PUCL Bulletin, November 2002

Protest against new POTO-like ordinance in Arunachal Pradesh

Large areas of Arunachal Pradesh are still governed by customary laws, which vary from tribe to tribe and are administered under the Village Councils. The administration of civil and criminal justice was born from the Assam Frontier (Administration of Justice) Regulation 1, 1945 recognizing the importance of customary laws and therefore, giving wide powers and functions to the village authorities. Hence, the people of the state and the Government of Arunachal Pradesh do not feel the necessity of setting up of jails in the state. Furthermore, the Cr. Pc, 1973 has not been made applicable to the state.

The powers of the Executive and Judiciary have not been bifurcated till date. It may also be noted that Arunachal Pradesh is considered as the most peaceful state in the North East and does not have any terrorist organization or any history of organized criminal activity.

However, The Arunachal Pradesh state Cabinet, in a meeting on April 1st, approved the promulgation of an ordinance similar to the POTO in the state called the Arunachal Pradesh Control of Organized Crime Ordinance 2002 (APCOCO) with immediate effect, stating that promulgation of the ordinance was necessary, as the centrally approved POTO does not have much relevance in the context of Arunachal, as underground outfits active in the North Eastern region are not specified in it. Therefore a special act was needed for the government to check the activities of undergrounds.

In response to the proposal that seeks to override normal criminal law and procedures the All Arunachal Pradesh Students' Union in a joint meeting of the representative from various working NGOs, senior citizen, legal experts, university, college students, and students representatives from various districts and blocks challenged the validity of the promulgation of the Arunachal Pradesh Control of Organised Crime Ordinance, 2002 in the guise to check the activities of certain tribals misusing the traditional weaponries and UGs active in the state. It was felt that the APCOCA has been drafted on the line of Maharashtra Control of Organised Crime Act, 1999 which itself had been framed on the line of the now lapsed TADA.

This Act was allowed to lapse as a consequence of wide condemnation from every section of the civil society as it proved to be one of the most abused and repressive legislation our country has seen, with thousands detained all over India without ever getting a conviction. Yet the Government of Arunachal Pradesh, almost in a clandestine manner, has designed to introduce TADA in Arunachal Pradesh under a different name.

On contrary to the strong opposition from the people of the state the Ordinance the Arunachal Pradesh Control of Crime Ordinance Bill, which seeks to control activities of organized crime syndicates and gangs was passed in the State Legislative Assembly on August 23, 2002. Surprisingly, the ruling Congress Govt. led by Mr. Mukut Mithi who has the support of 59 legislators were issued 3-line whip to its members to pass the bill denying the right of the members to vote on the Bill according to their conscience.
AAPSU's Strong Concerns

The term 'organized crime' as stated in the Act, mean any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence of intimidation or coercion or other unlawful means, with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other persons or promoting insurgency is meant to obviously target all Political Opponents, Pressure Groups, NGOs, etc.

Under the Act, acts of organized crimes will be punishable by death or life imprisonment if it results in someone's death and for any other offence, imprisonment of not less than five years, which may be extended upto life, will be awarded with a provision of imposing a fine of Rs. five lakh. Whoever harbours or conceals any member of an organized crime syndicate shall be awarded punishment same as above. It also applies to those who conspires or attempts to conspire with the crime syndicates.

It provides legal admissibility of confessions extorted under duress by police officer as evidence against the accused person as per sec. 18; impunity is granted to govt. servant and police officer u/s 26, identification of witnesses is not to be disclosed, u/s 19 and the proceedings are to be held in camera; the responsibility of proving innocence lies on the accused. Prosecutor can concoct, cook up, and fabricate, as it likes. The established jurisprudence that a person is innocent until and unless proved guilty is rejected.

Obtaining bail is impossible, sec. 438 of Cr. P.C., i.e., right to anticipatory bails has been taken away (u/s 21 (3). Re-remand to police custody from jail custody is provided (u/s 21 (7). The Special Court can extend the ninety days upto one hundred and eighty days u/s 21 (2) (a).

The special court has power to over rule any other laws, by trying any offence under this Act acts a person has committed are under any other law. u/s 7(1) & (2). Power, procedure, jurisdiction, and functioning are absolute.

Under sec. 5(3), a judge is to be appointed for a special court with the concurrence of the Chief Justice of the Guwahati High Court. Whereas in the British India regime, the Rowlett Act provided for trial by a special court consisting of three High Court judges u/s 5 and only the three judges unanimous decision could send a person to gallows.

Sec. 20 (1) provides for attachment of all movable or immovable properties of any person convicted under any provision of the Act. This will be in addition to imprisonment/death sentence provided in the relevant provision. In effect the family of the convicted person will be thrown on the street with legal sanction, even if they were not accused of being even remotely connected with the offence.

Moreover, u/s 20 (2) any person, if accused of any offence under this Act, the Special Court can attach property during the period of trial. It will include almost anything the police want to lay its hands on. Experiences of application of TADA in Punjab and elsewhere and that of MOCA in Maharashtra shows this is gong to be a convenient tool for amassing huge wealth and prime properties by the police.

U/s 14 (a) (1) the right to privacy can be nullified by a stroke of the pen by the competent authority. It may order or approve the interception of wire, electronic, or oral communication by the investigating officer when such interception may provide or has provided evidence of any offence involving an organized crime.

We do hold that the existing formal legal framework are adequate to deal with the law and order situation of the state and the imposition of stringent measures and giving blanket powers to police to act with impunity will not only destroy the democratic polity, but also turn Arunachal Pradesh into a police state.

We also hold the present Act as illegal in as much as it seeks to suppress the fundamental rights of the citizen and victimize political opponents. There has been unanimous opposition from the people of the state against the act. The ground realities of the state do not warrant the enactment in as much as it can lead to large-scale unrest in the state. We further demand that if the state government understands democracy, it should rescind the Act and encourage a full public debate or a referendum.

-- Maji Marging, General Secretary; Dominic Tadar, President - All Arunachal Pradesh Students' Union All Arunachal Pradesh Students' Union

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