Plea in SC challenges Constitutional validity of "The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act
Dec 06, 2022
New Delhi [India], December 6 : A public interest litigation has been filed in the Supreme Court challenging the Constitutional validity of various provisions of "The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act.
The plea has been filed by Advocate-on-Record Ansar Ahmad Chaudhary.
The petition has sought to issue an appropriate direction declaring sections 3, 12 and 14 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 along with Rules 16(3), 22, 35, 37(3) and Rule 40 of The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 as being unconstitutional, illegal and void.
The petition also sought to pass an appropriate order directing the respondents to keep in abeyance the further proceedings of the already registered cases under section 2/3 of the Gangsters Act, 1986 till the pendency of the present writ petition.
The petitioner has challenged the constitutional validity of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 (UP Gangsters Act) 1986 and said that sections 3, 12, 14 of the Gangsters Act along-with Rule 16(3), Rule 22, Rule 35, Rule 37(3) and Rule 40 of the "The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021" are ultra vires as violative to Article 14, Article 19, Article 20(2), Article 21 & Article 300A of the Constitution of India, the basic structure of Constitution of India and offending the principle of "natural justice".
"The judiciary is the guardian of fundamental rights and has the power of judicial review, which gives the courts, the power to examine the laws made by the legislature and declare it invalid if it violates the fundamental rights. Every action of the executive government must be informed with reason and should be free from arbitrariness. This is the very essence of the rule of law and its bare minimum requirement," the plea said.
The Gangsters Act was introduced in the year 1986 by the then Chief Minister with the prime motive to book well-known criminals of the State and to put them behind bars so as to curb the organized crime and anti-social activities that disturb the tranquillity of the State but the situation is different now. The Act was brought to cope with hardened criminals.
According to the petition, Rule 22 of Gangsters Rules gives unfettered discretionary powers to the police/executive to invoke the Gangster Act even against a person who has only a single case against him in the name of criminal antecedents and the invocation of Gangsters Act against a person who has committed a crime in past and in respect of that an FIR has already been registered against that person under the relevant Act, then again on the basis of those facts (base case) registration of an FIR under the Gangsters Act.
Under Section 14 of the Gangsters Act, the District Magistrate may order for the attachment of the property of a person even before the cognizance of the offence punishable under the Gangster Act is taken by the concerned magistrate and the property of a person Under rules 37(3) of the Gangsters Rules may be attached even before the case is registered against that person.
"The District Magistrate Under Section (u/s) 14 of the Gangsters Act read with (r/w) Rule 37 of Gangsters Act shall have the power of attachment of the properties acquired by the Gangsters and a person aggrieved by such attachment proceedings can submit a representation U/s 15 of the Gangsters Act r/w Rule 40 of the Gangsters Act for the release of his property before the District Magistrate who has passed an order of attachment of the property," the petition said and it mentioned that the District Magistrate is the prosecutor U/s 14 of the Gangsters Act r/w Rule 37 of Gangsters Rules and also adjudicator U/s 15 of the Gangsters Act r/w Rule 40 of the Gangsters Rule, is a clear violation of the principle of natural justice.
Further, the petition submitted that the discretionary power has been vested with the Commissioner of Police/District Magistrate to decide the issue of acquisition of property by the accused or another person of his family and there is no time limit to decide the application of the aggrieved person.
