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TMI Blog2010 (4) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... llants 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insurgency'. Hence, according to him, that part of Section 2(1)(e) of the MCOCA which refers to `promoting insurgency' is ultra vires Article 246(3) of the Constitution. 12. Mr. Shanti Bushan, learned senior counsel appearing for the appellant in Civil Appeal No. 1977 of 2008, in addition to the above noted submission, submitted that Section 2(1)(e) of the MCOCA so far as it covers `insurgency' is repugnant and has become void by enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, amending the Unlawful Activities (Prevention) Act, 1967 ("UAPA" hereinafter). He submitted that insurgency and terrorism are two sides of the same coin and after the 2004 amendment, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst blush, they may appear to be similar but a closer scrutiny would dispel any such notion and would show a vast area of dissimilarity between the two. 16. While making their submissions on the issue of implied repeal, they submitted that promoting insurgency as one of the elements of the MCOCA may overlap in some cases in its application with the relevant provisions of the UAPA, but the question of implied repeal would arise only where it overlaps in its entirety. They further submitted that the law is settled on the point that a given act can constitute more than one offence under two or more statutes, but merely because an act also becomes an offence under a subsequent statute does not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urgency' 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. 22. Section 2(1)(e) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madras [1950 SCR 594], it has been held by this Court that `public order' signifies a state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established. This Court, in para 8, quoted a passage from Stephen's Criminal Law of England, wherein he observed as follows: "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is in each of 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- "The expression "Public Order" with which the first item begins is, in our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished principle of law in India recognized not only by this Court, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List. 36.A Constitution Bench of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 field reserved for the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under the Union List. 43.Therefore, we are of the considered view that it is within the legislative competence of the State of Maharashtra to enact such a provision under Entries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of the Seventh Schedule of the Constitution. Repugnance with Central Statute 44.This brings us to the second ground of challenge i.e. the part of Section 2(1)(e) of the MCOCA, so far as it covers case of insurgency, is repugnant and has become void by the enactment of Unlawful Activities (Prevention) Amendment Act, 2004, amending the Unlawful Activities (Prevention) Act, 1967. 45.The Bombay High Court, in para 44 of the impugned 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other." Thereafter, this Court after referring to the catena of judgments on the subject, in para 38, laid down following propositions:- 1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a legislation to override even such State legislation." 51.In National Engg. Industries Ltd. v. Shri Kishan Bhageria [(1988) Supp SCC 82], Sabyasachi Mukharji, J., opined that the best test of repugnancy is that if one prevails, the other cannot prevail. 52.In the light of the said propositions of law laid down by this Court in a number of its decisions, we may now analyze the provisions of the two Acts before us. 53.The provisions of the MCOCA create and define a new offence of `organised crime'. According to its Preamble, the said Act was enacted to make specific provisions for prevention and control of, and for coping with, criminal activity by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. Clause (f), defines "organised crime syndicate" to mean a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime. The said definitions are interrelated; the "organised crime syndicate" refers to an "organised crime" which in turn refers to "continuing unlawful activity". MCOCA, in the subsequent 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 individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Fron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) (o) of the UAPA have some elements in commonality. The essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some physical act like use of bombs and other weapons etc., Section 2 (1)(o) takes in its compass even a written or spoken words or any other visible representation intended or which supports a challenge to the unity, sovereignty, integrity and security of India. The said offences are related to the Defence of India and are covered by Entry 1 of the 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 ingre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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