Gujarat” and “anti-terror law” are like catnip for defenders of civil liberties and believers in the rule of law, and for good reasons too. Those reasons are numerous, and are on record. Most centre on the Prevention of Terrorism Act (POTA) which was repealed—but not rolled back—in 2004, thereby meaning that those arrested, detained, and awaiting or undergoing trial under that law would still have to live through the ordeal.

The three review committees set up under retired high court judges in September 2004 examined the cases of all the 1,529 accused booked under the law in two years of its enactment. Trial had commenced in 263 cases, but no prima facie case was found against the accused. These findings were not grounded in what star anti-terror cop K. P. S. Gill and journalist (and later a cabinet minister in the NDA government in 2004) Arun Shourie slammed as “curious false sociologies of muddled intellectuals” and courts’ rulings influenced by “rights-mongering” civil libertarians, which have “impeded the country’s life and death struggle against terrorist invasion.” All the three judges conducted detailed hearings which resembled a criminal trial.

Despite that, the Gujarat government refused to budge, rejecting the committee’s findings, and was forced to drop all the cases only after being ordered by the Supreme Court in 2008.

Thus, on April 1, when the Gujarat Assembly by a majority passed the Gujarat Control of
Terrorism and Organised Crime Bill, 2015, the wave of outrage was predictable. Passed thrice in the Assembly since 2003, but sent back by two presidents who were concerned about certain sweeping provisions and their scope for misuse, the bill had been dubbed as “an alternative POTA” by then Gujarat law minister Ashok Bhatt and a “Xerox copy” of the Maharashtra Control of Organised Crime Act (MCOCA) by then Gujarat chief minister and now Prime Minister Narendra Modi.

The impending repeal of POTA (not because of its provisions—which were all upheld by the Supreme Court in 2003 but because of its wanton misuse, especially in Gujarat) in 2004 had been decried by the BJP, which contended that the Congress-led government was doing it to reap the political benefits of minority-appeasement. 

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he new law, with a new name (its previous nomenclature did not include “terrorism”) contains provisions which revive POTA’s fears, besides appearing to be patently unconstitutional. Section 24 declares that the law, the rules made under it, and any orders of the government or police, given under such provisions, shall prevail over any other law in force, or anything which has the force of law. This is same as Section 11 of POTA, and in effect means that even juveniles can be charged and tried for serious offences, despite the Juvenile Justice Act, despite the Constitution.

Section 25 gives blanket immunity to the police, government, and investigating agencies for anything done in “good faith”, while Section 23 penalises a policeman for not following the lawful orders and directions of his superior officers. Good faith hasn’t been defined, and one only has to look at the spate of atrocities—torture, fake encounter killings by the dozens, if not hundreds, carried out under the protection of Section 6 of the Armed Forces Special Powers Act (AFSPA) in the northeast and Kashmir—to know what “good faith” can amount to.

Section 20, dealing with bail and remand, carves out an exception from Section 167 of the Code of Criminal Procedure (CrPC), which prescribes a remand period of 90 days, and extends it to 180, till the public prosecutor informs the court that investigation has been completed. Anticipatory bail—as provided for by Section 438 of the CrPC—has been prohibited, and a magistrate cannot grant bail without giving the public prosecutor an opportunity to oppose the plea.

Not only that, he has to be “reasonably satisfied” that the accused did not commit the offences charged with. This flies in the face of settled Supreme Court precedent, which clearly states that guilt is to be determined only during trial, not during a bail hearing.

Section 20(5) prohibits bail to an accused out on bail for any other offence under any other law, even if it is for petty theft, while 20(7) allows the seeking of police custody for interrogation, even if one is already in judicial custody. The police can explain to the court the reasons for delay in seeking custodial interrogation.

How does this play out? Evidence from the application of the now-repealed Terrorism and Destructive Activities (Prevention) Act (TADA) provides an indication. Till it was amended in 1993, TADA allowed for a year’s remand in ordinary course. The changed law reduced the default period to 180 days, but the court could extend it to a year if the prosecution made out a case for more time to complete the investigation.

It was common practice to keep the accused in the dark about the reasons for such extensions, which meant he couldn’t oppose the prosecution’s motion. In the Hitendra Thakur case (1994)  the Supreme Court deemed it overtly prejudicial and hence illegal, but then a Constitution Bench held in Sanjay Dutt’s case that it wasn’t necessary, and also that the prosecutor need not take an independent decision; he could just forward the views of the investigating agency. An accused can of course oppose this, but then the courts are usually lenient in granting adjournments so that the prosecution can file its counter, even if it is deliberately and maliciously dragging its feet.

