Supreme Court of India
ZAMEER AHMED LATIFUR REHMAN SHEIKHversusSTATE OF MAHARASHTRA & ORS.
- Citation
- 2010 INSC 237
- Decided
- 23 April 2010
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
Section 2(1)(e) of MCOCA, including "promoting insurgency", is within Maharashtra's legislative competence as a matter of public order and is not repugnant to the UAPA.
Summary
The appellants challenged the constitutional validity of the phrase "promoting insurgency" in Section 2(1)(e) of the Maharashtra Control of Organised Crime Act, 1999, arguing that the State legislature lacked competence and that the provision conflicted with the Unlawful Activities (Prevention) Amendment Act, 2004. The Supreme Court examined the meaning of "insurgency", applied the doctrine of pith and substance, and held that the provision falls within the State's power to legislate on public order under Entries 1 and 2 of List II and Entries 1, 2 and 12 of List III. It further found that the MCOCA provision and the UAPA operate in distinct fields with no direct inconsistency, so there is no repugnancy. Consequently, the challenge was rejected and the appeals were dismissed.
Issues considered
- The legislative competence of the Maharashtra State Legislature to enact the "promoting insurgency" clause in MCOCA.
- Whether the "promoting insurgency" provision is repugnant to the Unlawful Activities (Prevention) Amendment Act, 2004 and thus void.
- The interpretation and scope of the term "insurgency" in the context of public order.
- The applicability of the doctrine of pith and substance to resolve the competence dispute.
Legislation cited
- Constitution of Indias. Article 245, s. Article 246, s. Article 246(3), s. Article 254
- Maharashtra Control of Organised Crime Act, 1999s. 2(1)(e)
- United Nations (Security Council) Act, 1947
- Unlawful Activities (Prevention) Act, 1967s. 2(1)(o)
- Unlawful Activities (Prevention) Amendment Act, 2004s. 15, s. 2(k)
Subjects
legislative competencepublic orderpith and substance doctrineorganized crimeinsurgencyrepugnancyMCOCAUAPAconstitutional validity
Judgment
[2010) 4 S.C.R. 1042
A ZAMEER AHMED LATIFUR REHMAN SHEIKH
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 1975-1977 of 2008 and Crl Appeal No.
940 of 2008)
B
APRIL 23, 2010
[R.V. RAVEENDRAN AND DR. MUKUNDAKAM
SHARMA, JJ.]
C Maharashtra Control of Organised Crime Act, 1999: s.
2(1)(e).
Part of s. 2(1)(e) referring to "promoting insurgency" -
Constitutional validity of - Legislative Competence of
0 Government of Maharashtra to enact such provision - Held:
It is within the legislative competence of the State of
Maharashtra to enact such a provision - Term "promoting
insurgency" u!s. 2(1)(e) comes within the concept of public
order - State Legislature is empowered to enact 1a·ws aimed
E at containing or preventing acts which tend to or actually affect
public order - Said part of MCOCA relates to maintenance
of public order which is essentially a State subject and only
incidentally trenches upon a matter falling under the Union
List - It cannot be held to be ultra vires in view of the doctrine
of pith and substance - Constitution of India, 1950 - Article
F 246, Entry 1 of List I, Entries 1 and 2 of List II rw Entries 1, 2
and 12 of List Ill of the Seventh Schedule - Doctrines.
Part of s. 2(1 )(e) referring to "promoting insurgency" -
Challenge to, on the ground of repugnancy with Central
G Statute-Unlawful Activities (Prevention) Amendment Act, 2004
- Held: B<Jth the acts operate in different fields and the ambit
and scope of each is distinct from the other - There is no clear
and direct inconsistency or conflict between the said
provisions of the two Acts - Under MCOCA, emphasis is on
H 1042
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1043
OF MAHARASHTRA
crime and pecuniary benefits arising therefrom - Essential A
element in UAPA is the challenge or threat or likely threat to
the sovereignty, security, integrity and unity of India - MCOCA
does not deal with the terrorist organisations which indulge in
terrorist activities and similarly, UAPA does not deal with
organised gangs or crime syndicate of the kind specifically B
targeted by MCOCA - Offence of organised crime under
MCOCA and offence of terrorist act under UAPA operate in
different fields and are of different kinds and their essential
contents and ingredients are a/together different - Unlawful
Activities (Prevention) Amendment Act, 2004 - ss. 2(1 )(k) and c
15 - Unlawful Activities (Prevention) Act, 1967 - s. 2(1)(o)
Constitution of India, 1950.
