REPORTABLE
THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1975 OF 2008
Zameer Ahmed Latifur Rehman Sheikh .... Appellant
Versus
State of Maharashtra and Ors. .... Respondents
with
CIVIL APPEAL NO. 1976 OF 2008
with
CIVIL APPEAL NO. 1977 OF 2008
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
INTRODUCTION
1. This matter concerns an assortment of questions regarding the
interpretation and constitutionality of certain provisions of the
Maharashtra Control of Organized Crime Act, 1999, and as such
calls for our utmost attention, particularly in view of the fact that,
1
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 of the said provision of the MCOCA had
earlier been under the scrutiny of this Court in the case of State of
Maharashtra v. Bharat Shanti Lal Shah and Ors (2008) 13
2
SCC 5. The aforesaid case arose against the judgment of the High
Court of Bombay dated 05.03.2003 in Crl. WP Nos. 27 of 2003,
1738 of 2002 and 110 of 2003, whereby the High Court negated the
contention of the petitioners therein that Section 2 (1)(e) was
violative of Article 13 (2) and Article 14 of the Constitution of India.
In the said case, no appeal was filed against the said finding of the
High Court upholding the constitutional validity of Section 2 (1)(e)
of the MCOCA. However, since the said issue was raised before this
Court during the course of arguments in the said case, this Court
on a conjoint reading of the said provision with the object and
purpose of the MCOCA held that there is no vagueness in the
provision and the same also does not suffer from the vice of class
legislation. The said finding of this Court in the said case as
enumerated, in paras 29 and 30, is as follows: –
“29. In addition, Mr. Manoj Goel Counsel for the Respondent
No. 3 submitted that Section 2 (d), (e) and (f) and Sections 3
and 4 of the MCOCA are constitutionally invalid as they are
ultra virus being violative of the provisions of Article 14 of
the Constitution. But we find that no cross appeal was filed
by any of the respondents against the order of the High
Court upholding the constitutional validity of provisions of
Section 2(d), (e) and (f) and also that of Sections 3 and 4 of
the MCOCA. During the course of hearing, Mr. Goel, the
counsel appearing for one of the respondents herein tried to
contend that the aforesaid provisions of Section 2(d), (e) and
(f) of the MCOCA are unconstitutional on the ground that
they violate the requirement of Article 13(2) of the
Constitution and that they make serious inroads into the
fundamental rights by treating unequals as equals and are
unsustainably vague. Since such issues were not
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specifically raised by filing an appeal and since only a
passing reference is made on the said issue in the short
three page affidavit filed by the respondent No. 3, it is not
necessary for us to examine the said issue as it was sought
to be raised more specifically in the argument stage only.
30. Even otherwise when the said definitions as existing in
Section 2(d), (e) and (f) of the 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 Mossarrat
v. Hindustan Steel Ltd., Bhilai Steel Plant, Bhilai (M.P.) and
Ors. [(1989)1SCC272] notwithstanding the fact that the
Constitution Bench of this Court had once upheld the
4
constitutionality of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971, the petitioner therein had renewed his
challenge on the ground that the Parliament did not have the
legislative competence to legislate on the subject of the said
legislation. On the facts before it, this Court held that since that
specific aspect had not been debated before the Constitution Bench
in the earlier case, it would not be appropriate to shut out the
petitioner from raising the plea by recourse to the argument that
the point had been concluded in the earlier case regardless of
whether the matter had been debated or not.
7. In the later judgment in Kesho Ram and Co. v. Union of India,
[(1989) 3 SCC 151], a larger Bench of this Court emphasized the
binding nature of the judgments of this Court in the light of Article
141 of the Constitution and has held that the binding effect of a
decision of this Court does not depend upon whether a particular
argument was considered or not, provided the point with reference
to which the argument is subsequently advanced was actually
decided in the earlier decision.
8. However, since there was no specific challenge before this Court to
the constitutional validity of Section 2(1)(e) of the MCOCA and the
point with reference to which the arguments were advanced in the
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present appeal was actually not decided in the earlier decision of
this Court, we wish to proceed to examine the same.
9. The appellants have challenged the constitutional validity of
Section 2(1)(e) of the MCOCA, so far it relates to `promoting
insurgency’ on following two grounds:-
(a) the Maharashtra State legislature did not have legislative
competence to enact such a provision; and
(b) 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
enactment of the Unlawful Activities (Prevention) Amendment
Act, 2004, amending the Unlawful Activities (Prevention) Act,
1967.
10.The learned senior counsel appearing for the parties have advanced
elaborate arguments before us on the aforesaid issues.
