Moving Towards a Kafkaesque State?

An Analysis of Gujarat Control of Organized Crime Act,2019

Shivankar Sukul

Background & Objective

The Gujarat Control of Organized Crime Act, 2019 [GUJCOCA, Hereinafter] was given

assent by the president recently in November 2019.1 This assent came almost 16 years after

the bill was first introduced back in 2003 and rejected by then president Dr. A.P.J Abdul

Kalam.2 The bill was later rejected almost 4 times before being passed by the President Ram

Nath Kovind.

The bill has long been in the subject of controversy for several policymakers and

academicians alike. Several experts claim this act to be unconstitutional and ridden with

several legal infirmities. The act has been slammed for failing to balance between

constitutional liberties of citizens and the pressing need for bringing a stringent law for

prevention of unlawful activities, claiming that it tilts towards the latter and disregards the

former. While supporters of the bill claim it to be the much-needed weapon to weaken the

roots of terrorism, dry up its funding and ensuring proper investigation and high conviction

rate of the accused.3

1
First Post News , Gujarat Anti-Terror Bill passed finally, 9 th November 2019,
https://www.firstpost.com/india/gujcoca-makes-confessions-to-cops-intercepted-conversations-admissible-in-
court-threatens-checks-and-balances-against-government-interference-7667021.html
2
Outlook India, Another Rejection for GCTOC, 29 th October 2016,
https://www.outlookindia.com/website/story/another-rejection-for-gctoc-bill/296554 (Last Visited 10th March
2020)
3
The Hindu, Gujarat Anti Terror Bill is MCOCA in another form, 6 th November 2019 ,
https://www.thehindu.com/news/national/gujarat-antiterror-bill-is-tada-in-another-form/article7054823.ece
(Last Visited 11th March 2020)
It is interesting to note that GUJCOCA has been modelled on the likes of MCOCA & TADA

which have been often criticized for being a tool of humiliation and oppression in hands of

the police officials and its embarrassingly low conviction rate.4

In this article we will restrict our scope to purely legal issues related to the GUJCOCA. In the

first section we will discuss some of the benefits of the act, such as incorporation of

provisions for protection of witnesses and incorporation of provisions for suppression of

terrorist financing.

Section 17 of the GUJCOCA provides the power to special courts to pass any direction if it is

satisfied that the life of the witness is in danger. The importance of witness protection in

terrorism cases has been stressed in the matters of Zahira Habibullah v. State of

Gujarat5[Best Bakery Case] where several eyewitnesses retracted their statements on the

account of coercion. In the act, the witnesses have been entitled to give application to the

special court for taking measures for ensuring his protection and for maintaining anonymity

with respect to his identity.

Section 18 of the GUJCOCA provides that the investigating officer can seize or attaching any

property of the accused which he believes has been kept with proceeds of terrorist activities

or organized crime. The act also attempts to suppress the terrorist funding by imposing

criminal liability on individuals funding terrorists or organised criminal activities under

Section 3 of the act. These measures are in tune with the state party obligations of India under

International Convention for the Suppression of the Financing of Terrorism, 1999

which obliges state parties to make mechanism in their domestic laws to punish individuals

funding activities having severe consequences on the society.

4
TADA: Hard Law for Soft State. (2000). Economic and Political Weekly, 35(13), 1066-1071. Among 76,000
cases of arrest under MCOCA and TADA the conviction rate has been abysmally low to almost 2-5 percent.
The provisions of TADA were grossly misapplied by the authorities In one case, two men were charged under
TADA for creating a ruckus at Byculla market in Bombay by wielding a gun, which turned out to be a toy gun.
They were detained for two years before they could secure bail.
5
Zahira Habibullah v. State of Gujarat, (2004) 4 SCC 158
Legal Infirmities in the Act

In this section we will discuss some of the legal infirmities of the act. Firstly, article will

discuss the quandary associated with the rather wide definition of the word “Abetment” under

Section 2(h) of the act. Secondly, this article will discuss the legal problems related to

provision which allows the evidence of confessions given to the police officers. Thirdly the

article will discuss the problems related to restrictions put by the act on the provision of bail

to the accused persons. Fourthly, the article will also discuss the total immunity given to the

police officers acting under this act and lastly the article will discuss the admissibility of

intercepted communication under the act.

