Legal Service India - Case Comment on SK. Shukla V State of Uttar Pradesh
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Case Comment on SK. Shukla V State of Uttar Pradesh

Written by: T. Bharat Ratna - Currently the author is a under-graduate Final Year {B.A. LL.B(Hons.)] student from NALSAR University of Law, Hyderabad
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Legislature must perform its essential functions of law-making which consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct. Thereafter, the legislature can delegate its authority to the executive to bring the Act into operation when conditions demanding such operation are obtained. The executive has to decide whether the necessary conditions required for the law to be in operation have been satisfied or not and if they have been so, it should issue a notification bringing the law into operation. This is known as ‘Conditional legislation’.

Conditional legislation is of different types:
(i) power to bring an Act into operation;
(ii) power to extend the application of any Act in force in one territory to another territory; and to restrict and make modifications in the original legislation to suit the exigencies of the territory under its control;
(iii) power to extend the life of an act; and
(iv) power to extend or to exempt from the operation of an Act certain categories of subjects or territories.

Usually, an Act provides that it comes into force on such date as the Central/State Government, as the case may be, by notification in the Official Gazette, appoint.[1] Such a type of power is conferred on the government to choose the date of enforcement of the law to come into effect.

S. K. Shukla v. State of U.P.[2], is one of the important cases which must be contextually understood about the political vendetta of malafide exercise of powers of changing Governments of the State of Uttar Pradesh (UP) i.e. change of Mayawati’s Government (the then Chief Minister) to Mulayam Singh’s Government affecting the administration of justice.

Legislature has enacted a Union Law i.e. Prevention of Terrorism Act (POTA), 2002 and has delegated its authority by a notification saying that the law would come into effect in the State of U.P. only on the date of publication of such law in the Official Gazette. Section 5 of U.P General Clauses Act, 1904 (1 of 1904) contemplate about the applicability to notifications affecting rights of the parties. Since this is a prohibitory notification, therefore, it is necessary to be published by notifying about the ‘possession of certain kinds of arms in the notified area that it is prohibited’. This process is called as the ‘delegated legislation’. The Supreme Court in ITC Bhadrachalan Paper Boards v. Mandal Revenue Officer[3], held that the requirement of publication in the Gazette of an exemption given under Section 11(1) of the AP Non-Agricultural Lands Assessment Act 1963, was mandatory and not directory.[4]

The brief facts of the case are: the police officials have raided the house of Udai Pratap Singh for execution of a warrant of arrest under Sections 2/3 of the Gangsters Act. Police officials found Udai Pratap Singh with an AK-56 rifle and when he was asked about producing the license, he could not.[5] It was also disclosed that a conspiracy was hatched by Udai Pratap Singh to create a terror after killing some VIPs including the then Chief Minister Mayawati. The witness was murdered when he stated to the police that Raghuraj Pratap Singh and Akshay Pratap Singh were also associated in the conspiracy who brought AK-56 rifle and handed over to Udai Pratap Singh. On this basis, the State Government granted permission from a FIR filed by the deceased father to launch prosecution under Section 50 of POTA.[6] Thereafter, political events took a turn i.e. new government led by Mulayam Singh Yadav came into power and had revoked the order passed by the Mayawati’s Government.[7] Meanwhile, the accused also filed a review petition under Section 60[8] of POTA before the Review Committee.

1) Whether possession of weapons and explosive substances are for the preparation of a terrorist act or not?
2) Whether Section 4(a) of the Arms Act in a notified area would attract this case?
3) Whether prosecution under Section 4(b) the Act can be laid down due to the possession of hazardous explosives or lethal weapons?

The committee’s decision saying there was no case against the applicants under POTA and no prima facie case to be found under Section 3[9] and 4 of POTA seems to only legitimize the order given by Mulayam’s Government to release all the three applicants. The reasons given by the review committee were unreasonable for not making the applicants to be liable under section 4(a)[10] of POTA[11]. The committee said that it is not based on the principles of natural justice and administrative discretion which is worth highlighting about the decision given. One of the important grounds of natural justice is that the person who is going to be convicted under any law should have the prior knowledge of that law on the violation of which he can be convicted in accordance with law. In this case, the arrest was performed without prior notice which is nothing but it is said to be against the principles of natural justice.

