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Gujarat terror bill harsh, don’t sign: Patil to Prez

Four years after Gujarat Assembly passed Gujarat Control of Organised Crime Bill and sent it to Union Govt for Presidential assent, sources said Ministry of Home Affairs has forwarded Bill to President Patil with recommendation to send it back to the Assembly without signing it.

Maneesh Chibber & Vinay Sitapatinew Delhi |
November 12, 2008 9:08:17 am

Over four years after the Gujarat Assembly passed the Gujarat Control of Organised Crime (GUJCOC) Bill, 2003, and sent it to the Union Government for Presidential assent, sources said the Ministry of Home Affairs has forwarded the Bill to President Pratibha Patil with the recommendation to send it back to the Assembly without signing it.

Sources said the communication also advises the President to ask the Gujarat Assembly to re-work the Bill in order to remove provisions that are susceptible to misuse by investigating agencies. A senior government functionary is expected to meet the President to apprise her of the reasons behind the recommendation.

On at least two occasions, including once last month, the Home Ministry had placed the Bill before the Cabinet but no decision was taken. In 2006, the Cabinet had returned the Bill to the MHA, asking it to hold consultations with the Law Ministry to identify clauses susceptible to misuse.

Gujarat Chief Minister Narendra Modi has said that GUJCOC is based on MCOCA, Maharashtra’s tough anti-terror law, which the Congress-led Maharashtra government is using. Denying that this amounted to “double standards”, Patil’s argument has been that under Article 254(2) of the Constitution, the UPA cannot withdraw assent to MCOCA that the previous NDA government had given.

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In other words, while he is unhappy with those provisions of MCOCA which are similar to the “draconian” POTA provisions, he is powerless to do anything about it.

The four most controversial provisions of POTA in question were: (i) it allowed the detention of a suspect for up to 180 days (instead of the usual 90 days) without filing charges; (ii) confessions made to the police, normally inadmissible, were now taken as admission of guilt (iii) if incriminating weapons or documents were found in the accused’s possession, the burden shifted on the accused to prove innocence (normally, the prosecution has to establish the case before the accused has the burden to reject it) and (iv) the definition of “terrorism” was vague and prone to misuse.

Of these four provisions, the first three are present in MCOCA as well as GUJCOC. Regarding the vague definition of “terrorism”, since GUJCOC and MCOCA deal with the far more expansive issue of “organised crime”, it is more prone to abuse. Thus, as Patil argued, GUJCOC and MCOCA are just as draconian as POTA was.

Yet, what is politically “draconian” may not be legally so. MCOCA has been held to be Constitutional by both the Supreme Court and the Mumbai High Court in the Bharat Shah case. The Bombay High Court held MCOCA to be valid but struck down two provisions: on telephone intercepts, and on bail.

The High Court held that MCOCA provisions relating to telephone intercepts were invalid, since only the Centre is competent to legislate on telephones, and besides, this infringed the Constitutional right to privacy. The Court also held the bail provisions in MCOCA as too vague to be valid.

On appeal, the Supreme Court held MCOCA to be valid, agreed with the High Court that the bail provisions were too vague, but held the telephone intercept provisions to be valid and Constitutional. Therefore, as MCOCA stands today, it has been held Constitutional. Modi has argued that GUJCOC, being in accordance with the Bombay High Court judgment, is less “draconian” than MCOCA since it excludes telephone taps.

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