1. By these petitions, the petitioners havechallenged the constitutional validity of theState Legislature called Maharashtra Control ofOrganized Crime Act 1999 (hereinafter referred toas M.C.O.C.A. for the purposes of brevity).
2. Taking into consideration the growingmenace of organized crime within the State ofMaharashtra and finding it extremely difficult todeal with it effectively within the lawsavailable, it was considered necessary by theState of Maharashtra to enact a comprehensivelegislation for the purposes of providingadequate provisions of law to deal with thismenace of organized crime. It was also thoughtnecessary that the present provisions of law arenot adequate in respect of certain aspect whichwill have to be controlled, if there has to beeffective preventive control on organized crime.
3. Therefore, the Governor of Maharashtrapromulgated the Maharashtra Control of OrganizedCrime Ordinance 1999 being Ordinance No. 3 of 1999on 21-2-1999. This Ordinance was almostidentical with the enactment called MCOCA.Infact the law requires that the Ordinance beplaced before the legislature within thestipulated period and therefore it was so placedand the bill was passed converting the Ordinanceinto an Act of Maharashtra. It came into forcefrom 24-2-1999, and received the assent of thePresident of India on 24-4-1999. This enactmentis challenged before us in these petitionsbasically on two grounds. Firstly on the groundof lack of legislative competence of the StateLegislature. That is to say the legislation(MCOCA) is made to effectively control organizedcrime within the State of Maharashtra and tofacilitate collection of evidence by interceptionof the wireless or telegraphic messages. Thisbeing the object of the Act, the various entriesin the list II of the 7th schedule of theConstitution, do not provide for any such fieldof legislation available to the State by recourseto which legislation could be made by the Stateunder Articles 245 and 246 of the Constitution ofIndia.
4. According to the petitioners one of themain objects of the enactment is to preventorganized crime by taking recourse tointerception of wireless or other messages, sothat on acquisition of such knowledge propersteps to prevent crime or to prevent growth oforganized crime in the State can be taken. It istherefore a legislation made for the purpose ofinterception of telecommunication. Theinterception of such messages according to thepetitioners is a subject covered by entry 31 oflist I which is already occupied by the IndianTelegraphic Act 1885, which deals with suchinterceptions and to cover that the Act and Rulesthereunder are in force even today. Consequentlythe State of Maharashtra could not legislate onthe subject being incompetent to do so with reference tothe various entries in list I and List II.
5. The second aspect of the challenge is thatassuming existence of legislative competence inMaharashtra Legislature, the provisions makeserious inroads on fundamental rights of thecitizens and therefore those provisions are void asthey invade the fundamental rights of thepetitioner. The argument is therefore that severalprovisions of the Act make serious inroads on thefundamental rights and therefore the legislation isunconstitutional. As Article 13 prohibits makingof such legislation it is contended that it isultra wires for the legislature to do so. In otherwords the argument is that certain provisions of thisAct are liable to be declared ultra wires part IIIof the Constitution.
6. The learned counsel for the petitioner Mr. V.R.Manohar made elaborate submissions on these issuesand contentions, which we will notice later on.Mr. S.G. Aney special counsel representing therespondent State submitted that certain presumptions doexist for interception of legislation as intraviresand ultra wires the constitution and those principles bekept in mind before analyzing the provisions of MCOCAfor the purposes of determining its constitutionalvalidity. There is no dispute between thecontesting parties regarding existence andimportance of the basic principles of interpretation ofthe constitution for the purposes of determiningthe constitutional validity of any enactment by anycourt of law. In fact over last 50 years severalstatutes have been challenged on the ground oflegislative competence or on the ground ofviolating the fundamental rights of the citizens.The principles have been now well settled by severalauthorities of the Supreme Court of India. In ouropinion there can be no dispute regarding the existenceof certain established cannons of interpretation ofa statute for the purpose of examining itsconstitutional validity. As submitted by thelearned counsel appearing for the contestingparties consideration of the several submissionsmade at the bar should proceed on the basis ofthese accepted principles of interpretation.
7. There can be no dispute about thisposition in law. There also can be no dispute aboutthe existing cannons of interpretation for consideringthe statutory validity of the enactment inrelation to the constitutional provisions in thatregard. We have carefully gone through the variousrulings cited before us by both the sides on thisissue of principles of interpretation. In our opinionthe established principles of law on the basis ofwhich and in accordance with which the statutoryvalidity of MCOCA is to be determined enumeratedbriefly are as under:
1) There shall always be a presumption ofconstitutionality in favour of a statuteand while construing such statute everylegally permissible effort should be madeto keep the statute within the competenceof the legislature.
2) While considering the constitutionality ofa statute the court must lean heavily onthe presumption of it beingconstitutional, unless the contrary isproved with substantial correctness, and inso doing the words or phrases used in theimpugned statute should be liberallyconstrued and efforts must be made toavoid attributing futility to any suchphrases or sentences or clauses used inthe section.
3) In the event of a contention being raisedthat the State statute is conflictingwith the Central statute for whateverreasons, the court should interpret boththe statutes harmoniously and as far aspossible in a manner so as to avoidrendering any or either of themillegal or unconstitutional.
4) The power to legislate is derived by thelegislature via Articles 245 and 246 ofthe Constitution of India and its exercise issubject to the provisions of part III ofthe Constitution. This power tolegislate is to be exercised strictly asper Articles 245 and 246 read withSchedule VII of the Constitution.
5) The court should adopt the doctrine ofpith and substance in coming to theconclusion of what is true nature andcharacter of the subject covered by theprinciple legislation impugned before thecourt. Peripheral overlapping of minimalnature should be ignored, if in pith andsubstance the legislation is within thecompetence of the legislature making it.
(See 1) A.I.R. 1962 S.C. 995, 2) : 2SCR477 , 3) : 1978(2)ELT297(SC) and several other decisions).
8. It is in the light of these undisputedprinciples of law regarding the validity ofstatutes framed by the legislature in India that wewould now proceed to consider theconstitutional validity of the provisions of MCOCA.
9. The first challenge is to the entireenactment called MCOCA. The submission of Mr. V.R.Manohar, stated in a nutshell, is that the entireAct is intended to prevent the commission of organizedcrime and increase in the commission of such crime andfor that purpose the provisions are enacted. All theseprovisions in Pith and substance, are thereforeprovisions made for the purpose of preventing organizedcrime, making it penal in itself and providing forthe machinery for doing it. The Act has definedwhat is an organized crime syndicate. It has definedwhat is organized crime and it has defined what iscontinuing unlawful activity. According to thelearned counsel the entire enactment revolves aroundwhat is meant by continuing unlawful activity andorganized crime and organized crime syndicate. Thesethree definitions contained in Section 2(1)(d)(e) and(f) are so interwoven and interdependent that they areunconstitutional taken together as they violate therequirement of Article 13(2) of the Constitution, theymake serious inroads into fundamental rights, bytreating unequals as equals and are unsustainablyvague. If these three definitions areheld unconstitutional and therefore struck down assubmitted by the leaned counsel, his furthersubmission is that the entire enactment must gobecause it is an enactment for the purpose ofpreventing organized crime by a syndicate and theprovisions cannot be read without the definition.This argument is countered by Mr. Aney by submittingthat there is no vagueness in any of thedefinitions as alleged by the petitioner. Thedefinitions have to be construed harmoniously and thereis no ground for striking down the enactment asunconstitutional and even if the definitions arestruck down, if they are found violating thefundamental right, there is enough guidance in thepreamble of Act itself to carry out the purpose of theAct and on this ground the entire statute need not bestruck down.
10. Heavy reliance was placed by Mr. V.R. Manohar ona judgment of Supreme Court in Amarnath Omprakashv. State of Punjab reported in : 2SCR72 , to contend that the courts while interpreting theprovisions of law may explain what is meant by aparticular provision, it cannot substitute the wordsused in the enactment by their own words orexplanation so as to give the proper meaning ofthe legislation.
'A case is only an authority for what isactually decides and not for what may seem tofollow logically from it. Judgments ofCourts are not to be construed asstatutes. To interpret words, phrases andprovisions of a statute it may becomenecessary for judges to embark intolengthy discussions, but the discussion inmeant to explain and not to define.Judges interpret statutes and they do notinterpret judgments. They interpret words ofstatutes, their words are not to beinterpreted as statutes.'
11. Relying on the above dicta of the Supreme Courtin the above mentioned case Mr. Manohar contended thatthe provisions of Section 2(1)(d)(e) and (f) shouldbe meaningful without any additional of words theretoor explanation. Therefore, keeping in mind thiscontention and various other authorities cited at thebar we will now consider the provisions impugnedbefore us.
