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Zameer Ahmed Latifur Rehman ... vs State Of Maharashtra & Ors on 23 April, 2010
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statutes are held to be repugnant to each other. 17.Mr. Mohan Jain, learned ASG appearing for the Union of India, respondent No. 2 herein, and Mr. Amarendra Sharan, learned ASG appearing for the CBI, supported the contentions made by Mr. Naphade and Mr. Salve. In addition, they submitted that the MCOCA creates and defines a new offence and even if it be assumed that the part of the MCOCA containing the term `promoting insurgency' incidentally trenches upon a field under the Union list then the same cannot be held to be ultra vires applying the doctrine of pith and substance, as in essence, the MCOCA deals with the subject on which the State legislature has power to legislate under the Constitution. 18.Before we proceed further to deal with and answer the issues that have been raised for our consideration, we wish to make note of a minor development which took place during the pendency of the present appeal. A further amendment was made to the UAPA, 1 namely, the Unlawful Activities (Prevention) Amendment Act, 2008 and so the matter was again listed for hearing in order to ascertain the impact, if any, of the said amendment

relied upon Entry 1 of List II i.e. the State List which refers to `public order' to contend that the term `promoting insurgency' is relatable to that entry, the High Court refrained itself from analyzing the said aspect because the respondent State had, before the High Court, taken a stand that `promoting insurgency' would be covered by Entry 1 of List III i.e. the Concurrent List. 21.Before proceeding further, it would be appropriate on our part to mention that we do not concur with the said finding of the High Court that the MCOCA in pith and substance falls only in Entry No. 1 of List III. This Court in Bharat Shanti Lal Shah (supra) has already held that the subject-matter of the MCOCA is maintaining public order and prevention by police of commission of serious offences affecting public order, and thus would be within the purview of and be relatable to Entries 1 and 2 of List II as also to Entries 1, 2 and 12 of List III of Schedule VII to the Constitution of India. The question that needs to be determined in the present case is whether the said finding in Bharat

constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State Legislature [Reference may be made to the cases of: Charanjit Lal Choudhary v. Union of India [AIR 1951 SC 41], T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], Karnataka Bank Ltd. State of AP [(2008) 2 SCC 254]]. 1 35.One of the proven methods of examining the legislative competence of a legislature with regard to an enactment is by the application of the 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 a field

legislation allotted to the respective legislature under the constitutional scheme. This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. 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 any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List. 1 36.A Constitution Bench of this Court in A.S. Krishna v. State of Madras [AIR 1957 SC 297], held as under: "8. ... But then, it must be remembered that we are construing a federal Constitution. It is of the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces