Besides the 7/11 case, the court also stayed proceedings in the Special MCOCA Court pertaining to four bomb explosions that took place on September 8, 2006 at Malegaon. The explosions had rocked the compound of Hamididya Masjid and Baba Kabrastan and nearby Mushawarat Chowk. It also stayed the trial in another case relating to seizure of arms in Aurangabad on May 9, 2006.

The directives were issued as a Bench comprising Justices B N Agarwal and G S Singhvi agreed to examine the constitutional validity of a specific part of Section 2(1) (e) of MCOCA, 1999 that refers to “insurgency”. The issue was raised by Zameer Ahmed Latifur Rehman, one of the 13 accused in the suburban train blasts case.

Earlier, Rehman, along with other accused, had filed a petition before the Bombay High Court, questioning the legality of the latter part of Section 2(1) (e) (Organised Crime) of MCOCA. However, the high court had dismissed their petitions on July 19, 2007, and they moved the apex court.

The MCOCA, promulgated on February 24, 1999, stipulates stringent punishment to a person or a gang operating as a syndicate. Any offence that results in a person’s death will be punished with life term or a death penalty and not less than a fine of Rs one lakh.

Appearing for the accused, senior advocates Sushil Kumar Jain, Shanti Bhushan and Rajeev Dhawan submitted that the Maharashtra state did not have the legislative competence to enact the latter part of the said section, which deals with “promoting insurgency”. Terming it as a case of “colourable legislation,” they claimed that since all anti-insurgency laws fall under List I, Entry I or in any event, under Entry 97, List III, Parliament alone is competent to enact laws falling under it. Thus, the enactment of MCOCA by the state Government is a serious and substantial aversion making inroads into the legislative powers of Union, they claimed.

“After POTA was repealed, the Union Government came out with Unlawful Activities (Prevention) Act, 1967, that has adequate safeguards to deal with insurgency provisions,” Jain told the court. MCOCA’s provisions, as regards to insurgency are “inconsistent and incompatible” with the corresponding provision of Unlawful Activities (Prevention) Act, specifically, Section 15 that defines Terrorist Act, covering the entire code of “promoting insurgency”.

And as per Article 254 of the Constitution, if there is any conflict between a State Law and a Central Law, the latter will prevail, they submitted.