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An Act in question

Print edition : Sep 25, 2009 T+T-
in Bangalore

ON July 29, the last day of the monsoon session of the Karnataka Assembly, the State government passed the Karnataka Control of Organised Crimes (Amendment) Bill, 2009. This and 11 other Bills were passed without debate in quick succession.

Human rights activists have objected to the amendments, which they describe as draconian. They question the necessity for any amendments to the Act which anyway had several harsh clauses when there is no sudden perception of a terrorist threat. Activists also allege that a draft of the Bill had not been circulated among civil society groups and mediapersons to encourage discussion and public debate. While there is no legal obligation that a Bill should be circulated, the fact that the Bill makes amendments affecting the liberty of citizens should have meant that there was greater transparency during the time leading up to its discussion, human rights activists argue. Even senior police officials have, on condition of anonymity, expressed concern about some of the amendments as it could be used against certain groups of people.

The amended Bill makes four main changes to the Act that was first passed in 2000 when S.M. Krishna was the Chief Minister of Karnataka. The Acts stated purpose was to fight the underworld and organised crime syndicates and was modelled on the Maharashtra Control of Organised Crime Act, 1999 (MCOCA). The first and most disturbing change the 2009 Bill makes to the 2000 Act is to expand the purview of organised crime in a new sub clause added to Section 2 to include any terrorist act. This is because, as the former Director-General and Inspector-General of Karnataka Police R. Srikumar, a strong lobbyist for the Act, argued, terrorism has become an organised crime.

According to the new clause, organised crime includes any terrorist act, committed with the intent 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 or any section of the people, by doing any act or by using bombs, dynamite or other explosive substance or inflammable materials or firearms or other chemicals or any other substance hazardous in nature, in such a manner as to cause or likely to cause death or injury to any person or persons or loss, damage or destruction to property.

The amendment also extends the death sentence for any person committing a terrorist act that results in the death of any person, or loss, damage or destruction to property (Section 3). In the earlier Act, the death sentence was restricted to any act that resulted in the death of any person.

Other provisions of the amended Bill to which objections have been raised include the attachment of property of the accused pending investigation. According to the amendment, the property of the accused can be seized even during interrogation or the investigation of any offence punishable under the Act if, in the opinion of a Deputy Superintendent of Police or Assistant Superintendent of Police, the property represents the proceeds of either organised crime or terrorism (Section 21A). The provisions of the KCOCA, 2000, had already extended the period of police custody from that stipulated under Section 167 of the Criminal Procedure Code (CrPC). The 2009 Bill goes one step further and extends the period of police custody to 60 days; the period for filing charge-sheets has been extended to 180 days and if investigation cannot be completed within 180 days, the court is authorised to extend the period up to 365 days (Section 22).

While a group of lawyers of the Alternative Law Forum in Bangalore are planning to challenge the legality of the State legislating on matters relating to terrorism, the more important question that needs to be asked is why the Bharatiya Janata Party (BJP) government in Karnataka has felt the need to bring about these amendments. The amended Act has become one of the harshest laws in the country, curtailing civil liberties of the accused. The State government does not have a satisfactory explanation on the need for these amendments when the KCOCA has never been used though it took effect in January 2002.

A second and more important question pertains to the Bills inclusion of terrorist act within its purview when there is already the Unlawful Activities Prevention (Amendments) Act, 2008, (UAPA) to take care of this. Replying to Frontlines queries, Home Minister Dr V.S. Acharya said that that the rules for the KCOCA 2000 had never been notified while he described the UAPA as inadequate and not like the Prevention of Terrorist Activities Act [POTA] to address the serious threat of terrorism that the State was facing. When POTA was in effect in the country between 2002 and 2004, it was never used in Karnataka.

The question of a Central Act legislating on the same crime had come up earlier when POTA was passed in 2002; at that time KCOCA was already in effect in the State. The situation that prevailed in 2000 was the exact opposite of what prevails now in the State the Congress in power in the State and the BJP-led National Democratic Alliance (NDA) at the Centre. At that time, State Home Minister Mallikarjun Kharge had made a controversial statement: There is no need to give effect to POTA in Karnataka.

It sent out the message that the Congress government in the State was trying to snub the Central government by subtly suggesting that terrorism was not as grave a threat as the Centre was making it out to be (the KCOCA was passed before the 9/11 terror attacks of 2001, when the threat of global terror was still not so dominant in public and media discourse). Now, with the Congress in the opposition in Karnataka, there was not even a murmur of opposition to the Bill when it came up for discussion even though there exists a United Progressive Alliance (UPA)-enacted all-India Act to deal with the same issue.

Acharya justified the Bill by stressing the grave threat of terrorism that the entire country, including Karnataka, is facing: We need this harsh Bill to act as a deterrent against possible future terrorist activities in the State. He added that reports from Central intelligence agencies and activities of the banned Students Islamic Movement of India (SIMI) justified it. On being probed further, the Minister stated that the Bill was particularly introduced to act as a deterrent to the activities of the Popular Front of India (PFI), a pan-South-Indian cadre-based Muslim political organisation, whose Karnataka chapter was earlier known as the Karnataka Forum for Dignity (KFD).

Once the KFD comes into the picture, the timing of the Bill also does not seem like a random choice. The Bill was passed less than two months after the communal violence in Mysore in which three people died. Several activists of the KFD, including Kaleem, its Mysore district president, were arrested in connection with the violence. Several senior police officials and administrative officers have made known their suspicions about the activities of the KFD and its alleged links with international terrorist groups.

The KFD has been on the States intelligence radar for at least one year but only a thorough investigation will reveal the truth in the allegations against it. For now, opinion is divided, with the authorities blaming the KFD for radicalising a section of Muslim youth and human rights activists, and minority organisations being sceptical of the States intent.

The KFD has been active in the coastal areas of Karnataka, the much-touted laboratory of Hindutva in the State, for several years now. It has also been active in places like Mysore and Bangalore over the past four or five years.

The Bill will become an Act only with the Governors assent. H.R. Bharadwaj, former Law Minister in the Union government, was recently appointed the State Governor. The Governor can send the Bill to the President for her assent under Article 200 of the Indian Constitution. The President, in turn, can give her assent on the recommendation of the Central government or, as was done in the case of the Gujarat Control of Organised Crime Act (GUJCOCA) this July, send it back with recommendations.

The Centre, since the UPA came to power, has not given its consent to any legislation modelled on the original MCOCA. Both the COCAs in effect in the country the MCOCA and the KCOCA received the Presidents nod when the NDA was in power. In such circumstances, it seems highly unlikely that the Bill will get the Presidents nod.

Acharya is hopeful that the Central government will give its assent. He said, No Central government can be reluctant. The threat from evil forces is real.

While the BJP seems to be keen to see the amended Act in force in the State to please its core Hindutva audience, the inclusion of terrorism under the purview of organised crime is seriously problematic. The experience with earlier draconian Acts such as the Terrorist and Disruptive Activities (Prevention) Act, 1987, have shown that the police are sometimes tempted to misuse the excessive powers given to it under these Acts. In the case of the amended KCOCA, the various amendments have made the onus of proving his/her innocence fall on the accused and this negates a fundamental premise of criminal law. For all these reasons and the serious constitutional implications that this Act could have, there needs to be an exhaustive debate on the real implications of these amendments for the rule of law in Karnataka.

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