12. The petitioners have challenged theprovisions of Section 2(1)(a)(d)(e) and (f). We willconsider the challenges one by one as they are made,and at the same time we will also consider thedefence raised by the State in respect of theseclauses. It is necessary to reproduce these provisionsverbatim.
'2. Definitions....(1) In this Act, unlessthe context otherwise requires--
(a) 'abet', with its grammatical variations and cognate expressions, include, ....
(i) the communication or association with any person with the actual knowledge or having reason to believe that such personis engaged in assisting in any manner, an organized crime syndicate.
(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organized crime syndicate and the passing on or the publication of or distribution of any document or matter obtained from organized crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the organized crime syndicate;
(d) 'continuing unlawful activity' meansan activity prohibited by law for thetime being in force, which is a cognizableoffence punishable with imprisonment ofthree years or more, undertaken eithersingly of jointly, as a member of anorganized crime syndicate in respect ofwhich more than one charge sheets have beenfiled before a competent court within thepreceding period of ten years, and thatcourt has taken cognizance of such offence.
(e) 'organized crime' means any continuing unlawful activity by an individual, singly or jointly, either as amember of an organized crime syndicate or on behalf of such syndicate by use ofviolence 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.
(f) 'Organized crime syndicate' means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime.'
13. According to the petitioner as alreadysubmitted, these definitions are vague,discriminatory and arbitrary and thereforeviolative of the Constitution. Mr. Aney the learnedcounsel for the State referred to theprovisions and pointed out that there is nothing vaguein all these provisions and submitted thatwhile interpreting an enactment the court should haveregard to the meaning of the words used and the contextin which they are enacted, as was done, according to him in the case of Kartar Singh.
14. Shri Manohar, learned counsel appearing on behalfof the petitioner submitted that the definition of theword 'Abet' in MCOC Act is very confusing and vague.Going to the provisions as quoted above of the word'Abet'; it will be seen that for the purposes of thisact. The word 'Abet' itself is not defined and onlythat is defined which by this enactment includes withinthe definition of the word 'Abet'. It is an inclusivedefinition without defining what the word 'Abet' means.The challenge therefore is that any communication orassociation whatsoever, with any person known to be orbelieved to be a person engaged in organized crime orassisting any organized crime syndicate would beabetting an offence mentioned in the MCOC Act. As anillustration, since any communication or associationwith member of the organized crime syndicate by anyperson is regarded as abetment, take the case of acommunication by a Chartered Accountant with his clientin relation to the client's legitimate businessconnections, knowing that there are certain illegalactivities also undertaken by such person; even if thecommunication has nothing to do with the illegalactivities of that man or his association with organizedcrime syndicate and yet he, the Chartered Accountant inview of this definition would be taken to have abettedthe activities etc. of the person alleged to be a memberof organized crime syndicate. According to the learnedcounsel therefore such definition has no reasonablenexus with the object of the act which is to control andprevent commission of organized crime activity either ofa gang or a group or otherwise. Therefore according tothe learned counsel the definition is liable to bestruck down. Mr. Aney, learned counsel appearing for theState submitted that these definitions are inclusive andit only takes in such communications or associationsthat are connected with organized crime. The definitionis inclusive and therefore there is nounconstitutionality attracted to it.
15. It is true that the word 'Abet' is not defined inthe Prevention of Terrorism Act, 2002 and it adopts thedefinition of that word in Indian Penal Code. In ouropinion, similar is the position in the MCOC Act. Thedefinition of word abet in Section 2(1)(a) is aninclusive definition and it includes within thedefinition of that word three more items mentioned asi), ii) and iii). Of necessity and according to theestablished principles of interpretation the word Abetmeans what it means in the provisions of the IndianPenal Code Sections 107 to 109 and includes what isquoted as items 1, 2 and 3 in Section 2(1)(a) of MCOCAct.
16. That takes us to the provisions of Indian PenalCode in relation to abetment. They are contained inChapter V of Indian Penal Code. Section 107 definesword abetment of a thing, Section 108 defines wordabettor and according to that section a person abets anoffence, who abets either the commission of an offence,or the commission of an act which would be an offence,if committed by a person capable by law of committing anoffence with the same intention and knowledge as thatof an abettor. Section 109 provides for punishment forabetment. Presently we are not concerned with thepunishment. From the definition contained in Section107 and 108 of the Indian Penal Code a person abetsdoing of a thing who instigates any person to doanything which is prohibited by law or otherwise assistshim in doing that which is prohibited by law, which mustalways include an offence. It does speak of intentionas will be seen from very definition of abetment inSection 107. It speaks firstly of instigating anyperson to do a particular thing, instigation alwayspostulates intention. Any such activity in collusionwith or in furtherance of any illegal act or omissionssought to be done by some else. That againpostulates intention. Thirdly it specifically providesthat intentionally aids any act or illegal omission, thedoing of that act. Here though the word illegal act isnot used it is always presumed to be there because it isonly aiding an illegal act or omission which is madepunishable as abetment of crime. It will therefore haveto be seen that abetment as inciting or aiding thecommission of an offence is already defined by IndianPenal Code. What has been done by defining the word'abet' in Section 2(1)(a) of MCOC Act is to make thatdefinition wider by saying that it will include in itabove mentioned three acts described in i), ii) andiii). Whenever therefore a reference is to be madeunder the provisions of MCOC Act to abetment or abettingit will have to be a reference to Section 107 and 108of Indian Penal Code and Section 2(1)(a) of MCOC Act.So read, there is no ambiguity. There is no vaguenessin this definition. The words communication orassociation occurring in item (i) of Section 2(1)(a)must therefore necessarily be read to mean communicationor association in aid or assistance to anything done byorganized crime syndicate as an organized crime.Similar is the case of rendering any assistance whetherfinancial or otherwise to organized crime syndicate forthe purpose of organized crime. It will be far fetchedand therefore incorrect reading of the provision to saythat even rendering of medical assistance to a member ofcrime syndicate or contributing for the welfare of hischildren, who may suffer because of criminal activitiesof that person would amount to an abetment as suggestedon behalf of the Petitioner. Rendering any assistancewhether financial or otherwise must therefore be read tomean as assistance to organized crime or syndicate or toa person who is doing any one of the two things. Thepreamble of the act itself says that this enactmentbeing made for prevention and control of organizedcrime. The definitions must always be interpretedwith reference to the objects for which they are made.A provision making a communication or association withany person or rendering any assistance whether financialor otherwise to any person without reference to theactivity itself would be doing great violence to thelanguage of section. Such interpretation is notpermissible. Communication or rendering of anyassistance in any manner has to be read keeping in mindthe object for which it is made viz. prevention andcontrol of organized crime or organized crime syndicate.In our opinion, therefore, there is no illegality inthis provision. It does not suffer from violation offundamental right, it does not rope in persons who donot act in furtherance of organized crime or organizedcrime syndicate, it does not touch and it cannot touchpersons who render such communication or association orassistance with benevolent purpose unconnected with thecriminal activities of the person to whom it is renderedeven if it is with the knowledge that he is a criminal.The Legislature never intended, and the provision cannotbe interpreted to mean that a criminal should besegregated from a society for all the times to come andfor all purposes to come i.e. he would have no innocentand legal transaction related to daily living.Therefore if innocent people have transactions withsuch a person for lawful purposes they must not be takento have abetted such a person in criminal activities.This is not the intention of the legislation, it is notmade for taking away basic human rights of even acriminal. Right to medical assistance. Right toreligious attendance and such similar fundamental rightsare basic rights of human beings and those will not beand cannot be curtailed by any legislation orinterpretation of legislation. They would amount toabetment only if they are connected with commission oforganized crime or organized crime syndicate. Acommunication to crime syndicate or person belongingthereto of a nature which will further the object oractivity of crime syndicate, that person is certainlycovered by provisions to be used as such. But a prayermade by a Priest for giving mental solace to a knowncriminal cannot be by any stretch of imagination calleda communication or association which is culpable underthe act. It must be for aiding or abetting organizedcrime. To read the definition as such is the only legalway it should be read. To do anything else will becontrary to the established principles regardingstatutory interpretation.
17. In our opinion, therefore the definition of theword abet occurring in Section 2(1)(a) of the act mustalways be read in addition to the definition of thesewords occurring in Sections 107 and 108 of Indian PenalCode because the definition is only inclusive. It saysabet means what it means in the Indian Penal Code and itincludes what it is as by Clauses 1, 2 and 3 mentionedin 2(1)(a). The principle of cohesive interpretation ofstatute requires such interpretation and if so madethere is no constitutional infirmity in the provisionsof Section 2(1)(a).
18. It will be seen that an inclusive definition isresorted to when something already well defined existsand Legislature desires to add something more to it.The definition to abet or abetment or abettor isexisting for the last more than 100 years in the IndianPenal Code Sections 107 and 108. Judicial notice ofsuch existence has to be taken and has been taken by theLegislature and therefore it framed definition inSection 2(1)(a) of the word abet in an inclusive manner.It therefore says words abet or abetment or abettormean what they mean in the Indian Penal Code and willinclude for the purposes of this enactment the threeactivities mentioned in Section 2(1)(a). In ouropinion, therefore, so read the definition is neitherunconstitutional nor vague and there is therefore noreason to strike it down. All that has been done bythis definition clause is to include certain specifieditems in the definition of the word abet or abetmentalready existing in the definition in I.P.C. It alwayscontemplates intention on the part of person alleged tohave abetted any offence. The entries added to it bythree Clauses in 2(1)(a) of the act have to be readtherefore in consonance with the provisions of Sections107 and 108 in the Indian Penal Code which as aforesaidalways contemplate intention to aid or assist orinstigate commission of criminal offence. It is notintended to cover innocuous communications as describedabove. Several illustrations can be given and weregiven at the Bar either way and we need not repeat thesame here as in our opinion intention of the Legislatureis obvious, i.e. to cover instigation to commit orassist commission of a crime by doing any of thosementioned in definition in addition to what has beenalready provided for by Sections 107 and 108 of theIndian Penal Code. It cannot be said or even arguedthat anything done for facilitating commission of acrime not covered by these three clauses will not be anabetment of such offence in view of the definition as itstands. Doing anything else or otherwise than what ismentioned in three items shall also continue to beabetment of crime, organized crime or crime as definedin the act committed individually or by syndicate or bya gang. We are fortified in the view that we are takingby a judgment of this Court reported in the case ofA.C. Patel v. Vishwanath : AIR1954Bom204 where thisCourt was considering constitutional validity of theprovisions of Bombay Rents, Hotel and Lodging HouseRates Control Act, 1947 in its application tocantonments area. This Court has in that case observedthat it is permissible to rely on corresponding entriesin the constitution or other statutes for the purposesof proper and liberal construction of the statute. Wemay with respect quote the observations of this Court inthis regard:
'The well established canon ofconstruction with regard to various entriesin Schedule 7, Government of India Act is thatthese entries must not be construed in anarrow and restricted sense. They must beconstrued liberally and it must be assumedthat Parliament intended by using acomprehensive expression to give to theLegislature all subsidiary and ancillarypowers.
It is permissible to rely on acorresponding entry in the Constitution ofIndia to show what was the intention of theConstitution makers, because it is well knownthat the Constitution was based upon theGovernment of India Act and the Court mustlook at the Constitutional history in orderto construe expressions used in theGovernment of India Act and in theConstitution.'
This judgment also holds that the word 'including' or'includes' is a term of extension and it importsaddition. It adds to the subject matter alreadycomprised in the definition. Therefore the definitionof abet in MCOC Act is an inclusive definition and itincludes the three clauses mentioned therein to theoriginal definition of abet and abetment in Indian PenalCode. It is also provided in General Clauses Act, 1897,by Section 3 thereof that in the General Clauses Act andin all other Central Acts, Regulations made after thecommencement of the Act unless there is anythingrepugnant to the subject or context 'abet' with itsgrammatical variations and cognate expressions shallhave the same meaning as in the Indian Penal Code. Sameis the case in relation to the definition of abetmentand therefore the definition of the word 'abet','abetment' etc. occurring in Sections 107 and 108 ofIndian Penal Code. It will be seen that it isstatutorily necessary when we are interpreting theinclusive definition to read it as including somethingto what has already been defined by provisions of theIndian Penal Code. We therefore reject the contentionthat the definition of Section 2(1)(a) is liable to bestruck down.
19. Dealing with the next definition in Section2(1)(d) of 'continuing unlawful activity' it wassubmitted that it suffers from violation of Article 14as it treats unequals as equals. It makes an activitycontinuing unlawful activity if more than one chargesof cognizable offence punishable with imprisonment ofthree years or more are filed in competent court. Itdoes not touch an activity as 'continuing unlawfulactivity' if undertaking by a person who is known to be acriminal but more than one charge sheets have not beenfiled against him. A person charged ten times of anoffence though acquitted on every occasion may yet beroped in as a person engaged in continuing unlawfulactivity. Whereas a person who is convicted for anoffence for three years punishment cannot be touched bythis definition if he is not charged with more than twoof such offences. The definition therefore treats asequal persons who are hopelessly unequal that is to saya person who is a known criminal but chargesheetedand convicted not more than once and another who hasbeen falsely charged with 10 fabricated charges andacquitted of all the 10 charges with a finding that thecharges were fabricated yet merely because cognizancehas been taken of that charge are treated as personengaged in continuous unlawful activity. The definitionis therefore arbitrary and liable to be struck down asviolative of Article 14. The arguments appear to beattractive at the first blush, but deeper scrutinyreveals the hollowness of the argument.
20. For this purpose also we have to go by the basicprinciple of interpretation of statutes. A statute mustalways be interpreted with reference to the objects forwhich it is enacted, with reference to the preamble ofthe enactment. In the present case also therefore wemust remember that this enactment of MCOC Act is enactedby the Legislature for the purposes of making specialprovisions for the prevention and control of criminalactivity by a person or a gang and for matters connectedtherewith or incidental thereto meaning therebyconnected and incidental to organized crime andorganized crime syndicate. We have thereforescrutinized the definition clause in Section 2(1)(d)with this object of enactment mentioned in the preambleitself.
21. Our attention was drawn by Shri Aney to a judgmentof Supreme Court of India in the case of V.C. Shukla v.State (Delhi Admn.) 1980 Supp. SCC 249 where it has beenlaid down by the Supreme Court as under:
'We are, therefore, satisfied that the term'persons holding high public or politicalofficers' is self-explanatory and admits ofno difficulty and that mere absence ofdefinition of the expression would notvitiate the classification made by the Act.'
22. Relying on this observation Shri Aney contendedthat in this case also reference be made to the preambleand the definition be understood inter alia withreference to what has been said to be aims and objectsof this enactment in the preamble. So read, accordingto him, the definition would be outside the charge ofunconstitutionality. Very heavy reliance was placed byShri Manohar on a judgment of the Supreme Court of Indiain the case of Kartar Singh v. State of Punjab . There a Constitution Bench of the SupremeCourt was considering the constitutional validity of theprovisions of the Terrorism Disruptive Activities(Prevention) Act, 1987. Several provisions of thatenactment are similar to the provisions of MCOC Act. Bythat judgment the Supreme Court of India consideredconstitutional validity of all the provisions of thatact as were alleged to be unconstitutional. Reliancewas placed on the observations of the Supreme Court inpara 130 of the said judgment which reads as under:
'130. It is the basic principle of legaljurisprudence that an enactment is void forvagueness if its prohibitions are not clearlydefined. Vague laws offend several importantvalues. It is insisted or emphasized thatlaws should give the person of ordinaryintelligence a reasonable opportunity to knowwhat is prohibited, so that he may actaccordingly. Vague laws may trap theinnocent by not providing fair warning. Sucha law impermissibly delegates basic policymatters to policemen and also judges forresolution on an ad hoc and subjective basis,with the attendant dangers of arbitrary anddiscriminatory application. More so uncertainand undefined words deployed inevitably leadcitizens to 'steer far wider of the unlawfulzone..... than if the boundaries of theforbidden areas were clearly marked.'
23. From the above it will be seen that an enactmentwould be void for vagueness if the provisions containedtherein are not clearly defined or as alleged in thepresent case the definition itself is completely vague.The argument of Shri Manohar therefore is that thisdefinition of continuing unlawful activity is vague, itdoes not state with any certainty as to who and whenshall be said to have engaged in continuing unlawfulactivity. He therefore claims that this part of sectionis liable to be struck down for vagueness. We areunable to accept this argument of vagueness for tworeasons. Firstly, in our opinion, it is not vague andsecondly, the Supreme Court has laid down in very clearterms that a Legislation cannot be struck down on theground of vagueness. We would like to note theobservations of the Supreme Court of India in thisbehalf in the case of Amritsar Municipality v. State ofPunjab, : 3SCR447 . A three Judge Bench of theSupreme Court was considering the constitutionalvalidity of the provisions of Punjab Cattle FairRegulations Act, 1968. A submission was made before theSupreme Court that the statute is liable to be struckdown on the ground of vagueness and it was canvassedthat the expression Cattle Fair was not defined in theAct and consequently provisions of the act are vague.Reliance was placed for the other proposition on thejudgment of the Punjab High Court reported in wherein Punjab High Court struck down theprovisions of the Cattle Fair Regulation Act on theground of vagueness. Considering these submissions theSupreme Court observed as under:
'But the rule that an Act of a competentlegislature may be 'struck down' by theCourts on the ground of vagueness is alien toour Constitutional system. The Legislatureof the State of Punjab was competent to enactlegislation in respect of 'fairs', vide Entry28 of List II of the Seventh Schedule to theConstitution. A law may be declared invalidby the Superior Courts in India if theLegislature has no power to enact the law orthat the law violates any of the fundamentalrights as guaranteed in Part III of theConstitution or is inconsistent with anyconstitutional provision, but not on theground that it is vague.'
24. The Supreme Court specifically over ruled thedecision of the Punjab High Court reported in holding the Act invalid for vagueness. Theargument that because of the definition of continuedcriminal activity as made in the MCOC Act is vague, theAct is liable to be struck down, must be rejected and isaccordingly rejected.
25. Then we would consider the submission of ShriManohar that the definition of continuing unlawfulactivity violates the mandate of Article 14 and istherefore liable to be struck down. According to thelearned counsel unequal are being treated as equals.Persons charge only once are not brought within thepurview of the act but a person with several chargesframed and cognizance taken by competent court who lateron are acquitted a recovered by the definition.According to him therefore a person is acquitted of ten.charges cannot be treated as equal to a person who ischarged and convicted of only one offence. In ouropinion, there is no violation of Article 14 by thisdefinition. If we read the definition again, what hasbeen defined as continuing unlawful activity is a memberof organized crime syndicate in respect of which anyactivity prohibited by law and done repeatedly i.e. morethan one for which charge sheet has been filed in thecourt of competent jurisdiction in the part ten years.The purpose of definition is to define what continuingunlawful activity is and it is for the purposes ofdefining what is continued unlawful activity that thosecharges are to be taken into consideration. Mere takinginto consideration of such charges cannot result indiscrimination of the kind alleged by Shri Manohar. Theactivity must be continuing unlawful activity and todefine it with clarity it is provided that any personwho in the past was charge sheeted for more than onecharge of such activity or crime the cognizance of whichhas been taken and imprisonment for which is more thanthree years should be taken into account. The fact ofthe person having been charge sheeted in suchcognizable offences in the past makes the unlawfulactivity, continuing unlawful activity. This sectiononly defines what the activity is. It does not itselfprovide for any punishment for that activity. Hadpunishment been provided the submission that it treatswhile punishing unequal as equals may carry weightage.That being not the case in the challenge to Section2(1)(d) of the Act we see no vagueness or violation ofArticle 14 by the definition. We find that the provisiontreats all those covered by it in a like manner and doesnot suffer from the vide of class legislation.
26. In C.I. Emden v. State of Uttar Pradesh : 2SCR592 the Supreme Court rejected a challenge to Section 4(1)of the Prevention of Corruption Act (1947) as beingviolative of Article 14 in the following words:
'The scope and effect of the fundamentalright guaranteed by Article 14 has beenconsidered by this Court on severaloccasions; as a result of the decisions ofthis Court, it is well-established thatArticle 14 does not forbid reasonableclassification for the purposes oflegislation; no doubt it forbids classlegislation; but if it appears that theimpugned legislation is based on a reasonableclassification founded on intelligibledifferentia & that the said differentia havea rational relation to the object sought tobe achieved by it, its validity cannot besuccessfully challenged under Article 14 (VideShri Ram Krishna Dalmia v. S.R. Tendolkar, : 1SCR279 . In thepresent case there can be no doubt that thebasis adopted by the Legislature inclassifying one class of public servants whoare brought within the mischief of Section 4(1) isa perfectly rational basis. It is based onan intelligible differentia and there can beno difficulty in distinguishing the class ofpersons covered by the impugned section fromother classes of persons who are accused ofcommitting other offences.'
27. We also do not find substance in the challengethat the equality clause in the Constitution isviolated because the definition ropes in anyone chargedmore than once, irrespective of whether the chargeresulted in an acquittal or conviction. Thecircumstances that followed the charge are not material.The provision only defines what is continued unlawfulactivities and refers to whether a person has beencharged over a period of ten years for the purpose ofseeing whether the person is charged for the first timeor has been charged often. The circumstance ofconviction or acquittal that followed the charge are notmaterial. The limited purpose is to see antecedents ofthe person. Not to convict. In P. Rathinam v. Union ofIndia : 1994CriLJ1605 the Supreme Court repelled a somewhat similar challenge to the validity of Section 309 of theIPC as follows:
'18. In so far as treating of differentattempts to commit suicide by the samemeasure is concerned, the same also cannot beregarded as violative of Article 14, inasmuchas the nature, gravity and extent of attemptmay be taken care of by tailoring thesentence appropriately. It is worth pointingout that Section 309 has only provided themaximum sentence which is up to one year. Itprovides for imposition of fine only as apunishment.'
28. Section 2(1)(d) defines what the continuingunlawful activity is and the enactment is intended toprevent and control organized crime. Organized crime issomething which is continued unlawful activity and thatcontinuing unlawful activity is repeatedly indulging orfacing charge of indulgence in crimes punishable withthree years or more. The definition therefore thusdefines with clarity what is meant by continuingunlawful activity for the purpose of achieving theobject of the Act. There is therefore no vagueness norany violation of Article 14 of the Constitution. Wetherefore hold the definition in Section 2(1)(d) asconstitutionally valid. We reject the submission of thepetitioners and it is liable to be struck down for anyof the two grounds dealt with by us in the foregoingparagraphs.
29. We therefore hold that there is no ambiguity orvagueness of any kind in the definitions of theorganized crime and organized crime syndicate occurringin Section 3(e) and (f). It is true that these sectionsare interconnected and dependent on each other for theirconstruction. Once we read Section 2(1)(d) to meanunlawful activity as quoted above the definition oforganized crime as contained in Section 2(1)(e) does notsuffer from any flaw. There is no vagueness in anyother part of this section and in our opinion thereforeSection 2(1)(e) is also valid and constitutional. Forthe same reasons we also hold that the provisions ofSection 2(1)(f) defining organized crime syndicate arealso clear and unambiguous and thereforeconstitutionally valid.
30. That takes us to consider the provisions ofSection 3 of MCOC Act. The provisions of Sections 3 and4 are attacked on the ground of arbitrariness and on theground that they cover persons unconnected with crimeand therefore sections suffer from arbitrariness and isliable to be struck down. In particular the attack ison the provisions of Section 3(3) & (5) and Section 4 ofthe MCOC Act.
'3. Punishment for organized crime.--(1)Whoever commits an offence of organized crimeshall,--
(i) if such offence has resulted in thedeath of any person, be punishable withdeath or imprisonment for life and shallalso be liable to a fine, subject to aminimum fine of rupees one lac;
(ii) in any other case, be punishablewith imprisonment for a term which shallnot be less than five years but whichmay extent to imprisonment for life andshall also be liable to a fine subjectto a minimum fine of rupees five lacs.
(2) Whoever conspires or attempts to commitor advocates, abets or knowingly facilitatesthe commission of an organized crime or anyact preparatory to organized crime, shall bepunishable with imprisonment for a term whichshall be not less than five years but whichmay extent to imprisonment for life and shallalso be liable to a fine, subject to aminimum fine of rupees five lacs.
(3) Whoever harbours or conceals or attemptsto harbor or conceal, any member of anorganized crime syndicate shall be punishablewith imprisonment for a term which shall notbe less than five years but which may extendto imprisonment for life, and shall alsobe liable to a fine, subject to a minimumfine of rupees five lacs.
(4) Any person who is a member of anorganized crime syndicate shall be punishablewith imprisonment for a term which shall notbe less than five years but which may extendto imprisonment for life and shall also beliable to a fine, subject to a minimum fineof rupees five lacs.
(5) Whoever holds any property derived orobtained from commission of an organizedcrime or which has been acquired through theorganized crime syndicate funds shall bepunishable with a term which shall not beless than three years but which may extent toimprisonment for life and shall also beliable to fine, subject to a minimum fine ofrupees two lacs.
4. Punishment for possessing unaccountablewealth on behalf of member of organizedsyndicate.--If any person on behalf of amember of an organized crime syndicate is,or, at any time has been, in possession ofmovable or immovable property which he cannotsatisfactorily account for, he shall bepunishable with imprisonment for a term whichshall not be less than three years which mayextent to ten years and shall also be liableto fine, subject to a minimum fine of rupeesone lac and such property shall also beliable for attachment and forfeiture, asprovided by Section 20.'
31. The challenge is that unintentionally harboring orattempt, unintentional concealing or attempt to concealis also made penal. It is possible that a person maygive shelter to another person whom he feels deservesgrant of such shelter, and though he has no knowledgeabout his criminal activity or his being a member oforganized crime syndicate yet he would be liable forpunishment. In effect the argument is that requirementof mens rea for the purposes of harboring, concealing orattempt to harbor or conceal is done away with by thisprovision. Any person who unknowingly gives shelter,harbours or conceals not knowing the fact that thatperson is a criminal or is a member of organized crimeor syndicate would automatically be rendered liable forpunishment.
32. Section or provision of Section 3(3) can not berendered unconstitutional on this submission. In ouropinion, the position in law is settled in so far ascriminal law is concerned that in such provisions mensrea is always presumed as integral part of penal offenceor section unless it is specifically and expressly or bynecessary intendment excluded by the Legislature. Thisis not done in this case. No injury of such kind wouldbe caused if section is read as follows:
'3(3). Whoever (intentionally) harbours orconceals or attempts to harbor or conceal anymember of an organized crime syndicate shallbe punishable with imprisonment for a termwhich shall not be less than five years butwhich may extend to imprisonment for life andshall also be liable to a fine, subject to aminimum fine of rupees five lacs.'
Intention or mens rea being integral part of requirementof harboring or concealing it will be always read inSection 3(3). So read, the mischief as contended by thepetitioners can not occur.
33. Same challenge is raised to Section 3 Sub-section(5). There also the question of mens reason arises.Holding of any property derived from or obtained fromcommission of organized crime is an offence but theholder must know that the property is so tainted. Forthe reasons mentioned in relation to Section 3(3) abovethis section also has to be always read as under:
'3(5). Whoever (knowingly) holds anyproperty derived or obtained from commissionof an organized crime or which has beenacquired through the organized crimesyndicate funds shall be punishable with aterm which shall not be less than three yearsbut which may extent to imprisonment for lifeand shall also be liable to fine, subject to aminimum fine of rupees two lacs.'
So read the mischief as submitted by the petitionerswill not occur.
34. Then provisions of Section 4 of MCOC Act arechallenged. The section reads thus:
'4. Punishment for possessing unaccountablewealth on behalf of member of organizedsyndicate.--If any person on behalf of amember of an organized crime syndicate is,or, at any time has been, in possession ofmovable or immovable property which he cannot satisfactorily account for, he shall bepunishable with imprisonment for a term whichshall not be less than three years which mayextent to ten years and shall also be liableto fine, subject to a minimum fine of rupeesone lac and such property shall also beliable for attachment and forfeiture, asprovided by Section 20.'
35. The agreement is that these provisions make holdingof any property or possession of any property on behalfof a member of organized crime syndicate is liable topunishment mentioned therein. The argument is that thesection makes holding of property for and on behalf ofmember of organized crime at any time a crime.According to the petitioners therefore a man holdingproperty of a criminal acquired by him by way of theftwould be guilty of being in possession of stolenproperty under Section 410 of the Indian Penal Code.The person i.e. holder of the stolen property knew thatit is stolen property and was therefore aware of theconsequence of so holding it. In the present case, theperson would be guilty of doing something which was anoffence under Section 410 of Indian Penal Code and forwhich he has already suffered the punishment would againbe liable under this section because he has at a time inthe previous years held the property for and on behalfof organized crime syndicate. It will be attracting theprovisions of Article 20 of the Constitution of India ashe will be punished twice for the same action.
36. Another submission is that this section makes anact which was not a crime prior to coming into force ofthis Act, a crime. As required by Article 20 thereforesuch an action can not be made a crime withretrospective effect. However in our opinion, thismischief also can be remedied by reading the section asunder:
'4. Punishment for possessing unaccountablewealth on behalf of member of organizedsyndicate.--If any person on behalf of amember of an organized crime syndicate is,or, at any time (after coming into force ofthis Act) has been, in possession of movableor immovable property which he can notsatisfactorily account for, he shall bepunishable with imprisonment for a term whichshall not be less than three years which mayextent to ten years and shall also be liableto fine, subject to a minimum fine of rupeesone lac and such property shall also beliable for attachment and forfeiture, asprovided by Section 20.'
37. There is another reason for so reading it.Perusal of the complete enactment will disclosed that itis only prospective and not retrospective in any place.Therefore the words 'at any time' must be readprospectively to mean at any time after coming intoforce of this Act. So read there will be no error orvagueness or infirmity in Section 4. We therefore holdthat it be read as stated above and so read we hold thatit is constitutionally valid.
38. That takes us to a serious challenge to thelegislative competence of the State of Maharashtra inrelation to provisions of Sections 13 to 16. Theargument is that this part of subject to legislation issquarely covered by entry 31 of list I and thereforeMaharashtra Government could not legislate on thatsubject by taking recourse to entry 1 list II.
39. The learned counsel for the petitioner has furtherstated at the bar that the provisions of Sections 13 to16 though unconstitutional are severable from the Actand the Act can still be upheld even if the provisionsof Sections 13 to 16 are unable to survive for want oflegislative competence. The challenges put in nutshellare as under:
1. The legislation MCOCA is outside thelegislative competence of the StateLegislation and therefore liable to be struckdown.
2. Even if incidental and minimalencroachment of central legislation incertain circumstances is permissible, whathas been done by the State legislation inMCOCA, is serious and substantial aversionand therefore in violation of fundamentalrights and therefore the provisions cannot besustained.
3. The right of privacy, which isrecognised as a fundamental right of thecitizen, is seriously invaded by theprovisions of permitting interception of wireelectronic or oral communication andtherefore violative of Article 21.
4. Even if it is assumed that suchrestrictions of the fundamental right of thecitizens namely right to privacy can bereasonably restricted for achieving thecharacter and better object of provisions somade, must necessarily rest on reasonabilityof restrictions as enacted by theConstitution of India itself. The provisionsas they stand i.e. Sections 13 to 16 do notindicate in any manner such reasonableness,they are wholly unreasonable and thereforeunconstitutional.
40. Adverting to the first submission mentionedabove, it must be seen that the legislation i.e. MCOCA inpith and substance is a legislation enacted to preventand control of criminal activities by organized crimesyndicate and for matters connected therewith. In theaims and objects of this Act it is stated that organizedcriminals make extensive use of wire and oralcommunications in their criminal activity. It istherefore necessary that interception of suchcommunications to obtain evidence of commission ofcrimes and to prevent their commission is necessary forlaw enforcement. It has been observed by the StateLegislature that the existing legal structure both penaland procedural are found to be inadequate to controlthe menace of organized crime and therefore Governmenthas decided to enact a special law for deterrentprovisions including in certain circumstances the powersto intercept wire electronic or oral communications tocontrol the menace of the organized crime.
41. Section 13 of the Act provides for appointment ofCompetent Authority for granting permissions, approvalsor sanction etc. under Section 14 of the Act. Section 14deals with authorization of interception of wire,electronic or oral communication. It exhaustivelyenumerates the manner in which it can be done. Section15 deals with constitution of Review Committee forreview of authorization issued under Section 14. Itthus provides the supervisory or reviewing authorityover the decision of the competent authority underSection 14 of the Act. The procedure to be adopted bythe Review Committee is provided by Section 15. Section16 deals with unauthorized use of interception anddisclosure of wire, electronic or oral communication notexcept in the circumstances mentioned. It thereforeenacts prohibition and punishment of unauthorized userof information acquired by interception of wireelectronic or oral communication. Such violation of theprohibition contained in Section 16 is made penal, asmentioned in the section. These sections read togethertherefore create a scheme following which interceptionof oral, wire and telecommunications can be undertakenby the State for the purposes of collecting evidence forcontrolling and/or preventing organized crime. We wouldrepeat here that it is specifically mentioned in thestatement of objects that having noticed inadequacy ofthe present legal provisions for the purposes ofinterception of communication by organized crime, it isnecessary to make that enactment with stringent anddeterrent provisions including interception of wire ororal communication to control the menace of organizedcrime. The State Government claims its legislativecompetence or power to legislate under entry 1 of listIi, which reads as under:
'1. Public order (but not including the useof any naval, military or air force or anyother armed force of Union or of any otherforce subject to the control of the Union orof any contingent or unit thereof in aid ofthe civil power).
42. The contention of the State is that in order tomaintain public order by preventing and/or containingand/or controlling organized crime and for maintenanceof public order, exercise of such control is necessaryand therefore the State can make the legislation likeMCOC Act validly under entry 1 List II.
43. There can be no dispute with the proposition thata legislation substantially meant for maintenance ofpublic order, can be enacted by the State Legislatureunder list II entry 1. The only question that falls forconsideration in the circumstances is, can suchlegislation, however comprehensive in its effect may bemake provision for items or subjects or aspects not evenremotely relatable to the public order. The realquestion is whether this entry 1 in list II canencompass in its width, the interception of wire,electronic or oral communication for the purposes ofcontrolling the menace of organized crime. The argumentof the petitioners is that this aspect of interceptionof communication is squarely covered by entry 31 of listI, which reads as under:
'Post and telegraph, telephones, wireless,broadcasting and other like forms ofcommunication.'
44. The words 'other like forms of communication'would cover communications by means other than post,telegraph, telephone and wireless and broadcasting. Itcan cover communications via satellite, it can covercommunication via television or similar such scientificdevice and therefore the State legislature could not byrecourse to entry of public order (item 1 list II) makea legislation traversing the field exclusively reservedfor Union Legislation by entry No. 31 in List I.According to the petitioners it cannot be done at all asnoted above; even if it is assumed that it can be doneit should be only peripheral and minimal. It cannotmake serious inroads into entry reserved exclusively forthe Union legislation and in any even it cannot be doneif it violates the provisions of part III of theConstitution of India.
45. This aspect was considered way back in 1943 by thePrivy Council. The decision of the Privy Council isreported in AIR 1943 PC page 76. There the PrivyCouncil considered the question of the scope and extentof entries defining legislative competence of thedominion parliament and provincial legislation underthe British North America Act. The contention was thatwhere any subject is enumerated in the head exclusivelyreserved for Dominion Parliament, legislation by theProvincial Legislature was incompetent under anycircumstances. It would be worthwhile to considerverbatim the observations of the Privy Council in thisregard.
'It follows that legislation coming in pithand substance within one of the classesspecially enumerated in Section 91 is beyond thelegislative competence of the ProvincialLegislatures under Section 92. In such a case it isimmaterial whether the Dominion has or has notdealt with the subject by legislation, or touse other well-known words, whether thatlegislative field has or has not beenoccupied by the legislation of the DominionParliament. The Dominion has been givenexclusive legislative authority or to 'allmatters coming within the classes of subjects'enumerated under 29 heads, and the contentionthat, unless and untill the Dominion Parliamentlegislates on any such matter the Provincesare competent to legislate, is thereforeunsound.'
The Privy Council have with reference to the BritishNorth America Act examined the challenge and found thatthe Provincial Legislature cannot legislate on thesubject reserved for dominion parliament. The PrivyCouncil in the above referred case were dealing withBritish North America Act.
46. The matter was also considered by the FederalCourt in Subrahmanyan v. Muttuswami Goundan reported in There the Federal Courtwas dealing with the provisions of Government of IndiaAct 1935. The scheme of distribution of Legislativepowers. It is almost identical to the provisions of theConstitution in so far as Articles 245 and 246 areconcerned. We would like to note the observations ofthe Federal Court in this regard.
'Indian section - Now although the object ofSection 100 Government of India Act, is the same,the language is not identical. Taking Section 100strictly literally, it would certainly followfrom the double restriction imposed on aProvincial Legislature that its exclusivepower is limited so as to ensure that Federallaws must dominate in the fields of Lists Iand III. While the Federal Legislature isgiven power, it is expressly provided that 'aProvincial Legislature has not power to makelaws with respect to any of the mattersenumerated in List I.' And this exclusion ofpower is 'notwithstanding anything in the twonext succeeding sub-sections,' Again, in Sub-section(2) while both the Federal Legislatureand a Provincial Legislature have power tomake laws with respect to any of the mattersenumerated in List III, this is'notwithstanding anything in the nextsucceeding sub-section.' The exclusive powerof a Provincial Legislature with regard tomatters in List II is provided for in Sub-section(3), but it is again emphasized that thislast sub-section is 'subject to the twopreceding sub-sections.' On a very strictinterpretation of Section 100, it would necessarilyfollow that from all matters in List II whichare exclusively assigned to ProvincialLegislatures, all portions which fall in ListI or List II must be excluded. Similarly,from all matters falling in List III, allportions which all in List I must beexcluded. The section would then mean thatthe federal Legislature has full and exclusivepower to legislate with respect to matters inList I, and has also power to legislate withrespect to matters in List III. A ProvincialLegislature has exclusive power to legislatewith respect to List II, minus matters fallingin List I or List III; has concurrent power tolegislate with respect to matters in List III,minus matters falling in List I. In itsfullest scope Section 100 would then mean that if ithappens that there is any subject in List IIwhich also falls in List I or List III, itmust be taken as cut out from List II. Onthis strict interpretation there would be noquestion of any real overlapping at all. If asubject falls exclusively in List II and noother list, then the power of the ProvincialLegislatures is supreme. But if it does alsofall within List I, then it must be deemed asif it is not included in List II at all.Similarly, if it also falls in List III, itmust be deemed to have been excluded fromList II. The dominant position of theCentral Legislature with regard to matters inList I and List III is thus established. Butthe rigour of the literal interpretation isrelaxed by the use of the words 'with respectto' which as already pointed out only signify'pith and substance', and do not forbid a mereincidental encroachment. But, even if such anincidental encroachment may be ordinarilypermissible, the field may not be clear.There may be competency and yet repugnancyalso. The question is how to prevent a clashif the trespass is on a field already occupiedby a Central Legislation.'
47. We will have to see the entries in theconstitution, the provisions of 7th schedule in thisregard, and in the light of these legislative relationsdefined in the constitution in part II Chapter I.Article 245 provides the extent of laws made by theParliament. Article 245 provides that the parliamentmade from the laws for the whole and any part of theterritory of India and the State may make laws in thewhole or any part of the State. Article 246 then givesthe power and mentions the subject on which thelegislation can be made by the parliament or the Statelegislature. It provides that the parliament hasexclusive power to make laws with respect to any of thematters enumerated in list I. Similar provision ismade in relation to list 2 giving exclusive power to theState legislature. The extent and import of theseprovisions of Article 246 is almost identical to that ofentries under the British-North America Act. Entry 31of list I pertains to Post and Telegraph, telephone,wireless, broadcasting and other like forms ofcommunication. The learned counsel for the State didnot rely on entry 13 of list II. But we would like tomake a reference to it to enable the State legislatureto legislate on the subject of communications i.e. tosay roads, bridges, ferries and other means ofcommunication not specified in list I; municipaltramways; ropeways; inland waterways and traffic thereonsubject to the provisions of list I and List III withregard to such waterways, vehicles other thanmechanically propelled vehicles. Thereforecommunications mentioned or specified in list I arespecifically excluded from entry 13 of List II, indicatethat the only communication on which the State canaddress itself by legislation is surface communicationand telecommunication and the lack of which isspecifically excluded. Applying the principle whichaccording to the Privy Council is well settled, it wouldnot be possible for the State legislature to legislateon the subject of telecommunication while takingrecourse for entry 1 in list II.
48. We would consider these submissions in detail.The State has specifically contended that right tolegislate on this topic is available to them withreference to entry 1 in list II only. The contentioncan be better understood if we make a reference to thecomparative chart given by the petitioners betweenIndian Telegraph Act 1885 and MCOC Act. This chart wasrelied upon very heavily by the petitioners to point outthat the inroads made on the exclusive legislation andlegislative power of the Union of India are grave andtherefore unsustainable in any case.
COMPARATIVECHART OF TELEGRAPH ACT AND MCOCA
A.Occurrence of public emergency and interest of public safety is thecondition precedent.
B. Rule 419A (1) of the Telegraphic Rules provides interceptionwithout authorization subject to confirmation by the concernedcompetent officer within a period offifteen days.
B.Section 14(4) does not provide for any period for such confirmation orapproval or rejection could be at any point of infinite time.
C.TheTelegraph Rule 419A (1)provides for an alternatecompetent authority in case of emergency.
C.No such provision in MCOCA and directly an authorization :Could beobtained from a superior police officer under section 14(10) and thecircumstances mentioned therein are absent in the Telegraph Act/Rules.
D. Total period of : interception under Rules 419A(5.) is 180 daysbeyond which the interception, cannot be continued.
D. Under Section 14(8) there is no outer limit to the period ofinterception which could be permanent with a caveat that authoriatlon..could be renewed after every 60 days.
E. No provisions.E. Section 14(12)(1)(b) are absolutely new provisions not to befound in the Telegraph Rules or the Act, and are pieces of legislationunder Entry 31 of oR Union List - List I.
F. No provisioncorresponding to Section 14(13) of the MCOCA.
F. Section 14(13) of the MCOCA overrides the Criminal ProcedureCode or any law for the time being in force, which will Include the IndianTelegraph Act to make evidence admissible, even-if the position wasotherwise under the Indian
G. No ProvisionG. Section 25 overrides the MCOCA anything inconsistent containedin any other law for the time being in force namely an order passed underthe MCOCA in the scheme of Sections 13-16 conflicting with the orderpassed under the Indian Telegraph Act would prevail.
49. A perusal of the chart will show that severalprovisions made in the Telegraph Act do not find placein the MCOCA. Section 25 of MCOCA enables overriding ofthe provisions in the Telegraph Act for the purposes ofthis Act. Thus provisions of MCOCA therefore makesevere and substantial inroads on the subject oftelecommunications which is an exclusive domain of theUnion Legislature. Even on the touch-stone ofperipheral and minimal interference the provisions ofMCOCA cannot be saved. The inroads as will be seenfrom the chart above are substantial. Theyspecifically empower the State to do certain thingswhich the Central Legislation i.e. the Telegraph Actspecifically prohibited. Such provisions cannot becalled minimal or peripheral. It has substantial andoverriding effect over Central Legislature which cannotbe done.
50. The provisions of Indian Telegraph Act beingexclusive Legislation made by the Union in List I Entry31 must prevail and even if there is any areaunoccupied by Legislation by the Central Parliament theState Legislature cannot have the jurisdiction orcompetence to legislate to occupy that unoccupiedfiled. A useful reference can also be made to thejudgment of Federal Court in Subramanyam v. Muttuswami, where Their Lordships have observed asunder:
'The principles laid down by their Lordshipshave gone only so far as to permit anincidental encroachment, provided theDominion fields is unoccupied. In no case sofar decided have their Lordships tolerated atrespass as well as a clash. If a clashwith the Dominion legislation were alsoallowed, then a Provincial Legislature wouldbe in a position, though indirectly, tonullify the Dominion legislation, even insidethe field exclusively open to the Dominion,which would make the position intolerable.'
51. Going back to the chart as pointed out by thelearned counsel and quoted above by us, it will be seenthat the provisions of Section 14(13) and 25 of the Actclearly bring out the clash between the IndianTelegraph Act and the MCOCA. By Section 14(13) MCOCAprovides for overriding the provisions of the Cr.P.C.or any law for the time being in force which wouldinclude the Indian Telegraph Act. Similar effect givenby Section 25 by laying down that anything inconsistentcontained in any law for the time being in force withthe provisions of MCOCA would be overridden by theprovisions of Section 25. In effect the protectionincluded in the provisions of Section 5(2) of theIndian Telegraph Act and Rule 419-A will be overriddenby the provisions of MCOCA. This in our opinionamounts to a direct clash with the Central legislationwhich must be considered intolerable.
52. We would usefully quote the observations of theFederal Court in this regard from that judgment:
'To allow Provincial Legislatures to encroachupon the exclusive Federal field, eventhough in an indirect way, when there is aCentral legislation already occupying thefield, would be to give the former a freehand in nullifying Central Acts relating tomatters in the Federal List. Such a carteblanche would hardly have been contemplated.The Scheme of Section 100 of the Act is to excludecompletely from the authority of theProvincial Legislature the power to legislatewith respect to subjects in List I. If inconsequence of certain difficulties thatProvincial Legislatures would experience by arigid enforcement of such an exclusion wemust in interpreting the words 'with respectto' import the Canadian doctrine ofpermissibility of incidental encroachment, wemust then at the same time import the otherallied doctrine also that such anencroachment is permissible only when thefield is actually unoccupied. It is only inthis way that actual clash between the centerand provinces can be avoided, which I thinkwe must. This will also explain the apparentgap in Section 107(1) of the Act, that gap beingfilled in by the provisions of Section 100.'
53. These judgments of the Privy Counsel and theFederal Court were considered by the Supreme Court ofIndia in the matter of ITC Ltd. v. State of Karnatakareported in 1985 Supp. SCC page 476 and the SupremeCourt having considered and approved all these caseswent on to hold the provisions of the Karnatakalegislation invalid as being in conflict with theCentral legislation. The Supreme Court in that casewent on to lay down the principles of interpretation incase of such encroachment of jurisdictional spheres.
'It is also not disputed that under Section 2of the 1975 Act the entire tobacco industrywas taken over by the Central Government.Having thus narrated the admitted facts, Iwould now proceed to the merits of theappeals. To begin with, I might indicate thecardinal principles justifying thecompetency of the respective Legislatureswith respect of the entries concerned:
(1) Entries in each of the List must begiven the most liberal and widestpossible interpretation and no attemptshould be made to narrow or whittle downthe scope of the entries. This is awell settled principle of law and wasreiterated in a recent decision of thisCourt in S.P. Mittal v. Union of India,where this Court observed thus: (SCCp. 80, para 64)
It may be pointed out at the veryoutset that the function of the Lists isnot to confer powers. They merelydemarcate the legislative fields. Theentries in the three Lists are onlylegislative heads or fields oflegislation and the power to legislateis given to appropriate Legislature byArticles 245 and 248 (sic 246) of theConstitution.
(2) The application of the doctrine ofpith and substance really means thatwhere a legislation falls entirelywithin the scope of an entry within thecompetence of a State Legislature thenthis doctrine will apply and the Actwill not be struck down. The doctrineof pith and substance has beensummarized in the case of Delhi Cloth &General Mills Co. Ltd. v. Union of Indiawhere Desai J. speaking for the Courtmade the following observations: (SCCp. 1982, para 33).
To resolve the controversy itbecomes necessary to ascertain to whichentry in the three Lists; thelegislation is referable, the Court hasevolved the doctrine of pith andsubstance. If in pith and substance,the legislation falls within one entryor the other but some portion of thesubject-matter of the legislationincidentally trenches upon and mightenter a field under another List, thenit must be held to be valid in itsentirety, even though it mightincidentally trench on matters which arebeyond its competence.
(3) The consideration of encroachmentor entrenchment of one List in anotherand the extent thereof is also wellestablished. If the entrenchment isminimal and does not affect the dominantpart of some other entry, which is notwithin the competence of the StateLegislature, the Act may be upheld asconstitutionally valid.
(4) The nature of character of thescope of the entries having regard tothe touchstone of the provisions ofArticles 245 and 246.
(5) The doctrine of occupied field hasa great place in the interpretation asto whether or not a particularLegislature is competent to legislate ona particular entry. This means thatwhen the field is completely occupied byList I, as in this case, then the StateLegislature is wholly incompetent tolegislate and no entrenchment orencroachment, minimal or otherwise, by aState Legislature is permitted. Inother words, where the field is notwholly occupied, then a mere minimalencroachment or entrenchment would notaffect the validity of the StateLegislation.'
54. Earlier, a constitution bench of the SupremeCourt deciding the matter of The State of Jammu andKashmir v. M.S. Farooqi reported in : 3SCR881 noted with approval the decision of the PrivyCouncil and the Federal Court cited supra and havingregard to certain other decisions of the Supreme Courtcame to the conclusion that where two statutory laws,one by the State Legislature encroached on a lawenacted by Parliament, following the principlesaccepted in the aforesaid cases, it is impossible toescape from the conclusion that two cannot go togetherand the State legislation must give way to the Centrallegislation.
55. The next submission is that the power ofinterception as provided by the Telegraph Act is to beused only interest of public safety and in occurrenceof public emergency. No such restriction is providedby MCOCA Act. It is a protection provided forindividual fundamental rights, and in particular theright to privacy, held to be a part of Article 21.There is no such protection in the MCOCA is thesubmission. Interception of such telecommunication inthe interest of public safety is contemplated by MCOCAct. The object of the Act being prevention andcontrol of the organized crime within the State ofMaharashtra, existence of organized crime in any Stateis adverse to the interest of public safety. Theenire enactment being made for the protection of theinterest of public safety, it cannot be said that theprovision of the MCOC Act are not meant for thepurposes of protecting interest of public safety.
56. There is however some force in the submissionsthat the MCOCA has eliminating safeguards provided forin the Telegraph Act, 1885, provisions of TelegraphAct, 1885 and the Rules made thereunder as aforesaid doprovide for interception or occurrence on publicemergency in the interest of public safety. TheSupreme Court had occasion to consider this aspect inthe matter of Hukam Chand v. Union of India, : 2SCR1060 . The matter was decided by Constitution Bench ofthe Supreme Court of India. The Supreme Court alsoconsidered the safeguards provided by rules to preventmisuse of this power that inspite of such instructionsthe power has to be exercised only in the mannerprescribed by the Legislature and not in other way.
'18. It is well settled that where a poweris required to be exercised a power isrequired to be exercised by a certainauthority in a certain way, it should beexercised in that manner or not at all, andall other modes of performance arenecessarily forbidden. It is all the morenecessary to observe this rule where poweris of a drastic nature and its exercise in amode other than the one provided, will beviolative of the fundamental principles ofnatural justice. Now, in the present case,if the telephones of the appellants were tobe disconnected on the ground of misuse,then they had to give, in consonance withthe principles of natural justice,opportunity to the appellants to explaintheir conduct before taking action underRule 427 read with Rules 416 and 421.Resort to the wrong and more drastic courseprovided in Rule 422; on a ground which wasnot germane to an action under that Rule,vitiates he impugned order, particularlywhen it is manifest that in making theimpugned order, the General manager wasinfluenced more by this ground and less, ifat all, by the existence of publicemergency certified by the DelhiAdministrative.'
57. From the above observations of the Supreme Courtof India it will be seen that the existing provisionsof the Indian Telegraph Act and Rules were consideredsevere by the Supreme Court but were not touched as therestrictions were reasonable and necessary formaintenance of public order. In the case of MCOCAthese safeguards are done away with and thereforesomething which is provided by the Parliament of Indiais overridden by State Legislature in purportedexercise of its competence under Entry 1 List II. Inour opinion, therefore the provisions of Sections 13 to16 of MCOCA are in clash with the Parliamentary Law areliable to struck down for want of Legislativecompetence.
58. It will be seen that the question of legislativecompetence in cases where exclusive powers ofLegislation are conferred on different Legislatures bystatute it has to be construed exclusively and oneauthority of Legislature cannot override the authorityof another Legislature.
59. There are several judgments of the Supreme Courtin this regard. The Supreme Court of India has testedvarious State legislations and Union legislation in thelight of the provisions of Article 245 and 246. Thesedecisions apply the doctrine of pith and substance andthe theory of occupied field.
60. We would like to note the observations inCooley's Constitutional Limitations Vol.I which readsas under:
'If the Constitution of a State distributesthe legislative powers amongst differentbodies, which have to act within theirrespective spheres marked out by specificlegislative entries, or if there arelimitations on the legislative authority inthe shape of fundamental rights, questions doarise as to whether the legislature in aparticular case has or has not, in respect tothe subject-matter of the statute or in themethod of enacting it, transgressed thelimits of its constitutional powers. Suchtransgression, may be patent, manifest ondirect but it may also be disguised, covertand indirect and it is to this latter classof cases that the expression 'colourablelegislation' has been applied in certainjudicial pronouncements. The idea conveyedby the expression is that although apparentlya legislature in passing a statute purportedto act within the limits of its powers, yetin substance and in reality it transgressedthese powers, the transgression being veiledby what, appears, on proper examination, tobe a mere pretence or disguise.'
61. There are several more judgments also which werecited at the bar. From over all consideration of allthose decisions it is obvious that the legislativepower or the legislative competence conferred on theState legislation and the Union legislation by thewritten constitution is definite. Article 246 makes itexclusive for each as per list I or II respectively.It is well established law as will be seen from theseveral judgments quoted above that when legislationcan be made under the List I by the Union parliament,the State legislature cannot make any legislation onany aspect of the subject covered by list I. TheState Government found the present law inadequate formeeting the menace of organized crime, but noted thatthe interception of telecommunications is necessary forthe purpose of prevention and/or control of organizedcrime and therefore is legislated MCOCA. That beingthe above object of making this legislation the Statelegislature could not make such serious inroads onentry 31 of List I. From the perusal of severaljudgments of the Supreme Court of India and theprovisions relating to Constitutional interpretationof the legislative entries in List I and II withprovisions of Articles 245 and 246 of the Constitutionof India, we deem it possible to escape from theconclusion that the State Legislation namely MCOCAcannot co-exist with the provisions of Indian TelegraphAct, 1885 namely Section 5 and the Rules 119 and 119-Aof the Rules, with the provisions of Sections 13 to 16of the MCOCA overriding the provisions of the IndianTelegraph Act and the Rules. As per the existing canonof the statutory interpretation, it is unwarrantedintrusion in the realm of exclusive competence of theUnion of India under List I. The field is occupied bythe Parliamentary Legislation which was laid down thepermissibility of the invasion of the right of privacyafter providing safeguard of the same has found theapproval from the Supreme Court of India in thejudgment of PUCL case reported in : AIR1997SC568 .It is obvious that, that is the only manner in whichthe right of privacy could be reasonably curtailed.The field being thus occupied by the CentralLegislation and the encroachment made by the StateLegislature not being minimal or peripheral, we have nooption but to strike down the provisions of Sections 13 to 16 of the MCOCA as beyond the competence of theState Legislature.
62. Having found that these sections are obviouslyseparable from other provisions of the enactment, westrike down the provisions of Sections 13 to 16 ofMCOCA for total lack of Legislative competence in theState of Maharashtra. Having held that the provisionslack competence and are therefore unconstitutional weneed not dilate on or deal with the submissions made atthe bar by the learned counsel for the petitionersregarding these very provision being unconstitutionalfor violation of fundamental rights of the petitioners.Whether they are so violative or not, they cannotremain in the statute book for want of legislativecompetence. That being the position in law we do notdeem it necessary to extensively deal with the attackon these provisions on the ground of violation offundamental rights.
63. That takes us to the next challenge raised by thepetitioner to the provisions of Section 21(5) of theMCOCA. The Section reads as under:
'Notwithstanding anything contained in thecode, the accused shall not be granted bailif it is noticed by the Court that he was onbail in an offence under this Act, or underany other Act, on the date of the offence inquestion.'
64. The objection is that the words 'or under anyother Act' occurring in that section are unsustainableas they take away the power of judicial review of theCourt. It is also challenged on the ground that it hasno reasonable nexus with the object of the provision.doubt. According to the learned counsel the objectappears to prevent grant of bail to a person prosecutedunder MCOCA, if he is alleged to have committed thatoffence while he was on bail in an offence under thisAct. There is no reason to deny considered of grantof bail to anybody merely because he is on bail for anyother offence. The object of the Act being to preventorganized crime, the refusal of bail to an offender whocommits an offence under the Act, while on bail for anoffence already committed under the Act may beconsistent wit the aims of the Act. But merelybecause the accused person is on bail for any otheroffence would take away his right of consideration forgrant of bail irrationally and is arbitrarily. Thereis no nexus for the object of the Act and it istherefore excessive restriction on the jurisdiction ofthe Court to consider grant of bail under theprovisions of the Criminal Procedure Code, 1972. Inour opinion, the argument seems to be valid. Obviouslythere is no reason why the person being prosecuted forviolation of Motor Vehicles Act and who is on bail,should be denied even a consideration of bail when hetries first for bail under MCOCA. Variousillustrations can be given and were given at the bar todemonstrate arbitrariness resulting from suchrequirement. If first time the offender under theMCOCA would lose consideration for bail, if he is onbail under the Prohibition Act or under the violationof Criminal Procedure Code and the essentialcommodities of the Act or the Rules thereunder. Such adenial has no relationship with the object sought to beachieved to prevent occurrence of MCOCA by release onbail. The words put an unreasonable restriction onthe right of an individual to claim bail. Under theprovision of Criminal Procedure Code to be released onbail, in fact is a integral part of the right ofliberty. Every man has a right of liberty which can becurtailed by the due process of law and the curtailmentmust remain within the due process of law. Suchcurtailment is there in the Criminal Procedure Code.The provisions of Section 21(5) say thatnotwithstanding anything contained in the code suchpersons shall not be granted bail. The refusal forconsideration of grant of bail merely because theperson is on bail for some other offenceunconnected with the MCOCA, puts an unreasonable0.restrictions and is therefore in violation offundamental rights guaranteed by Article 14 and 21 ofthe Constitution of India. The provision suffers fromthe vice of unreasonable classification by placing inthe same class offences which may have nothing incommon with those under MCOCA, for the purpose ofdenying consideration of bail. We therefore strikedown the words 'or under any other Act' as beingunconstitutional. The section would therefore read asunder:
'Notwithstanding anything contained in thecode, the accused shall not be granted bailif it is noticed by the Court that he was onbail in an offence under this Act, on thedate of the offence in question.'
65. I sincerely wish to put on record the intrinsicand substantial help rendered by my learned brotherJudge Shri S.A. Bobde but for which it would not havebeen possible for us to deliver this judgment withintwo weeks. We wish to state that we are thankful tothe learned Advocates appearing for both sides fortheir able and valuable assistance in analysing thevarious provisions of law and submissions made whichobviously has taken substantial pains on the part oflawyers.
66. In view of the foregoing discussions and as aresult thereof we make the rule absolute in thefollowing terms only:
i) The enactment called Maharashtra ControlOf Organized Crime Act is constitutionallyvalid except as otherwise specificallystated hereinafter:
ii) The provisions of Sections 3 and 4contemplate the existence of mens reainherently and shall always be read thereinas a necessary ingredient of the offences:
iii) Provisions of Sections 13 to 16 ofMaharashtra Control Of Organized Crime Actare liable to be struck down and are herebystruck down as beyond the Legislativecompetence of State Legislature.
iv) From the provisions of Section 21(5) ofthe Act the words 'or under any other act onthe date of offence in question' be deletedand are hereby deleted as unconstitutionalfor violation of Article 14 of theConstitution of India.
v) The Criminal Application No. 1504 of2002 in Criminal Writ Petition No. 110 of2003 is rejected with liberty to apply tothe trial Court again after the charge sheetis put up.
vi) All Writ Petitions thus stand disposed of.