Constitution of India, 1950: Articles 245 and 246 -
Legislative competence to enact a particular statute -
Doctrine of pith and substance - Applicability of - Held: This D
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 - In such cases,
Courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question -Where E
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 if ii is found in the pith and substance that subject
matter of State Legislation is covered by an entry in State list, F
then any incidental encroachment upon an entry in Union List
would not render the State law ultra vires the Constitution.
Doctrines: Doctrine of pith and substance - Applicability
of - Explained.
G
Words and Phrases:
'Insurgency' - Meaning of - Held: Is a serious form of
internal disturbance which causes a grave threat to the life of
people, creates panic situation and also hampers the growth H
1044 SUPREME COURT REPORTS [2010] 4 S.C.R.
A and economic prosperity of the State.
'Continuing unlawful activity' - Meaning of - In the
context of clause (d) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
B 'Organised crime' - Meaning of - In the context of
clause (e) of sub-section (1) of s. 2 of the Maharashtra Control
of Organised Crime Act, 1999.
'Organised Crime Syndicate' - Meaning of - In the
c context of clause (f) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
'Terrorist act' - Meaning of- In the context of ss. 2(1 )(k)
and 15 of the Unlawful Activities (Prevention) Amendment Act,
2004.
D
'Unlawful activity' - Meaning of - In the context of s.
2(1)(o) of the Unlawful Activities (Prevention) Act, 1967.
In the instant appeals, the appellants have challenged
E that constitutional validity of that part of s. 2(1)(e) of the
Maharashtra Control of Organised Crime Act, 1999, which
relates to 'promoting insurgency' on the grounds that the
Maharashtra State legislature did not have legislative
competence to enact such a provision; and that the said
F part of s. 2(1)(e) of MCOCA, is repugnant and has become
void by enactment of the Unlawful Activities (Prevention)
Amendment Act, 2004, amending the Unlawful Activities
(Prevention) Act, 1967.
Dismissing the civil appeals and disposing of the
G Connected criminal appeal, the Court
HELD: Legislative Competence of Government of
Maharashtra:
1. The term "promoting insurgency" as
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1045
OF MAHARASHTRA
contemplated u/s. 2(1 )(e) of the Maharashtra Control of A
Organised Crime Act, 1999 comes within the concept df
public order. Anything that affects public peace or
tranquility within the State or the Province would also
affect public order and the State Legislature is
empowered to enact laws aimed at containing or B
preventing acts which tend to or actually affec~ public
order. Even if the part of s. 2(1)(e) 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 c
the said part relates to maintenance of Publ!.c Order,}'lfhich
is essentially a State subject and onlY,: incidentally
trenches upon a matter falling under th·e Union List.
Therefore, it is within the legislative competence of the
State of Maharashtra to enact such a provision under 0
Entries 1 and 2 of List ii read with Entries 1, 2 and 12 of
List Ill of the Seventh Schedule of the Constitution. [Paras
42 and 43) [1072-G-H; 1073-A-O)
Ramesh Thappar v. State of Madras 1.950 SCR 594;
Superintendent, Central Prision v. Ram Manohar Lohia E
(1960) 2 SCR 821; Dr. Ram Manohar Lohia v. State of Bihar
(1966) 1 SCR 709; Madhu Limaye v. Sub-Divisional
Magistrate (1970) 3 SCC 746; Kanu Biswas v. State of West
Bengal (1972) 3 SCC 831, relied on.
F
Lakhi Narayan Das v. Province of Bihar AIR 1950 FC 59,
referred to.
2.1. The term 'insurgency' has not been defined either
under the MCOCA or any other statute. The word
'insurgency' does not find mention in the Unlawful G
Activities (Prevention) Act, 1967 even after the 2004 and
2008 amendments. 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 H
1046 SUPREME COURT REPORTS [2010] 4 S.C.R.
A State. 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. [Paras 23, 24 and
B 26] [1063-C-H]
Sarbananda Sonowa/ v. Union of India (2005) 5 SCC
~65, relied on.
