Monday, February 1, 2016

[Editorial # 54] Gujarat must give up terror bill : The Hindu

[Following editorial has been published in The Hindu on 1st February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

Gujarat should give up its persistent efforts to get the controversial Gujarat Control of Terrorism and Organised Crime Bill, 2015, approved by the President. First moved by Narendra Modi in 2003 when he was Chief Minister of the State, the Bill has been facing objections on the ground that it contains some draconian provisions. The Centre refused to clear the Bill three times when the United Progressive Alliance was in power. The Union Home Ministry has now recalled the Bill from the office of the President, to whom it had been sent for assent. The reason appears to be that it wants the Bill to be reworked based on additional inputs from the State government. The controversial nature of the GCTOC Bill became apparent after A.P.J. Abdul Kalam as President objected to a clause that made evidence based on interception of communication admissible in court. His successor, Pratibha Patil, too declined assent. In March 2015, the Assembly passed the Bill and sent it afresh to the Centre for presidential assent. The Centre ultimately prevailed in having the clause that permitted the State Home Secretary to authorise the interception of telephone calls on his own dropped. Under the Indian Telegraph Act, State Home Secretaries do authorise telephone taps, but using power delegated to them by the Centre. The watered-down Bill was sent last September to the President for his assent. It has been recalled now, possibly because of fears that President Pranab Mukherjee might refuse assent again.

India’s repeated experiments with anti-terrorism laws have been, by and large, unsuccessful. The Terrorist and Disruptive Activities (Prevention) Act, 1985, a law considered as draconian as the Rowlatt Act of the colonial era, and its latter-day version, the Prevention of Terrorism Act, 2003, had been allowed to lapse after it was found that they were prone to persistent misuse. However, with the substantive amendments made to the Unlawful Activities (Prevention) Act in 2012, the country does have an effective law to curb modern-day terrorism. The Gujarat law is modelled on the Maharashtra Control of Organised Crime Act, but that does not make it any more acceptable. The Maharashtra law itself has not achieved any remarkable success in curbing organised crime. When it was invoked recently in a cricket spot-fixing case in Delhi, it failed miserably during trial, demonstrating how such laws can be reduced to a mockery through improper application. The GCTOC Bill also has provisions similar to earlier anti-terrorism laws, such as making confession to a police officer of the rank of Superintendent of Police admissible in court, and allowing 180 days, instead of the usual 90, for the filing of a charge sheet. There is really no need for more State-level laws of such a nature. Police investigators need better resources and training to combat organised crime and terror, and not laws that abridge and modify conventional criminal procedure to the detriment of human rights.


1. What are the provisions of Gujarat Control of Terrorism and Organised Crime Bill, 2015 which are being considered "draconian" by the editor?

2. How can a bill passed by a State Assembly be held back by the Union Government? What are the constitutional provisions related to it?

3. Do you think reserving the bills passed by the state assemblies for Presidential assent goes against the principles of federal polity? Explain.

4. What powers of the Viceroy pertaining to bills passed by legislative assemblies during the pre-independence era went against the democratic principles? How are the current legislative powers provided to the President which are similar/dissimilar to those of the Viceroy?

5. What are the various features of Indian polity which go against the philosophy of federalism?

6. What are the various anti-terrorism laws enacted in the past by Parliament and State Assemblies? 

7. Evaluate the success of various Anti-Terrorism laws in meeting their intended objectives.

8. What is Rowlatt Act? What was the response of Indian nationalist leaders against it?

9. What are the various anti-terrorism mechanisms established by India to address the menace of terrorism? 

10. What do you mean by Organised Crime? What are various types of Organised Crime?

11. It is generally alleged that the various anti-terrorism acts enacted by the Parliament and State Assemblies have certain provisions which violate human rights. Do you agree? Justify 


  1. The Gujarat Terrorist Bill(GTB) was one of the steps which was taken up by the Modi when he was the chief minister of the state to counter terrorism.
    According to the editor the draconian provision of the Bill are as follows:
    1.Confession made to the police(of the rank superintendent of police ) will be considered as a valid evidence.
    2.The communication made through the phone which was tapped could be used as a valid evidence.
    3.Deviating from the general rule of filing charge sheet within 90 days to 180 days.

