One year has passed since the daylight murder of popular singer Sidhu Moosewala. The tragedy shook the conscience of the public and authorities alike, but it can't be said that organised gang-related criminal activities have abated since.
The state has witnessed a spate of criminal activities, including political murders, extortion, cross-border narcotics smuggling, attacks on police stations and more worryingly, the rise of radical separatist elements.
Per data, there are about 8 to 20 major gangs that are active in Punjab, with 545 gang members and classified into A, B, and C categories by the police. It is evident that the existing framework isn't sufficiently empowered to tackle and prevent organised crime in the state. Low conviction rates, witnesses turning hostile or getting killed before their testimony, and loopholes in investigation have contributed to the growth of organised crime in the state.
For the past few years, there has been a growing consensus among policymakers and security experts that organised crime requires a stringent law for effective tackling. Special legislation has been enacted in other states. Among the most well-known of these laws is the Maharashtra Control of Organised Crime Act, 1999, commonly known as MCOCA. This Act was subsequently adopted by the National Capital Territory, Delhi. Uttar Pradesh, Gujarat and Karnataka have enacted separate laws on similar lines.
It has become imperative to introduce similar legislation in Punjab, to ensure effective legal action against gangsters and the mafia. Legislation like the Punjab Control of Organised Crime Act (PCOCA) will go a long way in empowering the police to take strong deterrent action. It will also ensure speedy trials through special courts, stringent penal provisions and a witness protection mechanism.
What to expect in PCOCA
What sets any special legislation apart are its carefully-worded sections, which fulfil the purpose for which it is enacted. The state has seen three different governments; though each tried to bring in the special Act, no draft could be finalised.
Since MCOCA is the cornerstone legislation aimed at tackling organised crime, Punjab, like other states, is also expected to enact a PCOCA on similar lines. First, it will be important to define "organised crime" and "organised crime syndicate or gang".
Taking a cue from MCOCA, organised crime can be defined as continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of it, by using violence or unlawful means, for economic or pecuniary benefit or for promoting insurgency. Similarly, "organised crime syndicate or gang" would mean a group of two or more persons, acting singly or jointly, indulging in activities of organised crime. Second, one the most stringent provisions of the special legislation is making confession statements given before police officers admissible in trial.
So far, MCOCA and Acts of other states render such confession statements admissible when made before an officer not below the rank of Superintendent of Police. Third, these special laws also provide for the interception of wire, electronic or oral communication, where such interception provides evidence of an offence involving organised crime. MCOCA empowers an officer not below the rank of Superintendent of Police to seek authorisation regarding interception. It also entails an elaborate procedure required for obtaining such an authorisation.
Fourth, there is no provision for anticipatory bail in almost all such special legislation. Last, special courts are provided to exclusively deal with these offences.
How PCOCA Can Be An Improvement Over Existing Acts
There are apprehensions among the political class, civil society groups and experts that stringent legislation like PCOCA is susceptible to misuse. It is feared that the Act can become a tool in the hands of the police and the ruling political hierarchy to blackmail and settle scores.
These reservations are preventing PCOCA from coming into fruition. To allay such fears, a thorough mechanism of checks and balances must be incorporated within the Act.
PCOCA should be invoked with due process and after making an assessment regarding the nature of the crime. An officer of at least the rank of Deputy Inspector General should first write to Additional Director General of Police explaining why the existing framework is inadequate for dealing with a particular offence. Written permission granted by the Additional Director General of Police must elaborate the necessary reasons for invoking PCOCA.
Further, unlike MCOCA, where a confession made before a top-ranking officer is admissible in trial, Punjab can make an improvement by designating an SSP/DIG rank officer. There should be a provision for a mandatory medical check-up before and after the statement is recorded, so that there is no scope of torture for extracting a confession.
Additionally, every confession statement must be verified by the judicial magistrate. An accused, after making the statement, should be produced before the judicial magistrate on the same day and the judicial magistrate must authenticate that the statement was made voluntarily and without duress. Extreme care must be exercised while intercepting communications for the purposes of investigation under the Act. An officer not below the rank of Senior Superintendent of Police/Deputy Inspector General must seek written permission before any form of wire or phone or electronic tapping.
Written permission should be granted by both the ADGP and Home Secretary, who shall verify whether other options for inquiry or intelligence gathering have been exhausted. It must also be ensured that such interception shall not continue beyond the time period required for the investigation.
If these provisions are misused, the police must punish those responsible, with imprisonment and fine. Importantly, Punjab can take a cue from the Information Technology (Procedure and Safeguards for the Interception, Monitoring and Decryption of Information) Rules, 2009, which provide for written orders from a competent authority in order to intercept communications.
After the Puttaswamy judgment, Right to Privacy has been recognised as a fundamental right. The state must be cautious while allowing interception and tapping.
Another critical component of PCOCA should be the protection of witnesses during the trial and testimonies. Identities of witnesses must be kept secret, even in court records and orders.
The testimonies of critical witnesses should be recorded at a place decided by a Special Court. In-camera proceedings should be allowed, and key witnesses should be able to testify via online video mode.
The special court should conduct trials on a daily basis for the speedy disposal of cases. Another key aspect of the Act should be punishment for malicious prosecution. Where it is evident that an officer has taken action beyond the limits and confines of the Act, or has maliciously and falsely implicated somebody, they must be held criminally liable.
Avoiding past mistakes
The Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) was one of the first special acts enacted to curb terrorism and militancy. However, it came under heavy criticism due to misuse.
Around 75,000 people were detained under the law, of which 73,000 were released due to the lack of evidence, and less than two percent were convicted.
TADA ultimately lapsed in 1995 and gave way to the Prevention of Terrorism Act, 2002 (POTA) which aimed at strengthening the anti-terrorism mechanism. However, it was repealed two years later because of gross abuse by law enforcement agencies, especially against political opponents.
While contemporary songs and the pop culture of Punjab is rife with gangs and guns, there is a mass exodus of youth towards Canada, US and Australia.
A whole generation has been lost owing to drug abuse and obsession with foreign migration. The deteriorating law and order situation has further acted as a catalyst for disillusionment.
An Act like PCOCA can go a long way in instilling confidence by providing a robust mechanism to deal with organised crime. However, due caution, along with checks and balances, must be inherent in the Act to prevent its abuse. The state still bears deep scars from police action during the militancy era. It is crucial that the new law is more Justinian than Draconian.
(Parikshit Goyal is a lawyer.)
Disclaimer: These are the personal opinions of the author.