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Zameer Ahmed Latifur Rehman Sheikh v. State Of Maharashtra And Others

Supreme Court Of India (Apr 23, 2010)

CASE NO.
Civil Appeals No. 1975 of 2008 with Nos. 1976-77 of 2008, decided on April 23, 2010

ADVOCATES

Mohan Jain, Additional Solicitor General, Sushil Kumar, Shanti Bhushan and Shekhar Naphade, Senior
Advocates Shakil Ahmed Syed, Shahid Azmi, Ms Nitya Ramakrishnan, Trideep Pais, Ashwath Sitaraman
(for M/s K.J John & Co.), Sanjay V. Kharde, Ms Asha G. Nair, Ravindra Keshavrao Adsure, Dinesh
Thakur, Ms Rohini Mukherjee, Ms Jaspreet Aulakh, Vibhav Misra, Subhash Kaushik, T.A Khan, Arvind Kr.
Sharma, P.K Dey and P. Parameswaran, Advocates for the appearing parties.

JUDGES

R.V Raveendran

Dr. M.K Sharma, JJ.

Important Paras

1. 35. The meaning of the phrase public order has also been determined by this Court in Kanu Biswas v.

State Of West Bengal 1972 3 SCC 831 where it was held that the concept of public order is based on the

French concept of ordre publique and is something more than ordinary maintenance of law and order.

2. 34. The Constitution Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr 1970

3 SCC 746 while adopting and explaining the scope of the test laid down in Ram Manohar Lohia (Dr.) v.

State of Bihar stated that the State is at the centre of the society. Disturbances in the normal functioning of

the society fall into a broad spectrum, from mere disturbance of the serenity of life to jeopardy of the

State. The acts become more and more grave as we journey from the periphery of the largest circle

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towards the centre. In this journey we travel first through public tranquillity, then through public order and

lastly to the security of the State. This Court further held that in the judgment of this Court, the expression

in the interest of public order as mentioned in the Constitution of India encompasses not only those acts

which disturb the security of the State or acts within ordre publique as described but also certain acts

which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a

narrow meaning because, as has been observed, the expression in the interest of public order is very

wide.

3. 20. Before we proceed further to deal with and answer the issues that have been raised for our

consideration, we wish to make note of a minor development which took place during the pendency of the

present appeal. A further amendment was made to UAPA, namely, the Unlawful Activities (Prevention)

Amendment Act, 2008 and so the matter was again listed for hearing in order to ascertain the impact, if

any, of the said amendment to the issue in hand. Mr Shekhar Naphade, learned Senior Counsel has, in

detail, taken us through the provisions of the 2008 Amendment. At the time of hearing, the counsel

appearing for both the parties have fairly agreed that the 2008 Amendment did not bring about any such

change which would affect the decision of this Court on the issues raised and urged. It is, therefore, not

necessary for us to elaborate on the said amendments.

4. 44. In Bharat Hydro Power Corpn. Ltd. v. State of Assam 2004 2 SCC 553 the doctrine of pith and

substance came to be considered, when after referring to a catena of decisions of this Court on the

doctrine it was laid down as under: (SCC p. 561, para 18)

5. Legislative competence of the Government of Maharashtra

6. 43. It is common ground that the State Legislature does not have power to legislate upon any of the

matters enumerated in the Union List. However, if it could be shown that the core area and the

subject-matter of the legislation is covered by an entry in the State List, then any incidental encroachment

upon an entry in the Union List would not be enough so as to render the State law invalid, and such an

incidental encroachment will not make the legislation ultra vires the Constitution.

7. 28. We feel inclined to adopt the aforesaid definition for the current proceedings as there does not

appear to exist any other satisfactory source.

8. 41. A Constitution Bench of this Court in A.S Krishna v. State of Madras AIR 1957 SC 297 held as

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under: (AIR p. 301, para 8)

9. 25. Section 2(1)(e) of Mcoca, which includes within its ambit the term promoting insurgency, reads as

follows:

10. 39. It is also a cardinal rule of interpretation that there shall always be a presumption of

constitutionality in favour of a statute and while construing such statute every legally permissible effort

should be made to keep the statute within the competence of the State Legislature. (Reference may be

made to Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41, T.M.A Pai Foundation v. State of

Karnataka 2002 8 SCC 481 and Karnataka Bank Ltd. v. State of A.P 2008 2 SCC 254)

11. 36. It has been seen that the propositions laid down in the abovenoted cases have been time and

again followed in subsequent judgments of this Court and still govern the field.

12. 26. The term insurgency has not been defined either under Mcoca or any other statute. The word

insurgency does not find mention in UAPA even after the 2004 and 2008 Amendments. The definition as

submitted by Mr Salve also does not directly or conclusively define the term insurgency and thus reliance

cannot be placed upon it. The appellants would contend that the term refers to rising in active revolt or

rebellion. Webster defines it as a condition of revolt against the Government that does not reach the

proportion of an organised revolution.

13. 24. The question that needs to be determined in the present case is whether the said finding in Bharat

Shanti Lal Shah can be extended to the term promoting insurgency, and also whether the term promoting

insurgency, would be within the purview and relatable to Entry 1 of List II.

14. 68. However, after the 2008 Amendment, Section 15 has been substituted in the following manner:

15. 67. Section 2(1)(k) and section 15 of uapa, 1967 which were inserted by the 2004 Amendment and

define and deal with the term terrorist act, read as under:

16. 4. The constitutional validity of the said provision of Mcoca had earlier been under the scrutiny of this

Court in State of Maharashtra v. Bharat Shanti Lal Shah 2008 13 SCC 5. The aforesaid case arose

against the judgment of the High Court of Bombay dated 5-3-2003 in Crl. WPs Nos. 27 of 2003, 1738 of

2002 and 110 of 2003, whereby the High Court negated the contention of the petitioners therein that

Section 2(1)(e) was violative of Article 13(2) and Article 14 of the Constitution of India.

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 17. 65. In the 2008 Amendment, the Preamble has again been amended and the amended Preamble now

also contains a reference to the Resolution adopted by the Security Council of the United Nations on

28-9-2001 and also makes reference to the other resolutions passed by the Security Council requiring the

States (nations which are members of the United Nations) to take action against certain terrorist and

terrorist organisations. It also makes reference to the order issued by the Central Government in exercise

of power under Section 2 of the United Nations (Security Council) Act, 1947 which is known as the

Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007.

18. 7. In Saiyada Mossarrat v. Hindustan Steel Ltd. 1989 1 SCC 272, notwithstanding the fact that the

Constitution Bench of this Court had once upheld the constitutionality of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971, the petitioner therein had renewed his challenge on the ground that

Parliament did not have the legislative competence to legislate on the subject of the said legislation. On

the facts before it, this Court held that since that specific aspect had not been debated before the

Constitution Bench in the earlier case, it would not be appropriate to shut out the petitioner from raising

the plea by recourse to the argument that the point had been concluded in the earlier case regardless of

whether the matter had been debated or not.

19. 73. Section 2(1)(o) of UAPA, which defines the term unlawful activity, reads as under:

20. 23. Before proceeding further, it would be appropriate on our part to mention that we do not concur

with the said finding of the High Court that Mcoca in pith and substance falls only in Entry 1 of List III. This

Court in Bharat Shanti Lal Shah has already held that the subject-matter of Mcoca is maintaining public

order and prevention by police of commission of serious offences affecting public order, and thus would

be within the purview of and be relatable to Entries 1 and 2 of List II as also to Entries 1, 2 and 12 of List

III of Schedule VII to the Constitution of India.

Summary

1. 2. These three appeals have been filed by the appellants herein to assail the common judgment and

order dated 19-7-2007 rendered by the High Court of Judicature at Bombay in Writ Petition No. 1136 of

2007, whereby the High Court dismissed the writ petition filed by the appellants herein.

2. The appellants herein challenged before the High Court of Bombay, the constitutional validity of that

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part of Section 2(1)(e) of the Maharashtra Control of Organised Crime Act, 1999 ("Mcoca", hereinafter)

which refers to "insurgency".

3. The aforesaid case arose against the judgment of the High Court of Bombay dated 5-3-2003 in Crl.

4. In the said case there was no specific challenge to the constitutional validity of Section 2(1)(e) of

Mcoca.

5. (a) the Maharashtra State Legislature did not have legislative competence to enact such a provision;

and (b) the part of Section 2(1)(e) of Mcoca, so far as it covers case of "insurgency", is repugnant and has

become void by enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, amending the

Unlawful Activities (Prevention) Act, 1967.

6. According to him, that part of Section 2(1)(e) of Mcoca which refers to "promoting insurgency" is ultra

vires Article 246(3) of the Constitution.

7. Mr Bhushan submitted that if the subsequent law enacted by Parliament is repugnant (in direct conflict)

to the State law then the State law will become void as soon as the subsequent law of Parliament is

enacted.

8. According to him, in the present case, after the 2004 Amendment to UAPA there is an implied repeal of

Mcoca, so far as it covers "insurgency".

9. The target of Mcoca is the organised syndicate gangs whereas UAPA targets any person who indulges

in terrorist activity, be it an individual or a group.

10. It is not necessary for us to elaborate on the said amendments.

11. 21. The legislature of a State derives its legislative power from the provisions of Article 246(3) of the

Constitution of India.

12. Article 246(3) confers on a State Legislature the exclusive power to enact laws for the whole or any

part of the territory of the State on any of the matters enumerated in List II in the Seventh Schedule to the

Constitution.

13. 22. So far as the question of legislative competence of the Maharashtra State Legislature to enact a

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law like Mcoca is concerned, the Bombay High Court in the impugned judgment has held that Mcoca in

pith and substance falls in Entry 1 of List III which refers to the criminal law.

14. 30. In terms of Entry 1 of the State List, the State Legislature is competent to enact a law for

maintenance of public order.

15. In Romesh Thappar v. State of Madras 1950 SCR 594 it has been held by this Court that "public

order" signifies a state of tranquillity which prevails among the members of a political society as a result of

internal regulations enforced by the Government which they have established.

16. It will appear that just as 'public order' in the rulings of this Court (earlier cited) was said to

comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also

comprehends disorders of less gravity than those affecting 'public order'.

17. 39. It is also a cardinal rule of interpretation that there shall always be a presumption of

constitutionality in favour of a statute and while construing such statute every legally permissible effort

should be made to keep the statute within the competence of the State Legislature.

18. The doctrine is applied when the legislative competence of the legislature with regard to a particular

enactment is challenged with reference to the entries in various lists.

19. If the substance of the enactment falls within the Union List then the incidental encroachment by the

enactment on the State List would not make it invalid.

20. Government has decided to enact a special law with stringent and deterrent provisions including in

certain circumstances power to intercept wire, electronic or oral communication to control the menace of

organised crime."

21. We are of the considered view that it is within the legislative competence of the State of Maharashtra

to enact such a provision under Entries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of the

Seventh Schedule of the Constitution.

22. Article 245 of the Constitution provides that Parliament may make laws for the whole or any part of the

territory of India, and the legislature of a State may make laws for the whole or any part of the State.

23. 53. The legislative field of Parliament and the State Legislatures has been specified in Article 246 of

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the Constitution.

24. Subject-matter of laws made by Parliament and by the legislatures of States.-(1) Notwithstanding

anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the

matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List').

25. (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the legislature of any

State also, have power to make laws with respect to any of the matters enumerated in List III in the

Seventh Schedule (in this Constitution referred to as the 'Concurrent List').

26. (3) Subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for

such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh

Schedule (in this Constitution referred to as the 'State List').

27. The principles to be applied for determining repugnancy between a law made by Parliament and a law

made by the State Legislature were considered by a Constitution Bench of this Court.

28. Where a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent

with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining

the assent of the President under Article 254(2) of the Constitution.

29. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in

such a manner as to avoid any conflict.

30. If the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non

obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the

exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State

List.

31. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State

Legislature have equal competence to legislate.

32. Again, the courts are charged with the duty of interpreting the enactments of Parliament and the State

Legislature in such manner as to avoid a conflict.

33. The Court, in para 12, held that the question of repugnancy between the parliamentary legislation and

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 the State legislation could arise in the following two ways: (SCC p. 220)

34. 60. In the light of the said propositions of law laid down by this Court in a number of its decisions, we

may now analyse the provisions of the two Acts before us.

35. The said definitions are interrelated; the "organised crime syndicate" refers to an "organised crime"

which in turn refers to "continuing unlawful activity".

36. (1)(k) 'terrorist act' has the meaning assigned to it in Section 15 and the expressions 'terrorism' and

'terrorist' shall be construed ; 15.

37. The offence of organised crime under Mcoca and the offence of terrorist act under UAPA operate in

different fields and are of different kinds and their essential contents and ingredients are altogether

different.

38. 81. We for the reasons mentioned above, concur with the final decision reached by the High Court in

the impugned judgment and repel the challenge unhesitatingly.

JUDGMENT

Dr. M.K Sharma, J.

Introduction

1. This matter concerns an assortment of questions regarding the interpretation and constitutionality of

certain provisions of the Maharashtra Control of Organised Crime Act, 1999, and as such calls for our

utmost attention, particularly in view of the fact that, this legislation, although widely used for maintaining

law and order, has also generated some controversy alleging its sweeping powers. Since its enactment in

1999, it has found favour with the law enforcement officials and has been enthusiastically applied

wherever possible by the law enforcement agencies and the Government concerned.

2. These three appeals have been filed by the appellants herein to assail the common judgment and order

dated 19-7-2007 rendered by the High Court of Judicature at Bombay in Writ Petition No. 1136 of 2007,

whereby the High Court dismissed the writ petition filed by the appellants herein. The appellants herein

challenged before the High Court of Bombay, the constitutional validity of that part of Section 2(1)(e) of the

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Maharashtra Control of Organised Crime Act, 1999 (Mcoca, hereinafter) which refers to insurgency.

3. Before we proceed to discuss and deal with the issue at hand, it will be prudent to address an issue

that goes to the very root of the jurisdiction of this Court to entertain the present appeal.

4. The constitutional validity of the said provision of Mcoca had earlier been under the scrutiny of this

Court in State of Maharashtra v. Bharat Shanti Lal Shah 2008 13 SCC 5. The aforesaid case arose

against the judgment of the High Court of Bombay dated 5-3-2003 in Crl. WPs Nos. 27 of 2003, 1738 of

2002 and 110 of 2003, whereby the High Court negated the contention of the petitioners therein that

Section 2(1)(e) was violative of Article 13(2) and Article 14 of the Constitution of India.

5. In Bharat Shanti Lal Shah case, no appeal was filed against the said finding of the High Court

upholding the constitutional validity of Section 2(1)(e) of Mcoca. However, since the said issue was raised

before this Court during the course of arguments in the said case, this Court on a conjoint reading of the

said provision with the object and purpose of Mcoca held that there is no vagueness in the provision and

the same also does not suffer from the vice of class legislation. The said finding of this Court in the said

case as enumerated, in paras 29 and 30, is as follows: (Bharat Shanti Lal Shah case, SCC p. 17)

29. In addition, Mr Manoj Goel, counsel for Respondent 3 submitted that Sections 2(1)(d), (e) and (f) and

Sections 3 and 4 of Mcoca are constitutionally invalid as they are ultra vires being violative of the

provisions of Article 14 of the Constitution. But we find that no cross-appeal was filed by any of the

respondents against the order of the High Court upholding the constitutional validity of provisions of

Sections 2(1)(d), (e) and (f) and also that of Sections 3 and 4 of Mcoca. During the course of hearing, Mr

Goel, the counsel appearing for one of the respondents herein tried to contend that the aforesaid

provisions of Sections 2(1)(d), (e) and (f) of Mcoca are unconstitutional on the ground that they violate the

requirement of Article 13(2) of the Constitution and that they make serious inroads into the fundamental

rights by treating unequals as equals and are unsustainably vague. Since such issues were not

specifically raised by filing an appeal and since only a passing reference is made on the said issue in the

short three page affidavit filed by Respondent 3, it is not necessary for us to examine the said issue as it

was sought to be raised more specifically in the argument stage only.

30. Even otherwise when the said definitions as existing in Sections 2(1)(d), (e) and (f) of Mcoca are read

and understood with the object and purpose of the Act which is to make special provisions for prevention

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and control of organised crime it is clear that they are worded to subserve and achieve the said object and

purpose of the Act. There is no vagueness as the definitions defined with clarity what it meant by

continuing unlawful activity, organised crime and also organised crime syndicate. As the provisions treat

all those covered by it in a like manner and does not suffer from the vice of class legislation they cannot

be said to be violative of Article 14 of the Constitution.

Thus, in the said case there was no specific challenge to the constitutional validity of Section 2(1)(e) of

Mcoca. Moreover, even in its observations, this Court had not gone into the question of constitutional

validity of the said provision, so far as it relates to insurgency on the ground of lack of legislative

competence.

6. We may also refer to the findings of this Court in a situation of this nature, where once the constitutional

validity of a provision has been upheld and the same is again challenged on a ground which is altogether

different from the earlier one.

7. In Saiyada Mossarrat v. Hindustan Steel Ltd. 1989 1 SCC 272, notwithstanding the fact that the

Constitution Bench of this Court had once upheld the constitutionality of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971, the petitioner therein had renewed his challenge on the ground that

Parliament did not have the legislative competence to legislate on the subject of the said legislation. On

the facts before it, this Court held that since that specific aspect had not been debated before the

Constitution Bench in the earlier case, it would not be appropriate to shut out the petitioner from raising

the plea by recourse to the argument that the point had been concluded in the earlier case regardless of

whether the matter had been debated or not.

8. In the later judgment in Kesho Ram & Co. v. Union of India 1989 3 SCC 151 a larger Bench of this

Court emphasised the binding nature of the judgments of this Court in the light of Article 141 of the

Constitution and has held that the binding effect of a decision of this Court does not depend upon whether

a particular argument was considered or not, provided the point with reference to which the argument is

subsequently advanced was actually decided in the earlier decision.

9. However, since there was no specific challenge before this Court to the constitutional validity of Section

2(1)(e) of Mcoca and the point with reference to which the arguments were advanced in the present

appeal was actually not decided in the earlier decision of this Court, we wish to proceed to examine the

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same.

10. The appellants have challenged the constitutional validity of Section 2(1)(e) of Mcoca, so far as it

relates to promoting insurgency on the following two grounds:

(a) the Maharashtra State Legislature did not have legislative competence to enact such a provision; and

(b) the part of Section 2(1)(e) of Mcoca, so far as it covers case of insurgency, is repugnant and has

become void by enactment of the Unlawful Activities (Prevention) Amendment Act, 2004, amending the

Unlawful Activities (Prevention) Act, 1967.

11. The learned Senior Counsel appearing for the parties have advanced elaborate arguments before us

on the aforesaid issues.

12. Mr Sushil Kumar, learned Senior Counsel appearing for the appellant in Civil Appeal No. 1975 of 2008

submitted that insurgency is an offence falling within the ambit of defence of India, Entry 1 of List I i.e the

Union List, as it threatens the unity, integrity and sovereignty of India and, in any event, under the

residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List and

therefore, the Maharashtra State Legislature did not have legislative competence to enact the latter part of

Section 2(1)(e) of Mcoca which relates to promoting insurgency. Hence, according to him, that part of

Section 2(1)(e) of Mcoca which refers to promoting insurgency is ultra vires Article 246(3) of the

Constitution.

13. Mr Shanti Bhushan, learned Senior Counsel appearing for the appellant in Civil Appeal No. 1977 of

2008, in addition to the abovenoted submission, submitted that Section 2(1)(e) of Mcoca so far as it

covers insurgency is repugnant and has become void by enactment of the Unlawful Activities (Prevention)

Amendment Act, 2004, amending the Unlawful Activities (Prevention) Act, 1967 (UAPA, hereinafter). He

submitted that insurgency and terrorism are two sides of the same coin and after the 2004 Amendment,

UAPA exhaustively deals with the offence of terrorism and the meaning of the term insurgency as

contained in Section 2(1)(e) of Mcoca is very well included in the definition of terrorist act as contained in

section 15 of uapa. He further submitted that due to the said anomaly, an act would constitute an offence

under Section 2(1)(e) of Mcoca as also under section 15 of uapa and that while Mcoca lays down a

different procedure and envisages a different competent court to try that offence, UAPA provides for a

different procedure and different court for the trial of the same offence. He submitted that Mcoca will be

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within the competence of the State Legislature, but for the addition of the term insurgency in Section

2(1)(e).

14. Mr Bhushan submitted that although UAPA does not expressly repeal the impugned provision of

Mcoca, yet the same cannot stand, for the case in hand is a case of implied repeal. Mr Bhushan

submitted that if the subsequent law enacted by Parliament is repugnant (in direct conflict) to the State

law then the State law will become void as soon as the subsequent law of Parliament is enacted. Thus,

according to him, in the present case, after the 2004 Amendment to UAPA there is an implied repeal of

Mcoca, so far as it covers insurgency.

15. As against this Mr Shekhar Naphade and Mr Harish N. Salve, learned Senior Counsel appearing for

the respondent State of Maharashtra submitted that Mcoca deals with the activities of the organised

gangs and the criminal syndicate and that no other law, including UAPA, deals with the said subject. They

further submitted that the aim, objective and the area of operation of Mcoca and UAPA are entirely

different and that there is no overlapping in the working of the two Acts.

16. As per the submissions of the learned Senior Counsel, so far as Mcoca is concerned, it deals with the

prevention and control of criminal activity by organised crime syndicate or gang within India, whereas the

aim of UAPA is to deal with the terrorist activities both within and outside India. Hence, the target of

Mcoca is the organised syndicate gangs whereas UAPA targets any person who indulges in terrorist

activity, be it an individual or a group. They further submitted that the extension of Mcoca to activities of

organised gangs or syndicate where they sought to promote insurgency is a logical extension of the

remedy provided under Mcoca to deal with the growing menace in the society.

17. While making a comparison between the two Acts, the learned Senior Counsel submitted that UAPA

punishes the acts of insurgency per se whereas under Mcoca, it is not the act of insurgency per se which

is punishable, for under Mcoca, insurgency is the motive for the act and not the act per se. They further

submitted that at the first blush, they may appear to be similar but a closer scrutiny would dispel any such

notion and would show a vast area of dissimilarity between the two.

18. While making their submissions on the issue of implied repeal, they submitted that promoting

insurgency as one of the elements of Mcoca may overlap in some cases in its application with the relevant

provisions of UAPA, but the question of implied repeal would arise only where it overlaps in its entirety.

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They further submitted that the law is settled on the point that a given act can constitute more than one

offence under two or more statutes, but merely because an act also becomes an offence under a

subsequent statute does not automatically result in repugnancy or implied repeal of the offence defined in

the earlier statute. The existing statute would stand repealed only if the ingredients of the offence created

by the later statute are identical to the ingredients of the offence in the earlier statute. It is only when the

ingredients of both the offences are identical which makes them irreconcilable that the statutes are held to

be repugnant to each other.

19. Mr Mohan Jain, learned Additional Solicitor General appearing for the Union of India, Respondent 2

herein, and Mr Amarendera Sharan, learned Additional Solicitor General appearing for CBI, supported the

contentions made by Mr Naphade and Mr Salve. In addition, they submitted that Mcoca creates and

defines a new offence and even if it be assumed that the part of Mcoca containing the term promoting

insurgency incidentally trenches upon a field under the Union List then the same cannot be held to be

ultra vires applying the doctrine of pith and substance, as in essence, Mcoca deals with the subject on

which the State Legislature has power to legislate under the Constitution.

20. Before we proceed further to deal with and answer the issues that have been raised for our

consideration, we wish to make note of a minor development which took place during the pendency of the

present appeal. A further amendment was made to UAPA, namely, the Unlawful Activities (Prevention)

Amendment Act, 2008 and so the matter was again listed for hearing in order to ascertain the impact, if

any, of the said amendment to the issue in hand. Mr Shekhar Naphade, learned Senior Counsel has, in

detail, taken us through the provisions of the 2008 Amendment. At the time of hearing, the counsel

appearing for both the parties have fairly agreed that the 2008 Amendment did not bring about any such

change which would affect the decision of this Court on the issues raised and urged. It is, therefore, not

necessary for us to elaborate on the said amendments.

Legislative competence of the Government of Maharashtra

21. The legislature of a State derives its legislative power from the provisions of Article 246(3) of the

Constitution of India. Article 246(3) confers on a State Legislature the exclusive power to enact laws for

the whole or any part of the territory of the State on any of the matters enumerated in List II in the Seventh

Schedule to the Constitution.

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22. So far as the question of legislative competence of the Maharashtra State Legislature to enact a law

like Mcoca is concerned, the Bombay High Court in the impugned judgment has held that Mcoca in pith

and substance falls in Entry 1 of List III which refers to the criminal law. Though the Bombay High Court

has noted the fact that the State of Maharashtra could have relied upon Entry 1 of List II i.e the State List

which refers to public order to contend that the term promoting insurgency is relatable to that entry, the

High Court refrained itself from analysing the said aspect because the respondent State had, before the

High Court, taken a stand that promoting insurgency would be covered by Entry 1 of List III i.e the

Concurrent List.

23. Before proceeding further, it would be appropriate on our part to mention that we do not concur with

the said finding of the High Court that Mcoca in pith and substance falls only in Entry 1 of List III. This

Court in Bharat Shanti Lal Shah has already held that the subject-matter of Mcoca is maintaining public

order and prevention by police of commission of serious offences affecting public order, and thus would

be within the purview of and be relatable to Entries 1 and 2 of List II as also to Entries 1, 2 and 12 of List

III of Schedule VII to the Constitution of India.

24. The question that needs to be determined in the present case is whether the said finding in Bharat

Shanti Lal Shah can be extended to the term promoting insurgency, and also whether the term promoting

insurgency, would be within the purview and relatable to Entry 1 of List II.

25. Section 2(1)(e) of Mcoca, which includes within its ambit the term promoting insurgency, reads as

follows:

2. (1)(e) organised crime means any continuing unlawful activity by an individual, singly or jointly, either as

a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of

violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary

benefits, or gaining undue economic or other advantage for himself or any other person or promoting

insurgency;

(emphasis supplied)

26. The term insurgency has not been defined either under Mcoca or any other statute. The word

insurgency does not find mention in UAPA even after the 2004 and 2008 Amendments. The definition as

submitted by Mr Salve also does not directly or conclusively define the term insurgency and thus reliance

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cannot be placed upon it. The appellants would contend that the term refers to rising in active revolt or

rebellion. Webster defines it as a condition of revolt against the Government that does not reach the

proportion of an organised revolution.

27. In Sarbananda Sonowal v. Union of India 2005 5 SCC 665 this Court has held that insurgency is

undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates

panic situation and also hampers the growth and economic prosperity of the State.

28. We feel inclined to adopt the aforesaid definition for the current proceedings as there does not appear

to exist any other satisfactory source.

29. Although the term insurgency defies a precise definition, yet, it could be understood to mean and

cover breakdown of peace and tranquillity as also a grave disturbance of public order so as to endanger

the security of the State and its sovereignty.

30. In terms of Entry 1 of the State List, the State Legislature is competent to enact a law for maintenance

of public order. The said entry is reproduced hereinbelow:

Entry 1, List II

1. Public order (but not including the use of any naval, military or air force or any other armed force of the

Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of

the civil power).

31. It has been time and again held by this Court that the expression public order is of a wide connotation.

In Romesh Thappar v. State Of Madras 1950 SCR 594 it has been held by this Court that public order

signifies a state of tranquillity which prevails among the members of a political society as a result of

internal regulations enforced by the Government which they have established. This Court, in para 10, at

AIR p. 128, quoted a passage from Stephen's Criminal Law of England, wherein he observed as follows:

Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other

and are not capable of being marked off by perfectly defined boundaries. All of them have in common one

feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned

disturbed either by actual force or at least by the show and threat of it.

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This Court further observed that though all these offences involve disturbances of public tranquillity and

are in theory offences against public order, the difference between them is only one of degree. The

Constitution thus requires a line, perhaps only a rough line, to be drawn between the fields of public order

or tranquillity and those serious and aggravated forms of public disorder which are calculated to endanger

the security of the State.

32. In Supdt., Central Prison v. Dr. Ram Manohar Lohia 1960 2 SCR 821 this Court had held that public

order is synonymous with public safety and tranquillity, and it is the absence of any disorder involving a

breach of local significance in contradistinction to national upheavals, such as revolution, civil strife, war,

affecting the security of the State.

33. Subsequently, in Ram Manohar Lohia (Dr.) v. State of Bihar 1966 1 SCR 709, Hidayatullah, J., held

that any contravention of law always affected order, but before it could be said to affect public order, it

must affect the community at large. He was of the opinion that offences against law and order, public

order, and security of State are demarcated on the basis of their gravity. The said observation is as

follows: (AIR pp. 758-59, para 52)

52. It will thus appear that just as public order in the rulings of this Court (earlier cited) was said to

comprehend disorders of less gravity than those affecting security of State, law and order also

comprehends disorders of less gravity than those affecting public order. One has to imagine three

concentric circles. Law and order represents the largest circle within which is the next circle representing

public order and the smallest circle represents security of State. It is then easy to see that an act may

affect law and order but not public order just as an act may affect public order but not security of the

State.

34. The Constitution Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr 1970 3

SCC 746 while adopting and explaining the scope of the test laid down in Ram Manohar Lohia (Dr.) v.

State of Bihar stated that the State is at the centre of the society. Disturbances in the normal functioning of

the society fall into a broad spectrum, from mere disturbance of the serenity of life to jeopardy of the

State. The acts become more and more grave as we journey from the periphery of the largest circle

towards the centre. In this journey we travel first through public tranquillity, then through public order and

lastly to the security of the State. This Court further held that in the judgment of this Court, the expression

in the interest of public order as mentioned in the Constitution of India encompasses not only those acts

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which disturb the security of the State or acts within ordre publique as described but also certain acts

which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a

narrow meaning because, as has been observed, the expression in the interest of public order is very

wide.

35. The meaning of the phrase public order has also been determined by this Court in Kanu Biswas v.

State Of West Bengal 1972 3 SCC 831 where it was held that the concept of public order is based on the

French concept of ordre publique and is something more than ordinary maintenance of law and order.

36. It has been seen that the propositions laid down in the abovenoted cases have been time and again

followed in subsequent judgments of this Court and still govern the field.

37. At this stage, it would also be pertinent to note the findings of the Federal Court in Lakhi Narayan Das

v. Province of Bihar AIR 1950 FC 59 where the Federal Court while considering the scope and ambit of

the expression public order, used in Entry 1 of the Provincial List in the Government of India Act, 1935, in

para 12 of the judgment observed as follows: (AIR p. 63)

63. The expression public order with which Item 1 begins is, in our opinion, a most comprehensive term

and it clearly indicates the scope or ambit of the subject in respect to which powers of legislation are given

to the province. Maintenance of public order within a province is primarily the concern of that province and

subject to certain exceptions which involve the use of His Majesty's forces in aid of civil power, the

Provincial Legislature is given plenary authority to legislate on all matters which relate to or are necessary

for maintenance of public order.

38. It is a well-established rule of interpretation that the entries in the list being fields of legislation must

receive liberal construction inspired by a broad and generous spirit and not a narrow or pedantic

approach. Each general word should extend to all ancillary and subsidiary matters which can fairly and

reasonably be comprehended within it. (Reference in this regard may be made to the decisions of this

Court in Navinchandra Mafatlal v. CIT AIR 1955 SC 58 and State of Maharashtra v. Bharat Shanti Lal

Shah).

39. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in

favour of a statute and while construing such statute every legally permissible effort should be made to

keep the statute within the competence of the State Legislature. (Reference may be made to Charanjit Lal

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Chowdhury v. Union of India AIR 1951 SC 41, T.M.A Pai Foundation v. State of Karnataka 2002 8 SCC

481 and Karnataka Bank Ltd. v. State of A.P 2008 2 SCC 254)

40. One of the proven methods of examining the legislative competence of a legislature with regard to an

enactment is by the application of the doctrine of pith and substance. This doctrine is applied when the

legislative competence of the legislature with regard to a particular enactment is challenged with reference

to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to

ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it

is necessary for the courts to go into and examine the true character of the enactment, its object, its

scope and effect to find out whether the enactment in question is genuinely referable to a field of the

legislation allotted to the respective legislature under the constitutional scheme. This doctrine is an

established principle of law in India recognised not only by this Court, but also by various High Courts.

Where a challenge is made to the constitutional validity of a particular State Act with reference to a

subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on

such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the

State List but there is only an incidental encroachment on any of the matters enumerated in the Union

List, the State Act would not become invalid merely because there is incidental encroachment on any of

the matters in the Union List.

41. A Constitution Bench of this Court in A.S Krishna v. State of Madras AIR 1957 SC 297 held as under:

(AIR p. 301, para 8)

8. But then, it must be remembered that we are construing a federal Constitution. It is of the essence of

such a Constitution that there should be a distribution of the legislative powers of the Federation between

the Centre and the Provinces. The scheme of distribution has varied with different Constitutions, but even

when the Constitution enumerates elaborately the topics on which the Centre and the States could

legislate some overlapping of the fields of legislation is inevitable. The British North America Act, 1867,

which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on

which the Dominion and the Provinces could respectively legislate. Notwithstanding that the list were

framed so as to be fairly full and comprehensive, it was not long before it was found that the topics

enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the

constitutionality of laws made by the Dominion and Provincial Legislatures. It was in this situation that the

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Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires,

regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a

topic within the competence of the legislature it should be held to be intra vires, even though it might

incidentally trench on topics not within its legislative competence. The extent of the encroachment on

matters beyond its competence may be an element in determining whether the legislation is colourable,

that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth,

making a law on a subject beyond its competence. But where that is not the position, then the fact of

encroachment does not affect the vires of the law even as regards the area of encroachment.

42. Again, a Constitutional Bench of this Court while discussing the said doctrine in Kartar Singh v. State

Of Punjab. 1994 3 SCC 569 observed as under: (SCC p. 630, para 60)

60. This doctrine of pith and substance is applied when the legislative competence of a legislature with

regard to a particular enactment is challenged with reference to the entries in the various lists i.e a law

dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to

be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found,

that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then

that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters

beyond its competence i.e on a matter included in the list belonging to the other legislature. To say

differently, incidental encroachment is not altogether forbidden.

43. It is common ground that the State Legislature does not have power to legislate upon any of the

matters enumerated in the Union List. However, if it could be shown that the core area and the

subject-matter of the legislation is covered by an entry in the State List, then any incidental encroachment

upon an entry in the Union List would not be enough so as to render the State law invalid, and such an

incidental encroachment will not make the legislation ultra vires the Constitution.

44. In Bharat Hydro Power Corpn. Ltd. v. State of Assam 2004 2 SCC 553 the doctrine of pith and

substance came to be considered, when after referring to a catena of decisions of this Court on the

doctrine it was laid down as under: (SCC p. 561, para 18)

18. It is likely to happen from time to time that enactment though purporting to deal with a subject in one

list touches also on a subject in another list and prima facie looks as if one legislature is impinging on the

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legislative field of another legislature. This may result in a large number of statutes being declared

unconstitutional because the legislature enacting law may appear to have legislated in a field reserved for

the other legislature. To examine whether a legislation has impinged on the field of other legislatures, in

fact or in substance, or is incidental, keeping in view the true nature of the enactment, the courts have

evolved the doctrine of pith and substance for the purpose of determining whether it is legislation with

respect to matters in one list or the other. Where the question for determination is whether a particular law

relates to a particular subject mentioned in one list or the other, the courts look into the substance of the

enactment. Thus, if the substance of the enactment falls within the Union List then the incidental

encroachment by the enactment on the State List would not make it invalid. This principle came to be

established by the Privy Council when it determined appeals from Canada or Australia involving the

question of legislative competence of the federation or the States in those countries. This doctrine came

to be established in India and derives its genesis from the approach adopted by the courts including the

Privy Council in dealing with controversies arising in other federations. For applying the principle of pith

and substance regard is to be had (i) to the enactment as a whole, (ii) to its main objects, and (iii) to the

scope and effect of its provisions. For this see Southern Pharmaceuticals & Chemicals v. State of Kerala

1981 4 SCC 391, State of Rajasthan v. G. Chawla AIR 1959 SC 544, Amar Singhji v. State of Rajasthan

AIR 1955 SC 504, Delhi Cloth and General Mills Co. Ltd. v. Union of India 1983 4 SCC 166 and Vijay

Kumar Sharma v. State of Karnataka 1990 2 SCC 562. In the last-mentioned case it was held: ( SCC p.

576, para 15)

(3) Where a law passed by the State Legislature while being substantially within the scope of the entries

in the State List entrenches upon any of the entries in the Central List the constitutionality of the law may

be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it

appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is

purely incidental or inconsequential.

45. Now that we have examined under what circumstances a State law can be said to be encroaching

upon the law-making powers of the Central Government, we may proceed to evaluate the current issue on

merits. Let us once again examine the provision at the core of this matter:

2. (1)(e) organised crime means any continuing unlawful activity by an individual, singly or jointly, either as

a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of

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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;

After examining this provision at length, we have come to the conclusion that the definition of organised

crime contained in Section 2(1)(e) of Mcoca makes it clear that the phrase promoting insurgency is used

to denote a possible driving force for organised crime. It is evident that Mcoca does not punish insurgency

per se, but punishes those who are guilty of running a crime organisation, one of the motives of which

may be the promotion of insurgency.

46. We may also examine the Statement of Objects and Reasons to support the conclusion arrived at by

us. The relevant portion of the Statement of Objects and Reasons is extracted hereinbelow:

1. Organised crime has for quite some years now come up as a very serious threat to our society. It

knows no national boundaries and is fuelled by illegal wealth generated by contract, killing, extortion,

smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection

money and money laundering, etc. The illegal wealth and black money generated by the organised crime

being very huge, it has had serious adverse effect on our economy. It was seen that the organised

criminal syndicates made a common cause with terrorist gangs and foster narcoterrorism which extends

beyond the national boundaries. There was reason to believe that organised criminal gangs have been

operating in the State and thus, there was immediate need to curb their activities.

2. The existing legal framework i.e the penal and procedural laws and the adjudicatory system are found

to be rather inadequate to curb or control the menace of organised crime. The Government has, therefore,

decided to enact a special law with stringent and deterrent provisions including in certain circumstances

power to intercept wire, electronic or oral communication to control the menace of organised crime.

47. We find no merit in the contention that Mcoca, in any way, deals with punishing insurgency directly.

We are of the considered view that the legislation only deals with insurgency indirectly only to bolster the

definition of organised crime. However, even if it be assumed that insurgency has a larger role to play

than pointed out by us above in Mcoca, we are of the considered view that the term promoting insurgency

as contemplated under Section 2(1)(e) of Mcoca comes within the concept of public order.

48. From the ratio of the judgments on the point of public order referred to by us earlier, it is clear that

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anything that affects public peace or tranquillity within the State or the Province would also affect public

order and the State Legislature is empowered to enact laws aimed at containing or preventing acts which

tend to or actually affect public order. Even if the said part of Mcoca incidentally encroaches upon a field

under Entry 1 of the Union List, the same cannot be held to be ultra vires in view of the doctrine of pith

and substance as in essence the said part relates to maintenance of public order which is essentially a

State subject and only incidentally trenches upon a matter falling under the Union List. Therefore, we are

of the considered view that it is within the legislative competence of the State of Maharashtra to enact

such a provision under Entries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of the Seventh

Schedule of the Constitution.

Repugnance with the Central statute

49. This brings us to the second ground of challenge i.e the part of Section 2(1)(e) of Mcoca, so far as it

covers 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.

50. The Bombay High Court, in para 44 of the impugned judgment, has held that though promoting

insurgency is one of the facets of terrorism, the offence of terrorism as defined under UAPA as amended

by the 2004 Act is not identical to the offences under Mcoca and the terms terrorism and insurgency are

not synonymous. As per the High Court both the enactments can stand together as there is no conflict

between the two.

51. Before we proceed to analyse the said aspect, it would be appropriate to understand the situations in

which repugnancy would arise.

52. Chapter I of Part XI of the Constitution deals with the subject of distribution of legislative powers of

Parliament and the legislature of the States. Article 245 of the Constitution provides that Parliament may

make laws for the whole or any part of the territory of India, and the legislature of a State may make laws

for the whole or any part of the State.

53. The legislative field of Parliament and the State Legislatures has been specified in Article 246 of the

Constitution. Article 246 reads as follows:

246. Subject-matter of laws made by Parliament and by the legislatures of States.(1) Notwithstanding

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anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the

matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the legislature of any

State also, have power to make laws with respect to any of the matters enumerated in List III in the

Seventh Schedule (in this Constitution referred to as the Concurrent List).

(3) Subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for such

State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule

(in this Constitution referred to as the State List).

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not

included in a State notwithstanding that such matter is a matter enumerated in the State List.

54. Article 254 of the Constitution which contains the mechanism for resolution of conflict between the

Central and the State legislations enacted with respect to any matter enumerated in List III of the Seventh

Schedule reads as under:

254. Inconsistency between laws made by Parliament and laws made by the legislatures of States.(1) If

any provision of a law made by the legislature of a State is repugnant to any provision of a law made by

Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to

one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law

made by Parliament, whether passed before or after the law made by the legislature of such State, or, as

the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to

the extent of the repugnancy, be void.

(2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the

Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament

or an existing law with respect to that matter, then, the law so made by the legislature of such State shall,

if it has been reserved for the consideration of the President and has received his assent, prevail in that

State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with

respect to the same matter including a law adding to, amending, varying or repealing the law so made by

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the legislature of the State.

55. We may now refer to the judgment of this Court in M. Karunanidhi v. Union of India 1979 3 SCC 431,

which is one of the most authoritative judgments on the present issue. In the said case, the principles to

be applied for determining repugnancy between a law made by Parliament and a law made by the State

Legislature were considered by a Constitution Bench of this Court. At para 8, this Court held that

repugnancy may result from the following circumstances: (SCC p. 437)

1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and

are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the

repugnancy.

2. Where, however, a law passed by the State comes into collision with a law passed by Parliament on an

entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions

of the central act would become void provided the State Act has been passed in accordance with clause

(2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in

the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be

upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it

appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is

purely incidental or inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is

inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected

by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining

the assent of the President would be that so far as the State Act is concerned, it will prevail in the State

and overrule the provisions of the central act in their applicability to the State only. Such a state of affairs

will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing

the law made by the State Legislature under the proviso to Article 254.

56. In para 24, this Court further laid down the conditions which must be satisfied before any repugnancy

could arise, the said conditions are as follows: (M. Karunanidhi case, SCC p. 444)

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1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two

Acts into direct collision with each other and a situation is reached where it is impossible to obey the one

without disobeying the other.

57. Thereafter, this Court after referring to a catena of judgments on the subject, in para 35, laid down the

following propositions: (M. Karunanidhi case, SCC pp. 448-49)

1. That in order to decide the question of repugnancy it must be shown that the two enactments contain

inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two

statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes

operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and

separate offences, no question of repugnancy arises and both the statutes continue to operate in the

same field.

58. In Govt. of A.P v. J.B Educational Society 2005 3 SCC 212, this Court while discussing the scope of

Articles 246 and 254 and considering the proposition laid down by this Court in M. Karunanidhi case with

respect to the situations in which repugnancy would arise, held as follows: (SCC pp. 219-20, paras 9-11)

9. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I,

notwithstanding anything contained in clauses (2) and (3) of Article 246. The non obstante clause under

Article 246(1) indicates the predominance or supremacy of the law made by the Union Legislature in the

event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law

made by the State Legislature with respect to a matter enumerated in List II of the Seventh Schedule.

10. There is no doubt that both Parliament and the State Legislature are supreme in their respective

assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State

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Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two

enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the

parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to

make a law with respect to a matter enumerated in the State List.

11. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State

Legislature have equal competence to legislate. Here again, the courts are charged with the duty of

interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict.

If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.

Thereafter, this Court, in para 12, held that the question of repugnancy between the parliamentary

legislation and the State legislation could arise in the following two ways: (SCC p. 220)

12. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap

and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and

there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of

the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article

254 deals with a situation where the State legislation having been reserved and having obtained

President's assent, prevails in that State; this again is subject to the proviso that Parliament can again

bring a legislation to override even such State legislation.

59. In National Engg. Industries Ltd. v. Shri Kishan Bhageria 1988 Supp SCC 82 Sabyasachi Mukharji, J.,

opined that the best test of repugnancy is that if one prevails, the other cannot prevail.

60. In the light of the said propositions of law laid down by this Court in a number of its decisions, we may

now analyse the provisions of the two Acts before us.

61. The provisions of Mcoca create and define a new offence of organised crime. According to its

Preamble, the said Act was enacted to make specific provisions for prevention and control of, and for

coping with, criminal activity by organised crime syndicate or gang and for matters connected therewith or

incidental thereto.

62. The Statement of Objects and Reasons of Mcoca, inter alia, states that organised crime has for quite

some years now come up as a very serious threat to our society and there is reason to believe that

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organised criminal gangs are operating in the State and thus there is immediate need to curb their

activities. The Statement of Objects and Reasons in relevant part, reads as under:

Organised crime has for quite some years now come up as a very serious threat to our society. It knows

no national boundaries and is fuelled by illegal wealth generated by contract killings, extortion, smuggling

in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and

money laundering, etc. The illegal wealth and black money generated by the organised crime is very huge

and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a

common cause with terrorist gangs and foster narcoterrorism which extends beyond the national

boundaries. There is reason to believe that organised criminal gangs are operating in the State and thus,

there is immediate need to curb their activities.

It is also noticed that the organised criminals make extensive use of wire and oral communications in their

criminal activities. The interception of such communications to obtain evidence of the commission of

crimes or to prevent their commission is an indispensable aid to law enforcement and the administration

of justice.

2. The existing legal framework i.e the penal and procedural laws and the adjudicatory system are found

to be rather inadequate to curb or control the menace of organised crime. The Government has, therefore,

decided to enact a special law with stringent and deterrent provisions including in certain circumstances

power to intercept wire, electronic or oral communication to control the menace of the organised crime.

63. After enacting Mcoca, assent of the President was also obtained which was received on 24-4-1999.

Section 2 of Mcoca is the interpretation clause. Clause (d) of sub-section (1) of Section 2 of Mcoca,

defines the expression continuing unlawful activity to mean an activity prohibited by law for the time being

in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken

either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in

respect of which more than one charge-sheets have been filed before a competent court within the

preceding period of ten years and that court has taken cognizance of such offence. Clause (e) (extracted

earlier hereinbefore), defines the expression organised crime to mean any continuing unlawful activity by

an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such

syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means,

with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself

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or any other person or promoting insurgency. Clause (f), defines organised crime syndicate to mean a

group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in

activities of organised crime. The said definitions are interrelated; the organised crime syndicate refers to

an organised crime which in turn refers to continuing unlawful activity. Mcoca, in the subsequent

provisions lays down the punishment for organised crime and has created special machinery for the trial

of a series of offences created by it.

64. Prior to the 2004 Amendment, UAPA did not contain the provisions to deal with terrorism and terrorist

activities. By the 2004 Amendment, new provisions were inserted in UAPA to deal with terrorism and

terrorist activities. The Preamble of UAPA was also amended to state that the said Act is enacted to

provide for the more effective prevention of certain unlawful activities of individuals and associations, and

dealing with terrorist activities and for matters connected therewith.

65. In the 2008 Amendment, the Preamble has again been amended and the amended Preamble now

also contains a reference to the Resolution adopted by the Security Council of the United Nations on

28-9-2001 and also makes reference to the other resolutions passed by the Security Council requiring the

States (nations which are members of the United Nations) to take action against certain terrorist and

terrorist organisations. It also makes reference to the order issued by the Central Government in exercise

of power under Section 2 of the United Nations (Security Council) Act, 1947 which is known as the

Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007.

66. The Preamble of UAPA now reads as under:

An Act to provide for the more effective prevention of certain unlawful activities of individuals and

associations, and for dealing with terrorist activities and for matters connected therewith.

Whereas the Security Council of the United Nations in its 4385th meeting adopted Resolution 1373(2001)

on 28-9-2001, under Chapter VII of the Charter of the United Nations requiring all the States to take

measures to combat international terrorism;

And whereas Resolutions 1267(1999), 1333(2000), 1363(2001), 1390(2002), 1455(2003), 1526(2004),

1566(2004), 1617(2005), 1735(2006) and 1822(2008) of the Security Council of the United Nations

require the States to take action against certain terrorists and terrorist organisations, to freeze the assets

and other economic resources, to prevent the entry into or the transit through their territory, and prevent

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the direct or indirect supply, sale or transfer of arms and ammunitions to the individuals or entities listed in

the Schedule;

And whereas the Central Government, in exercise of the powers conferred by Section 2 of the United

Nations (Security Council) Act, 1947 (43 of 1947) has made the Prevention and Suppression of Terrorism

(Implementation of Security Council Resolutions) Order, 2007;

And whereas it is considered necessary to give effect to the said Resolutions and the Order and to make

special provisions for the prevention of, and for coping with, terrorist activities and for matters connected

therewith or incidental thereto.

67. Section 2(1)(k) and section 15 of uapa, 1967 which were inserted by the 2004 Amendment and define

and deal with the term terrorist act, read as under:

2. (1)(k) terrorist act has the meaning assigned to it in Section 15 and the expressions terrorism and

terrorist shall be construed accordingly;

15. Terrorist act.Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to

strike terror in the people or any section of the people in India or in any foreign country, does any act by

using bombs, dynamite or other explosive substances or inflammable substances or firearms or other

lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether

biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of,

or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of

any supplies or services essential to the life of the community in India or in any foreign country or causes

damage or destruction of any property or equipment used or intended to be used for the defence of India

or in connection with any other purposes of the Government of India, any State Government or any of

their agencies, or detains any person and threatens to kill or injure such person in order to compel the

Government in India or the Government of the foreign country or any other person to do or abstain from

doing any act, commits a terrorist act.

68. However, after the 2008 Amendment, Section 15 has been substituted in the following manner:

15. Terrorist act.Whoever does any act with intent to threaten or likely to threaten the unity, integrity,

security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any

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section of the people in India or in any foreign country,

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or

other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether

biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever

nature to cause or likely to cause

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign

country; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for

the defence of India or in connection with any other purposes of the Government of India, any State

Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes

death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other

act in order to compel the Government of India, any State Government or the Government of a foreign

country or any other person to do or abstain from doing any act,

commits a terrorist act.

Explanation.For the purpose of this section, public functionary means the constitutional authorities and

any other functionary notified in the Official Gazette by the Central Government as a public functionary.

69. From a perusal of Section 15 before and after amendment of UAPA, it comes to light that though after

amendment there have been certain additions to the provision but in substance the provision remains the

same.

70. Sub-clauses (l) and (m) of sub-section (1) of Section 2 of UAPA, which define the term terrorist gang

and terrorist organisation respectively, read as under:

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2. (1)(l) terrorist gang means any association, other than terrorist organisation, whether systematic or

otherwise, which is concerned with, or involved in, terrorist act;

(m) terrorist organisation means an organisation listed in the Schedule or an organisation operating under

the same name as an organisation so listed;

71. The following are the terrorist organisations which are mentioned in the First Schedule of UAPA:

1. Babbar Khalsa International

2. Khalistan Commando Force

3. Khalistan Zindabad Force

4. International Sikh Youth Federation

5. Lashkar-e-Taiba/Pasban-e-Ahle Hadis

6. Jaish-e-Mohammed/Tahrik-e-Furqan

7. Harkat-ul-Mujahideen/Harkat-ul-Ansar/Harkat-ul-Jehad-e-Islami

8. Hizb-ul-Mujahideen/Hizb-ul-Mujahideen Pir Panjal Regiment

9. Al-Umar-Mujahideen

10. Jammu and Kashmir Islamic Front

11. United Liberation Front of Assam (ULFA)

12. National Democratic Front of Bodoland (NDFB)

13. People's Liberation Army (PLA)

14. United National Liberation Front (UNLF)

15. People's Revolutionary Party of Kangleipak (Prepak)

16. Kangleipak Communist Party (KCP)

17. Kanglei Yaol Kanba Lup (KYKL)

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18. Manipur People's Liberation Front (MPLF)

19. All Tripura Tiger Force

20. National Liberation Front of Tripura

21. Liberation Tigers of Tamil Eelam (LTTE)

22. Students Islamic Movement of India

23. Deendar Anjuman

24. Communist Party of India (Marxist-Leninist)People's War, all its Formations and Front Organisations

25. Maoist Communist Centre (MCC), all its Formations and Front Organisations

26. Al Badr

27. Jamiat-ul-Mujahidden

28. Al-Qaida

29. Dukhtaran-e-Millat (Dem)

30. Tamil Nadu Liberation Army (TNLA)

31. Tamil National Retrieval Troops (TNRT)

32. Akhil Bharat Nepali Ekta Samaj (ABNES)

33*. Organisations listed in the Schedule to the U.N Prevention and Suppression of Terrorism

(Implementation of Security Council Resolutions) Order, 2007 made under Section 2 of the United Nations

(Security Council) Act, 1947 (43 of 1947) and amended from time to time.

72. The precise reason why we have extracted the list of terrorist organisations under UAPA hereinbefore

is to bring to the fore the contrast between the two legislations which are in question before us. The

exhaustive list of terrorist organisations in the First Schedule to UAPA has been included in order to show

the type and nature of the organisations contemplated under that Act. A careful look of the same would

indicate that all the organisations mentioned therein have as their aims and objects undermining and

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prejudicially affecting the integrity and sovereignty of India, which certainly stand on a different footing

when compared to the activities carried out by the forces like the appellant.

73. Section 2(1)(o) of UAPA, which defines the term unlawful activity, reads as under:

2. (1)(o) unlawful activity, in relation to an individual or association, means any action taken by such

individual or association (whether by committing an act or by words, either spoken or written, or by signs

or by visible representation or otherwise),

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a

part of the territory of India or the secession of a part of the territory of India from the Union, or which

incites any individual or group of individuals to bring about such cession or secession; or

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of

India; or

(iii) which causes or is intended to cause disaffection against India;

74. Before we proceed to analyse the provisions of the two statutes in order to ascertain whether they are

repugnant or not, we may note that it is well settled that no provision or word in a statute is to be read in

isolation. In fact, the statute has to be read as a whole and in its entirety. In RBI v. Peerless General

Finance & Investment Co. Ltd. 1987 1 SCC 424, this Court while elaborating the said principle held as

under: (SCC p. 450, para 33)

33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may

well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are

important. That interpretation is best which makes the textual interpretation match the contextual. A

statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be

read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.

If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by

such context, its scheme, the sections, clauses, phrases and words may take colour and appear different

than when the statute is looked at without the glasses provided by the context. With these glasses we

must look at the Act as a whole and discover what each section, each clause, each phrase and each word

is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word

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of a statute can be construed in isolation. Statutes have to be construed so that every word has a place

and everything is in its place.

75. A perusal of the Preamble, the Statement of Objects and Reasons and the interpretation clauses of

Mcoca and UAPA would show that both the Acts operate in different fields and the ambit and scope of

each is distinct from the other. So far as Mcoca is concerned, it principally deals with prevention and

control of criminal activity by organised crime syndicate or gang within India and its purpose is to curb a

wide range of criminal activities indulged in by organised syndicate or gang. The aim of UAPA, on the

other hand, is to deal with terrorist and certain unlawful activities, which are committed with the intent to

threaten the unity, integrity, security or sovereignty of India or with the intent to strike terror in the people

or any section of the people in India or in any foreign country or relate to cessation or secession of the

territory of India.

76. Under Mcoca the emphasis is on crime and pecuniary benefits arising therefrom. In the wisdom of the

legislature these are activities which are committed with the objective of gaining pecuniary benefits or

economic advantages and which over a period of time have extended to promoting insurgency. The

concept of the offence of terrorist act under section 15 of uapa essentially postulates a threat or likely

threat to unity, integrity, security and sovereignty of India or striking terror amongst people in India or in

foreign country or to compel the Government of India or the Government of a foreign country or any other

person to do or abstain from doing any act.

77. The offence of terrorist act under Section 15 and the offence of unlawful activity under Section 2(1)(o)

of UAPA have some elements in commonality. The essential element in both is the challenge or threat or

likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some

physical act like use of bombs and other weapons, etc., Section 2(1)(o) takes in its compass even written

or spoken words or any other visible representation intended or which supports a challenge to the unity,

sovereignty, integrity and security of India. The said offences are related to the defence of India and are

covered by Entry 1 of the Union List.

78. Moreover, the meaning of the term unlawful activity in Mcoca is altogether different from the meaning

of the term unlawful activity in UAPA. It is also pertinent to note that Mcoca does not deal with the terrorist

organisations which indulge in terrorist activities and similarly, UAPA does not deal with organised gangs

or crime syndicate of the kind specifically targeted by Mcoca. Thus, the offence of organised crime under

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Mcoca and the offence of terrorist act under UAPA operate in different fields and are of different kinds and

their essential contents and ingredients are altogether different.

79. The concept of insurgency under Section 2(1)(e) of Mcoca, if seen and understood in the context of

the Act, is a grave disturbance of the public order within the State. The disturbance of the public order, in

each and every case, cannot be said to be identical or similar to the concepts of terrorist activity as

contemplated respectively under Section 2(1)(o) and Section 15 of UAPA. Moreover, what is punishable

under Mcoca is promoting insurgency and not insurgency per se.

80. The aforesaid analysis relating to the essential elements of offence of promoting insurgency under

Section 2(1)(e) of Mcoca and the offences of terrorist act and unlawful activity under Section 15 and

Section 2(1)(o) of UAPA respectively, clearly establishes that UAPA occupies a field different than that

occupied by Mcoca. There is no clear and direct inconsistency or conflict between the said provisions of

the two Acts.

81. We therefore, for the reasons mentioned above, concur with the final decision reached by the High

Court in the impugned judgment and repel the challenge unhesitatingly.

82. The appeals accordingly fail and are dismissed. No costs.