11.Mr. Sushil Kumar, learned senior counsel appearing for the
appellant in Civil Appeal No. 1975 of 2008 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
6
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, the
UAPA exhaustively deals with the offence of terrorism and the
meaning of the term insurgency as contained in Section 2 (1)(e) of
the MCOCA is very well included in the definition of `terrorist act’ as
contained in Section 15 of the UAPA. He further submitted that due
to the said anomaly, an act would constitute an offence under
Section 2 (1)(e) of the MCOCA as also under Section 15 of the UAPA
and that while MCOCA lays down a different procedure and
envisages a different competent court to try that offence, the UAPA
provides for a different procedure and different court for the trial of
the same offence. He submitted that the MCOCA will be within the
competence of the State Legislature, but for the addition of the
term `insurgency’ in Section 2(1)(e).
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13.Mr. Bhushan submitted that although the UAPA does not expressly
repeal the impugned provision of the MCOCA, yet the same cannot
stand, for the case in hand is a case of implied repeal. Mr.
Bhushan submitted that if the subsequent law enacted by the
Parliament is repugnant (in direct conflict) to the State Law then
the State Law will become void as soon as the subsequent law of
Parliament is enacted. Thus, according to him, in the present case,
after the 2004 amendment to the UAPA there is an implied repeal
of the MCOCA, so far as it covers `insurgency’.
14.As against this Mr. Shekhar Naphade and Mr. Harish N. Salve,
learned senior counsel appearing for the respondent State of
Maharashtra submitted that the MCOCA deals with the activities of
the organized gangs and the criminal syndicate and that no other
law, including the UAPA, deals with the said subject. They further
submitted that the aim, objective and the area of operation of the
MCOCA and the UAPA are entirely different and that there is no
overlapping in the working of the two Acts. As per the submissions
of learned senior counsel, so far as the MCOCA is concerned, it
deals with the prevention and control of criminal activity by
organized crime syndicate or gang within India, whereas the aim of
the UAPA is to deal with the terrorist activities both within and
outside India. Hence, the target of the MCOCA is the organised
8
syndicate gangs whereas the UAPA targets any person who
indulges in terrorist activity, be it an individual or a group. They
further submitted that the extension of the MCOCA to activities of
organized gangs or 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
9
statute does not automatically result in repugnancy or implied
repeal of the offence defined in the earlier statue. The existing
statute would stand repealed only if the ingredients of the offence
created by the later statute are identical to the ingredients of the
offence in the earlier statute. It is only when the ingredients of both
the offences are identical which makes them irreconcilable that the
statutes are held to be repugnant to each other.
17.Mr. Mohan Jain, learned ASG appearing for the Union of India,
respondent No. 2 herein, and Mr. Amarendra Sharan, learned ASG
appearing for the CBI, supported the contentions made by Mr.
Naphade and Mr. Salve. In addition, they submitted that the
MCOCA creates and defines a new offence and even if it be
assumed that the part of the MCOCA containing the term
`promoting insurgency’ incidentally trenches upon a field under the
Union list then the same cannot be held to be ultra vires applying
the doctrine of pith and substance, as in essence, the MCOCA
deals with the subject on which the State legislature has power to
legislate under the Constitution.
18.Before we proceed further to deal with and answer the issues that
have been raised for our consideration, we wish to make note of a
minor development which took place during the pendency of the
present appeal. A further amendment was made to the UAPA,
1
namely, the Unlawful Activities (Prevention) Amendment Act, 2008
and so the matter was again listed for hearing in order to ascertain
the impact, if any, of the said amendment to the issue in hand. Mr.
Shekhar Naphade, learned senior counsel has, in detail, taken us
through the provisions of the 2008 amendment. At the time of
hearing, the counsel appearing for both the parties have fairly
agreed that the 2008 amendment did not bring about any such
change which would affect the decision of this Court on the issues
raised and urged. It is, therefore, not necessary for us to elaborate
on the said amendments.
Legislative Competence of Government of Maharashtra
19.The legislature of a State derives its legislative power from the
provisions of Article 246(3) of the Constitution of India. Article
246(3) confers on a State legislature the exclusive power to enact
laws for the whole or any part of the territory of the State on any of
the matters enumerated in List II in the Seventh Schedule to the
Constitution.
20.So far 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
1
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 thus would be within
the purview of and be relatable to Entries 1 and 2 of List II as also
to Entries 1, 2 and 12 of List III of Schedule VII to the Constitution
of India. The question that needs to be determined in the present
case is whether the said finding in Bharat Shanti Lal Shah
(supra) can be extended to the term `promoting insurgency’, and
also whether the term `promoting insurgency’, would be within the
purview and relatable to Entry 1 of List II.
