Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra and Ors

FACTS OF THE CASE

The matter at hand pertains to a writ petition filed by the appellant, numbered 1136 of 2007 and dated 19.07.2007. The petition challenges the constitutional validity of a specific portion of Section 2(1)(e) of the Maharashtra Control of Organized Crime Act, 1999 (referred to as “MCOCA” hereafter), which pertains to ‘insurgency’. The high court dismissed this writ petition. Subsequently, the appellant filed an appeal to the Supreme Court of India. In the appeal, the constitutional validity of Section 2(1)(e) of the MCOCA, specifically regarding ‘promoting insurgency’, is being challenged on two grounds:

(a) The appellant argues that the Maharashtra State legislature lacked the legislative competence to enact such a provision.

(b) The appellant contends that the part of Section 2(1)(e) of the MCOCA related to ‘insurgency’ is contradictory and has become void due to the enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, which amended the Unlawful Activities (Prevention) Act, 1967.

The appellant, in Civil Appeal No. 1975 of 2008, argued that ‘insurgency’ should be considered an offense falling under Defense of India, Entry 1 of List I, which is the Union List. This is because ‘insurgency’ poses a threat to the unity, integrity, and sovereignty of India. Additionally, the appellant claimed that the Maharashtra State legislature lacked the legislative competence to enact the latter part of Section 2(1)(e) of the MCOCA, which deals with ‘promoting insurgency’. The appellant contended that this power falls under the residuary power conferred on the Parliament under Article 248, read with Entry 97 of the Union List. Therefore, according to the appellant, the part of Section 2(1)(e) of the MCOCA that pertains to ‘promoting insurgency’ is beyond the scope of Article 246(3) of the Constitution and, therefore, ultra vires.

The part of Section 2(1)(e) of the MCOCA that includes ‘insurgency’ is contradictory and has become void due to the enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, which amended the Unlawful Activities (Prevention) Act, 1967 (referred to as “UAPA” hereafter). The appellant argues that insurgency and terrorism are closely related, and following the 2004 amendment, the UAPA comprehensively addresses the offense of terrorism. The definition of ‘insurgency’ as stated in Section 2(1)(e) of the MCOCA is effectively included in the definition of a ‘terrorist act’ as outlined in part of Section 2(1)(e) of the MCOCA, so far as it covers the case of ‘insurgency’, is repugnant and has become void by the enactment of the Unlawful Activities (Prevention) Amendment Act, 2004 amending the Unlawful Activities (Prevention) Act, 1967. the UAPA, this becomes the second ground for a challenge in the present case.

hence the same matter is argued in the present case before the supreme court of India.

ISSUES

1. Whether Maharashtra State legislature has legislative competence to enact such a provision of Section 2(1)(e) of the MCOCA?
2. Whether the part of Section 2(1)(e) of the MCOCA, so far as it covers the case of ‘insurgency’, is repugnant and has become void by the enactment of the Unlawful Activities (Prevention) Amendment Act, 2004 amending the Unlawful Activities (Prevention) Act, 1967.?

ARGUMENTS

The senior counsel representing the appellant in Civil Appeal No. 1975 of 2008 put forth a compelling argument, asserting that the offense of “insurgency” should be classified under the purview of Defense of India, Entry 1 of List I, which is part of the Union List. Consequently, according to their submission, the legislative competence to enact the section of the Maharashtra Control of Organized Crime Act (MCOCA), specifically Section 2(1)(e) concerning “promoting insurgency,” does not lie with the Maharashtra State legislature. Therefore, the appellant contends that the part of Section 2(1)(e) of MCOCA, which makes reference to promoting insurgency, ultra vires the constitutional provision stated in Article 246(3). The counsel for the appellant also contended that “insurgency” and terrorism are closely intertwined, and following the 2004 amendment, the Unlawful Activities (Prevention) Act (UAPA) comprehensively addresses the offense of terrorism. The definition of “insurgency” in Section 2(1)(e) of the Maharashtra Control of Organized Crime Act (MCOCA) aligns with the definition of a “terrorist act” stated in Section 15 of the UAPA. This creates an anomaly where an act can be considered an offense under both Section 2(1)(e) of MCOCA and Section 15 of UAPA. Furthermore, the appellant argued that while MCOCA establishes a distinct procedure and designates a specific court for the trial of the offense, UAPA sets forth a different procedure and court for the same offense. The counsel submitted that if not for the inclusion of the term “insurgency” in Section 2(1)(e), MCOCA would fall within the legislative competence of the state legislature. According to the appellant’s argument in the present case, when a law enacted by the Parliament conflicts with state law, the state law becomes void as the subsequent law enacted by the Parliament takes precedence. Therefore, the appellant contends that after the 2004 amendment in the Unlawful Activities (Prevention) Act (UAPA), there exists an implied repeal of the Maharashtra Control of Organized Crime Act (MCOCA) in relation to its coverage of insurgency.

 The counsel representing the respondent argued that the Maharashtra Control of Organized Crime Act (MCOCA) specifically addresses organized crimes, gangs, and syndicates, and no other legislation, including the Unlawful Activities (Prevention) Act (UAPA), covers the same subject matter. The counsel emphasized that MCOCA and UAPA have distinct aims, objectives, and areas of operation, and there is no overlap in their functioning. Upon comparing both acts, it was stated that UAPA directly penalizes insurgency as an act, which is punishable. On the other hand, in MCOCA, insurgency serves as the motive behind the act, rather than being an act itself that is punishable. The respondent also argued that an act becomes an offense under a subsequent statute and does not automatically lead to repugnancy or implied repeal of the offense defined in the earlier statute. The existing statute will only be repealed if the elements of the offense established by the later statute are identical to the elements of the offense in the earlier statute.

JUDGEMENT

 After examining under what circumstance the state law Section 2 (1)(e) “organized crime“ means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantages for himself or any other person or promoting insurgency; after analyzing the provisions the court have come to the conclusion that the definition of organized crime contained in S 2(1)(e) of Mcoca makes it clear that the phrase “promoting insurgency” is used to denote the possible driving force for the organized crime. it is evident that Mcoca does not punish “insurgency” per se but punishes those who Are guilty of running a criminal organization, one of the motives of which may be the promotion of insurgency. The court finds contention that MCACO in any way deals with punishing insurgency directly. The court was of the view that the legislation only deals with “insurgency” indirectly only to bolster the definition of “organized crimes”. Further, the meaning of the term Unlawful activity is completely different in MCACO when compared to UAPA. The concept of insurgency under section 2 (1)(e) of MCACO, is seen and understood in the context of the act, as a grave disturbance of the public order within the state. Therefore because of the above reason the supreme court come to a final decision that to impugn the judgment given by the high court and repel the challenge.

REFERENCE

http://www.scconline.com/DocumentLink/o41OREcs

This Article is written by Devyani Kapse of ILS Law College Pune, an Intern at Legal Vidhya.