The MCOCA as an anti-terrorism law?

In State of Maharashtra v. Bharat Shah, MANU/SC/2008/1237, a 3-Judge Bench of the Supreme Court of India reversed a judgment of the Bombay High Court concerned with the constitutionality of certain provisions of the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”). The judgment by Justice Mukundakam Sharma upheld the constitutionality of Sections 13 to 16 of the MCOCA, which deal with interception of wire, electronic or oral communication. The Sections were challenged on the grounds of violation of Article 21 (the right to life includes the right to privacy, and interception of communication violates this right); and also on grounds of competence. The Court held, “The objects and reasons read with the contents of (the MCOCA) would indicate that the subject matter of the Act is maintaining public order and prevention by police of commission of serious offences affecting public order and, therefore… it will be relatable to Entry 1 and 2 of List II…” Sections 2, 3 and 4 of the MCOCA were also upheld.

Interestingly, Section 2 of the MCOCA was challenged before the Bombay High Court earlier in Zameer Ahmed v. State of Maharashtra, W.P. No. 1136/2007 (Bombay High Court). That challenge arose in the context of an attempt by the State of Maharashtra to apply the MCOCA against alleged perpetrators of the July 11, 2006, Mumbai train blasts. Section 2(e) of the MCOCA refers to “insurgency”, and it was contended that the State legislature had no power to enact on matters of insurgency. The Bombay High Court in rejected this argument, upholding the constitutionality of Section 2 on grounds that in pith and substance, the law is within the competence of the State legislature. Additionally, the Court also ruled that there was no repugnance between the MCOCA and the central Unlawful Activities Prevention Act. An appeal against this judgment was admitted by the Supreme Court, and is pending final hearing. While admitting the appeal, the Supreme Court also stayed the trial in the train blasts case.

It remains to be seen whether the Supreme Court’s judgment in Bharat Shah which clearly holds the MCOCA to be (in pith and substance) within the competence of the State legislature will be held conclusive on the “insurgency” challenge. Of course, it might be contended that the Court in Bharat Shah was not concerned with that particular argument – nonetheless, it would appear that the “insurgency” argument can also be rejected on grounds of pith and substance.

The issue of whether the MCOCA (which has spawned similar legislations in several states) can be applied in ‘terrorism’ cases presents complex legal questions. The constitutionality of the MCOCA assumes greater significance in light of the recent bomb blasts in Delhi, and the debate of having tougher anti-terrorism laws.