Supreme Court To Examine If UP Gangsters Act Is Repugnant To Section 111 Bharatiya Nyaya Sanhita

The Supreme Court recently asked the State of Uttar Pradesh to respond to the issue of repugnancy between various provisions of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (UP Gangster Act), and Section 111(organised crime) of the Bhartiya Nyaya Sanhita, 2023 (BNS).

A bench comprising Justice JB Pardiwala and Justice KV Viswanathan was hearing a writ petition filed by various persons accused under the UP Gangster Act. On January 22, when the matter was heard for the first time, Senior Advocates Amit Anand Tiwari, Siddhartha Dave, Vinay Navare, Amit Kumar and Sanjai Kumar Pathak both raised the issue of repugnancy between the State Act and the central law.

These writ petitions have challenged Sections 3(penalty), 12(trial by special courts to have precedence) and 14(attachment of property), 15, (release of property), 16(inquiry into the character of acquisition of property by court), and 17(order after inquiry) of the UP Gangster Act and Rules 16(3), 22, 35, 37(3) and 40 of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Rules, 2021. In arguendo, it has also been argued that these provisions are violative of Articles 14, 19, 21 and 300-A of the Indian Constitution.

Tiwari submitted that Section 111 BNS and UP Gangster Act occupy the same field and there is a direct 'irreconcilable' conflict between these two. He would submit that the Parliament, by way of Section 111, could be said to have intended to lay down a comprehensive and exhaustive code in respect of the subject matter of organised crime/group-based criminal activity, thereby replacing the Gangsters Act.

He relied on Forum for People's Collective Efforts (FPCE) and Another v. State of West Bengal and Another(2021), wherein a two-judge bench has laid down three tests for determining repugnancy between the State Act and the Central legislation.

In this case, the Supreme Court struck down the West Bengal Housing Industry Regulation Act, 2017, holding it to be unconstitutional in view of the 2017 Real Estate (Regulation and Development) Act (RERA), which is the central legislation on the identical subject matter.

The three tests of repugnancy are first, whether there is a direct conflict between two provisions; whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replace the Act of the State legislature and third, whether the law made by the Parliament and the law made by the State legislature occupy the same field.

Whereas, Dave pointed out the conflict between the State law and the BNS. He relied on the first test laid down in the Forum for People's case.

Additional Solicitor General KM Nataraj, along with Advocate Ruchira Goel (for Uttar Pradesh), responded that the issue of repugnancy needs to be studied. They sought time to reflect on this issue. The Court has granted three weeks for the State to respond, specifically in terms of the tests laid down in the Forum for People's case.

It should be noted that another bench of this Court last year adopted guidelines that were framed by the UP State following the nudge by the Court in the case Gorakh Nath Mishra v. State of Uttar Pradesh in the SHUATS matter. It also raised concerns over its sheer misuse.

Case Details: SIRAJ AHMAD KHAN & ANR. v. STATE OF UTTAR PRADESH & ANR.|Writ Petition (Criminal) No.452/2024

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Appearances: For petitioner: Mr. Mohd Faris, Adv. Mr. Mohd Sufiyan, Adv. Mr. Mohd Yawar, Adv. Mr. Mohd Ashraf, Adv. Ms. Devyani Gupta, Adv. Ms. Tanvi Anand, Adv. Mr. Arjun Kumar, Adv. Mr. Manish Kumar Gupta, AOR

Mr. Siddhartha Dave, Sr. Adv.

Mr. Amit Kumar, Sr. Adv. Mr. Aditya Shanker Pandey, Adv. Mr. Kunal Shah, Adv. Ms. Yoothica Pallavi, AOR Mr. Sanjai Kumar Pathak, AOR Mrs. Shashi Pathak, Adv. Mr. Arvind Kumar Tripathi, Adv. Mr. Robin Kumar, Adv. Ms. Shweta Jayshankar Dwivedi, Adv. Ms. Smriti Singh, Adv.

For Respondent(s ) :Mr. Ratnakar Dash, Sr. Adv. Mr. Shashank Shekhar Singh, AOR Mr. Abhinav Singh, Adv. Mr. KM Nataraj, A.S.G. Mr. Sharan Dev Singh Thakur, Sr. A.A.G. Ms. Ruchira Goel, AOR Ms. Indira Bhakar, Adv. Ms. Ritika Rao, Adv. Mr. Sharanya, Adv.

Mr. Vinay Navare, Sr. Adv. Mr. Arpit Rai, Adv. Ms. Pooja Sarwal, Adv. Mr. Prabhsharan Singh Mohi, Adv. Mr. Aviral Kashyap, AO5

Mr. Fuzail Ahmad Ayyubi, AOR Mr. Ibad Mushtaq, Adv. Ms. Akanksha Rai, Adv. Ms. Gurneet Kaur, Adv. Mr. Hasan Raza Khan, Adv. Ms. Madiha Pagarkar, Adv.