1
22.Section 2(1)(e) of the MCOCA, which includes within its ambit the
term `promoting insurgency’, reads as follows:-
“2. (1)(e) `organised crime’ means 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.” [emphasis
supplied]
23.The term `insurgency’ has not been defined either under the
MCOCA or any other statute. The word `insurgency’ does not find
mention in the UAPA even after the 2004 and 2008 amendments.
The definition as submitted by Mr. Salve also does not directly or
conclusively define the term `insurgency’ and thus reliance cannot
be placed upon it. The appellants would contend that the term
refers to rising in active revolt or rebellion. Webster defines it as a
condition of revolt against government that does not reach the
proportion of an organized revolution.
24.In Sarbananda Sonowal v. Union of India, [(2005) 5 SCC 665],
this Court has held that insurgency is undoubtedly a serious form
of internal disturbance which causes a grave threat to the life of
people, creates panic situation and also hampers the growth and
economic prosperity of the State.
1
25.We feel inclined to adopt the aforesaid definition for the current
proceedings as there does not appear to exist any other satisfactory
source.
26.Although the term `insurgency’ defies a precise definition, yet, it
could be understood to mean and cover breakdown of peace and
tranquility as also a grave disturbance of public order so as to
endanger the security of the state and its sovereignty.
27.In terms of Entry 1 of the State List, the State Legislature 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
1
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 the cases mentioned disturbed either by actual
force or at least by the show and threat of it.”
This Court further observed that though all these offences involve
disturbances of public tranquility and are in theory offences against
public order, the difference between them is only one of degree. The
Constitution thus requires a line, perhaps only a rough line, to be
drawn between the fields of public order or tranquility and those
serious and aggravated forms of public disorder which are calculated
to endanger the security of the State.
29.In Superintendent, Central Prision v. Ram Manohar Lohia
[(1960) 2 SCR 821] this Court had held that “Public order” is
synonymous with public safety and tranquility, and it is the
absence of any disorder involving a breach of local significance in
contradistinction to national upheavals, such as revolution, civil
strife, war, affecting the security of the State. Subsequently, in Dr.
Ram Manohar Lohia v. State of Bihar [(1966) 1 SCR 709],
Hidayatullah, J., held that any contravention of law always affected
1
order, but before it could be said to affect public order, it must
affect the community at large. He was of the opinion that offences
against “law and order”, “public order”, and “security of State” are
demarcated on the basis of their gravity. The said observation is as
follows:-
“55. It will thus appear that just as “public order” in the
rulings of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting “security of
State”, “law and order” also comprehends disorders of less
gravity than those affecting “public order”. One has to
imagine three concentric circles. Law and order represents
the largest circle within which is the next circle representing
public order and the smallest circle represents security of
State. It is then easy to see that an act may affect law and
order but not public order just as an act may affect public
order but not security of the State…….”
30.The Constitution Bench of this Court in Madhu Limaye v. Sub-
Divisional Magistrate, [(1970) 3 SCC 746], while adopting and
explaining the scope of the test laid down in Dr. Ram Manohar
Lohia v. State (supra), stated that the State is at the centre of the
society. Disturbances in the normal functioning of the society fall
into a broad spectrum, from mere disturbance of the serenity of life
to jeopardy 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
1
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 ordre 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 judgments
of this Court and still govern the field.
33.At this stage, it would also be pertinent to note the findings of the
Federal Court in Lakhi Narayan Das v. Province of Bihar [AIR
1950 FC 59] where the Federal Court while considering the scope
and ambit of the expression “public order”, used in Entry 1 of the
provincial list in the Government of India Act, 1935, in para 12 of
the judgment observed as follows:-
1
“The expression “Public Order” with which the first item
begins is, in our opinion, a most comprehensive term and it
clearly indicates the scope or ambit of the subject in respect
to which powers of legislation are given to the province.
Maintenance of public order within a province is primarily
the concern of that province and subject to certain
exceptions which involve the use of His Majesty’s forces in
aid of civil power, the Provincial Legislature is given plenary
authority to legislate on all matters which relate to or are
necessary for maintenance of public order.”
34.It is a well-established rule of interpretation that the entries in the
List being fields of legislation must receive liberal construction
inspired by a broad and generous spirit and not a narrow or
pedantic approach. Each general word should extend to all
ancillary and subsidiary matters which can fairly and reasonably
be comprehended within it. [Reference in this regard may be made
to the decisions of this Court in Navinchandra Mafatlal v.
Commr. of I.T. [AIR 1955 SC 58], State of Maharashtra v.
Bharat Shanti lal Shah [(2008) 13 SCC 5]]. It is also a cardinal
rule of interpretation that there shall always be a presumption of
constitutionality in favour of a statute and while construing such
statute every legally permissible effort should be made to keep the
statute within the competence of the State Legislature [Reference
may be made to the cases of: Charanjit Lal Choudhary v. Union
of India [AIR 1951 SC 41], T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481], Karnataka Bank Ltd. State of
AP [(2008) 2 SCC 254]].
