State Security Legislation and Judicial Escapism- A study with respect to the Maharashtra Control of Organised Crime Act (MCOCA)

Abstract

If we track down the India’s path of history, states have been inclined to enact special securitylegislations in order to make a special class of offences as per the needs and patterns of the crime prevalent in that particular state, to which they are competent under the relevant entries of List II under the Schedule VII of the Constitution of India. But it has been observed that under the broad spectrum of “security” legislations, there have been glaring violations of human rights. These legislations have been contested on the basic premise of Article 14 of the Constitution being flouted. The Maharashtra Control of Organised Crime (hereinafter MCOCA) is one such legislation. MCOCA defines “Organised Crime” in a broad and ambiguous manner as it prescribes a minimum of two conditions upon fulfilment of which an offence can come under its purview. First, a “continuing unlawful activity” by an individual, whether singly or jointly as a member of an organised crime syndicate or on behalf of such a syndicate. Second, the accused must have used “unlawful means” to gain monetary benefits or promote insurgency. The points which become pertinent in this aspect to observe are the basic philosophy and objective behind these special statutes and whether these legislations actually fulfil the purpose or become an instrument for oppression at the Government. On the basis of cases pertaining to MCOCA, the authors will try to see as to what is the attitude of courts when such cases come before it. The endeavour shall be to understand the methodology of court in deciding the cases which mainly pertains to terror related cases and to see if the judicial delineation is smacked with escapism. Through the cases pertaining to MCOCA, we would like to look at the broader issues of criminal jurisprudence and citizens, also whether the question of terrorism so vital that it may also lead to obfuscation of constitutional rights of citizens.