The very nature of power is such that more it devours you, the more you need it to survive. You can never have enough. Power is about control, and absolute power is about being in control of things without being answerable. As power keeps consuming you, the more you crave for absolute power. And absolute power, to borrow a mathematical analogy, tends towards infinity. In a political theatre, a dispensation can be in control of things by making use of the law and order machinery that is there at its proverbial disposal, and to its diabolical advantage. The regime can do so by exerting powers that it bestows upon itself – in the guise of laws. Absolute power requires the enactment of absolute laws.
The Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015, that was passed by the state Assembly on the last day of March amid a walkout by the opposition Congress, is one such possible Act. The new Bill is a reworked version of the Gujarat Control of Organised Crime Bill (GUJCOC), 2003, which was earlier rejected by Presidents due to some of its contentious provisions. The GUJCOC had been returned twice to the state legislature Presidents APJ Abdul Kalam in 2004 and Pratibha Patil in 2008. The Congress, which objected to the Bill for its own reasons, eventually abstained from voting on it.
The GUJCOC had been a matter of prestige for Prime Minister Narendra Modi, who was Chief Minister of Gujarat both times that it was rejected. In 2004, Abdul Kalam had objected to the Bill over the tapping of telephones and returned it to the government asking for the removal of the clause. In 2008, the Bill was passed after deleting the clause, but Patil rejected it, suggesting some more amendments. One of them was to delete the contentious provision which allowed confession made before a police officer to be admitted in the court as evidence. The Gujarat Assembly turned a deaf ear to the suggestion and passed the Bill once again in 2009, only to be rejected again. This time out the Bill was renamed and passed in the House on the last day of the session. Needless to say, controversial provisions remain.
Modi needs this law more than anything else – it is an image issue for him, and for his state. The past few months have not augured electorally well for the Bharatiya Janata Party (BJP)-led government in New Delhi. Both the BJP and Modi need makeovers, and what better way to do this than to project that they are strong and principled. And also, by conjuring up a ‘Gujarat model ‘of a different nature. It, arguably, is a move more about demagoguery and control than about principles or concerns.
Yes, Modi may have been welcomed with open arms in the United States, but the Gujarat Riots still hang over his political head like the sword of Damocles. One of the reasons for this is that the state police remain in the dock for their questionable role during the 2002 carnage. And for their succeeding actions too – from alleged encounter killings to the hounding of riot survivors and human rights activists. All this could have been avoided had the government then been able to wield the law and order machinery with absolute power. The GCTOC is a concerted bid towards granting the government such a carte blanche.
There is, of course, nothing wrong with bringing in an Act to control crime or terrorism. An Act becomes draconian and undemocratic only if it causes collateral damage, or if the ones implementing it get away with perpetrating acts that would be deemed crimes otherwise. Every law needs to have adequate safeguards in place. In a democracy, laws need to be transparent. There would be no problem with the GCTOC if such safeguards and transparency were provisioned for. Unfortunately, they are not.
Gujarat, by and large, has been peaceful for the last 10-15 years. Yet, the Bill’s ‘Statement of Objects of Reasons’ says, “It is noticed that organised criminal syndicates make common cause with terrorist gangs and foster macro terrorism, which extends beyond national boundaries. There is a reason to believe that organised criminal syndicates are operating in the state and… there is immediate need to curb their activities.” And hence, the absolute law to enable the police to do whatever they deem fit.
The enabling provisions include admissibility of evidence collected through telephonic interception and confession made before police officer as evidence in court. Clause 16 makes confessions before police officers admissible in court. The section stipulates that “a confession made by a person before a police officer not below the rank of Superintendent of Police…shall be admissible in the trial of such accused, co-accused, abettor or conspirator.” Besides, Section 14 of the Bill says, “Notwithstanding anything contained in the code or in any other law which is in force, the 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 during the trial of the case.”
The Bill makes offences non-bailable. Clause 20 (4) of the Bill states, “Notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond.” Moreover, it provides for extension of the period of investigation from the stipulated 90 days to 180 days under Section 20(2)(b).
And of course, it provides immunity to the state government from legal action because of, you won’t believe it, “good faith.” Section 25 says this explicitly, “No suit, prosecution or other legal proceeding shall lie against the State government or any officer or authority of the State government for anything which is in good faith done or intended to be done in pursuance of this Act.”
But then, that’s what absolute power is all about: impunity and immunity. You can do whatever you want – with impunity, and you get immunity for what you have done. You can have it both ways.
It is not that India does not have similar precedents. There have been attempts in the past to push in laws to counter terrorism that turned out to be draconian later. Both POTA (2002-04) and the Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985-95) had to be eventually relegated to the history books for both their failure to end terrorism, and for being tools that were so rampantly misused that they became counter-productive. The Maharashtra Control of Organized Crime Act, 1999 (MCOCA), however, still exists and it has been held constitutionally valid by the Supreme Court.
The GCTOC, which is quite similar in nature to the MCOCA, is unlikely to be thrown out on grounds of constitutional validity. But will the President do it before anyone takes it to the apex court? Now, that would be very difficult to predict. For one, Indian Presidents in recent times have had minds of their own, and don’t always kowtow to the diktats of the political parties that they originally hailed from. Second, the present incumbent has rejected the maximum number of mercy petitions from death row convicts in less than two years. He can very well sign this Bill unto law.
And if that happens, the Gujarat police can legally become a law unto themselves.
