Constitutional vires of laws relating to Organized Crime: State of Maharashtra v. Bharat Shantilal Shah and Ors- An analysis
Criminal Writ Petitions were filed before the Bombay High Court by three persons aggrieved by arrest and registration challenging the constitutional validity of the Maharashtra Control of Organized Crime Act, 1999(Act 30 of 1999) (referred to as MCOCA hereinafter, for the sake of brevity) particularly Sections 3, 4 and Sections 13-16 and Section 21(5). The current enactment is almost indistinguishable from Ordinance no. 3 of 1999 promulgated by the then Governor of the State of Maharashtra. This act aims at curbing the growing menace of organized crime prevalent in the State. Although this act deflects from various central laws in force, this legislation was required as there was no effective legal framework for coping with criminal activities done by organized criminals or gangs.The Act being in conflict with central laws it was presented before the President for assent under Article 254(2) of the Constitution.
The challenge was made on two grounds firstly, on the want of legislative competence and secondly on the ground of violation of fundamental rights of the citizens. This case-note aims at a comprehensive study over the issue of legislative competency including conflict between central and state laws. This question of fundamental rights will be a subject of analysis but not a matter of detailed investigation.
Legislations dealing with such special crimes such as terrorism and organized crime have been broadly characterized as repressive laws. Acts such as TADA and POTA have been subjected to the test of constitutionality on similar grounds and the constitutional courts of this country have had a tendency to uphold them. But, ultimately POTA and TADA were repealed by the parliament because of growing agitations amongst human rights activists and misuse of the provisions by the Police and other investigating agencies. Since, the implications of MCOCA are less severe than the above enactments, the fate of this legislation shall be determined with time given that the President (and thereby the Central Government) has shown reluctance in giving assent to similar legislations in other states like the GUJCOCA which have been drawn in similar lines of MCOCA.
The supply of illegal goods and services to customers is the core of organized crime. It engages illegitimate means- extortion, monopolisation, terrorism, etc. to control, lawful ownership and leadership and to extract illegal proceeds from the public at large.
Attempts have been made to define organized crime. Accordingly as per the U.S Task Force Report of 1967:
“Organized crime is a society that seeks to operate outside the control of the government and the people. It involves thousands of criminals working in structures as complex as those of large corporation, subject to laws more tightly enforced than those of the legitimate governments. Their actions are not impulsive but rather a result of intricate conspiracies carried out over many years aimed at gaining control over the whole field of activity to amass huge profits.”
Organized Crime is no longer kerbed to national boundaries but has transcended all such barriers and has become a transnational problem. This is proved by the exponential rise in activities such as drug-trafficking, gun running, illegal immigration rackets and terrorism.
The need for legislation in Maharashtra is evident because organized crime operates at its worst in the city of Mumbai. The gang of Varadharaj Murliar was the first of the prominent ones to emerge in the 1960s following the advent of Haji Mastan, Yousuf Patel and Karim Lala. These gangs were involved in illegal activities like smuggling, gambling, extortion, contract murders etc. The new gangs which emerged post emergency era and are operating today have ties with terrorist organizations and play vital roles in supporting terrorist activities such as the 1993 Mumbai Bomb Blasts which claimed the lives of over 250 people and other 713 were maimed.
Organized crimes have existed in other major cities too although not to the extent of that in Mumbai. Every state faces different problems with respect to organized crime for example; Ahmedabad has been the breeding grounds for liquor mafias because of the prohibition policy. One particular instance is that of Latif who rose from being a small bootlegger to be the liquor mafia of the State with a gang of 200 members in the mid-seventies. Further, such mafias build strong political patronage. Latif in particular had won municipal elections in Gujarat from five different constituencies.
In other states like Uttar Pradesh and the Union Territory of New Delhi several gangs are operating actively in kidnapping for ransom and land grabbing, intimidation and forcible vacation.
