This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nyaya Sanhita Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the newly introduced provisions penalising organised crime and their comparison with existing state organised crime legislations.
Cls. 109 and 110 of the BNS have, for the first time, introduced ‘organised crime’ as an offence under a central law, which would be applicable throughout the country. Prior to this, ‘organised crime’ was penalised in some states through state legislations.[1]
Organised crime under Cl. 109 refers to a continuing unlawful activity carried out by (a) groups of individuals acting in concert, either singly or jointly, or as a member of or on behalf of an organised crime syndicate, (b) by the use of violence, threat of violence, intimidation, coercion, corruption or other unlawful means (c) to gain direct or indirect material benefit (including financial benefit). Cl. 109 provides an illustrative list unlawful activities that it covers, which include – (i) kidnapping (ii) robbery (iii) vehicle theft (iv) extortion (v) land grabbing (vi) contract killing (vii) economic offences (viii) cyber-crimes having severe consequences (ix) trafficking in people, drugs, illicit good or services and weapons and (x) human trafficking racket for prostitution or ransom.
Cl. 110 penalises common forms of organised crime by criminal groups or gangs that cause general feelings of insecurity among citizens, as ‘petty organised crime’. It also provides an illustrative list of 15 unlawful activities, including various forms of theft, procuring money in an unlawful manner in a public transport system, illegal selling of tickets, and selling of public examination question papers.
This part compares Cls. 109 and 110 of the BNS with provisions of the existing state legislations on organised crime and highlights the issues of arbitrariness and vague scope of these clauses.
I. Background
As per the statement of objects and reasons of the BNS, Cls. 109 and 110 have been introduced to effectively deal with the issue of organised crime in the country and to deter the commission of such activities. While Cl. 109 borrows heavily from the existing state legislations on organised crime as described below, Cl. 110 creates a separate category of ‘petty organised crime’, distinct from ‘organised crime’, for the first time.
II. Comparison with existing organised crime legislations in India
Cl. 109 of the BNS in relation to ‘organised crime’ borrows heavily from the MCOCA,[2] which has been extended to New Delhi,[3] and the GujCOCA.[4] Andhra Pradesh,[5] Arunachal Pradesh,[6] Karnataka,[7] Telangana,[8] and Uttar Pradesh[9] have acts which are identical to MCOCA and GujCOCA. Further, Haryana[10] and Rajasthan[11] have introduced similar bills on organised crimes. It is important to note that the Supreme Court and various High Courts have upheld the constitutional validity of several provisions in these statutes.[12]
Table 2 compares various definitions under the BNS, MCOCA and GujCOCA.[13] Since legislations in other states are identical to MCOCA or GujCOCA, the analysis has been restricted to these two legislations.
Table 2: Comparative analysis of definitions under the BNS, MCOCA and GujCOCA
| Particulars | BNS[14] | MCOCA | GujCOCA |
| Organised crime | Activity: Continuing unlawful activity[15] by the effort of groups of individuals acting in concert, singly or jointly | Activity: Continuing unlawful activity by an individual, singly or jointly[16] | Activity: Continuing unlawful activity and terrorist act, by an individual, singly or jointly[17] |
| Membership: As a member of an organised crime syndicate or on behalf of such syndicate | Membership: As a member of an organised crime syndicate or on behalf of the syndicate[18] | Membership: As a member of an organised crime syndicate or on behalf of the syndicate[19] | |
| Mode: By use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means | Mode: By use of violence, threat of violence, intimidation, coercion or other unlawful means[20] | Mode: By use of violence or threat of violence or intimidation, coercion or other unlawful means[21] | |
| Object: To obtain direct or indirect, material benefit[22] (including financial benefit) | Object: To (i) gain pecuniary benefit or (ii) gain undue economic or other advantage (for himself or any other person) (iii) promote insurgency[23] | Object: In case of economic offences, with the aim to obtain monetary benefits or large scale organised betting in any form[24] | |
| Continuing unlawful activity | Activity prohibited by law including an illustrative list of ten unlawful activities | Activity prohibited by law for the time being in force[25] | Activity prohibited by law for the time being in force including an illustrative list of eight unlawful activities[26] |
| Classification: Such unlawful activity must be cognizable offence | Classification: Such unlawful activity must be cognizable offence, punishable with three years or more[27] | Classification: Such unlawful activity must be cognizable offence, punishable with three years or more[28] | |
| Mode: Singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate | Mode: Singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate[29] | Mode: singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate[30] | |
| Continuing nature: More than one charge-sheet has been filed before a competent court within the preceding period of ten years and that the court has taken cognizance of such offence. | Continuing nature: More than one charge-sheet has been filed before a competent court within the preceding period of ten years and court has taken cognizance of such offence.[31] | Continuing nature: More than one charge-sheet has been filed before a competent court within the preceding period of ten years and court has taken cognizance of such offence.[32] | |
| Organised crime syndicate | Members – Members include (i) criminal organisation or (ii) group of three or more persons | Members: Group of two or more persons[33] | Members: Group of two or more persons[34] |
| Mode: Acting singly or collectively in concert, as a syndicate, gang, mafia, or crime ring indulging in commission of one or more serious offences or involved in gang criminality, racketeering and syndicate organised crime | Mode: Acting singly or collectively as a syndicate or gang indulging in activities of organised crime[35] | Mode: Acting singly or collectively as a syndicate or gang indulging in activities of organised crime[36] |
III. Broadening of the scope of organised crime
The BNS has introduced several changes to the definition of ‘organised crime’ as compared to MCOCA and GujCOCA. Firstly, under MCOCA and GujCOCA, ‘continuing unlawful activity’ was restricted to any unlawful activity which is a cognisable offence punishable with imprisonment of three or more years, in respect of which more than one charge-sheet had been filed in the last ten years. However, the BNS has broadened the scope of continuing unlawful activity, by including all cognisable offences within its purview.
