Introduction:
The Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act (hereinafter referred to as “the Act”) was introduced in January 1986 by the then Congress government, led by Chief Minister Vir Bahadur Singh. Comprising of 24 articles, the Act was passed with the primary objective of arresting 2,500 known gangsters in the state at that time[i]. The preamble of the Act states that its main purpose is “to make special provisions for the prevention of, and for coping with, gangsters and anti-social activities and for matters connected therewith or incidental thereto[ii]” However, within 6 months of the enforcement of the Act, 475 of 771 gangsters had successfully secured bail. Consequently, the State government stopped implementing the Act after these loopholes came to light[iii]. Yet, several people have been booked under it over the years.
A Self-Contained Code
The Act is a self-contained code since it contains provisions related to crimes, penalties, procedures and Courts. It provides for the following:
- Crimes: Section 2 (b) [iv] states several offences or ‘anti-social activities’ which are punishable under this Act.
- Penalties: The Indian Penal Code, 1860 lays down penalties for different crimes. However, this Act has a separate provision for penalties u/s 3[v].
- Special Rules of Evidence: The Act provides for Special Rules of Evidence [vi] u/s 4 other than the evidence given under the Indian Evidence Act, 1872.
- Special Courts: The Act lays down provisions related to the constitution (u/s 5)[vii], powers (u/s 8)[viii] and jurisdiction (u/s 7)[ix] of special courts. It also empowers the court to transfer any case to a regular court.
Constitutional Validity of the Act
The Constitutional validity of certain provisions of the Act has been questioned by many since the implementation of the Act. Advocate Daya Shankar Misra, who practices in the Allahabad High Court, stated that several provisions of the Act are ultra vires of the Constitution. He successfully secured bail for over 70 persons held under the Act. Other sources have also stated s.3 of the Act, which provides for a minimum of two years imprisonment for even minor offences, is violative of Articles 14, 19, 21 and 22 of the Constitution as it gives arbitrary power to the police against the accused.[x]
In a writ petition[xi] filed before the Hon’ble Supreme Court, the petitioner had challenged the constitutional validity of s.12 of the Act and contended that it was violative of articles 14, 21, and 22(4) of the Constitution of India.
The following arguments were made on the petitioner’s behalf: (1) by providing for Special Courts, the Act frustrates the basic tenet of Art. 21 of the Constitution i.e. the concept of a speedy and fair trial[xii] since it prevents the party to go to other courts; (2) detention of accused under the Act deprived him of his liberty as the trial in other cases would not be allowed to proceed and accused would be compelled to languish in custody; (3) the detention under the Act, being virtually in the nature of preventive detention, would be violative of Art. 22(4) of the Constitution; and (4) that the trial of accused by the Special Court under the Act keeping the trial in other courts in abeyance would be violative of the equal treatment before the law as envisaged under Art. 14[xiii] of the Constitution.[xiv]
Dismissing the petition, the Court upheld the constitutional validity of s.12 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, as it does not infringe any of the facets of Arts.14 and 21 of the Constitution of India. The Court stated that the provision does not frustrate the concept of fair and speedy trial, which is an imperative facet of Article 2[xv]1 of the Constitution. Since the Special Court is constituted for the sole purpose of disposal of cases related to the Act, it will provide a speedier remedy as compared to remedy provided under regular courts. Also, as the trial under the Act would be in progress, the accused would have the fullest opportunity to defend himself and there cannot be a denial of a fair trial.
The Court further pointed out that the Act does not tantamount to the denial of fundamental fairness in trial and is not violative of Article 14. It is neither unfair nor arbitrary. The accused who faces trial in regular courts is different from the accused in the Special Courts because the accused under the Act is tried by the Special Court as he is a gangster as defined u/s. 2(c) of the Act and is involved in anti-social activities. Apart from normal criminality, the accused is also involved in organized crime for a different purpose and motive. The legislature has constituted a separate court to deal with the crimes under the Act in order to curb such kind of organized crimes in the society. Therefore, the provision cannot be said to be arbitrary. It does not defeat the concept of permissible classification. The classification is in the permissible realm of Art. 14 of the Constitution[xvi].
Shortcomings of the Act
The Judiciary has time and again pointed out the legal shortcomings in the Act. In an appeal dating back to April 1986, Justice Sagir Ahmed and Justice B.L. Lumba gave their view on the relevance of sections 2 and 3 of the Act with respect to the question of bail. They determined that these sections should be ignored while considering the question of bail. Section 2 defines a gangster but the definition is so loose that it can apply to virtually anybody in the state. Section 3 lists the procedures to be followed in implementing the act but grants powers to officialdom which cannot but be found arbitrary by the courts[xvii].