The review committee has only concentrated with regard to the question of Section 4(a) that whether the unauthorized possession in a notified area would attract this provision. It did not examine the matter with reference to Section 4(b)[12] of the Act for which they may be liable. Here, the intention of the legislature is important for using Section 4(a) and delegating this provision and then subsequently the provision being questioned before the law for its application when we already have an express provision i.e. Section 4(b). There is no difference between the two provisions which are not clear enough to construe a conclusion because the provision would only be attracted when violated. In the light of brief facts discussed above, it is imperative to say that the arrest was executed before the date of coming into force of notification notifying the State of U.P as a notified area.[13] It is clear from the facts that as the accused persons were against the Government of Mayawati, they have pretended to show that the arrest was made on the date of publication and made them to be behind the bars. Thus, there would be a presumption raised in this particular situation that the State Government already knows about the proper meaning of Section 4(a) and finally made an order for the police raid to be made in the residence of Udai Pratap Singh. This is also called the abuse of power used by the government of Uttar Pradesh so as to fulfill the political motiveness and desire.

Firstly, to state that the review committee’s decision is invalid, it is noteworthy to mention that it is unlikely that a law abiding citizen will keep such quantity of explosives at his house. In the light of facts discussed, keeping such kind of explosives at their house does not show that it was meant for bonafide purpose of use. When the issue is about whether the substances possessed are hazardous in nature tell us that the very fact of keeping such a huge quantity of explosives in the house is on the face of it is hazardous.[14] It is normally not kept by a person unless he deals with such explosives with authorized license where in this case, the accused person does not possess. The court has rightly interpreted the meaning of lethal weapons and held that AK-56 comes under the category of lethal weapons and the possession of such weapons becomes punishable under Section 4(b) of POTA.[15] The possession of “hazardous explosive substances” or “lethal weapons”[16] capable of mass destruction” are relevant for the purpose of making them liable under this provision. The court had rightly said in this matter that both the provisions cannot be read exclusive of each other and are harmoniously read because the weapon which is specified in clause (a) is equally covered under clause (b).

In the case State (NCT of Delhi) v. Navjot Sandhu[17], it was held by the court that the purpose for which the Act was enacted i.e. Prevention of Terrorist Activities has to be viewed and both the provisions of Sections 4(a) and (b) have to be exclusive to each other.[18]

Secondly, the role given to the review committee under POTA is very limited.[19] The committee has to see whether there is a prima facie case and cannot enter into the merits by saying that the evidence is weak to proceed against the accused.[20] This clearly indicates that it has committed irregularity or illegality and has played the role which is out of their discretion. These principles of administrative law can be related to the judgment in case like Anisminic Ltd v. Foreign Compensation Commission[21] which draws out the difference between in-jurisdiction and of-jurisdictional areas.

In this commented case, the court to which the appeal had been filed for transfer of this case to the other state had not considered the point that the power exercised by the Review Committee is ultra vires and had not held the order to be a nullity nor it reprimanded the committee for committing such an error.

The other illustrating case is a question to be posed to the court based on Express Newspapers Pvt. Ltd v. Union of India[22], where the political motivation and malafide intention are playing a main role.[23] The Supreme Court had made Lt. Governor of Delhi to be liable in this case. Then, why can’t in Shukla’s Case[24], the accused be made liable or has not been made liable?

The only reason behind for taking such an improper decision is because the case involves high political eminent persons and as a result of which the authorities were not ready to take an action against such persons. It is further submitted that the Review Committee has not exercised its power legitimately as it is clear that it has not applied its mind to the facts of the case and was with an intention to release all the three accused. Hence, the researcher would like to comment in this particular background that there is a need of judicial accountability so as to attain ‘rule of law society’.[25] This could be attained by limiting the powers, rules and conditions for such Committees to be laid by the courts so that they are not influenced by the political motiveness and use the Act for the personal benefit of the political leaders in the parties. In the Shukla’s Case, the decision about setting aside such a kind of order given by Review Committee proves that judicial system has played a very crucial role by not denying justice to the aggrieved party.