  2. Article 200 of the Constitution of India provides for the power of the Governor to give his/her assent to bills which are passed by the both the houses of the legislature of state(Provided there is legislative council). It empowers the governor to withhold his/her assent to any bill and reserve it for the consideration of president. It is to be noted that the word used in the second proviso is 'shall' and not 'may' so it becomes mandatory on the part of governor to sent it for consideration to the president if he/she feels that if the bill becomes law it will endanger the powers of the High Court as provided under the constitution of India.
    Further Article 201 lays down the procedure Post-reservation by the Governor. It is provided in this Article that in case the bill is reserved by the governor for presidents consideration then the president will decide whether he assents or dissents to the bill. Then it is further provided that in case the president returns the bill with or without his/her recommendation he/she may direct the governor to sent it back to the state legislature to make certain amendments. When such amendments are made or not made by the state legislature and again passed by them, then it has to be sent to the president again for his/her assent.

  3. In my opinion the reservation of the bill for presidents assent doesn't goes against the federal polity.
    1. Not applicable to money bill-It is only restricted to certain laws which will take away the powers of high court under constitution of India and is inapplicable in the case of Money bill.
    2.Maintains constitutional machinery in the state- It acts as a safety measure and ensures that the state is working in accordance with the constitution of India.
    3.Based on the opinion of the Governor- Although it is a mandatory provision but is qualified by the opinion of the Governor. The Governor is the sole authority to decide whether or not a particular bill should be reserved. And as governor is the representative of state he/she is the best judge to decide the proper functioning of his/her state.
    4. The President cannot suo motu usurp reservation of any bill- Until and unless the bill is reserved by the governor the president doesn't comes into picture.
    5.Maintains separation of powers in the State- In case there is any situation wherein the Legislature is trying to infringe upon the field of judiciary then the same can be balanced out by the governor by Articles 200 and 201 of the constitution of India.

  4. The Rowlatt Act was passed by the Imperial Legislative council in 1919.
    It was named after Justice S.A.T. Rowlatt’s. Who sent a report through the S.A.T Rowlatt's committee which was formed in 1918. The committee was formed with the basic objective of replacing the wartime defense of India Act,1915.
    Provisions the Act such as certain parties could be tried without the Jury.(Jury system was in place that time), Imprisonment without trial.
    This was opposed by majority of the non-official members of the legislative council. This Ultimately lead to the massacre of Amritsar and non-cooperation movement.
    The irony was these acts were never implemented.

  5. Various features of Indian polity that goes against principle of federalism are as follows:
    1.Single citizenship- There is no dual citizenship, that is one for state and one for the union.
    2.Article 248 provides for Residual powers of parliament to legislate on subjects which are not mentioned in the state list and concurrent list.
    3.Further under Article 250 it is provided that in case of emergency the Parliament will have power to legislate on the subjects provided in the state list.
    4.In Article 251 it is laid down that in case there is a conflict between the laws made by the state legislature and the Parliament, irrespective which law was made first, the law made by the parliament will prevail over the laws made by state legislature.
    5.Under Article 356 the provisions for proclamation of emergency in case of failure of constitutional machinery in the state has to be done by the president of India who acts on the opinion of the council of ministers.
    6.Article 155 provides that the governor will be appointed by the President of India and further Article 156 provides that the Governor of any state shall hold office during the pleasure of the President.
    7.Appointment and transfer of High court Judges-Under article 217 the High Court Judge has to be appointed by the President of India and further Article 222 The Judges of one high court can be transferred by the president of India from one state to another.
    8. The Election commission of India is also in charge for conducting elections of state legislatures.


  6. Unlawful Activities (Prevention) Act, 1967, passed by the Parliament.
    Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) passed by the Parliament.
    The Maharashtra Control of Organised Crime Act, 1999 (MCOCA). Passed by the state legislature of Maharashtra.
    Prevention of Terrorism Act, 2002.

  7. The definition of organised crime is given under Section 2(e) of the The Maharashtra Control of Organised Crime Act, 1999. It lays down that any continuing unlawful activity which he/she does either alone or together with some one else either as a member of an organised crime syndicate or on behalf of such syndicate, having the objective of making pecuniary benefits or any kind of undue advantage and also includes promoting insurgency.