1
35.One of the proven methods of examining the legislative competence
of a legislature with regard to an enactment is by the application of
the doctrine of pith and substance. This doctrine is applied when
the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in
various 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.
1
36.A Constitution Bench of this Court in A.S. Krishna v. State of
Madras [AIR 1957 SC 297], held as under:
“8. … But then, it must be remembered that we are
construing a federal Constitution. It is of the essence of such
a Constitution that there should be a distribution of the
legislative powers of the Federation between the Centre and
the Provinces. The scheme of distribution has varied with
different Constitutions, but even when the Constitution
enumerates elaborately the topics on which the Centre and
the States could legislate, some overlapping of the fields of
legislation is inevitable. The British North America Act,
1867, which established a federal Constitution for Canada,
enumerated in Sections 91 and 92 the topics on which the
Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be
fairly full and comprehensive, it was not long before it was
found that the topics enumerated in the two sections
overlapped, and the Privy Council had time and again to
pass on the constitutionality of laws made by the Dominion
and Provincial Legislatures. It was in this situation that the
Privy Council evolved the doctrine, that for deciding whether
an impugned legislation was intra vires, regard must be
had to its pith and substance. That is to say, if a statute is
found in substance to relate to a topic within the
competence of the legislature, it should be held to be intra
vires, even though it might incidentally trench on topics not
within its legislative competence. The extent of the
encroachment on matters beyond its competence may be an
element in determining whether the legislation is colourable,
that is, whether in the guise of making a law on a matter
within it competence, the legislature is, in truth, making a
law on a subject beyond its competence. But where that is
not the position, then the fact of encroachment does not
affect the vires of the law even as regards the area of
encroachment.”
37.Again, a Constitutional Bench of this Court while discussing the
said doctrine in Kartar Singh v. State of Punjab [(1994) 3 SCC
569] observed as under:
“60. This doctrine of `pith and substance’ is applied when
the legislative competence of a legislature with regard to a
particular enactment is challenged with reference to the
entries in the various lists i.e. a law dealing with the subject
2
in one list is also touching on a 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 of decisions of this
Court on the doctrine it was laid down as under:
“18. It is likely to happen from time to time that enactment
though purporting to deal with a subject in one list touches
also on a subject in another list and prima facie looks as if
one legislature is impinging on the legislative field of
another legislature. This may result in a large number of
statutes being declared unconstitutional because the
legislature enacting law may appear to have legislated in a
2
field reserved for the other legislature. To examine whether
a legislation has impinged on the field of other legislatures,
in fact or in substance, or is incidental, keeping in view the
true nature of the enactment, the courts have evolved the
doctrine of `pith and substance’ for the purpose of
determining whether it is legislation with respect to matters
in one list or the other. Where the question for determination
is whether a particular law relates to a particular subject
mentioned in one list or the other, the courts look into the
substance of the enactment. Thus, if the substance of the
enactment falls within the Union List then the incidental
encroachment by the enactment on the State List would not
make it invalid. This principle came to be established by the
Privy Council when it determined appeals from Canada or
Australia involving the question of legislative competence of
the federation or the States in those countries. This doctrine
came to be established in India and derives its genesis from
the approach adopted by the courts including the Privy
Council in dealing with controversies arising in other
federations. For applying the principle of `pith and
substance’ regard is to be had (i) to the enactment as a
whole, (ii) to its main objects, and (iii) to the scope and effect
of its provisions. For this see Southern Pharmaceuticals &
Chemicals v. State of Kerala [(1981) 4 SCC 391], State of
Rajasthan v. G. Chawla [AIR 1959 SC 544], Amar Singhji v.
State of Rajasthan [AIR 1955 SC 504], Delhi Cloth and
General Mills Co. Ltd. v. Union of India [(1983) 4 SCC 166]
and Vijay Kumar Sharma v. State of Karnataka [(1990) 2
SCC 562]. In the last-mentioned case it was held:
`(3) Where a law passed by the State Legislature
while being substantially within the scope of the
entries in the State List entrenches upon any of the
entries in the Central List the constitutionality of 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
2
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” is used to denote a possible driving force for
“organized crime”. It is evident that the MCOCA does not punish
“insurgency” per se, but punishes those who are guilty of running a
crime organization, one of the motives of which may be the promotion
of insurgency. We may also examine the Statement of Objects &
Reasons to support the conclusion arrived at by us. The relevant
portion of the Statement of Objects & Reasons is extracted
hereinbelow: –
“1. Organised crime has been for quite some years now
come up as a very serious threat to our society. It knows no
national boundaries and is fueled by illegal wealth
generated by contract, killing, extortion, smuggling in
contrabands, illegal trade in narcotics kidnappings for
ransom, collection of protection money and money2
laundering, etc. The illegal wealth and black money
generated by the organised crime being very huge, it has
had serious adverse effect on our economy. It was seen that
the organised criminal syndicates made a common cause
with terrorist gangs and foster narco terrorism which extend
beyond the national boundaries. There was reason to
believe that organised criminal gangs have been operating
in the State and thus, there was immediate need to curb
their activities.
