PUCL Bulletin, November 2002
against new POTO-like ordinance in Arunachal Pradesh
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.
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.
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,
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
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
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