Note4Students

From UPSC perspective, the following things are important :

Prelims level : Definition of "Terrorist Act"

Mains level : Curbing terror related activities in India

The Gujarat Control of Terrorism and Organised Crime (GCTOC) Act which received President’s this month comes into effect on December 1.

An edge over MCOCA

• The anti-terrorism law, which three Presidents had returned to the state, draws heavily from The Maharashtra Control of Organised Crime Act (MCOCA), 1999, with two significant differences t.
• The checks on interception of communication that are part of the Maharashtra law are missing in the Gujarat law; and the definition of “terrorist act” in the GCTOCA also covers “intention to disturb public order”.
• These differences make the Gujarat law tougher and broader in scope than MCOCA.

Interception in MCOCA

• Five MCOCA sections (13, 14, 15, 16, and 27) deal with the interception of communication.
• The law states that the interception, if approved by the competent authority, cannot be for more than 60 days and that an extension would require permission.
• The application for extension must include a statement of the results of the interception thus far, or a reasonable explanation for the failure to obtain results.
• Extension, if granted, cannot be for more than 60 days.
• The law provides for a panel to review the orders of the competent authority, and stipulates a prison term of up to a year for unauthorized interception or violation of the rules of interception.
• The analysis of the utility of the interceptions must be submitted to the Maharashtra Assembly within three months of the end of the calendar year.

Who can intercept the calls?

• A police officer of the rank of SP or above is required to supervise the investigation and to submit the application seeking authorisation for the interception of electronic or oral communication.
• The law specifies various details that the application must mention.
• Interception is allowed only if the investigating agency states that other modes of intelligence gathering have been tried, and have failed.
• The competent authority shall be an officer of the state Home department, not below the rank of Secretary to the government.
• In urgent cases, an officer of the rank of Additional DGP or above can authorise interception, but an application must be made to the competent authority within 48 hours of the ADGP’s order.

How is GCTOCA more powerful?

• The Gujarat law deals only with the admissibility of evidence collected through interception, and do not mention the procedure for intercepting communication.
• Its section 14 mirrors a corresponding section of MCOCA, and adds: “Notwithstanding anything contained in CrPC, 1973 or in any other law for the time being in force, the evidence collected shall be admissible as evidence against accused in the court during trial of case.”
• “Any other law” is not defined.
• GCTOCA also has no provision similar to the annual report mandated in the MCOCA.

Definition of ‘terrorist act’

• The Gujarat law’s definition of a “terrorist act” is similar to the one in the repealed Prevention of Terrorism Act (POTA), 2002, but includes “an act committed with the intention to disturb public order”.
• A prosecutor in Gujarat said that the widening of the definition “allows, say, the Patidar agitation to be described as an act of terrorism, allowing stricter punishment”.
• This prosecutor underlined that The Unlawful Activities (Prevention) Act (UAPA), 1967, India’s main central anti-terror law, “does not allow an agitation of such form or scale (to be called) ‘terrorism’, and is instead covered under IPC sections, (and) the law of sedition, (which) is not effective enough for stringent punishment”.
• The Gujarat law defines a terrorist act as “an act committed with the intention to disturb 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”

Argument for Gujarat law

• The government could, while framing the Rules, introduce the checks and balances that are absent in the Gujarat terror law.
• In case this is not done, there is also the provision where the court can ask the state government to frame Rules to this effect.
• The constitutional validity of the law can be challenged on a “case-specific” basis.
• With respect to GCTOC, there is a competing interest of law and order versus privacy. However, only time will tell how communication interception is used, and is interpreted.”
• The definition of “terrorist act” was “very wide” — however, there were mechanisms built into the law to limit it.
• The first check is the registration of FIR that can be done by an officer of rank SP or above. Ordinarily, if the power to register FIR is given to a sub-inspector- or inspector-level officer, it can be misused.
• Secondly, assuming that the FIR is registered with a political motive, there is the provision that after submission of chargesheet, sanction from the state government is required before the court takes cognizance.
• While the GCTOC Act does grant power to the executive with respect to the investigation process, there were similar provisions under previous laws TADA and POTA, both now repealed.