…
2. The existing legal framework i.e. the penal and
procedural laws and the adjudicatory system are found to
be rather inadequate to curb or control the menace of
organized crime. Government has, therefore, decided to
enact a special law with stringent and deterrent provisions
including in certain circumstances power to intercept wire,
electronic or oral communication to control the menace of
organized crime.”
41.We find no merit in the contention that the MCOCA, in any way,
deals with punishing insurgency directly. We are of the considered
view that the legislation only deals with “insurgency” indirectly only
to bolster the definition of “organized crime”.
42.However, even if it be assumed that “insurgency” has a larger role
to play than pointed out by us above in the MCOCA, we are of the
considered view that the term “promoting insurgency” as
contemplated under Section 2(1)(e) of the MCOCA comes within the
concept of public order. From the ratio of the judgments on the
point of public order referred to by us earlier, it is clear that
anything that affects public peace or tranquility within the State or
the Province would also affect public order and the State
2
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.
2
45.The Bombay High Court, in para 44 of the impugned judgment,
has held that though `promoting insurgency’ is one of the facets of
terrorism, the offence of terrorism as defined under the UAPA as
amended by the 2004 Act is not identical to the offences under the
MCOCA and the term `terrorism’ and `insurgency’ are not
synonymous. As per the High Court both the enactments can stand
together as there is no conflict between the two.
46.Before we proceed to analyze the said aspect, it would be
appropriate to understand the situations in which repugnancy
would arise.
47.Chapter I of Part XI of the Constitution deals with the subject of
distribution of legislative powers of the Parliament and the
legislature of the States. Article 245 of the Constitution provides
that the Parliament may make laws for the whole or any part of the
territory of India, and the legislature of a State may make laws for
the whole or any part of the State.
48.The legislative field of the Parliament and the State Legislatures
has been specified in Article 246 of the Constitution. Article 246,
reads as follows: –
“246. Subject-matter of laws made by Parliament and
by the legislature of States.–(1) Notwithstanding
anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters
2
enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the `Union List’).
(2) Notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the legislature of any State also, have
power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the `Concurrent List’).
(3) Subject to clauses (1) and (2), the legislature of any State
has exclusive power to make laws for such State or any
part thereof with respect to any of the matters enumerated
in List II in the Seventh Schedule (in this Constitution
referred to as the `State List’).
(4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included in a
State notwithstanding that such matter is a matter
enumerated in the State List.”
Article 254 of the Constitution which contains the mechanism for
resolution of conflict between the Central and the State legislations
enacted with respect to any matter enumerated in List III of the
Seventh Schedule reads as under:
“254. Inconsistency 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
2
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 any law with respect
to the same matter including a law adding to, amending,
varying or repealing the law so made by the legislature of
the State.”
49.We may now refer to the judgment of this Court in M.
Karunanidhi v. Union of India, [(1979) 3 SCC 431], which is one
of the most authoritative judgments on the present issue. In the
said case, the principles to be applied for determining repugnancy
between a law made by the Parliament and a law made by the State
Legislature were considered by a Constitution Bench of this Court.
At para 8, this Court held that repugnancy may result from the
following circumstances:
“1. Where the provisions of a Central Act and a State Act in
the Concurrent List are fully inconsistent and are absolutely
irreconcilable, the Central Act will prevail and the State Act
will become void in view of the repugnancy.
2. Where however a law passed by the State comes into
collision with a law passed by Parliament on an Entry in
the Concurrent List, the State Act shall prevail to the extent
of the repugnancy and the provisions of the Central Act
would become void provided the State Act has been passed
in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being
substantially within the scope of the entries in the State List
entrenches upon any of the Entries in the Central List the
constitutionality of the law may be upheld by invoking the
2
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.
4. Where, however, a law made by the State Legislature on
a subject covered by the Concurrent List is inconsistent with
and repugnant to a previous law made by Parliament, then
such a law can be protected by obtaining the assent of the
President under Article 254(2) of the Constitution. The result
of obtaining the assent of the President would be that so far
as the State Act is concerned, it will prevail in the State and
overrule the provisions of the Central Act in their
applicability to the State only. Such a state of affairs will
exist only until Parliament may at any time make a law
adding to, or amending, varying or repealing the law made
by the State Legislature under the proviso to Article 254.”
