S. K. Shukla v. State of U.P



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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