New Delhi: Behind Yogi Adityanath government’s crackdown on gangsters and mafias in the state of Uttar Pradesh is a 37-year-old law– the 24 section-long Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act 1986, and the recently notified Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules 2021.
A special MP/MLA court convicted gangster-turned-politician Mukhtar Ansari under this law Saturday, sentencing him to 10 years’ imprisonment and a fine of Rs 5 lakh. The case was filed in 2007 on the basis of his alleged involvement in coal tycoon and Vishwa Hindu Parishad office-bearer Nandkishore Rungta’s kidnapping case of 1996 and BJP MLA Krishnanand Rai’s murder case of 2005. However, while this case was pending, Ansari couldn’t be pinned down in the Rungta murder case. He was also acquitted in the Krishnanand Rai case in July 2019 by a special CBI court in Delhi.
In December last year, Ansari was sentenced to 10 years’ jail term under the Gangsters Act by the MP/MLA court in Ghazipur.
According to media reports, the UP police registered 2,276 cases under the 1986 law in 2019, up from 1,910 in 2018 and 1,837 in 2017. However, courts have, in the past few years, pulled up the UP police for ‘misuse’ of the law, for filing “defective gang-charts”, and has flagged police functionaries acting in an “eccentric way”.
What does the law say and why is it controversial? ThePrint explains.
Who is a ‘gangster’?
Section 2(b) defines a “gang” as a group of persons acting individually or collectively, indulging in “anti-social activities”, through violence or intimidation, for disturbing public order or for gaining any undue advantage. The provision also includes a list of such anti-social activities. This includes offences like murder, rape, assault, kidnapping, extortion, criminal intimidation, and cheating. It also includes “creating panic, alarm or terror in public”, and inciting others to resort to violence to disturb communal harmony.
A “gangster” is defined as a member or leader or organiser of a gang, and includes any person who assists in the anti-social activities of the gang, as listed under the law.
It provides for a punishment of two to ten years imprisonment, along with a fine of at least Rs 5,000 for violation of the law. However, the minimum jail term increases to three years if a gangster commits an offence against a public servant or the public servant’s family member. If a public servant provides “illegal help or support” to a gangster, the public servant can be punished with a three to ten year jail term.
The law was introduced because “gangsterism and anti-social activities were on the increase in the State posing threat to lives and properties of the citizens”, and “with a view to break the gangs by punishing the gangsters and to nip in the bud their conspiratorial designs”.
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FIR on a single case
However, it is the 67 rules in the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules 2021 that contain the meat and substance of the law.
As per these rules, to initiate proceedings under the 1986 law, the concerned incharge of the police station or the station house officer or the inspector is supposed to prepare a gang-chart mentioning the details of the criminal activities of the gang. The gang-chart is then presented to the district head of police after receiving a clear recommendation from the additional superintendent of police. The district magistrate or the commissioner of police is then supposed to approve the gang-chart, after ensuring that satisfactory grounds exist to initiate action.
The rules define “base cases” as the cases on the basis of which a gang-chart has been prepared with the intention of taking action against the gang under the 1986 Act. The rules say that the presence of the accused at the scene of the incident or their direct participation in the incident is not necessary.
They also say that “criminal history (is) not mandatory” and that an FIR can be registered under the Act on the basis of a single case as well. This is in line with a judgment passed by the Supreme Court in April last year, ruling that “even a single crime committed by a ‘gang’ is sufficient to implant Gangsters Act on such members of the ‘gang”, and that the Act can be invoked even with a single offence or FIR or chargesheet.
However, the rules assert that the gang-chart shall not be approved without the completion of investigation of the base case. In line with this, the Allahabad High Court has also ruled that Gangster Act cannot be imposed on anybody without filing the chargesheet in the base case. The gang-chart should also have the certified copy of the charge sheet and recovery memo attached to it.
The rules also provide for three-tier committees–at the district level, divisional level and state level– to be constituted for regular supervision and review of proceedings under the law.
‘Arbitrary powers to executive’
A petition was filed in December last year, challenging the constitutional validity of the 1986 law, alleging that several of its provisions and rules framed under it violated the Constitution of India. It alleged that the “Act gives arbitrary powers to police/executive to invoke Gangsters Act against any person on their own satisfaction without any reasonable classification”.
