NEW DELHI: Pointing out various flaws in Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Supreme Court on Thursday said the law is prone to misuse as there is no safeguard against vindictive and malicious action against innocents.A bench of Justices J B Pardiwala and K Vinod Chandran said the special Act does not create any offence, which is the requirement of any penal law. “But for the definition clause, defining ‘gang’ and ‘gangster’, there is no offence insofar as the membership in the gang or acting in cohort with a gang, either singly or together,” it said.“The subject enactment, the UP Act not only permits detention for a period without anything more than the inclusion in a Gang Chart but also enables a trial and punishment on the basis of the very same Gang Chart, in addition to the pre-trial incarceration, but without an offence being created by the Act itself. It is akin to the English proverb: Give a dog a bad name and hang him,” the bench said.Observing that the UP law fails to satisfy judicial conscience, SC said menace of criminal gangs is to be curbed, but the end does not justify the means, especially in enacting a penal law that interferes with liberty of citizens.The apex court was particularly concerned about two issues – “(1) the total absence of creation of a crime, which is mandatory in a penal statute and (2) the punishment being imposed on a status determined for a person, that too on the whim of the administrative officers and police personnel by preparation of a Gang Chart under the Rules, not specifically provided under the statute.” “We cannot but observe, with respect, that there is always a tendency among the wisest of men to label a question; to which they find no answer or a difficult or unpalatable one, as foolish and the one who raised it, a fool,” the bench said.“We hence, endeavoured to find an answer to the two questions we have posed above, by posing it to the learned Counsel appearing for the State. We did so, at the risk of being called foolhardy and our only solace is that the very same questions were raised before the full bench of the Allahabad high court, at that juncture, but by wise men, eminent lawyers of considerable repute,” it said.
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SC said the counsel appearing for the state neither could give an answer at the time of arguments nor attempted to do so in the written submissions placed before the court.The SC bench said the provisions of the Act could lead to detention of the accused without trial for long, which is akin to a statute enjoining preventive detention, and there is no safeguard against such preventive detention.“However compelling the social menace, any penal enactment cannot lead to arbitrary actions. A mere allegation can trigger a gang chart, arrest and year-long remand. There is no safeguard against vindictive and malicious action against ‘the innocent, the righteous, the virtuous, a whistleblower’,” it said.