The Definition of “Abetment”

Abetment has been defined under Section 2(a) of the GUJCOCA, the clause 1 of the said

section states that the Abetment also includes the communication or association with person

with the actual knowledge that he is a member of a criminal syndicate. 6 The act further

imposes stringent punishment for abetment.7 Hence from joint reading of these sections it can

be inferred that GUJCOCA criminalizes mere association or membership of a criminal

syndicate. Thus, for convicting under the act prosecution need not prove any overt

involvement in the criminal syndicate.

While doing so, the legislators have conveniently overlooked the observations of the SC in

the matters of Arup Bhuyan v. State of Assam8 where a part of Section 3(5) of Terrorist

and Disruptive Activities (Prevention) Act was read down which imposed punishment on

mere membership of a banned organisation. In this judgement the court referred to its

previous judgement in the matters of State of Kerala v. Raneef9 where the court opined that

6
Section 2(a) of Gujarat Control of Organised Act, 2019
7
Section 3 of Gujarat Control of Organised Act, 2019
8
Arup Bhuyan v State of Assam
9
State of Kerala v Raneef (2011) 1 SCC 784
mere membership of a terrorist organisation will not incriminate a person unless he resorts to

violence or incites other people to commit violence.

The lawmakers certainly glossed over the conceptual difference between “advocacy” and

“incitement”. While incitement to commit violence is an action that is no doubt uncalled for

and state should take an unflinching stance upon the same but “advocacy” is a

constitutionally protected unless it leads to violence in all imminence. The aforesaid

definition of abetment which attempts to criminalize mere membership without any specific

intent to commit an unlawful act rests on the doctrine of “guilt by association” which has

been rejected by Indian and American courts alike in the matters of Elfbrandt v. Russell10 .

This view has also been reiterated in the matters of I Tamilraman v. Inspector of Police 11 &

Baki Mandal v. State12

Another interesting aspect of this act is that it creates presumption for the guilt of a person if

relevant documents and papers are recovered from his possession 13. Hence this act is

extremely prone to misuse as it may lead to needless persecution of individuals for merely

carrying literature advocating unpopular opinions.14 Hence no matter how unassuming these

small oversights may seem; they pose a great threat to the liberties at large.

Confessions given to Police Officers

Section 16 of the GUJCOCA makes the confessions given to a police officers above the rank

of Superintendent of Police admissible while prosecution under the act. 15 This section is at

variance with the settled principle of law enshrined under Section 161 of the CrPC 16 and

10
Elfbrandt v Russell 384 US 19 (1966)
11
I Tamilramana v Inspector of Police W.P.No.31999 of 2018
12
Baki Mandal v State Criminal Appeal No. 520 OF 2009
13
Section 21, Gujarat Control of Organised Act, 2019
14
Jyoti Babasaheb Chorge vs State Of Maharashtra, (2013) 4 MhLJ (Crl) 448 In this case the accused was
arrested under the provisions of UAPA for mere possession of Maoist literature.
15
Section 16, Gujarat Control of Organised Crime Act,2019
16
Section 161, The Criminal Code of Procedure, 1971
Section 25 of the Evidence Act17 It is modelled on the Section 13 of the TADA. The

aforesaid section allows the police officials to record the confession on mechanical devices

such as tape recorders. The section also allows the prosecution to use the confession of an

accused to convict the co-accused or abettor who has been charge sheeted with him.

