With the introduction of Uttar Pradesh Control of Organised Crime Act (UPCOCA), 2017 – A “tyrannical” Bill, the government is trying to “curb the voices of dissent”. The Uttar Pradesh Yogi Adityanath government on December 13, 2017 after cabinet meeting gives its nod to a new law against ‘organised crime’ named Uttar Pradesh Control of Organised Crime Act (UPCOCA), 2017. The law was brought in the State Assembly on December 20 for discussion, after it was approved by the State Cabinet a fortnight back. The bill has been prepared on the lines of the stringent Maharashtra Control of Organised Crime Act (MCOCA), 1999. The government said the UPCOCA was brought to check and curb acts of organised crime and mafia, including land grabs, illegal mining, the sale of illegal medicine and illicit liquor, wildlife smuggling, extortion, abduction syndicates as well as white-collared criminals.
But in this law, provisions are harsher than the existing anti-terrorism law called the Unlawful Activities (Prevention) Act, 1967. The UPCOCA gives the police such powers as have not been granted by any law in the state till now. The Bill has passed from the state assembly to the legislative council, and has been referred to a select committee. If the Bill is passed by the council, it will go to the president for approval, which will possibly get.
A similar law was passed by the Uttar Pradesh government in 2007-08 when Mayawati was the chief minister but had to be withdrawn after then President Pratibha Patil refused to give assent for the law.
HOW THIS BILL WAS INTRODUCED IN ASSEMBLY
The Adityanath government presented the Bill in the state assembly and very smartly passes it through voice vote. The vast majority of the legislators and members from the opposition were not given a copy of the Bill and they stayed unmindful of its provisions that obviously disregard the constitution as well as human rights too. Because of this obliviousness, they could neither discuss about the Bill in the assembly nor bring up issues about it. The present Bill has not been opposed by the opposition in a correct and strict manner which is why it passed very easily in the legislative assembly. The opposition just talked about how the law could be utilized against Dalits and Muslims and neglected to contend about the rights reached out to the police under the Act. As a result, it was easy for the BJP to resist the opposition.
Opposition leaders, including Samajwadi Party chief Akhilesh Yadav and BSP chief Mayawati, had said the bill could be misused to settle political scores and feared that it might be used to suppress minorities, the poor and downtrodden sections of the society. Opposition parties have claimed that there are already enough of laws to deal with organised crime in the state and this new bill has the potential to be misused against politicians and student leaders. It had earlier been reported by The Times of India that the Yogi government could bring about such a law following a sudden rise in crime after the elections. After this, the chief minister had given free rein to the police while pursuing hardcore criminals. “Goli ka jawab goli se dena hoga (We have to match bullets with bullets),” he has said repeatedly to emphasis his resolve to end organised crime.
SIMILAR PROVISIONS WITH THE MCOCA BILL
The motivation from MCOCA is very certain in the Uttar Pradesh law. The draft of the proposed law, which could be tabled in the Assembly soon, was prepared in consultation with the State Law Department and after an “intensive study” of MCOCA, Cabinet Minister Shrikant Sharma said.
Capital punishment is a typical discipline in the two laws just like the presence of special courts to try cases. The authorization to intercept wire, electronic or oral communication too is an element in the two laws. Further, the arrangement with respect to the relinquishment of property which has been trumpeted by the legislature as one of the remarkable highlights of the Uttar Pradesh law is available in the Maharashtra law also.
VIOLATION OF OTHER LAWS AND HUMAN RIGHTS
We must worry about the provisions of the Bill that are highly likely to be misused.
The accused booked under the UPCOCA will not be able to secure bail before six months of their arrest. The proposed bill has a provision for prolonged police remand of 30 days for an accused, apart from his closed-door interrogation. This also won’t allow those taken into custody, on the basis of doubts, to get bail early. The most stringent provision of the Bill is section 28 (2) where the judicial custody of a person arrested under the Act has been increased from 15, 60, and 90 days according to the nature of crime as provided in Code of Criminal Procedure section 167 to 60, 180 and 365 days respectively. It means if a person is arrested under the Act, he might remain imprisoned for one whole year before the case begins in a court. Normally, the duration was maximum 90 days. In contrast, this period is 30, 60 and 90 days respectively under the anti-terrorism law.
The convicts would face a minimum jail term of three years and a maximum of life imprisonment or even death sentence. It also levies a fine of Rs 5 lakh to 25 lakhs and extends the period of filing a charge sheet from 90 days to 180 days. In our country, a great deal of complaints is made with respect to torment and torture in police custody and the number of custodial deaths reported is likewise high. In fact, the UP police positions on top as far as human rights infringement as report given by the National Human Rights Commission. As per the information, 44% complaints were produced using UP alone in 2013-14 and 2015-16. Celebrating International Human Rights Day, on December 10, the Uttar Pradesh Human Rights Commission also said that 67% of human rights abuse complaints were made against the police. By expanding the term of remand from 15 to 60 days, the Act gives a free rein to the police to complete its torture hones.
Proposed Bill has shifted the burden of proof from the prosecution to the accused, violating the basic principle of the criminal law that says everyone is innocent until proven guilty. If the person has to prove his or her own innocence, who will conduct the investigation?
The confessional statements made before the police will be the final. This contradicts CrPC, under which only a statement made before a magistrate will be admissible as confession and only when they are made voluntarily. Instead of organising identification parade, the police will get the accused identified through videos and photos that can easily be doctored.
The provisions of the UPCOCA states that those arrested under the Act will be lodged in the high-security area of the jail. Only after the permission of the district magistrate, their relatives or associates will be able to meet them in the jail also only after the approval of the medical board, the accused will be granted permission to stay in in the hospital for more than 36 hours.
The new Bill will allow the state to the police to intercept wire, electronic or oral communications and present them before a court as evidence against the accused. One of the provisions of the proposed Bill requires journalists to take permission from competent authorities before publishing anything on organised crime.
“… passing on or publication of, without any lawful authority, of any information likely to assist organised crime syndicate, and the passing on, or publication of, or distribution of any document, or matter, obtained from the organised crime syndicate,” says the bill.
The government argues that the Bill has provisions to check misuse. That is how:
- cases under the proposed UPCOCA would be filed only after the approval of a two-member committee comprising the Divisional Commissioner and a DIG-rank officer,
- the permission of the zonal IG will be required before filing the charge sheet.
- assets would be taken over by the state with the permission of the court and
- special court would be constituted for hearing cases under the proposed law – which proposes a state-level organised crime control authority.
According to a Lucknow-based organisation (RIHAI MANCH) that works on cases of youths implicated in terror cases said that with the introduction of this “draconian” Bill, the government is trying to “curb the voices of dissent”. In addition to other objectionable provisions, shifting the burden of proof from the prosecution to the accused to prove his or her innocence makes the proposed bill draconian like TADA and POTA. Talking about bringing the media under the gamut of the Act, they said it is “meant not only to persecute the opposition but also to harass media and prevent it from writing about the dark corridors of crime. This is an attempt to put a gag on the media”. Complicating the procedure of the accused meeting the relatives and associates is clearly a violation of his or her basic rights.
S.R Darapuri, retired IPS officer talking to The Hindu said that according to his general experience all such laws were misused against the weaker sections of the society, in particular, Dalits and Muslims. These Special Acts do not help much in controlling crime. The need is for the existing laws to be implemented uniformly. There is a tendency to add more laws to cover up the failure of the state in implementing existing laws.
National Human Right Commission said that “It is not good for a civilized society to develop an atmosphere of fear, emerging out of certain policies adopted by the State, which may result into violation of their right to life and equality before the law.”