Introduction.
The legislature must carry out its
fundamental duties of creating laws, which include selecting a legislative
policy and legally passing it as a binding code of conduct.After that, when
circumstances necessitate its implementation, the legislature may grant the
executive the necessary authority to do so. The executive must determine
whether or not the prerequisites for the legislation's implementation have been
met, and if they have, then it must issue a notification putting the law into
effect.This is known as 'Conditional legislation.'
There are various types of
conditional legislation:
1. the ability to enforce an Act;
2. capacity to restrict and amend
original legislation to fit the needs of the territory under its jurisdiction;
the ability to apply any Act in force in one territory to another territory;
3. the ability to extend the duration
of an act; and
4. power to expand or exempt specific
categories of subjects or areas from the application of an Act.
An Act typically states that it
takes effect on the date that is specified by the Central or State Government,
as applicable, by publication in the Official Gazette.[1] The government is
given this kind of authority to determine the day that a law will go into
effect.
S.
K. Shukla v. State of U.P.[2]
is one of the crucial cases that needs to be understood in the context of the
political vendetta that resulted from the improper use of the authority to
change the government of the State of Uttar Pradesh (UP), specifically the
change from Mayawati's (the then Chief Minister) government to Mulayam Singh's
government, which had an impact on the administration of justice.
The Prevention of Terrorism Act
(POTA), 2002, was adopted by the Legislature, and it delegated its authority by
issuing a notification stating that the law would only take effect in the State
of Uttar Pradesh on the day it was published in the Official Gazette. Section 5
of the U.P. General Clauses Act, 1904 (1 of 1904) makes reference to
notifications that may impact the parties' rights. Due to the fact that this is
a prohibitory notification, it is required to inform people that possession of
certain kinds of arms in the notified area is banned.``Delegated legislation is
the term used to describe this procedure. In ITC Bhadrachalan Paper Boards v.
Mandal Revenue Officer[3], the Supreme Court determined that the publication of
an exemption granted under Section 11(1) of the AP Non-Agricultural Lands
Assessment Act 1963 in the Gazette was required and not optional. [4]
Facts:
The police searched Udai Pratap
Singh's home in order to carry out an arrest warrant issued under Sections 2/3
of the Gangsters Act, according to the case's summary facts. When requested to
produce the licence, Udai Pratap Singh was unable to do so when police found
him in possession of an AK-56 firearm. [5] It was also revealed that Udai
Pratap Singh plotted to incite terror after killing several VIPs, including the
previous chief minister Mayawati. When the witness told the authorities that
Raghuraj Pratap Singh and Akshay Pratap Singh were also involved in the plot to
bring an AK-56 weapon and give it to Udai Pratap Singh, they were both
killed.On the basis of this, the State Government authorised the filing of a
FIR by the dead father to begin criminal proceedings under Section 50 of POTA.
[6] After then, political circumstances changed, and a new administration led
by Mulayam Singh Yadav seized office and annulled the decree made by Mayawati's
government. [7] The accused also submitted a review petition to the Review
Committee in accordance with Section 60[8] of POTA during this time.
Issues :
1. Whether or not holding weapons and
explosives is related to planning a terrorist act?
2. How likely is it that this matter
would be brought up by the Arms Act's Section 4(a) in a notified area?
3. If someone has dangerous explosives
or lethal weapons, can they be prosecuted under Section 4(b) of the Act?
Comments:
The committee's finding that there
was no POTA case against the applicants and no evidence supporting a prima
facie case under Sections 3[9] and 4 of POTA appears to simply support the
government of Mulayam's order to release all three applicants. The review
committee's justifications for not holding the applicants accountable under
section 4(a)[10] of POTA[11] were irrational. The committee claimed that the
judgement made is not supported by the principles of natural justice and
administrative discretion, which is important to note.One of the key principles
of natural justice is that the individual who will be found guilty of breaking
any law must have awareness of it before being found guilty in line with the
law. Although the arrest in this case was made without prior warning, which is
nothing, it is claimed that this goes against the natural justice standards.
The review committee has only
focused on the issue of whether Section 4(a) would apply in the case of
unauthorised possession in a notified area. It did not analyse the subject with
relation to Section 4(b)[12] of the Act for which they may be responsible.
Here, the legislature's intent is crucial when applying Section 4(a) and
delegating this provision, and later when the provision is challenged in court
for its applicability when there is already an express provision, Section 4.