In para 24, this Court 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
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 repugnancy results.
4. That where there is no inconsistency but a statute
occupying the same field seeks to create distinct and
separate offences, no question of repugnancy arises and
both the statutes continue to operate in the same field.”
50.In Govt. of A.P. v. J.B. Educational Society, [(2005) 3 SCC 212],
this Court while discussing the scope of Articles 246 and 254 and
considering the proposition laid down by this Court in M.
Karunanidhi case (supra) with respect to the situations in which
repugnancy would arise, in para 9, held as follows:-
“9. Parliament has exclusive power to legislate with respect
to any of the matters enumerated in List I, notwithstanding
anything contained in clauses (2) and (3) of Article 246. The
non obstante clause under Article 246(1) indicates the
predominance or supremacy of the law made by the Union
Legislature in the event of an overlap of the law made by
Parliament with respect to a matter enumerated in List I
and a law made by the State Legislature with respect to a
matter enumerated in List II of the Seventh Schedule.
10. There is no doubt that both Parliament and the State
Legislature are supreme in their respective assigned fields.
It is the duty of the court to interpret the legislations made
by Parliament and the State Legislature in such a manner
as to avoid any conflict. However, if the conflict is
unavoidable, and the two enactments are irreconcilable,
then by the force of the non obstante clause in clause (1) of
Article 246, the parliamentary legislation would prevail
notwithstanding the exclusive power of the State
Legislature to make a law with respect to a matter
enumerated in the State List.
3
11. With respect to matters enumerated in List III
(Concurrent List), both Parliament and the State Legislature
have equal competence to legislate. Here again, the courts
are charged with the duty of interpreting the enactments of
Parliament and the State Legislature in such manner as to
avoid a conflict. If the conflict becomes unavoidable, then
Article 245 indicates the manner of resolution of such a
conflict.
Thereafter, this Court, in para 12, held that the question of
repugnancy between the parliamentary legislation and the State
legislation could arise in following two ways:-
“12……….First, where the legislations, though enacted with
respect to matters in their allotted sphere, overlap and
conflict. 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.
3
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 organised crime syndicate
or gang and for matters connected therewith or incidental thereto.
54.The Statement of Objects and Reasons of the MCOCA, inter alia,
states that organized crime has for quite some years now come up
as a very serious threat to our society and there is reason to believe
that organized criminal gangs are operating in the State and thus
there is immediate need to curb their activities. The Statement of
Objects and Reasons in relevant part, reads as under:
“Organised crime has for quite some years now come up as
a very serious threat to our society. It knows no national
boundaries and is fuelled by illegal wealth generated by
contract killings, extortion, smuggling in contrabands, illegal
trade in narcotics, kidnappings for ransom, collection of
protection money and money laundering, etc. The illegal
wealth and black money generated by the organised crime
is very huge and has serious adverse effect on our
economy. It is seen that the organised criminal syndicates
make a common cause with terrorist gangs and foster
narco-terrorism which extend beyond the national
boundaries. There is reason to believe that organised
criminal gangs are operating in the State and thus, there is
immediate need to curb their activities.
It is also noticed that the organised criminals make
extensive use of wire and oral communications in their
criminal activities. The interception of such communications
to obtain evidence of the commission of crimes or to prevent
their commission is an indispensable aid to law
enforcement and the administration of justice.
2. The existing legal framework i.e. the penal and
procedural laws and the adjudicatory system are found to
3
be rather inadequate to curb or control the menace of
organised crime. Government has, therefore, decided to
enact a special law with stringent and deterrent provisions
including in certain circumstances power to intercept wire,
electronic or oral communication to control the menace of the
organised crime.”
After enacting the MCOCA, assent of the President was also obtained
which was received on 24.04.1999. Section 2 of the MCOCA is the
interpretation clause. Clause (d) of sub-section (1) of Section 2 of the
MCOCA, defines the expression “continuing unlawful activity” to mean
an activity prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment 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
3
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 provisions lays down the punishment for organised
crime and has created special machinery for the trial of a series of
offences created by it.
