To make a claim or take the position that an anti-terror law such as the

one Gujarat is now steering will eliminate terror would be dishonest

and hypocritical. At the same time, to portray GCTOC as being
diabolical and a tool to serve the ruling dispensations political ends
would also be unfair and preposterous
The Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill,
which was passed by the Gujarat Legislative Assembly on March 31,
2015, is now a reality and the reactions have been on predictable lines.
The Bill, interestingly, is in its fourth avatar the earlier versions
having been rejected by the President of India in 2004, 2008 and 2009
respectively and will now be sent to Rashtrapati Bhavan for
presidential assent. While parties other than the Bharatiya Janata Party
(BJP) have been crying foul saying that the Bill is politically motivated
and can subvert the freedoms guaranteed by the Constitution, the BJP,
on the other hand, has been trying to hard sell it as being the right
step forward in fighting terrorism and organised crime more seriously
than before, and at a time when these threats loom large over all of us.
Prime objections
The Bills detractors point to at least four provisions which they say will
promote police tyranny and the abuse of the law in order to settle
political scores especially using ruling party-driven law enforcement. In
their eyes, the most obnoxious of these is the empowerment of an
investigating agency to continue with the investigation for 180 days, as
against the permitted 90 days under the Code of Criminal Procedure
(Cr.P.C). In this period, the accused may or may not be in judicial
custody. Police custody is normally for very short periods and with a
magistrates permission. However, this has to be considered in
conjunction with the designation by the Bill of all offences under
GCTOC as being non-bailable. The term non-bailable itself does not
mean no bail at all but that bail is not automatic, and has to be given
by the appropriate magistrate or judge after being convinced of the
grounds on which it is being sought. The second feature of GCTOC that
has drawn ire is the one that makes confessions made to senior police
officers of the rank of Superintendent of Police and above
admissible in evidence, something analogous to a provision in the
infamous and now extinct Terrorist and Disruptive Activities
(Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). The
Indian Evidence Act makes confessions before the police inadmissible
in evidence, except when they lead directly to the discovery of a fact
that is material to the offence under investigation. Activists feel that
the new sanctity accorded to confessions made to law enforcement by
an accused will be grossly abused, and confessions will be extracted by
the police under duress and torture.

The next provision that those who cherish individual privacy are up in
arms against is the Bills authorisation of interception of telephonic
conversations and their admissibility in evidence. The criticism is in
tune with the perception that government agencies indulge in
snooping all the time. What the critics forget is that the normal
procedure, of the police obtaining the Home Secretarys permission,
has still to be observed under GCTOC.
Security concerns
The last objection is with regard to Section 25 of the Bill that makes the
government immune from any legal action for anything which is in
good faith done or intended to be done in pursuance of this Act. There
is anxiety that the Executive will exploit this section and become less
accountable to the law for its commissions and omissions.
We would not like to take the position that a law such as the one
Gujarat is now steering will carry such a lot of deterrence as to
liquidate all terrorism forever. Extravagant claims would be downright
dishonest and hypocritical. At the same time, we believe that to
portray GCTOC as being wholly diabolical and a mere tool to serve the
ruling dispensations political ends is being unfair and preposterous.
Such reckless thinking ignores two relevant facts. First, GCTOC
replicates what has stood the test of time 15 years in
Maharashtra. Second, criticism of the proposed Gujarat legislation
grievously misreads what is happening all over the world in the form of
mindless savagery spearheaded by the Islamic State of Iraq and Syria
(ISIS). The terror organisation has scaled new heights of barbarism and
violence, and is luring youth from all over the world, including India, to
join its ranks. If India remains relatively untouched by its influence, it is
only because the Muslim community has held steadfast to its values.
The absence of any major incursion by IS into India is also a tribute to
the alert state of our intelligence agencies, especially the Intelligence
Bureau, and the responses of police formations at grass-roots level.
However, we are not sanguine that this comforting scene will remain
so in the years to come. There is actually everything to indicate that
the situation could change for the worse with a little more instigation
from our hostile neighbours and more audacity and desperation by
undetected sleeper cells on our soil which Pakistans Inter-Services
Intelligence (ISI) and outfits like the Lashkar-e-Taiba (LeT) and the Jaishe-Mohammed (JEM) nurse and fund from across the border. It is this
hard reality that makes us uneasy and persuades us to commend
GCTOC as a welcome move.
Not new

We should also take into account that GCTOC is not new and copies
what a few other nations battling terrorism have done. The Patriot Act
of 2001, which came as a swift response to 9/11 from United States
President George W. Bush and the whole of U.S. polity acting in unison,
was roundly criticised by many in that country as also the judiciary.
Therefore, it had to undergo many changes in order to make it more
acceptable to a cross section of American society. If the U.S. has
remained reasonably free from terrorist machinations, an obvious
reason is the ability of that countrys law enforcement agencies to act
firmly, and sometimes ruthlessly, even at the cost of alienating
influential segments of the human rights community, both at home and
abroad. It is our belief that the Gujarat Bill, if and when it becomes an
Act, will undergo many such course corrections egged on by the
judiciary and the many social watchdogs which have stood out for their
vigilance.
The Gujarat Bill borrows heavily from its parallel in Maharashtra, the
Maharashtra Control of Organised Crime Act (MCOCA), 1999, with the
difference that, in the latter, there is no reference to terrorism. In fact,
the legal sanction and respectability that MCOCA has acquired over the
years explains the spurt in much similar State legislation. Karnataka
and New Delhi are examples that come to mind.
Safeguards
Under MCOCA and GCTOC, there are several safeguards for the citizen,
prime among them being the stipulation that the permission of a
Deputy Inspector General of Police (DIG)/Additional Commissioner of
Police (ACP) is required for registering a case. Also, the investigating
officer will have to be of the rank of Deputy Superintendent (DSP). The
permission of an Additional Director General of Police (ADGP) is
required for charge sheeting an accused before a court. A heartening
feature of MCOCA is that, among those charged under it till now, only a
small number is from the minority communities. The Dharmadhikari
Committee, which was appointed by the Maharashtra government to
go into the working of MCOCA, found no major shortcomings or
criticism that would detract from the merits of the Act. Facts such as
there being an average of about 40 cases registered annually and
about 6-7 persons arrested in each case, especially in a large State like
Maharashtra, are testimony to the fact that the use of MCOCA has
been extremely selective and not indiscriminate as was the case with
TADA or POTA. If the Gujarat Police pattern themselves after their
Maharashtra counterparts, half the battle against those who oppose
GCTOC will have been won.

Being situated on the border with Pakistan, Gujarat has every reason to
protect itself as well as it can, and the new piece of legislation fits into
the scheme of things in the State. In the final analysis, while GCTOC is
definitely not a perfect work of art, it certainly deserves to be viewed
as a piece that would hone itself over the years in the hands of those
in authority who are level-headed and who uphold order and peace in
society as their principal concerns.
(Dr. R.K. Raghavan is a former CBI Director and D. Sivanandhan is a
former Commissioner of Police of Mumbai and a former DGP of
Maharashtra.)