According to James Fitzgerald Stephen Section 25 of the Evidence Act was added in the

statute in order to prevent the practice of torture by the police for the purpose of extracting

confessions from persons in their custody. 18

The issue whether such a provision would pass the muster of constitution was considered in

detail by a 5 Judge bench of the SC in the matters of Kartar Singh v State of Punjab19. In

this case the court considered the special nature of terrorist cases where the witnesses do not

usually come forward to give evidences against the accused due to fear. Though the court

also cautioned against the dangers of giving such wide powers to police and laid down

guidelines for exercising the power under such provisions. Thus, the court in this case had

upheld the impugned provision but cautioned that such confession is a weak piece of

evidence and cannot be the sole basis of conviction.20

The provision in GUJCOCA incorporates all the safeguards provided in the matters of Kartar

Singh.

Though the experts have severely criticized this provision in GUJCOCA but the importance

of such provision in anti-terrorism statutes is immense for ensuring conviction of terrorists. 21

However the court should carefully rely upon confessions under this section only after being

satisfied that the statements were taken voluntarily and without any coercion. Moreover, the

aforesaid sections will be upheld only if the safeguards are read strictly.
17
Section 25, Evidence Act,1872
18
Sir Stephen Fitzgerald, Stephen’s Digest of the Law of Evidence, 9th Edition, (1976)
19
Kartar Singh v. State of Punjab, 1961 AIR 1787
20
Sri Indra Das v State of Assam Criminal Appeal No.1383 OF 2007
21
Ranjitsingh Brahmajeetsingh v. State of Maharashtra 1994(2) SCC 664
Provisions of Bail

Section 20 of the GUJCOCA states that Section 438 of the CrPC will not be applicable in

cases related to this act.22 Hence the accused under this case is barred from approaching the

HC for an anticipatory bail. This provision runs contrary to the basic principle of presumption

of innocence as it also curtails liberties of accused, jeopardising liberty of a person on an

untried unilateral version, without any tangible material, is against the fundamental rights

guaranteed under the Constitution23.

In this light, it is important to note that Section 9 of GUJCOCA even does away with the

preliminary enquiry by a committal magistrate. Hence a combined reading of Section 22 and

9 provides that a special court can take cognizance of an offence on mere report by the police

official and consent of state government, without any application of judicial mind into the

facts of the case by the committal court. Thus, these sections severely curtail liberties of

accused leaving almost no means of escape.

Section 20 of GUJCOCA also provides that the special court shall provide bail to the accused

unless, the court has been reasonably satisfied that he is not guilty. This section turns the

principle of presumption of innocence on its heels, running contrary to the libertarian view of

Justice VR Krishna Iyer in the matters of State of Rajasthan v. Balchand24 where he

remarked that “Bail is rule and Jail is an exception”.

Though a similar provision in TADA was upheld by a constitutional bench in the matters of

Kartar Singh v. State of Punjab, but let us recall that TADA’s pathetic conviction rate of 1

per cent obscured its wide use as a preventive detention measure where more than 76,000

persons were detained for years. Hence even though the semantics of the act is different but

22
Section 20, Gujarat Control of Organised Crime, 2019
23
SK Mahajan v State of Maharashtra AIR 2018 SC 1498. In this case the SC emphasized on the relation
between constitutional liberties and right of anticipatory bail.
24
State of Rajasthan v Balchand 1977 AIR 2447
the act was applied in such a manner so as to render it to be a preventive detention law.

Moreover Section 20 of the GUJCOCA states that the Section 167 of the Cr.P.C will not aply

mutatis mutandis to the offences under this act. On the contrary under the act the special

court can extend the investigation period up to 180 days unlike the limit of 90 days provided

in CrPC. Hence the act gives the right to police officers to keep the accused on remand till 6

months even without filing a charge sheet. The right of default bail after 90 days of remand is

an indefeasible right as observed by the SC in the matters of Rakesh Kumar v. State of

Assam25

Thus, the if such severe restrictions are put in place for giving bail then the statute must also

comply with the stipulations given in Article 22 (4) of the Constitution. Hence if the custody

is to be enhanced under any case in GUJCOCA, then it should provide for constitution of an

advisory board for authorising a preventive detention longer than 3 months in order to

minimize the scope of its indiscriminate misuse like its predecessors.26

The court in the matters of Nikesh Tarachand Shah v. Union of India 27 also observed that

such reverse onus clauses run contrary to the basic tenets of criminal law like presumption of

innocence and constitutional liberties while cautioning against their indiscriminate insertion

in the statutes.

