The Supreme Court has criticised an Uttar Pradesh law to target gangsters, describing it as a “stillborn” and saying it gives “unbridled and unfettered power” to the government. The court made the observations while quashing proceedings under the Act against two advocates. It said the legislation effectively allows the Executive to decide a person’s criminal status.
Under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, amended in 2015, a person classified as a “gangster” faces imprisonment for a minimum of two years. This can extend up to 10 years, along with a fine of at least Rs 5,000.
A bench of Justice J B Pardiwala and Justice K Vinod Chandran was hearing appeals by lawyers Shiv Pratap Singh and Himanshu Srivastava. The advocates faced action under the Gangsters Act in separate cases – one arising from a dispute over elections to the Bar Association in Fatehgarh, Farrukhabad, and the other involving criminal cases registered in Ghaziabad.
The court’s central objection was that while Section 2 of the Act defines a “gang” and a “gangster” by reference to various criminal activities and Section 3 prescribes punishment for a gangster, the Act creates no distinct offence corresponding to that punishment. The offences listed in the definition – including those under other penal laws – are already punishable under those laws.
“The punishment is prescribed for a gangster without an offence being created by statute; which makes the penal Act stillborn,” the bench held. It invoked the principle, nullum crimen nulla poena sine lege, which means no crime or punishment can exist without a penal law.
The court was particularly critical of the role played by the ‘Gang Chart’, an administrative document listing past alleged offences to classify the accused as members of a criminal gang. This chart is prepared by the police under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Rules, 2021. The court held that the Rules cannot create criminal liability that Parliament or the state legislature have not created in the statute.
The court said that under the law, determining who is a gangster is effectively left to the Executive’s discretion, resulting in “unbridled and unfettered power” to determine a person’s status and take penal action. The court called this akin to the proverb: ‘Give a dog a bad name and hang him’.”
The court also rejected the argument that the existence of a special court to conduct trials under the Act provides a sufficient safeguard. Once a person is designated a gangster through the Gang Chart, it observed, even an acquittal in the underlying offence would not undo the punishment flowing from the determination of gangster status. “The end result of a trial under the UP Act is a foregone conclusion, a statutory imprimatur to punish,” it said.
Comparing the scheme with other preventive detention laws, the bench noted that the Gangsters Act can result in prolonged pre-trial incarceration but without the safeguards attached to preventive detention – such as strict time limits, disclosure of material, representation before the authorities and scrutiny by an advisory board.
The Act, it said, can permit arrest and detention merely through inclusion in a Gang Chart and then allow punishment based on the same.
The court said a penal law cannot permit arbitrary or capricious action, “however compelling and threatening the social menace”. It warned of the absence of safeguards against “vindictive and malicious action” against “the innocent, the righteous, the virtuous, a whistleblower or plainly put, a thorn in the flesh”.
The Supreme Court did not strike down the Act as unconstitutional; the bench made it clear that it was not deciding the constitutional challenge to the Act previously rejected by a full bench of the Allahabad High Court.
At the same time, it said, “with profound respect”, that it could not subscribe to the full bench’s reasoning on the absence of an offence and warned that the constitutional validity of the enactment remains open.
Drawing on George Orwell, the bench concluded that the Act, “on the pretext of adjuring violence, is in fact perpetuating it on unsuspecting citizens”.