It also referred to Rule 57 of the 2021 Rules, which asserts that the trial under the Gangsters Act would have “precedence over trial of base cases under any other Act”. This, it said, means that a person may be acquitted under the base case, but may still have Gangsters Act proceedings running against him.
The petition also challenged Section 14 of the Act, which talks about attachment of property. The rule says that if the district magistrate has reasons to believe that any property has been acquired by a gangster as a result of commission of an offence under this law, the magistrate may order attachment of such a property.
This provision has been at the forefront of the state government’s crackdown on mafias and organised crime. As per media reports from August last year, the Uttar Pradesh police has attached and demolished properties worth over Rs 3,190 crore, mostly under provisions of the Gangsters Act since 2018.
While this petition was dismissed by the Supreme Court in December 2022, this wasn’t the first time that the provisions of the law were under challenge. The Allahabad High Court upheld the Constitutional validity of the Act in 1987. In 2010, gangster Dharmendra Kirthal, who reportedly had more than 30 murders to his name, had challenged the Constitutional validity of several provisions of the law in 2010.
Through a judgment delivered in August 2013, the Supreme Court then specifically looked into and upheld the validity of Section 12 of the Act, which gives precedence to trial under the Gangsters Act, over the trial against the accused in any other court.
Guidelines to prevent ‘misuse’
Courts have, several times in the past, commented on the ‘misuse’ of the law. For instance, in a judgment passed in March 2021, the Allahabad High Court took serious note of “incomplete and defective gang-charts” filed under the 1986 Act, that, it said, “giving ample room for miscarriage of justice, resultantly, the accused-applicant tends to be bailed out easily”. In January this year, reports claimed that a 53-year-old woman, Alisha Begum, who has been bedridden for the past 20 years due to multiple health disorders, was booked under the Gangsters Act. An enquiry was then set up on the proceedings.
Again, in August 2021, one Aalia approached the Allahabad High Court with a bail application. She had a Gangsters Act case registered against her, on the basis of two cases – one under Section 411 (dishonestly receiving stolen property) of the Indian Penal Code and another under Section 489B (using forged or counterfeit currency or bank notes) of the IPC.
Demanding a response from the district magistrate of Kanpur Nagar, the court had then observed, “It is very strange that a lady against whom two criminal cases are registered, she is slapped with Gangster Act. This court has experienced in a number of cases that sometimes the police functionaries act in an eccentric way, similarly the present one is an exemplar wherein the act of police functionaries smacks of prejudice and malafide.”
In November 2020, the Lucknow bench of the Allahabad High Court also took note of the 1986 law being “misused”. The court was hearing a bail application filed by one Manoj Kumar Nirmal, who had a case registered against him under the Gangsters Act.
The gang-chart against him mentioned two cases against him under Sections 457 (lurking, house trespass or house-breaking), 380 (theft in house) and 411 (dishonestly receiving stolen property) of the IPC, at the same police station in Raebareli. It noted that the chargesheet in both the base cases had been filed in 2019 and Nirmal had been granted bail in both the cases.
The court granted him bail under the 1986 law, but asserted that it “has been noticing that in trivial matters, provisions of the Gangsters Act are being invoked and thus, being misused by the Police”. It observed, “In several cases on the basis of single recovery of alleged stolen articles/money, accused are implicated in several cases and charge-sheets are filed in a short span of time of a few days.”
The court then directed the Director General of Police, UP, to formulate guidelines for preventing misuse of the provisions of the Act. It also warned the state of taking matters into its own hands, saying, “If corrective steps are not taken for prevention of misuse of the provisions of the Gangsters Act, this court would be required to pass a detailed judgment and order so that provisions of the Gangsters Act are not being misused.”
In January 2021, the court was informed by the UP Police that on 9 December 2020, the police headquarters had issued new guidelines for preventing misuse of the provisions of the law. These guidelines prescribed a three monthly review of all the cases initiated under the Act, by a committee chaired by the district magistrate.
(Edited by Smriti Sinha)
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