Carte Blanche given to the Police Officials

Section 25 of the GUJCOCA clearly states that the police official acting under this code

cannot be subjected to any prosecution, suit or any other legal proceedings. 28 Hence this

25
Rakesh Kumar v. State of Assam (2017) 15 SCC 67
26
Economic and Political Weekly, Vol. 29, No. 32 (Aug. 6, 1994), pp. 2054-206 Published by: Economic and
Political Weekly; In this article the author builds on the reasoning with respect to similar provisions in TADA
and MCOCA he observes “that bail provisions of TADA effectively make it a preventive detention law as well
as a penal and procedural law. But under the Constitution a preventive detention law must necessarily follow the
procedure mandated in Article 22, which TADA does not follow. There is no provision for an Advisory Board
and a review by it of the detention in TADA. The bail provision of TADA thus is a violation of Article 22.”
27
Nikesh Tarachand v. Union of India (2018) 11 SCC 1
28
Section 25 , Gujarat Control of Organised Crime, 2019
section not only grants the officials total immunity from criminal prosecutions but it also

gives protection to state government from grant of compensation under any legal proceeding

like writ petitions as provided by the SC in matters of Rudul Sah v State of Bihar29 where

the court held the government accountable for paying compensation for infringement of

fundamental right of an individual.

Such a provision which grants carte blanche to officials has been strongly criticized by the

Supreme Court in the matters of Extra Judicial Execution Victim Families Association

(EEVFAM) v. Union of India30 where the division bench of the SC observed that such a

provision which also available in AFSPA breeds impunity in officials. In this case the court

was faced with a terrifying situation according to which atleast 1528 people had been

subjected to extra-judicial killing due to operation of such a provision in Manipur alone.

Thus, learning from the terrifying experiences in AFSPA such a provision should be deemed

to be unconscionable.

Admissibility of Intercepted Communication

Section 14 of GUJCOCA makes the evidences of intercepted communications to be

admissible for incriminating the accused. However, this section does not grant the same right

to the accused mandating him to furnish the order of the relevant authority at least 10 days

before commencement of the trial.

Phone tapping, wiretapping and other methods of digital surveillance have been held to be

invasion of privacy, thus they have been subjected to a set of procedural and substantive

safeguards. These safeguards can be traced back to the decision of the SC in the matters of

PUCL v. Union of India31 where the court pointed out the need for regulation of the powers

29
Rudul Shah v State of Bihar (1983) 4 SCC 141
30
Extra Judicial Execution Families Association v Union of India (2013) 2 SCC 493
31
PUCL v UOI (1997) 1 SCC 301
of surveillance granted under Section 5(2) of the Telegraph Act. The court also laid down the

safeguards for such exercise of powers. These safeguards were codified in Rule 419-A of the

Telegraphs Rules,1951 which stated that surveillance done without a written order of Home

Ministry of state or centre and such permission shall also be examined by a review

committee. However, non-compliance to these guidelines have been held not to affect the

admissibility of evidences in the matters of State of NCT v. Navjot Sandhu32 .

However, in other jurisdictions such as UK and US exclusionary rule or rule of unfair

operation is used according to which the evidences which are illegally obtained cannot be

used by the prosecution in a manner which unfairly affects the impartiality of the trial.

However, no such bar on adducing of an evidence is mentioned in the act if it affects the

fairness of a trial.

The analysis of this act can be aptly concluded in the words of Justice Douglas

"In days of great tension when feelings run high, it is a temptation to take shortcuts by

borrowing from the totalitarian techniques of our opponents. But when we do, we set in

motion a subversive influence of our own design that destroys us from within."33

32
State of NCT (Delhi) v Navjot Sandhu (2005) 11 SCC 600
33
Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123