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Sunday, December 15, 2019

Interception, defining terrorism: How Gujarat terror law differs from MCOCA

The Gujarat law deals only with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication.

Written by Sohini Ghosh | Ahmedabad | Updated: November 30, 2019 12:29:52 pm
Gujarat Control of Terrorism and Organised Crime, GCTOCA, Maharashtra Control of Organised Crime Act, MCOCA, anti-terrorism squad, Maharashtra ATS, Express Explained, Indian Express The Gujarat law’s definition of a “terrorist act” is similar to the one in the repealed Prevention of Terrorism Act (POTA), 2002, but includes “an act committed with the intention to disturb public order”.

The Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, which received President Ram Nath Kovind’s assent on November 5, 16 years after the Assembly passed the first version of the Bill, comes into effect on December 1.

The anti-terrorism law, which three Presidents before Kovind had returned to the state, draws heavily from The Maharashtra Control of Organised Crime Act (MCOCA), 1999, with two significant differences: the checks on interception of communication that are part of the Maharashtra law are missing in the Gujarat law; and the definition of “terrorist act” in the GCTOCA also covers “intention to disturb public order”.

These differences make the Gujarat law tougher and broader in scope than MCOCA.

Intercepting communication

MCOCA

Five MCOCA sections (13, 14, 15, 16, and 27) deal with interception of communication. The law states that the interception, if approved by the competent authority, cannot be for more than 60 days, and that an extension would require permission. The application for extension must include a statement of the results of the interception thus far, or a reasonable explanation for the failure to obtain results.

Extension, if granted, cannot be for more than 60 days. The law provides for a panel to review the orders of the competent authority, and stipulates a prison term of up to a year for unauthorised interception or violation of the rules of interception.

A police officer of the rank of SP or above is required to supervise the investigation, and to submit the application seeking authorisation for the interception of electronic or oral communication. The law specifies various details that the application must mention.

Interception is allowed only if the investigating agency states that other modes of intelligence gathering have been tried, and have failed. The competent authority shall be an officer of the state Home department, not below the rank of Secretary to the government. In urgent cases, an officer of the rank of Additional DGP or above can authorise interception, but an application must be made to the competent authority within 48 hours of the ADGP’s order.

Also read | Gujarat law against terror — its long journey, and similar laws in other states

GCTOCA

The Gujarat law deals only with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication. Its section 14 mirrors a corresponding section of MCOCA, and adds: “Notwithstanding anything contained in the Code (CrPC, 1973) or in any other law for the time being 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 accused in the court during trial of case.”

“Any other law” is not defined.

The Indian Telegraph Act, 1885 allows for interception, with minimal punishment for misuse. There are no safeguards such as regular review of interception, feedback on outcomes, permissible duration of interception or accountability. The Information Technology Act, 2000 too is vague on such details.

GCTOCA has no provision similar to the annual report mandated in the MCOCA, giving a full account of requests for interception, numbers of applications approved/rejected, prosecutions launched on the basis of such interception, and convictions resulting from them. This analysis of the utility of the interceptions must be submitted to the Maharashtra Assembly within three months of the end of the calendar year.

Definition of ‘terrorist act’

The Gujarat law’s definition of a “terrorist act” is similar to the one in the repealed Prevention of Terrorism Act (POTA), 2002, but includes “an act committed with the intention to disturb public order”. A prosecutor in Gujarat said that the widening of the definition “allows, say, the Patidar agitation to be described as an act of terrorism, allowing stricter punishment”.

This prosecutor underlined that The Unlawful Activities (Prevention) Act (UAPA), 1967, India’s main central anti-terror law, “does not allow an agitation of such form or scale (to be called) ‘terrorism’, and is instead covered under IPC sections, (and) the law of sedition, (which) is not effective enough for stringent punishment”.

The Gujarat Assembly had re-drafted and cleared the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill in March 2015, including the term “terrorism”, months before Hardik Patel launched the Patidar agitation. The Gujarat law defines a terrorist act as “an act committed with the intention to disturb public order or threaten the unity, integrity and security of the State or to strike terror in the minds of the people or any section of the people…”

Argument for Gujarat law

Asim Pandya, Senior Advocate at the Gujarat High Court and a former president of the Gujarat High Court Advocates’ Association (GHAA), said the government could, while framing the Rules, introduce the checks and balances that are absent in the Gujarat terror law.

“In case this is not done, there is also the provision where the court can ask the state government to frame Rules to this effect,” Pandya said.

Also, Pandya said, the constitutional validity of the law can be challenged on a “case-specific” basis. “With respect to GCTOC, there is a competing interest of law and order versus privacy. However, only time will tell how communication interception is used, and is interpreted.”

The definition of “terrorist act”, Pandya said, was “very wide” — however, there were mechanisms built into the law to limit it.

“The first check is the registration of FIR that can be done by an officer of rank SP or above. Ordinarily, if the power to register FIR is given to a sub-inspector- or inspector-level officer, it can be misused. Secondly, assuming that the FIR is registered with a political motive, there is the provision that after submission of chargesheet, sanction from the state government is required before the court takes cognisance.” Mentioning some other such checks, Pandya said, “Ultimately, the court is the interpreter,” he said.

Pandya said that while the GCTOC Act does grant power to the executive with respect to the investigation process, there were similar provisions under previous laws TADA and POTA, both now repealed.

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