Secondly, unlike MCOCA and GujCOCA, BNS has introduced the phrase ‘by the effort of groups of individuals acting in concert’ in the definition of organised crime. It is unclear whether this creates an additional requirement for common intention amongst the members of the group towards the commission of that particular continuing unlawful activity, or if it simply refers to the common objective that the individuals have by virtue of being members of the group.
Thirdly, BNS defines organised crime as any continuing unlawful activity that leads to direct or indirect material benefit, including financial benefit. While ‘material benefit’ has not been defined, ‘benefit’ has been defined in the explanation to Cl. 109, to include ‘anything of benefit to a person, whether or not it has any inherent or tangible value, purpose or attribute.’ Such a broad and vague definition may result in a significant expansion of the scope of organised crime under the BNS.
IV. Vagueness in the definition of organised crime syndicate
The BNS defines an organised crime syndicate as meaning a criminal organisation or a group of three or more persons indulging in certain acts in the manner specified. In doing so, BNS, for the first time, introduces the phrase ‘criminal organisation’. This term has not been separately defined, and it is unclear which organisations would be classified as ‘criminal’, and the process, if any, to be followed for such classification.
Additionally, MCOCA and GujCOCA restricted the definition of organised crime syndicate to groups that were indulging in activities of ‘organised crime’, which was defined in the Acts. However, the BNS broadens the definition by including within it, criminal organisations or groups which indulge in the commission of ‘one or more serious offences’, the scope of which is unclear. Further, other phrases in the definition including ‘gang criminality’ and ‘racketeering’ have also not been defined.
V. Issues of arbitrariness while defining the offences related to organised crime
Cl. 109(2) to 109(7) define various offences related to organised crime and their respective punishments. The issues regarding these provisions have been highlighted below:
a. No distinction between the commission of an offence and its attempt
Cl. 109(2) arbitrarily erases the distinction between the attempt to commit an organised crime, and the commission of organised crime, by prescribing the same punishment. Cl. 109(2)(a) prescribes the punishment of death or imprisonment for life, in case the offence results in death of any individual, while in any other case, Cl. 109(2)(b) prescribes the punishment of not less than five years which may extend to imprisonment for life. It may be noted that under MCOCA[37] and GujCOCA,[38] while the punishment for commission of the offence which may result in death is higher than the punishment for the attempt to commit such an offence, they prescribe the same punishment for the commision of an offence and its attempt in all other cases.
Further, like MCOCA[39] and GujCOCA,[40] there is no requirement for a separate mens rea for causing death of a person under Cl. 109(2), BNS. Therefore, under this clause, irrespective of the person’s knowledge that death is likely or their intention to cause death, they may be sentenced to death, in case the commission of an organised crime or its attempt leads to the death of any individual.
b. No requirement for knowledge or intention while facilitating organised crime
Cl. 109(3) does not require knowledge or intention on part of the person assisting or facilitating the commission of an organised crime. This is a significant departure from MCOCA[41] and GujCOCA,[42] where knowledge on part of the person facilitating an organised crime was a necessary requirement. This may result in persons being punished for inadvertently facilitating preparatory acts without their knowledge. For instance, a person who buys clothes for a group of people, who then use the same to disguise themselves and commit an organised crime of robbery, could be punished under this clause. Despite the absence of knowledge on their part, the person who bought the clothes may be held liable for facilitating acts preparatory to the organised crime.
c. Issues with clause on harbouring and concealing
Cl. 109(5) makes it an offence to harbour or conceal, or attempt to harbour or conceal a person who has committed an organised crime. Similar to GujCOCA (and unlike MCOCA),[43] the BNS requires the harbouring or concealing to be intentional. However, it additionally penalises harbouring or concealing or attempting to do so, of a person who ‘believes that his act will encourage or assist the doing of such crime’. This is vaguely worded, and may be equivalent to harbouring or concealing a facilitator or someone who assists the commission of organised crime.