2.2. It is a well-established rule of interpretation that
C 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
D comprehended within it. 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
E competence of the State Legislature. [Para 34] [1066-H;
1067-A-D]
Navinchandra Mafatlal v. Commr. of I. T. AIR 1955 SC
58; State of Maharashtra v. Bharat Shanti Lal Shah (2008)
F 13 SCC 5; 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 sec 254, referred to.
2.3. One of the proven methods of examining the
G 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
H various lists. ·1f there is a challenge to the legislative
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1047
OF MAHARASHTRA
competence, the courts will try to ascertain the pith and A
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 B
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 c
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
0
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.
[Para 35] [1067-D-H; 1068-A-B]
E
AS. Krishna v. State of Madras AIR 1957 SC 297; Kartar
Singh v. State of Punjab (1994) 3 SCC 569, referred to.
2.4. The State Legislature does not have power to
legislate upon any of the matters enumerated in the Union F
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 riot be enough so as to
render the State law invalid, and such an incidental G
encroachment will not make the legislation ultra vires the
Constitution. [Para 38] [1069-F-G]
Bharat Hydro Power Corpn. Ltd. v. State of Assam (2004)
2 sec 553, referred to.
H
1048 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 2.5. The definition of "organized crime" contained in
s. 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
B punishes those who are guilty of running a crime
organization, one of the moti•1es of which may be the
promotion of insurgency. It cannot be said that the
MCOCA, in any way, deals with punishing insurgency
directly. The legislation only deals with "insurgency"
c indirectly only to bolster the definition of "organized
crime". [Paras 40 and 41) [1071-F-G; 1072-F]
2.6 Regarding the question of legislative competence
of the Maharashtra State legislature to enact a law like
MCOCA, the finding of High Court in the impugned
D judgment that MCOCA in pith and substance falls in Entry
No. 1 of List Ill which refers to the criminal law, cannot
be accepted. [Para 20) [1062-C-E]
State of Maharashtra v. Bharat Shanti Lal Shah and Ors.
E (2008) 13 SCC 5, referred to.
Repugnance with Central Statute:
3. The analysis relating to the essential elements of
offence of 'promoting insurgency' u/s. 2 (1)(e) of the
F MCOCA and the offence of terrorist act and unlawful
activity u/s. 15 and s. 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
G said provisions of the two Acts. Therefore, the final
decision reached by the High Court in the impugned
judgment that both the enactments can stand together as
there is no conflict between the two, is concurred with.
[Paras 64 and 65] [1090-G-H; 1091-A-B]
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1049
OF MAHARASHTRA
4.1. Section 2 of the MCOCA is the interpretation A
clause. Clause (d) of sub-section (1) of s. 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 B
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 c
offence. Clause (e) 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 0
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 E
syndicate or gang indulge in activities of organised
crime. The said definitions are interrelated; the
"organised crime syndicate" ~efers to an "organised
crime" which in turn refers to "continuing unlawful
activity". MCOCA, in the subsequent provisions lays F
down the punishment for organised crime and has
created special machinery for the trial of a series of
offences created by it. [Para 54] [1080-F-H; 1081-A-D]
4.2. Prior to the 2004 amendment, the UAPA did not G
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 H
1050 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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 was again amended and the
amended Preamble now also contains a reference to the
B resolution adopted by the Security Council of the UnitP.d
Nations on· 28.09.2001 and also makes reference to the
other resolutions passed by the Security Council
requiring the States (Nations which are member of the
United Nations) to take action against certain terrorist and
c terrorist organizations. It also makes reference to the
order issued by the Central Government in exercise of
power u/s. 2 of the United Nations (Security Council) Act,
1947 which is known as the Prevention and Suppression
of Terrorism (Implementation of Security Council
Resolutions) Order, 2007. [Para 55) (1081-E-H; 1082-A-B]
0
4.3. Section 2 (1)(k) and s.15 of the UAPA, 1967which
were inserted by the 2004 amendment and define and
deal with the term 'terrorist act'. From a perusal of s. 15
before and after amendment of the UAPA, it comes to l~ght
E that though after amendment there have been certain
additions to the provision but in substance the provision
remains the same. Sub-Clauses (I) and (m) of sub section
(1) of s. 2 of the UAPA, define the term 'terrorist gang' and
'terrorist organisation' respectively. Section 2 (1 )(o) of the
F UAPA defines the term 'unlawful activity'.(Paras 56, 57
and 58) (1083-A-B; 1085-C-D; 1087-G-H]
4.4. A careful look of the exhaustive list of terrorist
organisations in the First Schedule to the UAPA would
G indicate that all the organisations mentioned therein have
as their aims and objects undermining and prejudicially
affecting the integrity and sovereignty of India, which
certainly stand on a different footing when compared to
the activities carried out by the forces like the appellant.
