TMI Blog2010 (4) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... 999, and as such calls for our utmost attention, particularly in view of the fact that, this legislation, although widely used for maintaining law and order, has also generated some controversy alleging its sweeping powers. 2. Since its enactment in 1999, it has found favour with the law enforcement officials and has been enthusiastically applied wherever possible by the law enforcement agencies and the concerned Government. 3. These three appeals have been filed by the appellants herein to assail the common judgment and order dated 19.07.2007 rendered by the High Court of Judicature at Bombay in Writ Petition No. 1136 of 2007, whereby the High Court dismissed the Writ Petition filed by the appellants herein. 4. The appellants herein challenged before the High Court of Bombay, the constitutional validity of that part of Section 2(1)(e) of the Maharashtra Control of Organised Crime Act, 1999 ( MCOCA hereinafter) which refers to `insurgency'. 5. Before we proceed to discuss and deal with the issue at hand, it will be prudent to address an issue that goes to the very root of the jurisdiction of this Court to entertain the present appeal. The constitutional validity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MCOCA are read and understood with the object and purpose of the Act which is to make special provisions for prevention and control of organised crime it is clear that they are worded to subserve and achieve the said object and purpose of the Act. There is no vagueness as the definitions defined with clarity what it meant by continuing unlawful activity, organised crime and also organised crime syndicate. As the provisions treat all those covered by it in a like manner and does not suffer from the vice of class legislation they cannot be said to be violative of Article 14 of the Constitution. Thus, in the said case there was no specific challenge to the constitutional validity of Section 2(1)(e) of the MCOCA. Moreover, even in its observations, this Court had not gone into the question of constitutional validity of the said provision, so far as it relates to insurgency on the ground of lack of legislative competence. 6. We may also refer to the findings of this Court in a situation of this nature, where once the constitutional validity of a provision has been upheld and the same is again challenged on a ground which is altogether different from the earlier one. In Saiyada Mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 submitted that `insurgency' is an offence falling within the ambit of Defence of India, Entry 1 of List I i.e., the Union List, as it threatens the unity, integrity and sovereignty of India and, in any event, under the residuary power conferred on the Parliament under Article 248 read with Entry 97 of the Union List and, therefore, the Maharashtra State legislature did not have legislative competence to enact the latter part of Section 2 (1)(e) of the MCOCA which relates to `promoting insurgency'. Hence, according to him, that part of Section 2(1)(e) of the MCOCA which refers to `promoting insurgency' is ultra vires Article 246(3) of the Constitution. 12. Mr. Shanti Bushan, learned senior counsel appearing for the appellant in Civil Appeal No. 1977 of 2008, in addition to the above noted submission, submitted that Section 2(1)(e) of the MCOCA so far as it covers `insurgency' is repugnant and has become void by enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, amending the Unlawful Activities (Prevention) Act, 1967 ( UAPA hereinafter). He submitted that insurgency and terrorism are two sides of the same coin and after the 2004 amendment, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... syndicate where they sought to promote insurgency is a logical extension of the remedy provided under the MCOCA to deal with the growing menace in the society. 15. While making a comparison between the two Acts, they submitted that the UAPA punishes the acts of insurgency per se whereas under the MCOCA, it is not the act of insurgency per se which is punishable, for under the MCOCA, `insurgency' is the motive for the act and not the act per se. They further submitted that at the first blush, they may appear to be similar but a closer scrutiny would dispel any such notion and would show a vast area of dissimilarity between the two. 16. While making their submissions on the issue of implied repeal, they submitted that promoting insurgency as one of the elements of the MCOCA may overlap in some cases in its application with the relevant provisions of the UAPA, but the question of implied repeal would arise only where it overlaps in its entirety. They further submitted that the law is settled on the point that a given act can constitute more than one offence under two or more statutes, but merely because an act also becomes an offence under a subsequent statute does not auto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the question of legislative competence of the Maharashtra State legislature to enact a law like MCOCA is concerned, the Bombay High Court in the impugned judgment has held that MCOCA in pith and substance falls in Entry No. 1 of List III which refers to the criminal law. Though the Bombay High Court has noted the fact that the State of Maharashtra could have relied upon Entry 1 of List II i.e. the State List which refers to `public order' to contend that the term `promoting insurgency' is relatable to that entry, the High Court refrained itself from analyzing the said aspect because the respondent State had, before the High Court, taken a stand that `promoting insurgency' would be covered by Entry 1 of List III i.e. the Concurrent List. 21. Before proceeding further, it would be appropriate on our part to mention that we do not concur with the said finding of the High Court that the MCOCA in pith and substance falls only in Entry No. 1 of List III. This Court in Bharat Shanti Lal Shah (supra) has already held that the subject-matter of the MCOCA is maintaining public order and prevention by police of commission of serious offences affecting public order, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture is competent to enact a law for maintenance of public order. The said entry is reproduced herein below:- Entry 1, List II 1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power). 28.It has been time and again held by this Court that the expression `public order' is of a wide connotation. In Ramesh Thappar v. State of Madras [1950 SCR 594], it has been held by this Court that `public order' signifies a state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established. This Court, in para 8, quoted a passage from Stephen's Criminal Law of England, wherein he observed as follows: Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is in each of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State. The acts become more and more grave as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquility, then through public order and lastly to the security of the State. This Court further held that in the judgment of this Court, the expression in the interest of public order as mentioned in the Constitution of India encompasses not only those acts which disturb the security of the State or acts within order publique as described but also certain acts which disturb public tranquility or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression in the interest of public order is very wide. 31.The meaning of the phrase public order has also been determined by this Court in Kanu Biswas v. State of West Bengal [(1972) 3 SCC 831] where it was held that the concept of public order is based on the French concept of ordre publique and is something more than ordinary maintenance of law and order. 