The Act should provide for a system of checks and balances. However, executive and judiciary find no mention in the Act as far as the implementation is concerned this Act gives the sole authority to police. This way the Act vests all powers in lower-level police functionaries who can misuse it. Unlike the National Security Act, in which the District Magistrate has the authority to issue warrants of arrest on the recommendation of the police superintendent and forward the case to the State Government for approval, this Act can be applied by the policemen on any person they deem fit. A review committee set up by the DGP found that of the 60 cases that came up before it, 33 were too flimsy to justify prosecution. It was also stated by a few that some people were being held under the act on the basis of “totally fictitious grounds.”[xviii]
Alleged Misuse of the Act
The Uttar Pradesh government has implemented the Act on many people in recent years. Around 27 protesters in Lucknow, involved in the December 2019 protests related to the Citizenship Amendment Act, were booked under this it recently. They were slapped with the Act because investigations confirmed that they “conspired as a gang to commit anti-government activities…thereby causing panic among the public”. They were accused of firing at police with an “intention to kill” and setting a police outpost on fire. They were also accused of damaging and looting other government offices and setting public and private vehicles on fire. Lucknow police invoked S.2 (b) and S.3 of the Act against the 27 protesters. Section 2(b)[xix] states the definition of “gang” and provides a detailed list of anti-social activities punishable under the Act, and Section 3[xx] states the punishment prescribed for a “gangster”. However, these were the very sections which were deemed as vague right after the Act was passed back in 1986[xxi].
Vikas Dubey, the gangster who was recently killed in an encounter with the police, was also booked under this Act in the year 2017. He challenged this at the High Court and secured an order of no coercive action against him[xxii]. On 30th July 2020, his close aide, Jaykant Vajpayee, was also booked under S.3 (1) of the Act.
Apart from that, this Act has been invoked mafia and journalists. Noida Police invoked the Act against five suspected land mafia members who allegedly sold plots illegally to gullible buyers. The Yogi government has also invoked the Act against more than 600 anti-social elements, including drug and liquor mafia and rogue builders. In August 2019, five journalists were booked under this Act for allegedly circulating false news on their portals, pressurising the government officials and preventing them from performing their duty[xxiii].
Conclusion
The loopholes and shortcomings in the Act make it very difficult to be upheld in court. The Act was introduced for the sole purpose of controlling the goonda raj in state of Uttar Pradesh. However, within six months of the implementation of the Act, more than half the people booked under it were out on bail. The vague definitions given u/s 2 of the Act add another flaw to it and the constitutional validity have also been questioned. However, once the shortcomings of the Act are corrected, it will efficaciously help in fighting against the gangsters prevalent in the state of Uttar Pradesh.
References:
[i] Debayan Roy, UP books 27 anti-CAA protesters under gangsters Act — a law controversial since 1986 launch, THE PRINT (Mar 15, 2020, 6:06 PM), https://theprint.in/theprint-essential/up-books-27-anti-caa-protesters-under-gangsters-act-a-law-controversial-since-1986-launch/381469/#:~:text=the%20Act%20enacted%3F-,The%20UP%20Gangsters%20and%20Anti%2DSocial%20Activities%20(Prevention)%20Act,the%20state%20at%20the%20time.
[ii] The Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, Preamble
[iii] Ibid.
[iv] Ibid, s.2 (b)
[v] Ibid, s.3
[vi] Ibid, s.4
[vii] Ibid, s.5
[viii] Ibid, s.8
[ix] Ibid, s.7
[x] Dilip Awasthi, UP Government orders freeze on use of gangsters act saying it is full of legal loopholes, INDIA TODAY (Aug 15, 1986- Updated: feb 6, 2014, 5:35 PM )
[xi] Dharmendra Kirthal vs. State of U.P. and Anr., Writ Petition (CRL.) NO. 100 of 2010
[xii] The Constitution of India, 1949, a.21
[xiii] Id., a.14
[xiv] Government of India, “Supreme Court Reports”, [2013] 7 S.C.R. 581
[xv] Supra note xii
[xvi] Supra note xi
[xvii] Supra note x
[xviii] Ibid.
[xix] Supra note iv
[xx] Supra note v
[xxi] Supra note x
[xxii] Wikipedia-the free Encyclopaedia, available at: https://en.wikipedia.org/wiki/Vikas_Dubey#:~:text=Dubey%20was%20arrested%20in%202017,no%20coercive%20action%20against%20him, (last visited on Aug 9, 2020)
[xxiii] Supra note x
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