H [Para 57) [1087-F-H]
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1051
OF MAHARASHTRA
4.5. No provision or word in a statute is to be read in A
isolation. In fact, the statute has to be read as a whole and
in its entirety. 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 B
each is distinct from the other. The MCOCA 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 c
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 br any section of the people in India or in any
0
foreign country or relate to cessation or secession of the
territory of India. [Paras 59 and 60] [1088-E; 1089-C-EJ
Reserve Bank of India v. Peerless General Finance &
Investment Co. Ltd. (1987) 1 SCC 424, referred to.
E
4.6. 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 F
extended to promoting insurgency. The concept of the
offence of 'terrorist act' u/s. 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 G
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 u/s. 15 and the
offence of unlawful activity u/s. 2 (1) (o) of the UAPA have
some elements in commonality. The essential element in
H
1052 SUPREME COURT REPORTS [2010] 4 S.C.R.
A both is the challenge or threat or likely threat to the
sovereignty, security, integrity and unity of India. While
s. 15 requires some physical act like use of bombs and
other weapons etc., s. 2 (1)(o) takes in its compass even
a written or spoken words or any other visible
s 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. [Para 61) [1089-
F-H; 1090-A-B]
c 4.7. The meaning of the term 'Unlawful Activity' in the
MCOCA is altogether different from the meaning of the
term 'Unlawful Activity' in the UAPA. The MCOCA does
not deal with the terrorist organisations which indulge in
terrorist activities and similarly, the UAPA does not deal
D 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
E ingredients are altogether different. [Para 62) [1090-C-E]
4.8. The concept of insurgency u/s. 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.
F 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
u/s. 2(1)(o) and s. 15 of the UAPA. Moreover, what is
punishable under the MCOCA is promoting insurgency
G and not insurgency per se. [Para 63] [1090-F-G]
Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel
Plant, Bhilai (M.P.) and Ors. (1989) 1 SCC 272; Kesho Ram
and Co. v. Union of India (1989) 3 SCC 151; M. Karunanidhi
v. Union of India (1979) 3 SCC 431; Govt. of A.P. v. J.B.
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1053
OF MAHARASHTRA
Educational Society (2005) 3 SCC 212; National Engg. A
Industries Ltd. v. Shri Kishan Bhageria (1988) Supp SCC 82,
referred to.
Crl A1meal No. 940 of 2008
5. The Criminal Appeal is disposed of with a direction B
that the Special Court constituted under the MCOCA shall
consider the issue raised under the Misc Application in
MCOCA Special Case on its own merits in light of the
findings given by this Court in the said connected
appeals, in case a fresh application is moved by the c
appellant before the Special Court. [Para 2] [1091-F-G]
Case Law Reference:
(2008) 13 sec 5 Referred to. Paras 5,
21, 34 D
(1989) 1 sec 212 Referred to. Para 6
(1989) 3 sec 151 Referred to. Para 7
(2005) 5 sec 665 ~ Relied on. Para 24 E
/
1950 SCR 594 Relied on. Para 28
(1960) 2 SCR 821 Relied on. Para 29
(1966) 1 SCR 709 Relied on. Para 29
F
(1970) 3 sec 746 Relied on. Para 30
(1972) 3 sec 831 Relied on. Para 31
AIR 1950 FC 59 Referred to. Para 33
G
AIR 1955 SC 58 Referred to. Para 34
AIR 1951 SC 41 Referred to. Para 34
(2002) 8 sec 481 Referred to. Para 34
(2008) 2 sec 254 Referred to. Para 34 H
1054 SUPREME COURT REPORTS [2010] 4 S.C.R.
A AIR 1957 SC 297 Referred to. Para 36
(1994) 3 sec 569 Referred to. Para 37
(2004) 2 sec 553 Referred to. Para 39
(1979) 3 sec 431 Referred to. Para 49
B
(2005) 3 sec 212 Referred to. Para 50
(1988) Supp sec s2 Referred to. Para 51
(1987) 1 sec 424 Referred to. Para 59
c CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1975 of 208.
From the Judgment & Order dated 19.7.2007 of the High
Court of Judicature at Bombay in Writ Petition No. 1136 of
D 2007.
WITH
C.A. Nos. 1976, 1977 of 2008
E Mohan Jain, ASG, Sushil Kumar, Shanti Bhushan, Harish
N. Salve, Shekhar Naphade, Shakil Ahmed Syed, Shanid
Azmi, Nitya Ramakrishnan, Trideep Pais, Ashwath Sitaraman
(for K.J. John & Co.), Sanjay V. Kharde, Asha G. Nair, Ravindra
Keshavrao Adsure, Dinesh Thakur, Rohini Mukherjee, Jaspreet
Aulakh, Vibhav t Misra, Subhash Kaushik, T.A, Khan, Arvind
F Kumar Sharma, P.K. Dey, P. Parmeswaran for the appearing
parties.
Dr. MUKUNDAKAM SHARMA, J.
INTRODUCTION
G
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
H view of the fact that, this legislation, although widely used for
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1055
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA. J.]
maintaining law and order, has also generated some A
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 B
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 C
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, D
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 E
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 sec 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 F
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. G
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 prov~n 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 H
1056 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
B
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
c (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
D 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
specifically raised by filing an appeal and since only a
E 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.
F
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
G 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
H
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1057
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
and does not suffer from the vice of class legislation they A
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.
8
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 C
situation of this nature, where once the constitutional validity of
a provision has been upheld and the '~ame is again challenged
on a ground which is altogether different from the earHer one.
In Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel
Plant, Bhilai (M.P.) and Ors. [(1989)1SCC272] notwithstanding D
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 E
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 F
the earlier case regardless of whether the matter had been
--debated or not.
7.ln 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 G
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 H
1058 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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 present appeal was actually not decided
8
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
C 'promoting insurgency' on following two grounds:-
(a) the Maharashtra State legislature did not have
legislative competence to enact such a provision;
and
D (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,
E 1967.
10. The learned senior counsel appearing for the parties
have advanced elaborate arguments before us on the aforesaid
issues.
F 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
G 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,
H according to him, that part of Section 2(1)(e) of the MCOCA
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1059
OF MAHARASHTRA [DR MUKUNDAKAM SHARMA, J.]
which refers to 'promoting insurgency' is ultra vires Article A
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)
B
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 C
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 D
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 E
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).
13. Mr. Bhushan submitted that although the UAPA does
F
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 G
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 H
1060 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
s 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
C 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 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
0
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
E 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
F 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
G 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
H becomes an offence under a subsequent statute does not
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1061
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.)
automatically result in repugnancy or implied repeal of the A
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 B
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 co~tentioris C
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, D
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 E
make note of a minor development which took place during the
pendency of the present appeal. A further amendment was
made to the UAPA, 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
F
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 G
raised and urged. It is, therefore, not necessary for us to
elaborate on the said amendments.
H
1062 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
B 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
C concerned, the Bombay High Court in the impugned judgment
has held that MCOCA in pith and substance falls in Entry No.
1 of List Ill which refers to the criminal law. Though the Bombay
High Court has noted the fact that the State of Maharashtra
could have relied upon Entry 1 of List II i.e. the State List which
o refers to 'public order' to contend that the term 'promoting
insurgency' is relatable to that entry, the Hi~h 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 Ill i.e. the
E 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 Ill. This Court in Bharat Shanti Lal
F 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 Ill of
G 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
H relatable to Entry 1 of List II.
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1063
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
22. Section 2(1)(e) of the MCOCA, which includes within A
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 beha.lf of such
8
syndicate, by use of violence or threat of viblence 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]
c
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' D
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. E
-
24. In Sarbananda Sonowa/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. F
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 G
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.
H
1064 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
B 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)."
C 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 regulation$ enforced by the Government which
0 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,
E 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, tha• +he normal tranquility of a civilized society is
in each of the cases mentioned disturbed either by actual
F 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 Constitutiol'I thus requires a line,
G 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.