Section 16, by which confessions to police officers are made admissible in evidence, has been reported and slammed most widely, and justifiably so. In POTA, Section 32 which authorised such confessions formed the backbone of the misuse in Gujarat: especially Muslims, picked up by the police, tortured in custody and “made to confess”, and detained for long periods because the magistrate and trial judges chose to remain oblivious to tell-tale signs of police brutality.

This law goes further; POTA’S Section 52 laid down strict guidelines for the magistrate to follow before admitting a confession, but Section 16(7) of the Gujarat bill says the magistrate “shall” (must) record the confession, and puts no safeguards in place.

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he most chilling effect of this is the case of the Akshardham terror attack accused, decided by the Supreme Court last year. Acquitting all the six accused, the court censured both the Gujarat government and D. G. Vanzara and other officers of the ATS (Anti-Terrorism Squad) for falsely implicating innocents, slapping POTA charges, and subjecting them to custodial torture. The entire police case, as well as the judgments of the courts below, was based on manufactured physical evidence, which was sought to be protected by confessions given in police custody. But it was also these confessions which proved to be the prosecution’s undoing.

The attack on the Ahmedabad temple took place on September 25, 2002, allegedly by a fidayeen squad, which the Gujarat government contended had also planned to assassinate Modi and top-ranking Hindu ministers in the government. For almost a year, from September 2, 2002, to August 27, 2003, the Crime Branch and the ATS drew a blank. But things started moving at breakneck speed from the very next day, August 28, 2003, when the Crime Branch, then headed by D. G. Vanzara (of fake encounter notoriety, still facing proceedings in the Sohrabuddin Sheikh and Tulsiram Prajapati murder cases) took over the case and appointed ACP G. L. Singhal as the investigating officer.

Within hours, an accused was nabbed, and based on his confession, five more were arrested the next day. All of them “voluntarily” admitted to everything the government accused them of.

On September 4, 2003, things went awry for the police. A certain Chand Khan, arrested by the Jammu and Kashmir police, confessed in custody that he was a Lashkar-e-Taiba operative, and had gone with a small team to carry out a series of terror attacks in Gujarat. The temple wasn’t even on their radar; they went for it only because other, bigger plans didn’t materialise.

This directly contradicted the Gujarat police story, which claimed there was an international terror plot across Riyadh, Jeddah, Pakistan, Hyderabad and Ahmedabad, which depended substantially on local support, especially a maulvi Abdul Qaiyum Muftisaab Mohmed Bhai (Accused No. 4) who was in charge of relief camps for Muslims displaced by the 2002 Godhra riots. The Central Forensic Science Laboratory at Gandhinagar, which had certified as authentic a letter by the maulvi to Pakistani terrorists, was also in a fix.

Thus, both police forces were using custodial confessions, extracted under torture, to accuse the other of conjuring up a case. In its ruling, the Supreme Court castigated the magistrate for his cavalier attitude in recording confessions despite prima facie evidence of torture, and the police and forensic agencies for being part of a nefarious plot (the maulvi’s letter was held to be a forged one by the court).

The admissibility of custodial confessions is a glaring example of the bill’s potential for harm, as also is the manner in which it conveniently treats organised crime and terrorism as similar subjects.

Section 2(e) lists organised crimes as including flesh trade rackets, economic offences, land grabbing, contract killing and economic offences, and “terrorist act”. Section 2(h) defines “terrorist act” as any act committed with the intention to disturb law and order, public order, security and integrity of the state, strike terror in the minds of the people or any section of the people, or to compel the government to abstain from doing any act.

Since the bail provisions are too stringent and require the magistrate to decide on culpability even before trial, it would mean that the detenues’ intentions and not actions will be judged on the basis of what the state alleges, and with the odds stacked against them. The inclusion of “section” instead of “community” might seem good, especially with regard to a government which has always harped that Islamic fundamentalism and terrorism is the only form of terrorism threatening India, but it could also open up the possibility of more people being caught in the law’s dragnet.

Some Supreme Court decisions complicate things further. On April 15, the Supreme Court held, while deciding applications for bail, the main accused in the 2008 Malegaon blasts case—retired Colonel Shrikant Purohit and a sadhvi Pragya—couldn’t be slapped with MCOCA charges.

Interestingly, the MCOCA includes “insurgency” within the definition of “continuing unlawful activity”, mandatory for launching prosecution. But it was the same Supreme Court which in 2010, while upholding MCOCA’s constitutional validity in the case of Zameer Ahmed Latifur Rehman, that insurgency is only a subset of terrorism. A 2002 ruling, again from the apex court, had included shootings between rival gangs within the definition of terrorism. A gang member undergoing treatment in J. J. Hospital and the two policemen guarding him were gunned down by sharpshooters hired by a rival gang. It was an act of retribution over a deal gone sour, but the court inferred otherwise.

