not be given approval as it still has two provisions which the Centre has earlier objected to.
The home ministry had earlier decided to delete two provisions in GUJCOC— admission of confession made before a police officer in a court and the clause that bars grant of bail to a person if the public prosecutor opposes it. However, the Narendra Modi government did not incorporate the suggested changes saying that GUJCOC Bill is almost similar to the MCOCA and, therefore; the Central government should give its assent to it.

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