H 29. In Superintendent, Central Prision v. Ram Manohar
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1065
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
Lohia [(1960) 2 SCR 821] this Court had held that "Public order" A
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 Or. Ram Manohar Lohia v. State of Bihar [(1966) 1 SCR B
709], Hidayatullah, J., held that any contravention of law always
affected 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 c
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
.D
State", "law and order" also comprehends disorders of less
gravitythan those affecting "public order". One has to
imagine three glncentric 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 E
· 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
F
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 G
acts become more and more grave as we journey from the
periphery of the largest circle .towards the centre. In this journey
we travel first though public tranquility, then through public order
and lastly to the security of the State. This Court further held
that in the judgment of this Court, the expression "in the interest
H
1066 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
s meaning because, as has been observed, the expression "in
the intc:rest of public order" is very wide.
31. The meaning of the phrase "public order" 1 ;as also been
determined by this Court in Kanu Biswas v. State of West
Bengal [(1972) 3 sec 831] where it was held that the concept
C 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
o 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 [Al R 1950 FC 59] where the Federal Court while
E 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:-
F "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
G 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."
H 34. It is a well-established rule of interpretation that the
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1067
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
entries in the List being fields of legislation must receive liberal A
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 B
Mafatlal v. Commr. of l.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 c
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],
Kamataka Bank Ltd. State of AP [(2008) 2 SCC 254]]. .
D
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 E
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 F
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 doctrir.e is an established principle
of law in India recognized not only by this Court, but also by G
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 H
1068 SUPREME COURT REPORTS [2010) 4 S.C.R.
A 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.
B
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
c 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
D 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
E 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
F
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
G 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,
H whether in the guise of making a law on a matter within it
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1069
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
competence, the legislature is, in truth, making a law on a 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."
B
37. Again, a Constitutional Bench of this Court while
discussing the said doctrine in Kartar Singh v. State of Punjab
[(1994) 3 sec 569] observed as under:
"60. This doctrine of 'pith and substance' is applied when
the legislative competence of a legislature with regard to C
a particular enactment is challenged with reference to the
entries in the various lists i.e. a law dealing with the subject
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 D
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 E
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 ofthe matters enumerated
in the Union List. However, if it could be shown that the core F
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. G
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:
H
1070 SUPREME COURT REPORTS [2010J 4 S.C R.
A "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
B statutes being declared unconstitutional because the
legislature enacting law may appear to have legislated in
a 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,
c keeping in view the true nature of the enactment, the courts
have evolved the doctrine of 'pith and substance' for the
purpcse 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
D
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
E 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
F 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
G Kera/a [(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
H 56~]. In the last-mentioned case it was held:
\
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1071
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
'(3) Where a law passed by the State Legislature while A
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 s
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 C
making powers of the Central Government, we may proceed
to evaluate the current issue on merits. Let us once again
examine the provision at the core of this matter:
"2(1)(e) "organized crime" means any continuing unlawful D
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 E
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 F
"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 G
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 · H
1072 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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 money
B 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
c 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.
D
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
E 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
F 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"
G 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
H ratio of the judgments on the point of public order referred to
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1073
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
by us earlier, it is clear. that anything that affects public peace A
or tranquility within the State or the Province would also affect
public order and the State Legislature is empowered to enact
laws aimed at containing or preventing acts which tend to or
actually affect public order. Even if the said part of the MCOCA
incidentally encroaches upon a field under Entry 1 of the Union B
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
~tate subject and only incidentally trenches upon a matter falling
under the Union List. c
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 Ill of the Seventh Schedule of
the Constitution. D
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 E
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 F
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 G
between the two.
46. Before we proceed to analyze the said aspect, it would
be appropriate to understand the situations in which
rep.ugnancy would arise.
H
1074 SUPREME COURT REPORTS (2010/ 4 S.C.R.
A 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 o~ 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
B 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: - ·
c "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 enumerated
in List I in the Seventh Schedule (in this Constitution
D 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 Ill in the Seventh Schedule (in this
E 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
F 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
G 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
H List Ill of the Seventh Schedule reads as under:
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1075
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
"254. Inconsistency between laws made by Parliament A
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 8
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 C
legislature of the State shall, to t~e extent of the
repugnancy, be void.
