Gujarat's controversial Anti-terror Act challenged, notice to govt

The Gujarat High Court on Tuesday issued notice to the Advocate General on a petition challenging the constitutional validity of controversial law 'Gujarat Control of Terrorism and Organised Crime Act' or GCTOC Act, also known as anti-terror act, which came into force in December 2019.

A division bench of Chief Justice Vikram Nath and Justice J B Pardiwala issued the notice and sought response within four weeks. The petition has been filed by a 36-year-old Mohammed Hussain Makrani alias Mamu, a resident of Rajkot, through Advocate Virat Popat. The controversial law, which was passed in 2015 and became the law last year, has several contentious issues which have been raised in the petition.

Popat said that Makrani has been booked under the new law for 10-year-old three offences. One of the cases has already been quashed by the high court while another stayed. Despite that, Rajkot police booked Makrani last month for allegedly being a member of a gang which is involved in murder, attempt to murder, rioting, among others based on offences registered a decade back.

Makrani has challenged the constitutional validity of the act and its contentious provisions including Section 2(1)(c), 2(e), 20(3), 20(4) among others on the basis that they are violative of Articles 20 and 21 of the Constitution.

Section 2 (1)(c) of the act has a provision that a person can be booked if he or she continues with offences “either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.”

Similarly, Section 2(e) defines “organised crime” as “continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cybercrime having severe consequences, prostitution or ransom by an individual, singly or jointly, either as a syndicate, by use of violence…”

The petitioner has said that if both the provisions are read together it would indicate that “a person can be arrested, prosecuted and convicted under the act if there is more than one chargesheet filed against the person in the preceding period of ten years. In other words, the act introduces the creation of a new offence for the acts which have taken place even before the enactment of the law.”

The petition argues that such provisions under the law which didn’t exist when the offence was committed is violative retroactively/retrospectively. “Article 20 is not a remedy but a protection which can’t be taken away by such legislation. The person accused of an offence also has a fundamental right not to be prosecuted for greater penalty than what existed at the time when the offence is committed,” the petitioner has argued.

The petition has also challenged one of the most controversial provisions that allows confession made before a police officer not below the rank of Superintendent of Police to be accepted as admissible evidence.

"This provision violates all statutory and mandatory rights given to the accused. Article 20(3) provides that no person accused of an offence shall be compelled to be a witness against himself," the petitioner has said. The petition also challenges provision that prevents a suspect from getting anticipatory bail stating that such a law is contrary to fundamental right safeguarded under Article 21.