55.Prior to the 2004 amendment, the UAPA did not contain the
provisions to deal with terrorism and terrorist activities. By the
2004 amendment, new provisions were inserted in the UAPA to
deal with terrorism and terrorist activities. The Preamble of the
UAPA was also amended to state that the said Act is enacted to
provide for the more effective prevention of certain unlawful
activities of individuals and associations, and dealing with terrorist
activities and for matters connected therewith. In 2008
amendment, the Preamble has again been amended and the
amended Preamble now also contains a reference to the resolution
adopted by the Security Counsel of the United Nations on
28.09.2001 and also makes reference to the other resolutions
passed by the Security Counsel requiring the States (Nations which
are member of the United Nations) to take action against certain
terrorist and terrorist organizations. It also makes reference to the
3
order issued by the Central Government in exercise of power under
Section 2 of the United Nations (Security Council) Act, 1947 which
is known as the Prevention & Suppression of Terrorism
(Implementation of Security Council Resolutions) Order, 2007. The
Preamble of the UAPA now reads as under:
“An Act to provide for the more effective prevention of
certain unlawful activities of individuals and associations
and for dealing with terrorist activities and for matters
connected therewith.
Whereas the Security Council of the United Nations in its
4385th meeting adopted Resolution 1373 (2001) on 28th
September, 2001, under Chapter VII of the Charter of the
United Nations requiring all the States to take measures to
combat international terrorism;
And whereas Resolutions 1267 (1999), 1333 (2000), 1363
(2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566
(2004), 1617 (2005), 1735 (2006) and 1822 (2008) of the
Security Council of the United Nations require the States to
take action against certain terrorists and terrorist
organisations, to freeze the assets and other economic
resources, to prevent the entry into or the transit through
their territory, and prevent the direct or indirect supply, sale
or transfer of arms and ammunitions to the individuals or
entities listed in the Schedule;
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.”
3
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 noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a hazardous
nature, in such a manner as to cause, or likely to cause,
death of, or injuries to any person or persons or loss of, or
damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community in
India or in any foreign country or causes damage or
destruction of any property or equipment used or intended
to be used for the defence of India or in connection with any
other purposes of the Government of India, any State
Government or any of their agencies, or detains any person
and threatens to kill or injure such person in order to compel
the Government in India or the Government of a foreign
country or any other person to do or abstain from doing any
act, commits a terrorist act”.
However, after the 2008 amendment, Section 15 has been substituted
in the following manner:-
“15. Whoever does any act with intent to threaten or likely
to threaten the unity, integrity, security or sovereignty of
India or with intent to strike terror or likely to strike terror in
the people or any section of the people in India or in any
foreign country,-
3
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms
or other lethal weapons or poisons or noxious gases
or other chemicals or by any other substances
whether biological radioactive, nuclear or otherwise
of a hazardous nature or by any other means of
whatever nature to cause or likely to cause–
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of, property;
or
(iii) disruption of any supplies or services essential
to the life of the community in India or in any
foreign country; or
(iv) damage or destruction of any property in India
or in a foreign country used or intended to be
used for the defence of India or in connection
with any other purposes of the Government of
India, any State Government or any of their
agencies; or
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of
any public functionary or attempts to cause death of
any public functionary; or
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of India,
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.”
3
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. Babbar Khalsa International.
2. Khalistan Commando Force.
3. Khalistan Zindabad Force.
4. International Sikh Youth Federation.
5. Lashkar-E-Taiba/Pasban-E-Ahle Hadis.
6. Jaish-E-Mohammed/Tahrik-E-Furqan.
7. Harkat-Ul-Mujahideen/Harkat-Ul-Nsar/Harkat-Ul-Jehad-
E-Islami.
8. Hizb-ul-Mujahideen/Hizb-ul-Mujahideen Pir Panjal
Regiment.
9. Al-Umar-Mujahideen.
10.Jammu and Kashmir Islamic Front.
11.United Liberation Front of Assam (ULFA).
12.National Democratic Front of Bodoland (NDFB).
13.People’s Liberation Army (PLA).
14.United National Liberation Front (UNLF).
15.People’s Revolutionary Party of Kangleipak (PREPAK).
16.Kangleipak Communist Party (KCP).
3
17.Kanglei Yaol Kanba Lup (KYKL).
18.Manipur People’s Liberation Front (MPLF).
19.All Tripura Tiger Force.
20.National Liberation Front of Tripura.
21.Liberation Tigers of Tamil Eelam (LTTE).
22.Students Islamic Movement of India.
23.Deendar Anjuman.
24.Communist Party of India (Marxist-Leninist)–People’s
War, all its formations and front organisations.
25.Maoist Communist Centre (MCC), all its formations and
front organisations.
26.Al Badr.
27.Jamiat-ul-Mujahidden.
28.Al-Qaida.
29.Dukhtaran-e-Millat (DEM).
30.Tamil Nadu Liberation Army (TNLA).
31.Tamil National Retrieval Troops (TNRT).
32.Akhil Bharat Nepali Ekta Samaj (ABNES).’.
