POTA in disguise

Print edition : August 29, 2008

The Home Ministry explains, in response to Frontlines RTI application, its reluctance to approve States Bills against organised crime.

WHENEVER there is a terrorist strike anywhere in the country, the Bharatiya Janata Party does not lose the opportunity to blame the Centre for its inaction in according approval to the BJP-ruled States legislation to control organised crime. In particular, the BJPs Prime Minister-in-waiting, L.K. Advani, has sought the Centres immediate approval for the Gujarat Control of Organised Crime Bill, 2003, and the Rajasthan Control of Organised Crime Bill, 2006. The Centre has maintained a mysterious silence over the issue all along. One reason could be that these two Bills, as also similar Bills from other States, pending with the Centre involve substantial deviation from the existing national or Central policy on tackling terrorism. The United Progressive Alliance (UPA) came to power on the plank of repeal of the Prevention of Terrorism Act (POTA) as it considered the anti-terror law a draconian piece of legislation.

Frontline filed an application under the Right to Information (RTI) Act, seeking, among other things, to know how many such Bills were pending with the Centre and whether the Government of India had any reservations in approving these Bills. The governments response has brought to the fore several facts so far unavailable in the public domain.

According to the Ministry of Home Affairs (MHA), the submission of a Bill for approval of the Government of India before its introduction in the State Assembly if the subject of the Bill pertains to a matter listed under the Concurrent List is not a constitutional requirement, but is based on convention. It added that this convention need not be taken as restricting the discretion of State governments to take independent action should they consider the need for such action1 that in their view was so urgent that prior consultation with the Centre was not possible.

The MHAs documents perused under the RTI reveal that the Centre, in a communication in 1972, told State governments that prior concurrence of the Central government could ensure that there were no complications subsequently when the Bills were sent up for the Presidents assent. When Bills are referred for approval, the comments of the Government of India should invariably be awaited before they are introduced in State legislatures, the Centre had told the States. However, when a Bill passed by the State Assembly is reserved by the Governor of the State for consideration of the President under Article 200, the same is processed for obtaining the assent of the President.

The MHAs response reveals that the Rajasthan Control of Organised Crime Bill, 2006, and the Andhra Pradesh Control of Organised Crime Bill, 2006, are pending with the Central government for its approval before they can be introduced in the respective State legislatures. The Gujarat Control of Organised Crime Bill, 2003, and the Uttar Pradesh Control of Organised Crime Bill, 2007, have been passed by the legislatures of those States and have been reserved by the respective Governors for the Presidents consideration under Article 200. All the four Bills are modelled on the Maharashtra Control of Organised Crime Act (MCOCA), 1999 (which has since been extended to Delhi from 2002), and the Karnataka Control of Organised Crime Act, 2002. The Maharashtra Act received the Presidents assent on April 24, 1999, while the Karnataka Act received it on December 22, 2001.

Now, if the Maharashtra and Karnataka Acts to control organised crime received the Presidents assent, and subsequently came into force, what prevents the Centre from considering Bills with the same objective and provisions received from other States?

The Maharashtra and Karnataka Acts received the Presidents assent when the BJP-led National Democratic Alliance was in power at the Centre. Andhra Pradesh, too, had an Act to control organised crime but it expired on November 4, 2004.

The Andhra Pradesh Control of Organised Crime Act, 2001, was brought into force on November 5, 2001, after it received the Presidents assent. Section 1(4) of the Act stipulated that it would be in force for a period of three years from the date on which it took effect.

The State government decided to re-enact the Act without the time-limit clause and sent the new Bill to the Centre for its approval, in step with the convention, before introducing it in the State Assembly.

The Gujarat Control of Organised Crime Bill, 2003, has a somewhat different trajectory. Modelled on the MCOCA, the Bill blindly adopted its special procedure for interception of electronic communications, little realising that the Bombay High Court had struck down the MCOCAs chapter on interception of communications as beyond the States legislative competence in Bharat Shantilal Shah vs. State of Maharashtra.

The High Court struck down Sections 13 to 16 of the MCOCA, which pertained to authorisation to tap oral or electronic communication, on the grounds that a State could not legislate on a subject that was enumerated in the Union List, on which the Telegraph Act held the field. It held that this was a colourable exercise of power.

In view of this, the President, under Article 201 of the Constitution, directed the Gujarat Governor to return the Bill to the State Assembly for reconsideration and necessary amendment. The Gujarat Assembly reconsidered the Bill and passed it again, on June 2, 2004, after deleting Sections 14, 15 and 16, which gave blanket powers to District Collectors and District Superintendents of Police to intercept and record telephone and other means of communication of suspects and accused under the Act. These Sections virtually empowered the government to violate the privacy of a citizen on a mere suspicion. It is this revised Bill that is now with the Centre for the Presidents assent.

In its response to Frontlines application under the RTI Act, the MHA stated as follows:

The State Bills reserved by the Governor for consideration of the President are examined from the following angles:

(a) Whether the proposed legislation is constitutionally valid; or (b) Whether there is any conflict with an existing Central law, and if so, whether the conflict may be consciously permitted; or (c) Whether the proposed State enactment involves any deviation from existing national or Central policy to its detriment, or would be a hindrance to enactment of uniform laws for the country.