·(2) Where a law made by the legislature of a Statei with
respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the D
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: E
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect
to the sc;1me matter including a law adding to, amending,
varying or repealing the law so made by the legislature of
the State." F
49. We may now reftr 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 G
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:
H
1076 SUPREME COURT REPORTS [2010] 4 S.C.R.
A "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
B 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.
c
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
D 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.
4. Where, however, a law made by the State Legislature
E 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
F 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
G by the State Legislature under the proviso to Article 254."
In para 24, this Cowt further laid down the conditions which
must be satisfied before any repugnancy could arise, the said
conditions are as follows:-
H
• ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1077
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA. J.)
"1. That there is a clear and direct inconsistency A
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 B
two Acts is of such nature as to bring the two Acts
into direct collisiorfwith each other and a situation
is reached where it is impossible to obey the one
without disobeying the other."
c
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 irreconcilf!bl,e orovisions., so that they D
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 E
there is room or possibility 9t 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 F
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 G
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:-
H
1078 SUPREME COURT REPORTS [2010) 4 S.C.R.
A "9. Parliament has exclusive power to legislate with respect
to any of the matters enumerated in List I, notwithstanding
anything contained in clauses (2) Cl;lld (3) of Article 246.
The non obstante clause under Articte 246(1) indicates the
predominance or supremacy of the law made by the Union
s 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
c 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,
D 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.
E
11. With respect to matters enumerated in List Ill
(Concurrent List), both Parliamerit and the State Legislature
have equal competence to legislate. Here again, the courts
are charged with the duty of interpreting 1he enactments
of Parliament and the State Legislature in such manner as
F
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
G 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
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1079
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
respect to matters in the Concurrent List and there is a 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 B
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 C
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 D
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 E
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 F
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 G
Reasons in relevant part, reads as under:
"Organised crime has for q:Jite 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
H
1080 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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
B 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
c 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
D 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
E 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."
F
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
G "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
H
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1081
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
which more than one charge-sheets have been filed before a 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 B
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 c
(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 0
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 E
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 F
effective prevention of certain unlawful activities of individuals
and associations, and dealing with terrorist activities and for
matters conriected therewith. In 2008 amendment, the
Preamble has again been amended and the amended
,Preamble now also contains a reference to the resolution G
\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 H
1082 SUPREME COURT REPORTS [2010] 4 S.C.R.
A reference to the 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
B 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.
c
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
D 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
E to take action against certain terrorists and terrorist
organisations, to freeze the assets and other economic
resources, to prevent the entry into or thtll transit through
their territory, and prevent the direct or indirect supply, sale
or transfer of arms and ammunitions to the individuals or
F entities listed in the Schedule;A
nd 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
G 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 a11d the Order and to make special
provisions for the prevention of, and for coping with,
H terrorist activities and for matters connected therewith or
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1083
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
incidental thereto." A
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 B
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 C
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, D
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 E
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 F
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 G
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 lik~ly to strike terror
H
1084 SUPREME COURT REPORTS [2010] 4 S.C.R.
A in the people or any section of the people in India or in any
foreign country,-
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms
or other lethal weapons or poisons or noxious
B 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-
c
(i) death of, or injuries to, any person or
persons; or
(ii) loss of, or damage to, or destruction of,
property; or
D
(iii) disruption of any supplies or services
essential to the life of the community in India
or in any foreign coumry; or
(iv) damage or destruction of any property in
E
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
F
(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
G
(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 Stdte Government or the Government of
a foreign country or any other person to do or
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1085
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
abstain from doing any act, A
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 B
Central Government as public functionary."
From a perusal of Section 15 before and after amendment of. ·
the UAPA. it comes to light that though after amendment there·
have been certain additions to the provision but in substance c
the provision remains the same.
57. Sub-Clauses (I) 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 : ·
I)
(I) "terrorist gang" means any association, other tnan
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 E
same name as an organisation so listed;
The following are the Terrorist Organisations which are
mentioned in the First Schedule of the UAPA: -
F
"1. Babbar Khalsa International.