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he President is yet to grant (or decline) his assent to this patently unconstitutional bill, though his alacrity in signing the death warrant of Afzal Guru, whose death sentence was fraught with dubious legality and that infamous judicial reason—“to satisfy the collective conscience of society”—is a valid ground for consternation.

Inevitably then, the focus shifts to the judiciary. The Law Commission of India, which the apex court often turns to for recommendations and suggestions, should also come into the picture.

One also needs to reckon with the judicial politics in the trajectory of reactions to anti-terrorism laws, especially those which come without sunset clauses. A sunset clause is a tentative, cut-off date for a legislation to lapse, because it might have outlived its use. TADA had one, but POTA didn’t, and nor do MCOCA or the present Gujarat bill. The opening of Michael Ignatieff’s book The Lesser Evil : Political Ethics in an Age of Terror (2004) captures the political class and judges’ dilemma: “What lesser evils may a society commit when it believes it faces the greater evil of its own destruction? This is one of the oldest question in politics and one of the hardest to answer.”

“Intra arma silent leges (the law shall not remain silent amidst the clash or arms, or war),” said Lord Atkins of the House of Lords in his celebrated dissent in Liversidge v Anderson (1941), when the majority ruled to uphold the government’s excessive and discriminatory war powers to combat the threat
of the Nazis.

The counter is Lord Hoffman’s postscript in the majority ruling in Secretary of State v Rehman (2011) in which the House of Lords again upheld the government’s right to deport a Pakistani person suspected of terrorist activities. In the postscript, the judge said that the quasi-judicial commission deciding upon such cases had erred in asking for a standard of proof higher than just suspicion (which in this case was evidently based on considerations of ethnicity), because in matters of national security, the courts must defer to the legislature and executive which have more legitimacy by virtue of being elected, and not appointed, by a majority of the population.

Our institutions have chosen to follow this path. It was only the National Human Rights Commission, in its 2002 report, which warned the government against enacting POTA. Till date, it remains the only institution which decided to even acknowledge the issue of proportionality: whether an anti-terror law is really the need of the hour, and can’t other less egregious legislations meet the purpose? The Law Commission of India in its 173rd report (2000) told the government that India needed a permanent anti-terror law without any delay, and cited the Mumbai blasts of 1992 to blame only Muslim fundamentalism as the root cause of terror.

While hearing the People’s Union of Civil Liberties’ (PUCL) challenge to POTA, the bench patiently heard the arguments as to why the law could be misused. To evidence of misuse in certain states, the Bench replied, “any law can be misused.” When Section 32 and the admissibility of custodial confessions was brought up, the judges pointed out to the “robust” safeguards the executive and legislature had been solicitous enough to incorporate.

Only the two dissenting judges—Justices V. Ramaswamy and R. M. Sahai—pointed out the dangers of allowing only senior police officers to take confessions; that they, tasked with “solving” crimes and preventing acts of terror, would have a much higher incentive to torture. The chain of command in the force would ensure no junior policeman divulges any details about their superior’s crimes. Does the Akshardham judgment not vindicate the judges’ apprehensions, which at that time had been dismissed as preposterous? POTA was upheld, because of the “urgent necessity”, as was TADA [in the Kartar Singh case (1994)].

Regarding torture and murder by policemen in custody, Justice Pasayat, who courageously took the Gujarat government to task in the Best Bakery case (2004), while awarding compensation to the widow of an undertrial tortured to death, almost supported the police by saying the rigorous standard of proof of criminal law—“beyond reasonable doubt”—didn’t leave policemen with many options but to resort to illegalities, for the purpose of preventing crime and protecting society.

Suppose the President assents and the Gujarat Control of Terrorism and Organised Crime Bill, 2015 becomes law. If it is challenged in court, the judges, who cannot be mute witnesses to the violence committed by using the very laws approved by them, could do well to acknowledge legal philosopher Ronald Dworkin’s concerns in an essay he wrote in the immediate aftermath of 9/11 and the enactment of the Patriot Act. In “The Threat to Patriotism”, he focused on the price paid in the name of national security, and argued that it was morally and legally wrong to strike to seek a balance between national security and civil liberties, because anti-terror legislations and mechanisms hit minorities the hardest.

He wrote: “Most of us pay almost nothing in the personal freedoms when such measures are used against those the President suspects of terrorism.”