Supreme Court says UP Gangsters Act ‘stillborn’, quashes cases against two lawyers

The Supreme Court on Thursday held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 is “stillborn” since it prescribes punishment without creating a distinct criminal offence [Shiv Pratap Singh alias Chinu v. State of Uttar Pradesh and Others].

A Bench of Justices JB Pardiwala and K Vinod Chandran said the Act merely defines a 'gang' and a 'gangster' while activities covered by these definitions are already punishable under the IPC and other penal laws.

“After defining gang, which includes commission of the offences listed under sub-clauses (i) to (xxv) and defining gangster as a member or leader or organiser of a gang, the punishment is prescribed for a gangster without an offence being created by statute; which makes the penal act, stillborn,” the Court said in its judgment.

The Court invoked George Orwell to say that the legislation was perpetuating violence against unsuspecting citizens while purporting to prevent it.

"Before we leave the matter, we take a cue from the quote of George Orwell, we extracted at the outset, to find that the enactment under scrutiny on the pretext of adjuring violence, is in fact perpetuating it on un-suspecting citizens," the Court said.

The Bench also noted that the activities listed under Section 2(b) of the UP Act, including kidnapping, drug trafficking and human trafficking, were already punishable under the Indian Penal Code (IPC) or other penal laws.

“The U.P. Act merely provides for a punishment insofar as involvement in any of the activities specified under sub-clause (i) to (xxv) which is already penalised under a different penal law; without creating a distinct offence under the subject Act,” it said.

Thus, the Act merely defines the status of a person involved in one of the specified crimes as a “gangster,” without creating an offence based on that status, the Court found.

“As we found, the Act of 1986 does not create a crime/offence and it merely defines the status of a person indulging in a crime, specified in the definition clause, as a ‘gangster’ going by the definition of ‘gang’ and ‘gangster’ provided respectively under sub-sections (b) and (c) of Section 2,” the judgment stated.

In doing so, the Court quashed proceedings under the Gangsters Act against two advocates, Shiv Pratap Singh and Himanshu Srivastava.

Singh’s case arose from a dispute over the Fatehgarh Bar Association elections and the disciplinary and criminal proceedings that followed. He was subsequently named as a member of an alleged gang.

The second case concerned Gangsters Act proceedings against Srivastava, his brother and their father, who was alleged to be the gang leader.

After the Allahabad High Court declined to quash the proceedings against Singh and Srivastava, both advocates approached the Supreme Court.

The top court heard their appeals together since both raised the same question concerning the validity of proceedings under the UP Gangsters Act and the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Rules, 2021.

The Court also examined the gang-chart mechanism under the 2021 Rules.

Under the Rules, a gang chart is prepared at the police-station level and forwarded with the recommendation of the Additional Superintendent of Police. It is approved after consideration by senior police officers and the district administration.

The Court found that this process effectively allowed executive authorities to determine whether a person acquired the punishable status of a gangster. It held that the Rules went beyond the power conferred by the Act.

“The creation of crime, or to make an act or omission subject to penal consequences as an offence, is essentially a legislative function and it cannot be thrown away and left to sprout in the thickets of subordinate legislation,” the judgment stated.

The Bench also expressed concern that inclusion in a gang chart could lead to arrest, prolonged pre-trial incarceration, trial and punishment.

“The subject enactment, the U.P. Act not only permits detention for a period without anything more than the inclusion in a Gang Chart but also enables a trial and punishment on the basis of the very same Gang Chart, in addition to the pre-trial incarceration, but without an offence being created by the Act itself. It is akin to the English proverb: ‘Give a dog a bad name and hang him’,” the Court said.

The Court added that once executive authorities had determined an accused’s status as a gangster, the outcome of the trial risked becoming a “foregone conclusion.”

The Bench also relied on Article 20(1) of the Constitution and the principle that no person can be punished unless an offence has been created by law.

“Article 20(1) encapsulates the principle of ‘nullum crimen nulla poena sine lege’, (No crime or punishment can exist without a penal law); there can be no punishment without an offence in law,” it said.

The Bench also made it clear that it had not examined the constitutional challenges to the UP Gangsters Act that had earlier been rejected by a full bench of the Allahabad High Court.

It further clarified that its reference to organised-crime laws in Maharashtra and Gujarat was only intended to show that those statutes expressly created offences, unlike the UP Act. The Court said it had neither upheld those laws nor approved the Allahabad High Court full bench ruling.

“We have found the Act to be stillborn, since there is no crime created under the Act and this would not in any manner affect the charges levelled under the other penal laws, which has to proceed on the lines demarcated in the CrPC and the respective penal statute, which makes the objectionable act, an offence under law,” the judgment stated.

[Read Judgment]