32.It has been seen that the propositions laid down in the above noted cases have been time and again followed in subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme. This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List. 36.A Constitution Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden. 38.It is common ground that the State Legislature does not have power to legislate upon any of the matters enumerated in the Union List. However, if it could be shown that the core area and the subject-matter of the legislation is covered by an entry in the State List, then any incidental encroachment upon an entry in the Union List would not be enough so as to render the State law invalid, and such an incidental encroachment will not make the legislation ultra vires the Constitution. 39.In Bharat Hydro Power Corpn. Ltd. v. State of Assam [(2004) 2 SCC 553], the doctrine of pith and substance came to be considered, when after referring to a catena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.' 40.Now that we have examined under what circumstances a State Law can be said to be encroaching upon the law making powers of the Central Government, we may proceed to evaluate the current issue on merits. Let us once again examine the provision at the core of this matter: 2(1)(e) organized crime means 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 or 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 person or promoting insurgency; After examining this provision at length, we have come to the conclusion that the definition of organized crime contained in Section 2(1)(e) of the MCOCA makes it clear that the phrase promoting insurgency i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o affect public order and the State Legislature is empowered to enact laws aimed at containing or preventing acts which tend to or actually affect public order. Even if the said part of the MCOCA incidentally encroaches upon a field under Entry 1 of the Union list, the same cannot be held to be ultra vires in view of the doctrine of pith and substance as in essence the said part relates to maintenance of Public Order which is essentially a State subject and only incidentally trenches upon a matter falling under the Union List. 43.Therefore, we are of the considered view that it is within the legislative competence of the State of Maharashtra to enact such a provision under Entries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of the Seventh Schedule of the Constitution. Repugnance with Central Statute 44.This brings us to the second ground of challenge i.e. the part of Section 2(1)(e) of the MCOCA, so far as it covers case of insurgency, is repugnant and has become void by the enactment of Unlawful Activities (Prevention) Amendment Act, 2004, amending the Unlawful Activities (Prevention) Act, 1967. 45.The Bombay High Court, in para 44 of the impugned judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconsistency between laws made by Parliament and laws made by the legislatures of States.--(1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt further laid down the conditions which must be satisfied before any repugnancy could arise, the said conditions are as follows:- 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. Thereafter, this Court after referring to the catena of judgments on the subject, in para 38, laid down following propositions:- 1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation. 51.In National Engg. Industries Ltd. v. Shri Kishan Bhageria [(1988) Supp SCC 82], Sabyasachi Mukharji, J., opined that the best test of repugnancy is that if one prevails, the other cannot prevail. 52.In the light of the said propositions of law laid down by this Court in a number of its decisions, we may now analyze the provisions of the two Acts before us. 53.The provisions of the MCOCA create and define a new offence of `organised crime'. According to its Preamble, the said Act was enacted to make specific provisions for prevention and control of, and for coping with, criminal activity by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence. Clause (e) (extracted earlier hereinabefore), defines the expression organised crime to mean any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or 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 person or promoting insurgency. Clause (f), defines organised crime syndicate to mean a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime. The said definitions are interrelated; the organised crime syndicate refers to an organised crime which in turn refers to continuing unlawful activity . MCOCA, in the subsequent provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And whereas the Central Government, in exercise of the powers conferred by section 2 of the United Nations (Security Council) Act, 1947 (43 of 1947) has made the Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007; And whereas it is considered necessary to give effect to the said Resolutions and the Order and to make special provisions for the prevention of, and for coping with, terrorist activities and for matters connected therewith or incidental thereto. 56.Section 2 (1)(k) and Section 15 of the UAPA, 1967 which were inserted by the 2004 amendment and define and deal with the term `terrorist act', read as under : 2(k). `terrorist act' has the meaning assigned to it in section 15 and the expression `terrorism' and `terrorist' should be construed accordingly. 15. Terrorist act. Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Explanation.- For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as public functionary. From a perusal of Section 15 before and after amendment of the UAPA, it comes to light that though after amendment there have been certain additions to the provision but in substance the provision remains the same. 57.Sub-Clauses (l) and (m) of sub Section (1) of Section 2 of the UAPA, which define the term `terrorist gang' and `terrorist organisation' respectively, read as under : (l) terrorist gang means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; (m) terrorist organisation means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed; The following are the Terrorist Organisations which are mentioned in the First Schedule of the UAPA:- 1. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out by the forces like the appellant. 58.Section 2 (1)(o) of the UAPA, which defines the term `unlawful activity', reads as under: - (o) unlawful activity , in relation to an individual or association, means any action taken by such individual or association whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise, - (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India; 59.Before we proceed to analyse the provisions of the two statutes in order to ascertain whether they are repugnant or not, we may note that it is well settled that no provision or word in a statute is to be read in isolation. In fact, the statute has to be read as a whole and in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted with the objective of gaining pecuniary benefits or economic advantages and which over a period of time have extended to promoting insurgency. The concept of the offence of `terrorist act' under section 15 of the UAPA essentially postulates a threat or likely threat to unity, integrity, security and sovereignty of India or striking terror amongst people in India or in foreign country or to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act. The offence of terrorist act under Section 15 and the offence of Unlawful activity under Section 2 (1) (o) of the UAPA have some elements in commonality. The essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some physical act like use of bombs and other weapons etc., Section 2 (1)(o) takes in its compass even a written or spoken words or any other visible representation intended or which supports a challenge to the unity, sovereignty, integrity and security of India. The said offences are related to the Defence of India and are covered by Entry 1 of the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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