Further, the proviso to Cl. 109(5) specifies that this sub-clause would not apply where the harbouring or concealment is done by the spouse of the offender. There appears to be no reasonable basis for creating this exemption. Additionally, there is no clear basis for why such an exemption has been limited to the offence of harbouring or concealing any person involved in an organised crime.
VI. Petty organised crime under Cl. 110
Cl. 110 creates the category of ‘petty organised crime’ as distinct from ‘organised crime’ for the first time and is a category not created in any other similar legislation. Cl. 110 penalises any crime that causes ‘general feelings of insecurity’ among citizens relating to common forms of organised crime, committed by organised criminal groups or gangs including mobile organised crime groups. The clause provides an illustrative list of common forms of organised crimes, including various forms of theft, procuring money in an unlawful manner in a public transport system, illegal selling of tickets, and selling of public examination question papers.
Unlike Cl. 109, Cl. 110 does not provide for the manner in which such crimes may be committed, such as using violence, threat or intimidation. Further, there is no requirement for directly or indirectly obtaining material benefit through the commission of organised crime under Cl. 110. Some issues with Cl. 110 are as follows:
- The phrase ‘any crime that causes general feelings of insecurity among citizens’ is vague, and may result in the clause having a very expanded scope.
- The clause provides an illustrative list of crimes that would fall within its ambit, and has a catch-all provision- ‘such other common forms of organised crime’. While the crimes specified seem to be those that result in a financial benefit; the scope of this provision is unclear.
- Under Cl. 110, petty organised crime can be committed by any ‘criminal group or gang.’ However, the term ‘criminal group or gang’ has not been defined. Further, unlike Cl. 109, there is no requirement for the crime to be committed by an organised crime syndicate with more than one chargesheet filed before a competent court within the preceding 10 years.
- It is peculiar that crimes committed by mobile organised crime groups are specifically included in the definition of petty organised crimes, but not in the definition of organised crime in Cl. 109.
- Like Cl. 109(2), Cl. 110(2) arbitrarily provides for the same punishment for both commission and attempt to commit petty organised crime – imprisonment of a term of one year that may extend to seven years along with fine.
[1] For example, Andhra Pradesh Control of Organised Crime Act, 2001; Arunachal Pradesh Control of Organised Crime Act, 2002; Telangana Control of Organised Crime Act, 2001; Gujarat Control of Terrorism and Organised Crime Act, 2015; Karnataka Control of Organised Crime Act, 2000; Maharashtra Control of Organised Crime Act, 1999; Uttar Pradesh Control of Organised Crime Act, 2017.
[3] GSR 6(E), Extension of MCOCA to Delhi, Ministry of Home Affairs, January 2, 2002.
[5] Andhra Pradesh Control of Organised Crime Act, 2001.
[6] Arunachal Pradesh Control of Organised Crime Act, 2002.
[7] Karnataka Control of Organised Crime, Act 2000.
[8] Telangana Control of Organised Crime Act, 2001.
[9] Uttar Pradesh Control of Organised Crime Act, 2017 (UPCOCA) (similar to GujCOCA).
[10] Haryana Control of Organised Crime Bill, 2020.
[11] Rajasthan Control of Organised Crime Bill, 2023.
[12] State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5: the Supreme Court upheld the validity of the provisions of the s. 2(1)(d),(e) and (f) and ss. 3 and 4 of MCOCA; Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra (2010) 5 SCC 246: Supreme Court upheld that the State government was competent to enact laws pertaining to insurgency as they fall under the term ‘public order’ in the State list; Mohd. Irfan v. State of Delhi 2018 SCCOnline Del 13223: the Delhi High Court rejected the challenge to provisions of s. 3(1)(ii) of MCOCA on the ground that it prescribes mandatory imposition of minimum fine.
[13] MCOCA and GujCOCA provide for separate special procedures for the offence of organised crime; however these are not available in BNS or BNSS; BNSS only provides that during the time of arrest, the police may handcuff a person who has committed the offence of organised crime, as more specifically provided therein.
[14] Cl. 109, BNS.
[15] Includes an illustrative list of unlawful activities as mentioned above.
[17] S. 2 (e), GujCOCA includes an illustrative list of unlawful activities – (i) terrorism (ii) extortion (iii) land grabbing (iv) contract killing (v) economic offences (vi) cyber-crimes having severe consequences (vii) running large scale gambling rackets (viii) human trafficking racket for prostitution or ransom by an individual. Among the above, UPCOCA includes unlawful activities such as illegal mining, extraction of forest produce etc. in its definition.
[22] Explanation (i) to the Cl. 109(1) provides that benefit includes property, advantage, service, entertainment, the use of or access to property or facilities and anything or benefit to a person whether or not it has any inherent or tangible value, purpose or attribute.
[24] S. 2(d), GujCOCA. UPCOCA includes objects such as – (i) spreading terror (ii) overthrowing the government (iii) indulgence in anti-national activities etc.