In addition, another fact which is to be known in the present case is that the State Government has directed the public prosecutor to withdraw the POTA cases against the accused persons. In this particular matter, the courts decision is justified by rejecting the application made by the Public Prosecutor because it is already discussed that there is a prima facie case to proceed against the accused under Section 4(b).[26]

In Sheonandan Paswan v. State of Bihar[27] it was held that the withdrawal of prosecution is an executive function and the decision will be on such person whether to withdraw or not only after applying his mind to the facts of each case but no one can compel him to do so.[28] Even though the courts hold the directions as enforceable due to the doctrines called ‘legitimate expectation’ or ‘Promissory Estoppel’, in the Shukla’s case, the doctrines are not held to be applicable as the direction is not facilitating the Act for which it was enacted.[29] Even though such directions are made to be enforced, they must be accompanied with valid reasons to give such directions which in the present case have not been given. Moreover, an opportunity to be heard[30] by a person is curtailed.[31] In such cases, the directions can be challenged on grounds such as: conflicting with a statutory provision or a rule, or is in conflict with a fundamental right, or infringes a legal right, or is arbitrary under Article 14 of the Constitution which in the present case has happened. Therefore, the Government exercising such a kind of arbitrariness[32] combined with malafide intentions towards to the other party has to be made liable.[33]

In the case, Ajay Hasia v. khalid M Sehravardi and Ors[34], the Supreme Court said whenever there is arbitrariness in state action, whether exercised by the legislature or by the executive or of an authority under Art 12 and 14 it can strike down such an action.

Last but not the least, there was a petition filed for transfer of case from State of Uttar Pradesh to State of Madhya Pradesh under Section 406 of Criminal Procedure Code, 1973. The decision with regard to allowance of such petition is absolutely perfect because it is already observed that the State Government has withdrawn the POTA cases from which it is quite evident that it has not taken up the issue very seriously. If such a case is not transferred there would be a likelihood of miscarriage of justice as the accused persons are politically influential people and it has to be proved that even today the judiciary is capable of ensuring a fair trail without taking irrelevant matters into consideration for deciding a case.

In Queen v. Burah[35], it is said that conditional legislation is valid. The Privy Council, following this case has upheld delegation of legislative power including conditional legislation in number of cases. In Re Delhi Laws Act[36] it is said that delegated legislation and conditional legislation are valid but excessive delegation is not allowed. Therefore, it is concluded by the researcher that over the period of times, the trend of cases dealing with the delegated legislation vis a conditional legislation had been diluted and are almost said to be the same as in this present commented case, there was nothing as such dealt with delegated/conditional legislation.

However, it is clear that a law has been delegated with certain conditions under the U.P. General Clauses Act, about the specific period of time when the law comes into force. In the context of Shukla’s case [37], the judgment of the case does not as much particularly deal with delegated legislation. This is an important case mainly because it involves the political influence which led to the malfunctioning of other organs of the Government. In this case, the concept of ‘delegated legislation’ was not emphasized and is only a secondary matter.

Finally, the researcher concludes by basing on the present study, that the significant mile stone developments can happen in the field of delegated legislation only through the process of general accountability. It is well known that most of the bureaucrats are in-control and direction of politicians, even though inspite of the fact that considerable number of the officers exercise their powers very fairly but still the laws are in the hands of rulers, make people to believe that they are exercising their powers in a right manner but actually which is not happening. As a consequence of these kind of events taking place in the present society, there is no way that it could be dreamt to possibly establish a rule of law society.

[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 unauthorized 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 note sheet was taken on 22-1-2003 but as per the record 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 fire arm. A single pistol firing a cartridge with explosive ballistic and containing a phosphorous 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 traveled 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 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 decision which it should have to make. 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 authorized by the law, and the discretionary power is ostensibly for the authorized purpose, but in actuality for the authorized 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 ton pre-determined 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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