Contemporarily, with the emergence of liberalization and e-commerce certain government schemes like the Value Based Advance Licence Scheme have been open to manipulation leading to hawala or illegal money transfer rackets where bogus export licences and orders were obtained and huge profits were made on foreign remittances through hawala channels.
Therefore, prima facie organized crime is a significant threat to the society and a special law is required to combat the evil. The approach of the legislators here is quite interesting. As per the Statement of Objects and Reasons appended to MCOCA the legislators have identified that the criminals involved in organized crimes make extensive use of wired and oral communication techniques and therefore, it is necessary for the interception of such communications to obtain evidence of the commission of such crimes as an indispensable aid to the administration of justice. The primary area of operation for the enactment is interception of communication for gathering evidence which led to the conflict between MCOCA, a state law and the Telegraph Act, 1885, a Central Law. Thus the challenge to legislative competence.
The subsequent section shall examine the evolution of various doctrines as principles of interpreting the lists in Schedule VII especially the Doctrine of Repugnancy and Pith and Substance enunciated by the Supreme Court of India to test and validate the constitutionality of various laws challenged on the want of legislative competence.
2. Determining Legislative Competence
The basis of law making
The division of powers and functions between centre and state is the pivotal point of federalism. The distribution of power is a central characteristic of a federal constitution and the whole system of federalism revolves around this central point.
The scheme of distribution of legislative powers between union and state are provided under Article 245 and Article 246 of the Constitution which are a substantial reproduction of Ss. 99 and 100 0f the Government of India Act, 1935. In consequence, the principles of interpretation applied to those sections have been extended to the articles as well.
Article 245 provides for the territorial jurisdiction of the Parliament and State legislatures. In its essence this article is based on the principle of international law, that all laws are territorial in nature. Sub-section (2) provides that no law made by the parliament is invalid merely because of extraterritorial operation and hence the municipal courts cannot refuse to give effect to the laws because they have extra-territorial operation.This preposition of law applies to state laws and extraterritorial operation thereof to other states of India.
Article 246 provides for the subject matter jurisdiction of the Parliament and the State Legislatures read with Schedule VII of the Constitution. The power to legislate with respect to any matters is not to be construed in a wide amplitude. The opening words of Article 245 make Articles 245 and 256 read with Schedule VII “subject to the provisions of the constitution” and therefore, the power of the legislators doesn’t include a power to make a prohibitory law. Consequently, laws made by the legislature may be void not only for the lack of legislative power in respect of subject-matter but also for transgressing constitutional limits.
Principles of Interpretation of the Lists
Before elucidating various doctrines propounded by the courts the general rule of interpretation needs to be examined. Various entries of the lists given in Schedule VII must be interpreted liberally and in a broad and generous manner and not in a pedantic sense. Each general word should extend to all ancillary and subsidiary matters fairly and reasonably be comprehended within it. As was pointed out in United Provinces v. Atiqa Begum the words of the lists must be read in the ordinary, natural and grammatical meaning and most liberal construction must be put upon so that words so as to have the widest amplitude.39 The same Gwyer, C.J. in an another case pointed out that
“…I do not imply that they (courts) are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors. A federal court will not strength but only derogate them from their position, if it seeks to do anything but declare law…”
In the United Provinces case further the rule regarding onus of proof was laid down. It was held that the burden of proving that the legislative powers are subject to a prohibition must certainly lie upon those who assert it. Hence, the presumption of constitutionality is in favour of the legislature. In Burrakur Coal Co. Ltd. v. Union of India and Ors., it was held that the court of law is bound to presume in favour of constitutionality. It was further observed that for the purpose of validating the constitutionality of a particular law the court must not restrict itself to submissions made by the State and it is free to go beyond the submissions and satisfy itself under any provision of the Constitution under which the law can be sustained or take into consideration any matters of general knowledge, reports, history, preamble, object of the legislation and all other relevant facts. It is always presumed that the legislature understands and appreciates the need of its own people.
