The “draconian” Uttar Pradesh Control of Organised Crime Act, 2017 (UPCOCA) draft bill to fight organised crime and land and mining mafia is feared to be used as a weapon to settle political scores, suppress rivals and voices of dissent and target religious minorities.
The proposed law was brought in the 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).
Though the Yogi Adityanath-led Bharatiya Janata Party (BJP) government in the state considers the proposed law “efficient” to combat organised crime, opposition parties have come together to disapprove of it.
Former Chief Minister and Samajwadi Party leader Akhilesh Yadav has opposed the bill, saying that it was only being brought to “intimidate leaders of other political parties” and “deceive the people”.
“First the CM said law and order would improve after encounters. But it only got worse. Now they are saying UPCOCA. This is to deceive the people...UPCOCA will not improve law and order,” he said, recalling the recent murder of a former BJP MLA’s son in the heart of Lucknow.
Bahujan Samaj Party (BSP) supremo and four-time former Chief Minister Mayawati has said that the UPCOCA will be used for the “suppression of Dalits, poor and religious minorities”.
Some of the crimes defined under the UPCOCA are -- land grab (government and non-state property), illegal mining, manufacture and sale of illegal medicines and illicit liquor, money laundering, wildlife smuggling, extortion, abduction syndicate, hafta collection, murder, conspiracy to murder and white-collar offences.
The Bill says that whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall not be less than seven years but which may be extended to life imprisonment along with a fine of minimum of ₹15 lakh.
The UPCOCA has 28 provisions in addition to the Gangsters Act, the existing law against organised crime in U.P.
What makes the proposed law ‘draconion’
1. The accused booked under the UPCOCA will not be able to secure bail before six months of their arrest.
2. 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.
3. 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 chargesheet from 90 days to 180 days.
4. The 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?
5. 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.
6. Instead of organising identification parade, the police will get the accused identified through videos and photos that can easily be tampered with.
7. 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 and 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.
8. The UPCOCA law would give special powers to the police to arrest accused and members of the crime syndicates. Under the proposed Bill, the state would be empowered to seize the property of such people after taking the consent of a special court constituted to hear the cases - a provision which is already there in the Gangster Act.
9. The new Bill will allow the state to confiscate such assets after the conviction. As in the case of the MCOCA, the UPCOCA will also empower the police to intercept wire, electronic or oral communications and present them before a court as evidence against the accused.
10. 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's defence
The government argues that the Bill has provisions to check misuse. Here is how: (a) 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, (b) the permission of the zonal IG will be required before filing the chargesheet, (c) assets would be taken over by the state with the permission of the court and (d) special court would be constituted for hearing cases under the proposed law – which proposes a state-level organised crime control authority.
Civil society and law experts cry foul
According to Rihai Manch – the Lucknow-based organisation 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,” Advocate Mohammad Shoaib, chief of the Rihai Manch, told Newsclick.
Talking about bringing the media under the gamut of the Act, he 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,” he further added.
“The UP government has written such a horrible chapter of “fake encounters” in the name of eradicating criminals in the past six months even in the absence of such a draconian law. What will it do if the proposed bill becomes a law?” he asked.
After the Yogi Adityanath government came to power in Uttar Pradesh with a promise to improve law and order, encounters appear to have been taken up as part of a new strategy to control crime. Data released by the government said more than 430 encounters have been carried out over the last six months, which roughly means one encounter happened every 12 hours.
The Chief Minister recently said, “Criminals will be jailed or killed in encounters”. Taking suo moto cognizance of the report, the National Human Rights Commission has issued a notice to the UP Chief Secretary calling for a detailed report on the matter.
“NHRC has taken suo moto cognizance of media reports about the Government of Uttar Pradesh, allegedly, endorsing killings in encounters by police seeking improvement in law and order situation in the State,” the human rights body said in a statement.
“It has observed that even if the law and order situation is grave, the State cannot resort to such mechanism, which may result in the extrajudicial killings of the alleged criminals. The reported statement of the Chief Minister tantamounts to giving police and other State governed forces, a free hand to deal with the criminals at their will and, possibly, it may result into abuse of power by the public servants."
“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,” said the NHRC statement.