(b). There is no distinction between the two provisions, which are not
sufficiently explicit to allow for inference because the violation of a
provision would trigger its application.The arrest was carried out prior to the
notification naming the State of Uttar Pradesh as a notified region, it is
vital to note in view of the brief facts described above. [13] It is evident
from the facts that because the defendants opposed Mayawati's government, they
lied to prove that their arrests occurred on the day of publication in order to
put them in jail. Thus, in this specific instance, it would be assumed that the
State Government is aware of the correct interpretation of Section 4(a) and has
ordered the police to conduct a raid at Udai Pratap Singh's home.This is also
known as the government of Uttar Pradesh abusing authority in order to
accomplish political motives and desires.
First off, it is important to
highlight that it is improbable that a law-abiding citizen would maintain such
a large number of explosives at his home, proving that the review committee's
conclusion is invalid. Given the facts mentioned, it is not clear from their
possession of such explosives that they intended to use them for legitimate
purposes. When it comes to the question of whether the drugs owned are
dangerous, it is evident that having such a large amount of explosives inside
the home poses a risk. [14] A person ordinarily wouldn't keep it unless they
dealt with explosives legally, which the accused person in this case does
not.The AK-56 falls into the category of fatal weapons, according to the
court's accurate interpretation of the term, and its possession is now
prohibited under Section 4(b) of POTA. For the purposes of holding them
accountable under this paragraph, [15] the possession of dangerous explosive
substances or lethal weapons[16] capable of mass destruction is relevant. In
this case, the court correctly stated that both sections cannot be read in
isolation from one another and should be read together because the weapon
mentioned in clause (a) is also covered by clause (b).
In the case State (NCT of Delhi) v. Navjot Sandhu[17], the court determined
that both the provisions of Sections 4(a) and (b) must be mutually exclusive in
order to fulfil the Act's intended objective, which is the prevention of
terrorist activities. [18]
Second, the review committee's
function under POTA is extremely constrained. [19] The committee must determine
whether there is a prima facie case before proceeding with the merits and
cannot do so by asserting that there is insufficient evidence to go against the
accused. [20] This makes it quite evident that it has engaged in irregularity
or illegality and has taken on a role that is outside of their control. The
ruling in cases like Anisminic Ltd v. Foreign Compensation Commission[21] that
highlights the distinction between in-jurisdictional and out-of-jurisdictional
sectors can be used to connect these administrative law ideas.
The court to whom the appeal had
been made for transfer of this matter to the other state had not taken into
account the argument that the Review Committee's use of its authority violated
the law, had not declared the order null and void, and had not censured the
committee for making such a mistake.
The court will be asked a question
based on Express Newspapers Pvt. Ltd v. Union of India[22], which is another
case that serves as an illustration. In this instance, political motivation and
malafide intent are major factors. [23] The Lt. Governor of Delhi was held
accountable in this case by the Supreme Court. So why can't or hasn't the
accused in Shukla's Case[24] been held accountable?
The authorities' unwillingness to
take action against these people since the issue includes highly influential
political figures is the sole explanation for their incorrect choice. Further,
it is argued that the Review Committee did not act in accordance with its
authority because it was obviously motivated by the desire to free all three
defendants and did not apply its judgement to the circumstances of the case.
Therefore, the researcher would like to highlight in this specific context that
judicial responsibility is required to achieve the "rule of law society".
[25]
This could be accomplished by
restricting the authority, guidelines, and requirements set forth by the courts
for such Committees, preventing them from being swayed by political motivations
and abusing the Act for the benefit of the parties' political leaders. In the
Shukla Case, the Review Committee's decision to overturn such an order
demonstrates how important it is for the judicial system to provide the injured
party with justice.
Additionally, it should be noted
that the State Government has instructed the public prosecutor to drop the POTA
cases against the accused individuals. In this particular situation, the
court's decision to reject the Public Prosecutor's plea is warranted because it
has already been mentioned that there is a prima facie case to pursue the
accused under Section 4 of the Criminal Procedure Act (b). [26]
In Sheonandan Paswan v. State of Bihar[27], it was determined that the
choice to drop charges is an executive duty, and no one may compel the
prosecutor to do so until he has given careful thought to the circumstances of
each case. [28] The theories of "legitimate expectation" and
"promissory estoppel," which the courts have determined to be
applicable, have no bearing on the Shukla case because the directive is not
facilitating the Act for which it was enacted. [29] Even though these
instructions are meant to be followed, they must be supported by good
explanations, which in this instance have not been provided.Furthermore, a
person's ability to be heard is limited[30]. [31] In these situations, the
directives may be contested on the basis that they are arbitrary under Article
14 of the Constitution, conflict with a statutory provision or rule, violate a
legal right, or are in conflict with a basic right. As a result, the Government
must be held accountable for acting with such arbitrariness[32] and malice
toward the other party. [33]
In the case Ajay Hasia v. Khalid M Sehravardi and Ors[34], the Supreme Court
ruled that wherever there is arbitrariness in a state action, whether it is
taken by the legislative, the executive, or by a power granted under Articles
12 and 14, it may be invalidated.
