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Unconstitutionality of Anti-Terror Laws
The Gujarat Control of Terrorism and Organised Crime Bill, 2015 does more than violate fundamental civil liberties; it is a dangerous instance of the state transgressing the constitutional limits of its lawmaking powers. The federal distribution of powers between the centre and states under the Constitution ensures that only Parliament can legislate on matters such as terrorism that relate to the security or sovereignty of the nation. States cannot arrogate this power to themselves by devising harsh anti-terror laws that apply only within their respective territories. The unconstitutionality of the Gujarat Bill is not just a sum of its numerous illegal parts, but rooted in a deeper, more fundamental failing, namely, that the Gujarat assembly did not have the power to pass such a law in the fi rst place.
The Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 passed by the Gujarat assembly on 31 March 2015 and referred to the President for approval has ostensibly been legislated on the basis that it is concerned with “public order” and/or criminal law and procedure, which are state subjects for lawmaking. It seeks to provide measures against “terrorist acts” and “terrorism.” Section 2(h) defines “terrorist acts” to mean any act committed with the intention to disturb law and order, public order, security and integrity of the state, strike terror in the minds of the people or any section of the people, or to compel the government to abstain from doing any act. It contains provisions that are largely similar to the previous anti-terror law, the Prevention of Terrorism Act (POTA), 2002, which itself was modelled on the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Both TADA and POTA are no longer in force but there is a central law, the Unlawful Activities (Prevention) Act (UAPA), 1967, which was amended in 2008 to comprehensively deal with acts that “threaten the unity, integrity, security or sovereignty of India.” The GCTOC Bill also replicates provisions from the Maharashtra Control of Organised Crime Act (MCOCA), 1999 which is a stringent state law and created the offence of “organised crime.” It is applicable in Maharashtra and also, by special extension, to Delhi.
Serious doubts have been raised about the constitutional validity of the GCTOC Bill in terms of violation of civil liberties and potential abuse of powers and due process by the state authorities (SAHRDC 2015). While some of its provisions are plainly unconstitutional in that they violate fundamental rights guaranteed in Part III of the Constitution, we contend that the bill in its entirety is also contrary to a fundamental principle of federalism: a state legislature does not have the power to make laws on a topic reserved for Parliament.
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