Wednesday, November 12, 2008

MHA's advice to the President on GUJCOCA

Today's Indian Express carries a front page story suggesting that MHA has advised President not to give assent to the Gujarat Control of Organised Crime Act, because it is as harsh as POTA, which has been repealed in 2004. The story is intriguing because there are several state legislations pending for President's assent: as on 30.9.2008, there are 37 Bills pending for President's assent, after passage in the state assembly. Besides, there are nearly 50 State Bills,and 3 ordinances waiting for Centre's nod before introduction in the state assembly. One of the Bills, passed by the state assembly, is pending for assent since 1995. Obviously, there is no deadline for the President to either give assent or return a Bill for reconsideration. Check the list of such Bills here. The Centre cleared as many as seven Bills in September 2008, the oldest among them having been enacted in 2005. Therefore, to suggest that the Centre is under some kind of pressure to give assent or return the GUJCOCA to the state assembly for reconsideration is, on the face of it, unconvincing.

On the other hand, will not the MHA be correct if it advises the President that the decision on GUJCOCA be deferred because the Supreme Court is seized of a related matter involving MCOCA, and therefore, sub judice? The Express story is incorrect insofar as it notes that the Supreme Court has upheld the validity of MCOCA in the Bharat Shah judgment. The Bharat Shah case involved the limited issue of whether the State was competent to legislate on interception of communications, as Parliament alone is competent to legislate under the Telegraph Act. The Court applied the doctrine of pith and substance and permitted this overlapping. But a more substantial challenge to MCOCA has been heard by the Supreme Court. The arguments concluded on November 10, and judgment has been reserved. See my recent post here which also links to the latest order through an update.(Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra)
UPDATE:: Gopal Sankaranarayanan's article may be read here.
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