  8. The Gujarat Control of Terrorism and Organised Crime Act was a controversial anti-terrorism act that was passed by the Gujarat Assembly in 2003. It was drawn along the lines of the Maharashtra Control of Organised Crime Act and contained several controversial provisions which are as follows :
    1. The provision that confessions to a police officer of the rank of Superintendent of Police (SP), are admissible as evidence in court. This provision as sought to be revoked when President Pratibha Patil returned the bill for reconsideration.
    2. The provision of 180 days instead of 90 for the process of fling a charge-sheet .
    3. The most controversial of all the provisions is the permission granted to the State Home Secretary to intercept phone communications on his own and the admission as evidence of intercepted communications. It is contended that the right to intercept calls is granted to the State Home Secretary by the Centre and cannot be initiated by him alone.

  9. The bill is perceived to be draconian as the provisions hitherto mentioned could be misused by the law and order enforcers for incarcerating innocents. The provision for admission of confessions to a police officer as evidence is highly problematic as this could result in forced confessions and illegal means of obtaining a confessions through violation of human rights. Moreover the extension provided in the time period to 180 days is also viewed by critics as draconian and a method of remanding a suspect for unnecessarily long period before establishing their innocence or guilt.

  10. 2. The Union Parliament is constitutionally sanctioned to legislate over subjects of the state list under exceptional circumstances such as during a period national, constitutional or financial emergency. Apart from this provision, the Centre also exercises control over State legislation in the following ways :
    a) The Governor of the State can reserve some Bills that have been passed by the state legislature for the consideration of the President. The President would have veto power over such bills. b) Bills on certain matters enumerated in the State List can be introduced in the state legislature only after obtaining the prior sanction of the President for example bills relating to restrictions on the freedom of trade and movement of goods and services or inter-state relations etc..
    In addition the President can also direct the state to reserve money bills or financial bills for his consideration during a financial emergency. The Rajya Sabha can also declare ( by an approval of two-thirds majority), subject of the state list as a subject of national importance and therefore the Parliament can legislate over that subject for a period one year after which the resolution must be passed again by the Rajya Sabha. Finally , the Centre is permitted to legislate over a subject of the state list in the process of fulfilling the obligations of international treaties and agreements.
    From such provisions in the constitution it is clear that the Centre has been accorded a higher status in the legislative sphere.

  11. The Indian constitution has often been termed as a quasi-federal polity , a constitution which has a federal structure but a unitary spirit. It is often thought of a federal bottle filled with unitary spirit, in that there are federal provisions, but the Centre has a slightly higher upper hand. Certain scholars also allege that there is nothing federal about India's polity. Whichever way the case is argued ,there are some advantages and drawbacks of the requirement of Presidential assent for bills passed by the State Assembly.
    First, State Bills are passed after a long process of deliberation, voting, tabling, reviewing etc.. which are all conducted by the directly elected representatives of the people of the state. It can be argued that an indirectly elected President should not be given the right to decide the fate of legislation made by representatives who are well aware of the pulse of the people of their state. It is also quite a strong argument in as much as it diminishes the judgment and authority of the people's representatives and subjects their fate to the decisions of a nominal head who may not be equally well versed with the problems plaguing the state.
    It must however be remembered that a principle that stands above and beyond the federal prerogative is the unity and integrity of the nation and its people as a whole and the protection of the nation's citizens, which is the ultimate duty of the government. The provision for presidential assent acts as a bulwark against any arbitrary legislation that may jeopardize the well-being of the citizen's and may compromise national unity and harmony. It therefore becomes essential that a neutral and constitutional head, exercises his/her functions as a requisite mechanism of checks and balances against the whims and fancies of elected representatives, whose legislative policies are , more often than not, driven by vote-bank politics and considerations of political support and popularity.

  12. 10. Organized Crime refers to organized groupings of transnational, national or local highly centralized enterprises run by criminals who engage in illegal activities usually for the explicit purpose of earning money and profits. Some organized crime groups such as terrorist groups are politically motivated.

  13. 1. Some of the controversial provisions in the Bill are as follows:
    a) Clause 16, which makes confessions before police officers admissible in court.
    b) Empowers police to tap telephonic conversations and submit them in court as evidence.
    c) Extends period of probe from stipulated 90 days to 180 days before filing of charge sheet.
    d) The Bill provides immunity to the State government from legal action. Clause 25 of the Bill states, “No suit, prosecution or other legal proceeding shall lie against the State government or any officer or authority of the State government for anything which is in good faith done or intended to be done in pursuance of this Act.”