Last but not least, a petition was
submitted under Section 406 of the Criminal Procedure Code, 1973, asking for
the transfer of a matter from the State of Uttar Pradesh to the State of Madhya
Pradesh. The decision to grant this petition is a wonderful one, as it has
previously been noted that the State Government withdrew the POTA cases from
which it was clear that the issue had not been handled seriously.Due to the
political clout of the accused, it must be demonstrated that the judiciary is
still capable of guaranteeing a fair trial without taking unrelated factors
into account when making a decision in a case. If such a case is not moved,
there is a risk of a miscarriage of justice.
Conclusion :
According to Queen v. Burah[35],
conditional legislation is legitimate. Following this case, the Privy Council
has supported the delegation of legislative authority, including conditional
legislation, in a number of instances. Delegated legislation and conditional
legislation are both legal, however excessive delegation is prohibited,
according to Re Delhi Laws Act[36]. The researcher has therefore come to the
conclusion that the trend of cases involving delegated legislation in
comparison to conditional legislation has diluted over time and is almost said
to be the same as in the present commented case, where there was nothing
specifically dealing with delegated/conditional legislation.
However, it is evident that a law
has been granted under the U.P. General Clauses Act with restrictions about the
precise time when the law takes effect. The judgement in Shukla's case [37]
does not specifically address delegated legislation in this situation. This
case is significant primarily because it involves the political influence that
caused other government organs to malfunction. The idea of "delegated
legislation" was not highlighted in this situation and is simply a minor
issue.
The researcher comes to the final
conclusion based on the current study that broad responsibility is the only way
for significant advancements in delegated legislation to occur. Despite the
fact that a large number of officers exercise their authority in a very fair
manner, it is well known that most bureaucrats are under the control and
direction of politicians. Because of this, people are led to believe that
officials are acting in accordance with the law when in reality they are not.
Because of the types of occurrences described above, it is impossible to
imagine that a society governed by the rule of law will ever be established.
[1] For example, S. 1(3) of the
Industries (Development and Regulation) Act, 1951
[2] (2006) 1 SCC 314
[3] (1996) 6 SCC 634
[4] The object of publication was
not merely to give information to the public but to give final official
confirmation to the rule or order.
[5] In the course of the raid, they
found many suspicious things along with different kinds of rifles, swords, hatchets,
spears etc. Also which were to be highly explosive and dangerous were recovered
by the police and arrested on 25/26-1-2003.
[6] Sections 3 (2), 3(7), 3(3) POTA
- Section 3(3) of the act reads as:
whoever conspires or attempts to
commit, or advocates, abets, advises or incites or knowingly facilitates the
commission of, a terrorist act or any act preparatory to a terrorist act, shall
be punishable with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and shall also be liable to
fine and
Section 4, POTA reads as under:
(a) arms or ammunition specified in
columns (2) and (3) of category I or III (a) of schedule I to the Arms Rules,
1962, in a notified area
(b) bombs, dynamite or hazardous
explosive substances or other lethal weapons capable of mass destruction or
biological or chemical substances of warfare in any area, whether notified or
not, he shall be guilty of terrorist act notwithstanding anything contained in
any other law for the time being in force, and be punishable with imprisonment
for a term which may extend to imprisonment for life or with fine which may
extend to rupees ten lakh or with both.
Explanation – In this section,
'notified area' means such area as the State Government may, by notification in
the Official Gazette, specify
Section 50, POTA: - Cognizance of
offences:
No court shall take cognizance of
any offence under this Act without the previous sanction of the Central
Government or, as the case may be, the State Government.
[7] This order was challenged by the
petitioner under Article 32 of the constitution before the court.
[8] Section 60 (4), POTA
contemplates that a Review Committee constituted under this act would review
whether there is a prima facie case for proceeding under this act and issue
directions accordingly.
