2008 Supreme(SC) 1311

2008(8) Supreme 372
SUPREME COURT OF INDIA
CJI K.G. Balakrishnan, R.V. Raveendran and Dr. Mukundakam Sharma, JJ.
State of Maharashtra — Appellant
versus
Bharat Shanti Lal Shah & Ors. — Respondents
Criminal Appal Nos. of 2008
(Arising out of S.L.P. (Crl.) Nos. 753-756 of 2004)
Decided on : 1-09-08

IMPORTANT POINTS
1. The interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance to procedure validly established by law.
2. It is a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statue and while construing such statue every legally permissible effort should be made to keep the statue within the competence of State legislature.

Headnote:Maharashtra Control of Organised Crime Act, 1999 – Constitutional validity of – Arrest of Respondent. 2 and 3 under provisions of MCOCA and cases registered against them – Writ petitions were filed thereagainst challenging constitutional validity of MCOCA, particularly provisions of Section 2(d), (e) and (f) and that of Sections 3, 4 and 13 to 16 and Section 21(5) of the MCOCA – High Court while upholding the constitutional validity of Section 2(d), (e) and (f) and also the provisions of Sections 3 and 4 struck down Sections 13 to 16 as unconstitutional as being beyond the legislative competence of the State Legislature – High Court held that Parliament alone had the power to make law in that regard as provided for under Entry 31 of List I of Seventh Schedule to the Constitution and that already the Indian Telegraph Act, 1885, a Central Act was holding the field – High Court also struck down sub-section (5) of Section 21 of the MCOCA holding that the same was violative of provisions of Article 14 of the Constitution of India-Appeals thereagainst by State on plea that provisions of MCOCA create and define a new offence of organised crime under Section 2(1) (e) which is made punishable under Section 3 of the MCOCA and that to aid detection and investigation of such an offence and to provide evidence of any offence involving organised crime, interception of wire, electronic and oral communication was necessary and that grounds for interception of communication under State Law being different from grounds covered by Section 5(2) of the Telegraph Act, inasmuch as the State law authorized the interception as it was intended to prevent the commission of an organised crime or to collect the evidence of such an organised crime, constitutional validity could not be questioned on the ground of want of legislative competence of the State Legislature to enact such a provision – Held objects and reasons read with contents of Act indicated that subject matter of Act was maintaining public order and prevention by police of commission of serious offences affecting public order and, therefore, it will be relatable to Entry 1 and 2 of List II – After enacting MCOCA, assent of the President was also obtained – That being the position if the subject matter and the field of legislation were found to be covered under any of the entries of the Concurrent List also, the constitutional validity would have to be upheld – Source of power to legislate the aforesaid Act can be derived by State from aforesaid entries of State List and Concurrent List and while enacting the aforesaid State Act the assent of the President was also taken – Hence the Act could not be said to be beyond legislative competence of State Legislature – As the main purpose of the Act was within the parameter of Entry 1 and 2 of the State Legislature no reason to hold that provisions of Sections 13 to 16 were constitutionally invalid because of legislative competence. (Paras 38 to 51)

        Maharashtra Control of Organised Crime Act, 1999 – Constitutional validity of – Object of MCOCA was to prevent organised crime and a perusal of provisions of Act under challenge indicated that said law authorized the interception of wire, electronic or oral communication only if it was intended to prevent the commission of an organised crime or if it was intended to collect evidence to the commission of such an organized crime – The procedures authorizing such interception were also provided therein with enough procedural safe guards – In addition under Section 16 of the MCOCA, provision for prohibiting and punishing the unauthorized user of information acquired by interception of wire, electronic or oral communication had been made – Hence as the Act under challenge contained sufficient safeguards and also satisfied mandate contention of the respondents that provisions of Section 13 to 16 were violative of Article 21 of Constitution held unsustainable. (Para 47)

        Doctrine of pith and substance – One of the proven methods of examining the legislative competence of an enactment is by the application of doctrine of pith and substance – This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists – If there is a challenge to the legislative competence the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question – In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the respective Legislature under the constitutional scheme- Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on topics in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the topics in the Union List. (Para 28)

        Right to privacy – Interception of conversation – Whether constitutes an invasion of an individual right to privacy – The interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance to procedure validly established by law – Thus what the Court is required to see is that the procedure itself must be fair, just and reasonable and non arbitrary, fanciful or oppressive. (Para 44)

       Facts of the Case :

        Issue in consideration in present appeals was regarding constitutional validity of the Maharashtra Control of Organised Crime Act, 1999 on the ground that the State Legislature did not have the legislative competence to enact such a law and also that the aforesaid law was unreasonable and was violative of the provisions of Article 14 of the Constitution of India.

       Findings of the Court :

        Object of MCOCA was to prevent organised crime and a perusal of provisions of Act under challenge indicated that said law authorized the interception of wire, electronic or oral communication only if it was intended to prevent the commission of an organised crime or if it was intended to collect evidence to the commission of such an organized crime. The procedures authorizing such interception were also provided therein with enough procedural safe guards- In addition under Section 16 of the MCOCA, provision for prohibiting and punishing the unauthorized user of information acquired by interception of wire, electronic or oral communication had been made. Hence as the Act under challenge contained sufficient safeguards and also satisfied mandate contention of the respondents that provisions of Section 13 to 16 were violative of Article 21 of Constitution was held unsustainable.

       Result : Appeals allowed.