    These provisions abridge or modify conventional criminal procedure at the cost of human rights. So according to the editor has been considered "draconian".

  14. 10. Organized crime is a category of transnational, national, or local groupings of highly centralized enterprises run by criminals who intend to engage in illegal activity, most commonly for money and profit.

    In another way it is illegal behavior that is planned and carried out by groups of people in a very systematic fashion.


    * Extortion,
    * Trafficking in humans and animals,
    * smuggling of goods, weapons and drugs,
    * armed robbery,
    * counterfeiting and money laundering.

  15. 6. Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution.

    At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. The measure laws are that

    * Unlawful Activities (Prevention) Act, 1967
    * Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
    * The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)
    * Prevention of Terrorism Act, 2002
    * Unlawful Activities (Prevention) Amendment Act, 2004.

    1. A controversial law was passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers - search and seizure of property without warrants, and wiretapping - in the quelling of civil and political disorder in India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security.
      The law was named Maintenance of Internal Security Act(MISA), 1971


  16. 2. How can a bill passed by a State Assembly be held back by the Union Government? What are the constitutional provisions related to it?
    A. uder normal circumstances any contraversial bill of the state government can be reserved by the governor to the president. Here the president can use his veto power.
    either give his assent to the bill
    return the bill for reconsideration
    withhold the bill .
    However if it returned back to him , it is binding on him to give his assent.

    1. dear pasha question itself is about Union Government, ministry of home affairs is concerned here not Government yaar. Pls revisit ur answer.

  17. 8. On the basis of finding of Rowlatt Committee two bills were introduced in the Imperial Legislative Council.

    * One was dropped and the other was the extension to the Defense of India Regulation Act 1915 and was passed as " Anarchial and Revolutionaries crimes Act 1919 in March that year.
    * This Act authorised the government to imprison for a maximum period of two years, without trial, on the basis of suspision of terrorism.
    * The government also earned the power to refrain the newspapers from reporting and printing news.
    * The Act was ill famed as 'Black Act' by the people and Indians revolt in protest against the Rowlatt Act.

    There was all Indian hatred to this Act. Gandhiji organised a mass protest at all-India level. The three organisation viz. The Home Rule League, Muslim League and the Satyagraha Sabha along with some other small organisation co-ordinated and organised the biggest Satyagraha ever.

    On April 6, 1919, an all India strike was organised. There was mob violence in Bombay, Allahabad and all other major towns. The Satyagraha lost its momentum in the backdrop of Jallianwala Bagh Massacre on April 13, 1919.

  18. There are various categories of organized crime in India :
    1. D.Company- which is a collusion of oragnised crime groups and terrorist groups organized around the personnel of Dawood Ibrahim.
    2. The Punjabi Mafia - originates in Punjab India but carries out its activities in foreign locations mainly Canada, Germany , New York, and the UK. Its memebers are mostly of Jat Sikh origin. One of the major forms of organized crime is the foreign based Indo -Canadian crime cartel that has being carrying out gang violence in Canada since the late 1980s.
    2. The Pashtun Mafia- composed mainly of Pashtun tribe members from Afghanistan's Kunar province led by Krim Lala known as the founder of the Mumbai Mafia whose organized crime syndicate were the most active during the four decades post independence. Dawood Ibrahims cartel is known to have challenged the hegemony of this crime syndicate .

  19. 7. Evaluate the success of various Anti-Terrorism laws in meeting their intended objectives.
    Ans.Success in meeting objectives.
    1. Engaging with others in relevant public safety and anti-terrorism activities.
    2. Assisting in the development of more effective laws, regulations, and policies.
    3. Increasing knowledge and understanding of laws and regulations related to public safety and anti-terrorism.
    4. Improving the litigation and/or prosecution of terrorism-related cases.
    5. Improving international efforts in the fight against terrorism.
    6. Providing legal aid to economically-disadvantaged accused affected by public safety and anti-terrorism initiatives.

  20. I have two questions:
    1. How does the Gujarat bill endanger the powers of the High Court (Which is that provision)?
    2. How Union Home Ministry can withdraw the bill of a state govt and can seek clarifications from the State Govt? (How is the Union Minstry involvement as per constitution come into picture in this scenario?)