AAP MLA Naresh Balyan arrested under MCOCA: Why a Maharashtra Act is applicable in Delhi

What is the Act and why is it applicable in Delhi?

Enacted in Maharashtra in 1999 by the coalition government of Shiv Sena and Bharatiya Janata Party (BJP), the MCOCA was the first state legislation to address organised crime in India. The rise of the underworld and organised crime in Mumbai were the driving forces behind the creation of this law.

Following this, many state legislatures enacted laws similar to MCOCA. Many of these, however, didn’t see the light of day as they failed to get presidential assent. In the National Capital Territory of Delhi, where law and order is under the Union Government, MCOCA was adopted in 2002.

What laws do other states use?

Gujarat and Karnataka have similar acts that penalise organised crime in their states – the Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, and the Karnataka Control of Organised Crime Act (KCOCA).

Haryana, in 2023, passed the Haryana Control of Organised Crime Bill, 2023. Similarly, Rajasthan also introduced a bill called the Rajasthan Control of Organised Crime Bill, 2023.
Uttar Pradesh has its own act to control organised crime called the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986.

What are the provisions under MCOCA?

Under the MCOCA, “organised crime” is defined as “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.”

An organised crime syndicate is defined as a group of two or more persons acting singularly or collectively as a gang who indulge in organised crime.

On the other hand, a continuing unlawful activity is one in which more than one chargesheet has been filed in the preceding 10 years. These can include abetting an organised crime or conspiring to attempt one. It also includes concealing or attempting to conceal a crime committed by a syndicate and holding any property that has been acquired through the funds of the syndicate.

Another key feature of MCOCA is confessions. Under Section 18 of the Act, certain confessions made to the police officer can be taken into consideration. Factors such as the voluntary nature of the confession, the procedural requirements of recording statements, and other aspects including retraction can be gone into only at the stage of the trial.

Are there other stringent laws?

Yes. These are laws created to deal with terrorist activities in India. The MCOCA has provisions similar to these.

-Terrorist & Disruptive Activities (Prevention) Act, 1987: It was created primarily to deal with terrorist activities in India but was withdrawn in 1995 due to rampant misuse. The Act put restrictions on the grant of bail and gave enhanced power to detain suspects and attach properties. The law also made confession before a police officer admissible as evidence.

-Prevention of Terrorism Act (POTA), 2002: Introduced in the wake of the 1999 IC-814 hijack and 2001 Parliament attack, a suspect could be detained for up to 180 days by a special court under this law. It also made fundraising for terrorism a “terrorist act”.

-Unlawful Activities (Prevention) Act (UAPA), 1967. In 2004, the UPA alliance repealed the POTA Act and strengthened the UAPA. This and the National Security Act of 1980 are currently the laws in effect to combat terrorism in India.

Under TADA, POTA, and MCOCA, a confession extracted during police custody is admissible as evidence. This is not the case under UAPA. As the other two acts are not enforceable anymore, the MCOCA remains the most stringent in this regard.

— edited by Nikitha Phyllis