Says legislature has the competence to enact laws to deal with insurgency

The Supreme Court, while upholding the constitutional validity of the Maharashtra Control of Organised Crime Act (MCOCA), has held that the State Legislature had the competence to include offences relating to “insurgency” under the ambit of the Act.

A Bench comprising Justice R.V. Raveendran and Justice Mukundakam Sharma, in its judgment on Friday, said: “Insurgency is undoubtedly a serious form of internal disturbance which causes a grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State.”

Writing the judgment, Mr. Justice Sharma said: “The subject matter of the MCOCA is maintaining public order and prevention by police of commission of serious offences affecting public order. The State Legislature is competent to enact a law for maintenance of public order under Entry 1 of the State List in the Constitution.”

The Bench — dismissing appeals against a Bombay High Court judgment upholding the law — pointed out that offences relating to unlawful assembly, riots, insurrections, rebellions and levying of war were in theory offences affecting public order; “the difference between them is only one of degree.”

The Bench added: “The Constitution thus requires a line, perhaps only a rough line, to be drawn between the fields of public order of tranquillity and those serious and aggravated forms of public disorder which are calculated to endanger the security of the State.”

It said: “The expression ‘in the interest of public order' encompasses not only those acts which disturb the security of the State, 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 the expression is very wide.”

The Bench added: “It is common ground that the State Legislature does not have power to legislate upon any of the matters enumerated in the ‘Union List' in the Constitution. 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 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.

“The definition of organised crime in Section 2 (1) (e) of the MCOCA makes it clear that the phrase ‘promoting insurgency' is used to denote a possible driving force for organised crime. It is evident that the 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.”

On the contention that the law was repugnant with the Unlawful Activities (Prevention) Amendment Act (UAPA) dealing with insurgency, the Bench said: “The aim of the UAPA 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. Under the MCOCA, the emphasis is on crime and pecuniary benefits arising therefrom.

“The concept of insurgency under the MCOCA, if seen and understood in the context of the Act, is a grave disturbance of the public order within the State. The MCOCA does not deal with a terrorist organisation which indulges in terrorist activities, and similarly, the UAPA does not deal with organised gangs or crime syndicates of the kind specifically targeted by the MCOCA.”

Keywords: MCOCAsupreme court

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