It is significant that, as Frontlines investigation shows, the State Bills under examination with the Centre do not qualify under each of these tests evolved by the Centre over the years. The MCOCA and the KCOCA also do not qualify under these tests, but the Centre cannot direct the two States to repeal these Acts because they had secured the Presidents assent before the UPA government came to power at the Centre in 2004.

Once the Presidents assent is given, it would imply that the Centre had permitted consciously any perceived conflict of the State law with the Central law when both relate to the same subject matter listed under the Concurrent List. The question of the constitutional validity of these Bills has not yet been finally settled by the judiciary. The MCOCA, for example, defines organised crime as any continuing unlawful activity by an individual, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person, or promoting insurgency.

The inclusion of the words promoting insurgency was challenged in the Bombay High Court on the grounds that the State legislation trespassed into the exclusive domain of Parliament. The High Court held that insurgency, terrorism and crimes relating to these were subjects on which only Parliament could legislate as these affected Indias sovereignty and were transborder in nature.

However, the High Court took the view that though insurgency was a facet of terrorism, it could also be a facet of organised crime. The court ruled that the reference to insurgency in the context of organised crime was merely an incidental overlap with terrorism, falling under the Union List, and as such a permissible encroachment.

The Special Leave Petition (SLP) appealing against this judgment is pending in the Supreme Court in Sabeer Ahmed Masiullah vs. State of Maharashtra. The petition indicates a complete lack of clarity on the legislatures competence to enact the MCOCA. The SLP argues that only such aspects of criminal law that are not directly referrable to any other List comprise the field of this entry in the Concurrent List.

The Maharashtra government took the stand that the MCOCA was a piece of legislation made under Entry 1 of the State List, namely, Public Order. The Bombay High Court judgment accepted this view. However, a subsequent judgment by the same High Court took the view that the MCOCA was a law enacted under Entry 1 of the Concurrent List, namely, Criminal Law. The Supreme Court, on the contrary, has consistently held that crimes of terrorism and insurgency would fall outside the ken of both public order and the ordinary criminal justice system.

The KCOCA also uses the phrase promoting insurgency in the definition of organised crime as did the lapsed Andhra Pradesh Act. The Gujarat Bill does not use the word insurgency in defining organised crime, thus weakening the State governments and the BJPs claims that the legislation could be an asset in fighting terrorism.

The Uttar Pradesh Bill, unlike the MCOCA and the other State Bills pending with the Centre, defines organised crime as, among others, causing loss of life or property by the use of explosives, or fire, or firearms or other violent means to spread terror or overthrow the government by force or violence, or to indulge in anti-national or disruptive activities or to hold government or other public authorities to ransom on threat of death or destruction. Clearly, the U.P. Bill aims to control insurgency, even though the word itself does not find a mention in it.

According to the SLP in the Sabeer Ahmed Masiullah case, the moment any crime, organised or otherwise, is associated with insurgency, the nature of the offence is altered into an offence against the nations defence and security. It argues, therefore, that a law dealing with organised crime cannot, incidentally, affect insurgency.

To understand whether the State Bills are in conflict with the Central law it is necessary to explain some of the basic principles. Under Article 254 of the Constitution, if any provision of a law made by a State legislature is repugnant to any provision of a law made by Parliament, or to any provision of a law on a matter enumerated in the Concurrent List, then the law made by Parliament shall prevail over the State law.

However, if the State law has received the Presidents assent, then it will prevail in that State. But the Presidents assent does not bar Parliament from enacting at any time any law with respect to the same matter, adding to, amending, varying or repealing the law so made by the State Legislature.

The SLP in the Sabeer Ahmed Masiullah case states that insofar as the MCOCA dealt with insurgency, it was first repugnant to the unamended Unlawful Activities (Prevention) Act (UAPA), 1967, enacted by Parliament. This repugnancy was noticed in 1999, it says and argues that that was why the Presidents assent was obtained for the Act. Later, when Parliament enacted POTA in 2002 and, following the repeal of POTA, amended the UAPA in 2004, Parliament evinced the intent to occupy the whole field with respect to insurgency, and in light of this there is bound to be repugnancy between the Central law and a State law dealing with insurgency, the SLP states.

Sources in the MHA claim that the MCOCA and the KCOCA deal with control of organised crime and, therefore, cannot be deemed repugnant to the UAPA, which deals with activities directed against the integrity and sovereignty of India. But the fact that these State Bills which are similar to these Acts have been referred to the Centre suggests that there is an implied repugnancy and it needs to be sorted out.

While amending the UAPA in 2004, Parliament consciously avoided including in it the draconian provisions of POTA.

These are i) considering certain confessions made to a police officer as admissible evidence; ii) presumption as to the guilt of an accused until he proves himself to be innocent; and iii) stringent bail provisions ensuring a long period of detention of an accused.

All the proposed State Bills contain these provisions and are, therefore, contrary to Parliaments intention in repealing POTA and amending the UAPA.

The Uttar Pradesh Bill does not have the provision enabling consideration of confession made to a police officer as evidence, but its inclusion of the provision allowing presumption of guilt of the accused makes it as draconian as others.

The Centres decision not to include these draconian provisions in the amended UAPA stems from its conviction that they are neither useful in the trial and conviction of terrorist offences nor in their prevention, and that they are poor substitutes to serious investigative and prosecutory efforts.

Can States be allowed to bring in the very provisions Parliament detested, in order to tackle terrorism by calling it organised crime?

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