33. Organisations listed in the Schedule to the U.N.
Prevention and Suppression of Terrorism (Implementation
of Security Council Resolutions) Order, 2007 made under
section 2 of the United Nations (Security Council) Act,
1947(43 of 1947) and amended from time to time.”
[Entry No. 33 was inserted by the 2008 amendment.]
The precise reason why we have extracted the list of terrorist
organizations under the UAPA hereinbefore is to bring to the fore the
contrast between the two legislations which are in question before us.
The exhaustive list of terrorist organizations in the First Schedule to
the UAPA has been included in order to show the type and nature of
the organizations contemplated under that Act. A careful look of the
same would indicate that all the organizations mentioned therein have
as their aims and objects undermining and prejudicially affecting the
integrity and sovereignty of India, which certainly stand on a different
3
footing when compared to the activities 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 its entirety. In Reserve Bank of India v. Peerless General
Finance & Investment Co. Ltd., [(1987) 1 SCC 424], this Court
while elaborating the said principle held as under:
4
“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may well
say if the text is the texture, context is what gives the
colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a
statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may take
colour and appear different than when the statute is looked
at without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the scheme
of the entire Act. No part of a statute and no word of a
statute can be construed in isolation. Statutes have to be
construed so that every word has a place and everything is
in its place.”
60.A perusal of the Preamble, the Statement of Objects and Reasons
and the Interpretation clauses of the MCOCA and the UAPA would
show that both the acts operate in different fields and the ambit
and scope of each is distinct from the other. So far as the MCOCA
is concerned, it principally deals with prevention and control of
criminal activity by organised crime syndicate or gang within India
and its purpose is to curb a wide range of criminal activities
indulged in by organised syndicate or gang. The aim of the UAPA,
on the other hand, is to deal with terrorist and certain unlawful
activities, which are committed with the intent to threaten the
unity, integrity, security or sovereignty of India or with the intent to
strike terror in the people or any section of the people in India or in
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any foreign country or relate to cessation or secession of the
territory of India.
61.Under the MCOCA the emphasis is on crime and pecuniary
benefits arising therefrom. In the wisdom of the legislature these
are activities which are committed 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
4
security of India. The said offences are related to the Defence of
India and are covered by Entry 1 of the Union List.
62.Moreover, the meaning of the term `Unlawful Activity’ in the
MCOCA is altogether different from the meaning of the term
`Unlawful Activity’ in the UAPA. It is also pertinent to note that the
MCOCA does not deal with the terrorist organisations which
indulge in terrorist activities and similarly, the UAPA does not deal
with organised gangs or crime syndicate of the kind specifically
targeted by the MCOCA. Thus, the offence of organised crime under
the MCOCA and the offence of terrorist act under the UAPA operate
in different fields and are of different kinds and their essential
contents and ingredients are altogether different.
63.The concept of insurgency under Section 2(1) (e) of the MCOCA, if
seen and understood in the context of the Act, is a grave
disturbance of the public order within the state. The disturbance of
the public order, in each and every case, cannot be said to be
identical or similar to the concepts of terrorist activity as
contemplated respectively under Section 2(1)(o) and Section 15 of
the UAPA. Moreover, what is punishable under the MCOCA is
promoting insurgency and not insurgency per se.
64.The aforesaid analysis relating to the essential elements of offence
of `promoting insurgency’ under Section 2 (1) (e) of the MCOCA and
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the offence of terrorist act and unlawful activity under Section 15
and Section 2 (1)(o) of the UAPA respectively, clearly establishes
that the UAPA occupies a field different than that occupied by the
MCOCA. There is no clear and direct inconsistency or conflict
between the said provisions of the two Acts.
65.We therefore, for the reasons mentioned above, concur with the
final decision reached by the High Court in the impugned judgment
and repel the challenge unhesitatingly.
66.The appeals accordingly fail and are dismissed. No Costs.
…………………………………J.
[R.V. Raveendran]
………………………………….J.
[Dr. Mukundakam Sharma]
New Delhi,
April 23, 2010.
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 940 OF 2008
Abrar Ahmed Gulam Ahmed .... Appellant
Versus
State of Maharshtra .... Respondent
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
67.By a separate Judgment pronounced today, the three connected Civil
Appeals being C.A. Nos. 1975-1977 of 2008 have been dismissed.
68.We dispose of the present Criminal Appeal with a direction that the
Special Court constituted under the MCOCA shall consider the issue
raised under Misc. Application No. 142 of 2008 in MCOCA Special
Case No. 23 of 2006 on its own merits in light of the findings given by
4
this Court in the said connected appeals, in case a fresh application is
moved by the appellant herein before the Special Court.
…………………………………J.
[R.V. Raveendran]
…………………………………J.
[Dr. Mukundakam Sharma]
New Delhi
April 23, 2010.
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