(i) The Doctrine of Pith and Substance
The doctrine of pith and substance was laid down by the Privy Council while interpreting the British North American Act, 1867. The British North American 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 legislate respectively. Notwithstanding that the lists were framed to be fairly full and comprehensive, it was not long before the topics in the two lists overlapped and the Privy Council had to time and again decide 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 a particular legislation was intra vires regard must be had to its pith and substance. It was first applied in India in the Central Provinces Case where it was held that the two entries must be reconciled and read in light of each other. It is a consequence of the doctrine of pith and substance that once a law in “pith and substance” falls within a legislative entry an incidental encroachment on an entry in another list doesn’t affect its validity. It was foresighted that with time there is every possibility that entries may overlap and provisions of different enactment would be intertwined leading to a prima facie conflict in such instances a blind adherence to the verbal interpretation may invalidate a large number of statutes as they may appear to have legislated in a forbidden sphere. In the process of applying this particular doctrine the courts must undertake an exercise to examine the true nature and character of the legislation. Where the encroachment is substantial and/or the true nature and character cannot be traced to the particular entry upon which the competency is claimed such legislation would be invalid to the extent of encroachment.
In State of Bombay v. F. N. Balsara it was observed that, If an act when viewed as whole in its context, substantially (and not a remote connection with the entry under which the competence is claimed55) falls within the powers expressly conferred upon a legislature which enacted it, in cannot be held invalid merely on the ground that it incidentally encroaches upon the matter assigned to a different legislature provided that, the incidental encroachment is not altogether forbidden.
For applying the doctrine of pith and substance regard has to be had to (1) the act as a whole, (2) its main object, and (3) to the scope and effect of its provision.
Whether or not a particular legislation is with respect to a given power is not to be determined by the consequences of the Act but on whether the Act is in substance a law upon the subject-matter in question58 further wherein only legislative competence is sought to be determined by the courts grounds such as mala fide do not constitute a valid consideration. At this juncture, it is pertinent to understand that the entries are mere topics or field of legislation and not the source of legislative competence or power and thus receive liberal interpretation.
(ii) Doctrine of Repugnancy
Under Article 246(2) both Union and State have concurrent law making power. Therefore by the dictum of simple logic both laws on same subject-matter must be valid.61 But an absurd situation would arise if two laws inconsistent to one another, of equal validity could exist side by side in the same territory.62 This provision remedies such absurdity.
Repugnancy means “inconsistency with”
“things are inconsistent when they cannot stand together at the same time, and one law is inconsistent with another law when the command, power or the provision I one law conflicts directly with the command, power and provision in the other…as when the one says do’s the other says don’t’s”
Repugnancy arises where the inconsistency is of such a nature that they (Acts or provisions thereunder) come into direct collision with one another, and it is impossible to obey one without disobeying the other. There would be no question of repugnancy if the provisions are mutually exclusive and do not impinge upon one another and there is no overlapping between them. It is clear that the laws in conflict must be on the same subject-matter (entry) enumerated in the concurrent list. However the doctrine of repugnancy has had an extended application where the subject-matters are in different lists to validate the law on the grounds of no direct conflict in one instance and invalidate the law by application of repugnancy in the other. This position of law is incorrect and was rectified by the Supreme Court in subsequent cases stating that doctrine of repugnancy can be made applicable only in those cases where both the legislations in conflict derive their legislative competence from the same entry in the concurrent list.
Any law which attracts the doctrine is not by the applicability of it void per se. Clause (1) of Article 254 states that to the extent of repugnancy, the State law shall be void. Hence, when the repugnancy is removed by repeal or expiry of the Union Law the State law shall be revived and become operative. This stand-point is inspired by the corresponding provision in Australian Constitution (section 109). Therefore, essentially for the application of doctrine of repugnancy it id requires that: (1) the laws are in direct conflict with inconsistent and irreconcilable provisions; (2) both the laws derive competency for the same entry of the concurrent list.
Article 254 (2) provides for an exception to the general rule given under the previous clause. Under this clause if any state law has been reserved for the assent of the President it shall prevail notwithstanding any repugnancy with any central law for the time being in force both dealing with a common concurrent subject.This clause is confined to the cases of repugnancy only. In such situations, the state law shall prevail despite inconsistencies with central law if it receives the assent of the President. The present clause has nothing to do with the vires or competency it only deals with legislative supremacy. The presidential assent under the clause is not an empty formality and the efficacy of the assent would be limited to the purpose for which it was sought or given. The word assent is used purposefully indicating of affirmative action of the proposal made by the State for having a law repugnant to an existing law passed by the Parliament. The assent would amount to conceding to the demand of such law made by a State. It cannot be done by consideration of valid material. It is necessary to consider the extent of repugnancy, feasibility, practicability and desirability of such a law. It is the obligation of the State to invite the attention of the President towards all the laws which are apprehended to be repugnant to the State Law. Although the assent of the President under this clause is not justiciable the Court is empowered to look into the purpose of assent.
After having made a thorough examination of the existing positions of the law with regards to the tools employed by the Constitutional Courts in testing, determining and validating the legislations in the next section which shall analyse the exercise taken up by the Supreme Court in validating Maharashtra Control of Organized Crime Act, 1999 in State of Maharashtra v. Bharat Shantilal Shah and Ors.
3. Before The Supreme Court
In Bharat Shantilal Shah and Ors. v. State of Maharashtra the constitutionality of MCOCA was challenged before the Bombay High Court. Vide its judgment the Bombay High Court struck down Sections 13- 16 of the Act on the grounds of lack of legislative competence and Section 21 (5) on the grounds of violation of Article 14 of the Constitution of India.
The High Court held that the State Legislature has no competence as the Parliament alone has power to make laws with respect to Entry 31 of List I of Schedule VII read with Article 246 of the Constitution and that the Indian Telegraph Act was already holding the field on that point. Being aggrieved by the judgment of the Bombay High Court the State of Maharashtra has filed the present appeals.
A reading of the relevant provisions of MCOCA would suggest that the point of controversy arises out of the authority to intercept wire, electronic and oral communication if it is intended to prevent the commission of organized crime or with an intention to collect evidence thereof by a competent authority appointed under the Act. However, the grounds of interception provided under Section 5 (2) of the Indian Telegraph Act are different in comparison to MCOCA. A comparative study of both the Acts suggests that they operate in different areas which cannot be said to be identical. On one hand the Telegraph Act provides for interception on the grounds of public emergency or public safety, MCOCA authorizes interception on for prevention of organized crime and collection of evidence. Further the objective of enacting MCOCA is to prevent commission of serious offences which necessary for maintaining public order which are traceable under Entries 1 and 2 of List II of Schedule VII. MCOCA also has obtained the Presidential assent under Article 254 (2) on 24th April 1999 thereby if the subject matter and the field of legislation is covered under any entry of the Concurrent List the same must be upheld notwithstanding any repugnancy with any Central Law for the time being in force.Lastly the content of the law might have encroached upon the scope of Entry 31 of List I such an encroachment is only incidental as the main purpose of the Act falls in “pith and substance” within the scope of entries 1 and 2 of List II.
The Honourable Supreme Court set aside the order/judgment of the Bombay High Court to the extent of upholding the constitutional vires of Sections 13-16 of the Maharashtra Control of Organized Crime Act, 1999.
In the course of Indian Constitutional History right from Kartar Singh (supra) to PUCL v. Union of India (supra) the emerging trend is that the Supreme Court has always ruled in favour of such repressive laws. But these laws have failed to stand the test of time and have been consequently repealed. The final section of this case note seeks to investigate in to the fate of this legislation with reference to other such enactments.
4. Concluding Remarks: Should Mcoca Be Repealed?
Professed to castigate and thwart organized crime and monetary benefits arising therefrom MCOCA was ordained. This law retains numerous provisions found in the one-time prevalent TADA one of the most momentous being the one which allows confessions made in police custody to be used as evidence before the court of law. MCOCA has been lauded for supposed high conviction rates. But it the same provisions which make it desirable make it draconian. This is evident from the rampant misuse of confessions under the Act which have been eventually retracted which implies that most of those are forced confessions. Moreover the presence of the phrase “to promote insurgency” has made it a tool to prosecute terrorist suspects (terrorism comes within the exclusive domain of the legislative competence of the Union). For example, the suspects of the Malegaon masjid bomb blasts are prosecuted under this law. The Bombay High Court has made a futile attempt to justify the phrase and the legislative competency; the court observed that insurgency was related to both terrorism and organized crime and in this regard the encroachment of MCOCA on Unlawful Activities (Prevention) Act, 1967 was merely incidental. In the Sheikh Case the court observed:
“We have already referred to the Preamble, Statement of Objects and Reasons and relevant provisions of MCOCA. We may reiterate that the MCOCA is enacted, inter alia, to take care of organized crime syndicate who indulge in organized crime. Though ‘promoting insurgency’ is one of the facets of terrorism, offence of terrorism as defined in UAPA Act as amended in 2004 is not identical to the offences in MCOCA. It is not possible to accept Mr Sebastian’s submission that UAPA, 1967 as amended in 2004 covers the whole field under Entry No. 1 of List III and leaves no space for MCOCA as terrorism and insurgency as synonymous and thus make MCOCA impliedly repugnant. In any event, in our opinion, both the enactments can stand together as there is no conflict between the two. Section 2(1)(e) of the MCOCA so far as it includes ‘promoting insurgency’ does not impinge upon the offence of terrorism as defined under the UAPA, 1967 after its amendment in 2004. As we have already stated, there may be a permissible incidental overlap, which does not create any repugnancy nor a situation of unworkability.”
In light of the above judgment the prosecution of the suspects of the Malegaon masjid Bomb Blast under the MCOCA is not justified. (Emphasis laid) This act of prosecution simply qualifies as abuse and misuse of a draconian act such as the MCOCA.
Lastly it is the stringent bail provisions under MCOCA which make it as draconian as the likes of TADA and POTA. Under Section 21 (3) of the Act anticipatory bail is not available to anyone accused of having committed an offence under MCOCA. The phraseology of Section 21(4) (b) makes it virtually impossible to get a regular bail.
According to Section 21 (4) (b):
(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless-
(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that lie is not likely to commit any offence while on bail.
It must be realized that there is no provision under any law which permits cross-examination of witnessed at the stage of bail and hence, the court must solely rely on the statements made by the police. This places the accused in a disadvantageous position and that it is quite likely that an accused may perish in police custody or may be forced to make confessions until innocence is proved.
Historically repressive laws such as TADA and POTA had to be repealed by the legislature despite being tested for constitutionality. Surprisingly the provisions relating to confession, bail and legislative competence on the grounds of ‘insurgency’ were not challenged before the Apex Court or should we say that such a challenge would have been of no consequence as such as has been observed in the case of Kartar Singh and PUCL case given that the provisions especially relating to confession in police custody are identical to that found under the erstwhile POTA. The only factor responsible for the survival of MCOCA is its limited territorial application. But, various other states like Karnataka and Gujarat also have expressed the want of such laws. The situation is therefore going to turn grave. Amidst all the developments the ultimate fate of MCOCA shall be realized only with time.
*** Author: Udit Nikhil Vyas - The author is a 3rd year student at Gujarat National Law Unversity pursuing B.A., L.L.B (Hons.)
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34. State of Jammu and Kashmir v. Farooqui, AIR 1972 SC 1738.
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37. Subrahmanyan v. Muttuswami, AIR 1941 FC 47.
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1. Code of Criminal Procedure, 1973
2. Gujarat Control of Organized Crime Act, 2003
3. Indian Evidence Act, 1872
4. Indian Telegraph Act, 1885
5. Maharashtra Control of Organized Crime, 1999
6. Prevention of Terrorism Act, 2001
7. Terrorist and Disruptive Activities (Prevention) Act, 1985
8. Unlawful Activities Prevention Act, 1987
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