When the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024, the general penal code of India acquired, for the first time, offences of 'terrorist act' (Section 113) and 'organised crime' (Section 111). Until then those subjects lived in special statutes with their own procedural architecture: the Unlawful Activities (Prevention) Act, 1967 (UAPA) at the Centre, and laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and its Karnataka cousin, KCOCA, in the States. The same conduct may now be charged under an ordinary Sanhita section, a special Act, or both. The legal question is not whether the State may fight terror and syndicates. It plainly may. The question is who chooses the tool, by what test, and with which safeguards attached.
A Mirror Image, With Two Distortions
Section 113(1) tracks Section 15 of the UAPA almost word for word, and the remaining sub-sections correspond closely to Sections 16, 18, 18A, 18B, 19, 20 and 21 of that Act. Where death results, the penalty is death or life imprisonment; otherwise five years to life with fine. On what counts as terrorism, the two laws give the same answer.
Two departures matter. First, UAPA Section 20 ties membership offences to organisations listed in the First Schedule, a published executive listing capable of challenge. Section 113 speaks instead of an organisation 'involved in terrorist act', a status declared by no notification and proved only at trial. Second, the Sanhita's counterfeit-currency limb drops the UAPA's reference to 'high quality' fakes, widening the offence. In one respect Section 113 is narrower: it omits the treaty-based offences of UAPA Section 15(2).
The Procedural Gulf
What separates the two statutes is procedure. A case under Section 113 alone follows the ordinary Sanhita rules: ninety days for investigation under Section 187(3) BNSS, a right to apply for anticipatory bail, and bail decided on general principles. The UAPA changes each of these. Section 43D(2) allows the investigation period to stretch to one hundred and eighty days on the Public Prosecutor's report; Section 43D(4) bars anticipatory bail; Section 43D(5) forbids bail where the court finds the accusation prima facie true on a reading of the case diary; and Section 43E raises a presumption in defined circumstances.
The Supreme Court's engagement with that bail bar has been uneven. NIA v. Zahoor Ahmad Shah Watali (2019), by Justices A.M. Khanwilkar and Dinesh Maheshwari, directed courts to take the prosecution's material at face value. Union of India v. K.A. Najeeb (2021) held that prolonged incarceration can justify bail despite the statutory bar, and Vernon v. State of Maharashtra (2023), by Justices Aniruddha Bose and Sudhanshu Dhulia, insisted on a closer look at the material. Reports from 2026 suggest the tension remains live, with the Court criticising a prior ruling for departing from Najeeb.
Yet the UAPA also carries the safeguards that the Sanhita route lacks. Section 45 bars cognizance without government sanction, and Section 45(2) makes that sanction depend on an independent review of the evidence. In Fuleshwar Gope v. Union of India (2024), the Supreme Court held the timelines in the 2008 sanction rules to be mandatory. Section 113 has no counterpart: a Sessions Court may take cognizance on the police report alone. The harsher statute is, paradoxically, the one with the executive check.
One Officer, Two Tracks
The Explanation to Section 113 provides that an officer not below the rank of Superintendent of Police shall decide whether to register a case under that section or under the UAPA. It supplies no criteria, no requirement of written reasons, and no review. This is the provision on which the constitutional argument must rest.
The doctrinal tools are old and sturdy. In State of West Bengal v. Anwar Ali Sarkar (1952) and later in Maganlal Chhaganlal v. Municipal Corporation of Greater Bombay (1974), the Supreme Court held that where two procedures of unequal severity apply to the same conduct and an authority is left unguided to choose between them, Article 14 is offended. After Shayara Bano v. Union of India (2017), manifest arbitrariness is an additional ground. The Union will reply that the choice is guided in substance, that a Superintendent is a senior officer, and that Section 5 BNSS saves special laws, so the UAPA governs whenever it applies.
The picture on the ground is more complicated than the 'avoidance' narrative suggests. The Sanhita route avoids sanction but also avoids the 180-day clock and the Section 43D(5) bail bar, so it is not obviously the prosecutor's preferred escape. Reported practice shows cumulative invocation instead: in the Beed mosque blast case of March 2025, Section 113 was added to UAPA Sections 15, 16 and 18, and the Red Fort blast investigation in November 2025 was charged in a similar way. Once a UAPA offence is on the FIR, that Act's procedure governs. The real risk is therefore two-sided: ambiguity at registration and the possibility that Sanhita charges, lacking a sanction filter, are used to sustain custody where a UAPA case would struggle at the review stage.
Organised Crime: The Same Pattern, State by State
Section 111 defines organised crime as continuing unlawful activity, by or on behalf of a syndicate, using violence, threat, intimidation, coercion or other unlawful means to gain material benefit. Section 112 separately punishes petty organised crime. The definition of 'continuing unlawful activity' imports a demanding precondition: a cognizable offence punishable with three years or more, in respect of which more than one charge-sheet has been filed in the preceding ten years and cognizance taken.
The High Courts have treated that precondition as the true gatekeeper. In 2026, the Madhya Pradesh High Court at Indore in Hiralal v. State of Madhya Pradesh set aside a Section 111 charge where the material did not establish syndicate membership or the requisite charge-sheet history, and the Rajasthan High Court is reported to have taken a similar definitional approach in Vinay Baghla v. State of Rajasthan (May 2026). The Delhi High Court, applying MCOCA in Naresh Balyan v. State (NCT of Delhi) (2026), held that the prior charge-sheet requirement is syndicate-centric rather than individual-centric, so that a facilitator need not himself have a prior case.
MCOCA, on its part, carries what Section 111 lacks. Section 23 requires prior approval of an officer not below the rank of Deputy Inspector General before information is recorded, and sanction of an officer not below Additional Director General before cognizance. It also provides for admissibility of certain confessions before senior police officers under Section 18, a stricter bail test under Section 21(4), and Special Courts. Its constitutionality was upheld in State of Maharashtra v. Bharat Shanti Lal Shah (2008). The gap between the statutes mirrors the UAPA gap: the Sanhita provision is milder in consequence but thinner in procedural checks.
Federalism and Double Jeopardy
Two further questions will recur. The first is federal. Organised crime is a matter on which Parliament and States may both legislate under the Concurrent List, and Article 254 governs conflict. A State statute with Presidential assent prevails in that State unless Parliament later legislates on the same matter, and the touchstones of repugnance in M. Karunanidhi v. Union of India (1979) are direct inconsistency and occupation of the field. Section 111 does not expressly repeal State laws, so whether MCOCA, KCOCA and Gujarat's GCTOC Act survive beside it as special laws is a question the Supreme Court has yet to answer.
The second is double jeopardy. Article 20(2) and the Sanhita's counterpart of Section 300 of the old Code bar successive prosecutions for the same offence. A person tried under Section 113 and later under the UAPA for the same act would raise that bar, and the test in State of Bombay v. S.L. Apte (1961) asks whether the ingredients are the same. With near-identical definitions, the answer will often be yes.
Towards a Disciplined Overlap
The overlap is not unconstitutional by itself. What is needed is discipline in its operation. Courts can require that the Superintendent's choice be recorded in writing with reasons, and examine it at the stage of framing of charge. Where the facts disclose a UAPA offence, the prosecution should justify any decision to proceed under the general law alone. Section 111 and MCOCA charges should be tested strictly at the threshold, as the High Courts are already doing. And Parliament could cure the structural defect by extending sanction and independent review to the Sanhita offences, or by repealing the duplication.
A criminal law that gives the State two tools must also give the citizen two sets of safeguards, or one clear rule for choosing between them. At present the Sanhita offers neither.
Author is an Advocate practicing at Delhi High Court. Views are personal.