2. Khalistan Commando Force.
3. Khalistan Zindabad Force
4. International Sikh Youth Federation. G
5. Lashkar-E-Taiba/Pasban-E-Ahle Hadis.
6. Jaish-E-Mohammed/Tahrik-E-Furqan.
7. Harkat-Ul-Mujahideen/Harkat-Ul-Nsar/Harkat~UI- H
1086 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Jehad-E-lslami.
8. Hizb-ul-Mujahideen/Hizb-ul-Mujahideen Pir Panjal
Regiment.
9. Al-Umar-Mujahideen.
B
10. Jammu and Kashmir Islamic Front.
11. United Liberation Front of Assam (ULFA).
12. National Democratic Front of Bodoland (NDFB).
c 13. People's Liberation Army (PLA).
14. United National Liberation Front (UNLF).
15. People's Revolutionary Party of Kangleipak
D (PREPAK).
16. Kangleipak Communist Party (KCP).
17. Kanglei Yaol Kanba Lup (KYKL).
18. Manipur People's Liberation Front (MPLF).
E
19. All Tripura Tiger Force.
20. National Liberation Front of Tripura.
21. Liberation Tigers of Tamil Eelam (LTTE).
F
22. Students Islamic Movement of India.
23. Deendar Anjuman.
24. Communist Party of India (Marxist-Leninist)-
G People's War, all its formations and front
organisations.
25. Maoist Communist Centre (MCC), all its formations
and front organisations.
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1087
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
26. Al Sadr. A
27. Jamiat-ul-Mujahidden.
28. · Al-Qaida.
29. Dukhtaran-e-Millat (DEM). B
30. Tamil Nadu Liberation Army (TNLA).
31. Tamil National Retrieval Troops (TNRT).
32. Akhil Bharat Nepali Ekta Samaj (ABNES).'.
c
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) D
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 E
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 F
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 footing
when compared to the activities carried out by the forces like G
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 H
1088 SUPREME COURT REPORTS [2010) 4 S.C.R.
.
A 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
B
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
c
(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
D
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 riote that it is well settled that no provision or word in a
E 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:
F
"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
G 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
H the glasses of the statute-maker, provided by such context,
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1089
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.)
its scheme, the sections, clauses, phrases and words may A
take colour and appear differ~nt 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 B
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 C
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 D
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 E
sovereignty of India or with the intent to strike terror in the people
or any section of the people in India or in any foreign country
or relate to cessation or secession of the territory of India.
61. Under the MCOCA the emphasis is on crime and
F
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 . G
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 H
1090 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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.,
B Section 2 (1)(o) takes in its compass even a written or spoken
words or any other visible representation mtended 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.
c 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
D 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
E 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
F 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.
G
64. The aforesaid analysis relating to the essential
elements of offence of 'promoting insurgency' under Section 2
(1) (e) of the MCOCA and the offence of terrorist act and
unlawful activity under Section 15 and Section 2 (1)(o) of the
H UAPA respectively, clearly establishes that the UAPA occupies
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1091
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
a field different than that occupied by the MCOCA. There is no A
clear and direct inconsistency or conflict between the said
provisions of lhe two Acts.
65. We therefore, for the reasons mentioned above, concur
with the final decision reached by the High Court in the
8
impugned judgment and repel the challenge unhesitatingly.
66. The appeals accordingly fail and are dismissed. No
Costs.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C
No. 940 of 2008.
From the Judgment & Order dated 15.4.2008 of the
Special Court under MCOC Act at Gr. Borribay in Misc.
Application No. 142 of 2008 in MCOC Special. Case No. 23
of 2006. D
Mohan Jain, ASG, Shekhar Naphade, Anil K. Jha, Sanjay
V. Kharde, Asha G. Nair, Ravindra Keshavrao Adsure, Dinesh
Thakur, Rohini Mukherjee Jaspreet Aulakh, Vibhav Misra,
Subhash Kaushik, T.A. Khan, Arvind Kumar Sharma, P.K. Dey, E
P.Parmeswaran for the appearing parties.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. By a separate
Judgment pronounced today, the three connected Civil Appeals F
being C.A. Nos. 1975-1977 of 2008 have been dismissed.
2. 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 G
merits in light of the findings given by this Court in the said
connected appeals, in case-a fresh application is moved by the
appeallant herein before the Special Court.
N.J. Appeals disposed of. H
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