The Uttar Pradesh House last week passed The Uttar Pradesh Control of Organised Crime Bill (UPCOCB), 2017 to give the police unprecedented power to act against a wide range of criminal offenders including the mafia, land-grabbers, those attempting to foment terror, or to dislodge the government through violent means. The Opposition has attacked the Bill as “kaala kanoon”, “anti-Constitution”, and “anti-democracy”; Chief Minister Yogi Adityanath has, on the other hand, decried criticism of the Bill “for the sake of opposition”, and accused his political rivals of being more sympathetic to criminals than to the public. The Bill is currently pending with the Governor for his approval, and will have to be sent for Presidential assent before it can become law.
Laws in many states…
The idea of a stringent state law to combat organised crime and terrorism is nearly two decades old. Maharashtra enacted The Maharashtra Control of Organised Crime Act (MCOCA) in 1999, which the Home Ministry extended to the National Capital Territory of Delhi in 2002. The Karnataka Control of Organised Crime Bill (KCOCA) was passed in 2000. The Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Special Public Security Act), 2005, received the President’s assent in 2006. Earlier, in 2003, the legislature in Gujarat passed a GUJCOC Bill along the lines of MCOCA and KCOCA. In 2010, the Madhya Pradesh Assembly cleared its own anti-terrorism law, The Madhya Pradesh Aatankvadi Evam Uchchhedak Gatividhiyan Tatha Sangathit Apradh Niyantran Vidheyak (Madhya Pradesh Terrorist and Disruptive Activities and Control of Organised Crimes Bill).
…And often contested
The MP Bill went to the President for his assent in accordance with Article 254(2) of the Constitution (more on this provision below), but is yet to get approval. Presidents APJ Abdul Kalam, Pratibha Patil, and Pranab Mukherjee, all returned the Gujarat Bill — which, after several changes, recalls and discussions, continues to hang fire. KCOCA received the President’s assent in 2001, but approval for amendments in 2009, which gave broader powers to the state police, remains pending with the Centre. An Andhra Pradesh Act, APCOCA, came into force in November 2001 after receiving Presidential assent; however, in 2006, the AP government sought to reintroduce the law, but the President did not grant assent to the APCOC Bill, 2006.
Issues in disagreement
Why has the Union not been keen to back these tough laws despite persistent demands from states for sharper teeth to fight organised crime and terrorism?
Terrorism has connections with subjects appearing under all three heads in the Constitution’s Seventh Schedule (which lists subjects in List-I or Union List, List-II or State List, and List-III or Concurrent List). In the Union List, it relates to “defence of India”, “armed forces”, “preventive detention”; in the State List, “public order”, “police” are used to legislate on activities relating to terrorism; in the Concurrent List, it is “criminal law”, “criminal procedure”, “preventive detention in connection with public order”.
In most terror cases, investigations are carried out under both central and state laws. Sometimes, these laws may come into conflict. This is where Presidential assent comes in — under Article 254(2) of the Constitution, if a state law on a matter in the concurrent List contains a provision that clashes with a law made by Parliament, “the law so made by the legislature of such state shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that state”. (However, “nothing in this clause [254(2)] shall prevent Parliament from enacting at any time any law… adding to, amending, varying or repealing the law so made by the Legislature of the State.)
In February 2014, Special Judge A L Pansare of the MCOCA court, while hearing the 2012 Pune blasts case, drew a distinction between organised crime and terror. After having filed chargesheets invoking provisions of the Indian Penal Code (IPC) and the anti-terror law, Unlawful Activities (Prevention) Act (UAPA), the police also invoked MCOCA, citing “prior approval” and “prior sanction” from the Maharashtra government. Unlike UAPA, terror cases cannot be filed under MCOCA, but the government can invoke its provisions if there is more than one chargesheet of “continuing unlawful activity” by a member of an organised crime syndicate.
Special Judge Pansare, however, said “MCOCA and UAPA stand on different footings”. Referring to a 2008 judgment by the Supreme Court, he ruled, “MCOCA does not deal with terrorist organisations and UAPA does not deal with organised gangs specifically targeted by the MCOCA. To my mind, the ‘organised crime syndicate’ and ‘terrorist organisation’ cannot run concurrently. The syndicate/gang is indulged in organised crime mainly for pecuniary or other benefits whereas terrorist organisation is indulged in striking terror or to postulate threat to unity, integrity, security and sovereignty of India.”
(In 2015, Bombay High Court reversed the trial court ruling of 2014 and held that both MCOCA and UAPA charges could be invoked together.)
Clause 16 of the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 — earlier known as the GUJCOC Bill — makes confessions by an accused to a police officer admissible as evidence; clause 20 extends the police’s investigation period from 90 days to 180 days and imposes restrictions on the grant of bail; and clause 25 provides immunity to government officials for acts done in “good faith”. The Centre’s objections to laws like the GCTOCB and KCOCA have been on provisions that go beyond the provisions of MCOCA. Seeking provisions on terrorism in state laws is seen as being beyond the legislative competence of states.
The federalism question
In 2008, Parliament enacted The National Investigation Agency Act, 2008, to provide for a special investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India. As per the NIA Act, after an FIR is recorded with respect to a Scheduled Offence, the police must send the report to the state government, which shall forward it to the central government at the earliest. After the NIA takes over the investigation, the state government and police shall stop investigations, and forward all relevant records to the NIA.
The creation of the NIA has been seen as manifestation of the Centre reasserting its right to tackle terrorism as part of its Constitutional duties, while keeping potential overreach from states at bay. But while state legislation can be stalled by withholding Presidential assent, it also leads to a concentration of powers in the central agencies in situations where federalism comes to be weighed against counter-terrorism. This was the primary concern among states that delayed the NIA, and has stalled the creation of the National Counter Terrorism Centre (NCTC), which was proposed as an umbrella organisation of Indian security agencies in the aftermath of 26/11.
TERRORIST ACT defined as one “committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the state or to strike terror in the minds of the people… (using means that) cause or (are) likely to cause death or injury…”
EVIDENCE collected through interception of wire, electronic or oral communication admissible in court.
CONFESSIONS before a police officer admissible as evidence. Investigation period/filing of chargesheet from 90 days to 180 days, restrictions on bail, immunity to government officials for acts done in “good faith”. Police custody for 30 days.
TARGETS kidnapping, illegal mining, illicit liquor, acquiring contracts through force, organised exploitation of forest produce, wildlife trade, fake medicines, land grabs, extortion.
CASES to be filed only on recommendation of divisional commissioner and range DIG. Provision to take over properties amassed through organised crime, with court permission, during the investigation.
BAIL only after six months, Bill has provision for prolonged police remand of 30 days for an accused, apart from his closed-door interrogation.
CHARGESHEET can be filed between 90 days and 180 days.
USED in terror-related cases, but does not define “terrorist act”. Defines “organised crime” as continuing unlawful activity by an individual, singly or jointly, as a member of an organised crime syndicate or on behalf of one, by use of violence or threat of violence or intimidation, with the objective of gaining pecuniary benefits for himself or any other person promoting insurgency.
CONFESSIONS before a police officer admissible as evidence, police have 180 days to file chargesheet, police remand for 30 days, instead of maximum 14 days under IPC.
BAIL only after public prosecutor has a chance to oppose.