[9] Whoever with the intent to
threaten the unity, integrity, security or sovergnity of India or to strike
terror in the people or a section of the people does any act or thing by using
bombs, dynamites or other explosive substances or inflammable substances or
firearms or lethal weapons or poisonous or noxious gases or other chemicals or
by any other substances of a hazardous nature or by any other means whatsoever,
in such manner as to cause death or injuries to any person or persons or loss
of or damage to or destruction of property or disruption of any supplies or
services essential to the life of the community or causes damage or destruction
of any property or equipment used or intended to be used for the defense of
India or in connection with any other purposes of the Government of India, any
State Government or any of their agencies, or detains any persons and threatens
to kill or injure such person in order to compel the Government of India, any
State Government or any other person to do abstain from doing any act, will
commit a terrorist act.
[10] Section 4, POTA reads as where
any person is in unauthorised possession of any,- (a) arms or ammunition
specified in columns (2) and (3) of category III (a) of schedule I to the Arms
Rules, 1962, in a notified area.
[11] Based on the report of bomb
disposal/disbursement certificate where it mentioned low intensity for which
they are not to be hazardous explosive substances or lethal weapons capable of
mass destruction.
[12] Section 4(b), POTA – bombs,
dynamite or hazardous explosive substances or other lethal weapons capable of
mass destruction or biological or chemical substances of warfare in any are,
whether notified or not, he shall be guilty of terrorist act and be punishable
with imprisonment for a term which may extend to imprisonment for life or with
fine which may extend to rupees ten lakh or with both.
[13] It is clear from the facts that
even though the decision on the note sheet was taken on 22-1-2003 but as per
the record of the Government press, it was published on 29-1-2003 though it was
a dated notification on 23-1-2003.
[14] Hazardous substance is defined
as A solid waste, or combination of solid wastes which because of its quantity,
concentration or physical, chemical or infectious characteristics may cause, or
significantly contribute to an increase in morality or an increase in serious
irreversible, or incapacitating reversible, illness or pose a substantial
present or potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed.
[15] If the weapon falls under the
head lethal weapon, then irrespective of the fact it falls in the category of
Section 4(a) it will not be excluded from the category of Section 4(b).
[16] It is a weapon capable of
causing an injury, and if it is barreled and if a shot, bullet, or other
missile can be discharged from it, it is a firearm. A single pistol firing a
cartridge with explosive ballistic and containing a phosphorus and magnesium
flare is a lethal weapon.
[17] (2005) 11 SCC 600
[18] This aspect was totally
neglected or not addressed at all.
[19] Section 60 (4) of POTA
[20] Review Committee has also
entered into the merits of the case that the accused persons cannot be
connected with the recovery of this cache of arms. It has travelled beyond its
scope; the sufficiency of evidence cannot be gone into by the Review Committee.
It is also not their job to see whether confession is admissible or not.
[21] (1969) 2 AC 147; it was said in
this case that where a tribunal acts without jurisdiction then its decision is
a nullity. The word 'jurisdiction' has a very wide sense. Where the tribunal
had jurisdiction to enter on inquiry, it has failed to do something in the
course of inquiry which is of such a nature that its decision can be a nullity.
It may have given its decision in bad faith. It may have made a decision which
it should have made. It may have failed in the course of inquiry to comply with
the requirements of natural justice. It may have refused to take into account
something which it was required to take into account.
[22] AIR 1986 SC 872
[23] Where the actual purpose is
different from that which is authorised by the law, and the discretionary power
is ostensibly for the authorised purpose, but in actuality for the authorised
purpose, the power is supposedly exercised malafide.
[24] Supra n.3
[25] This type of society basically
seeks to ensure that grants of power to the rulers are at the same time
charters of accountability for the ruled.
[26] POTA
[27] (1980) 3 SCC 435
[28] However, Section 321, Criminal
Procedure Code does not lay any bar on the public prosecutor to receive any
instruction from the Government before he files an application under that
section.
[29] The main object and purpose of
POTA is meant to protect the nation from terrorist activities and not to
disturb the sovergnity and integrity of the nation.
[30] Hearing means an opportunity to
the person, against whom any action is proposed to be taken: (a) presenting
arguments orally, (b) producing witness on her behalf, (c) cross-examining
witnesses who have given evidence against her or (d) pointing out the
unreliability of the documents or other documents.
[31] A fundamental principle of
English Common Law is that a person should not be deprived of her vested right
or be made to suffer any disadvantage or detriment without telling why such an
action was warranted and without giving any opportunity to say why it should
not be taken.
[32] In order to avoid
arbitrariness, any decision should be taken on predetermined criteria and the
decision-making authority should give appropriate reasons. The reasons must be
relevant and related to the facts of the case.
[33] Supra n.26
[34] (1981) 1 SCC 722
[35] (1878) 3 AC 889
[36] AIR 1951 SC 332
[37] Supra n.3
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