Crime:

It is generally an act which generally hurts another individual, community, society, or nation, and is
prescribed by the law.
Examples - crime against property, personal crimes, crime of passion, victimless crimes, etc.

Organized Crime (OC):

Crimes or crime categories might be the same but what differentiates organized crimes from others
is the term organized, which flows from the term "organization".
An organization is a group/association of people that cooperate to accomplish a task.
There are certain characteristics of an organization.
For example, objectives, rules, specialization, hierarchy, etc.

Despite this, organized crimes are defined differently by different organizations.

For example:

It is defined as a continued criminal conspiracy with an organized structure driven by greed that
drives its success from the use of fear, corruption, or even violence.

According to the Treaty of Mutual Assistance in Criminal Matters in 1973, organized crime (OC) is
defined as an association of individuals for periods of time for profit by both legal and illegal means.

Regardless of there being no uniformities over the definition of organized crimes, certain common
characteristics can be derived from various definitions including:
i) Non-ideological motives.
ii) Continuity of operations over a period of time.
iii) Use of strategic/tactical planning.
iv) Rules-based behaviour:
For example, a general code of secrecy (Omerta).
v) Restriction on membership.
vi) Use of force or intimidation or both.
vii) Organized hierarchy.

Types of organized groups could include :

1. Gangs (an association of tough and hardened criminals who don't hesitate to use violence.
2. Cartels - It is an association of producers to control monopolized and restrict competition
related to the sale or price of a product.
3. Syndicate/Consortium - a union of fortunes or persons to undertake an enterprise beyond the
resources of one member.

THE INDIAN LEGAL SCENARIO

MCOCA, 1999: According to the Maharashtra Control of Organised Crime Act (MCOCA),1999,
organized crime means any continuing unlawful activity by an individual either singly or jointly either
as a member of or on behalf of an organized crime syndicate, by using violence, the threat of
violence, intimidation, or any other unlawful means with the objective of gaining a pecuniary benefit
or any undue economic advantage for self or any other person or for promoting insurgency.

BHARATIYA NYAYA SANHITA: According to the Bharatiya Nyaya Sanhita (BNS), Section 111
defines organized crime
Organised crime
111.
(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land
grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or
illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of
persons acting in concert, singly or jointly, either as a member of an organized crime syndicate or
on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by
any other unlawful means to obtain direct or indirect material benefit including a financial benefit,
shall constitute organized crime.

EXPLANATION
• “Organised crime syndicate” means a group of two or more persons who, acting either singly or
jointly, as a syndicate or gang indulge in any continuing unlawful activity;
• “continuing unlawful activity” means an activity prohibited by law which is a cognizable
offence punishable with imprisonment of three years or more, undertaken by any person, either
singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in
respect of which more than one charge-sheets have been filed before a competent Court
within the preceding period of ten years and that Court has taken cognizance of such offence,
and includes economic offence;
• “economic offence” includes criminal breach of trust, forgery, counterfeiting of currency-
notes, bank-notes and Government stamps, hawala transaction, mass-marketing fraud or
running any scheme to defraud several persons or doing any act in any manner with a view to
defraud any bank or financial institution or any other institution organization for obtaining monetary
benefits in any form.

PUNISHMENT om
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2. Whoever commits organized crime shall

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(a) Death of any person: Death or imprisonment for life, and shall also be liable to fine which shall
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not be less than ten lakh rupees;

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(b) Otherwise: five years to imprisonment for life, and shall also be liable to fine which shall not be
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less than five lakh rupees.

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(3) Abetment/Conspiracy: five years to imprisonment for life, and shall also be liable to fine which
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shall not be less than five lakh rupees.

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(4) Membership: five years to imprisonment for life, and shall also be liable to fine which shall not be
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less than five lakh rupees.

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(5) Intentionally, harbours or conceals any person who has committed the offence of an organised
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crime: three years to imprisonment for life, and fine which shall not be less than five lakh rupees:
Provided that this sub-Section shall not apply to any case in which the harbour or concealment
is by the spouse of the offender.
(6) Possessesion of any property derived or obtained from the commission of an organised crime
or proceeds of any organised crime or which has been acquired through the organised crime: three
years to imprisonment for life, and fine which shall not be less than two lakh rupees:
(7) If any person on behalf of a member of an organized crime syndicate is, or at any time has been
in possession of movable or immovable property which he cannot satisfactorily account for, shall be
punishable with imprisonment for a term which shall not be less than three years but which may
extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one
lakh rupees.
It is a cognizable and non-bailable offence, triable by Sessions court.

PETTY ORGANIZED CRIME

112. (1) Whoever, being a member of a group or gang, either singly or jointly, commits any act of
theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling,
selling of public examination question papers or any other similar criminal act, is said to commit
petty organized crime.

Explanation:
For the purposes of this sub-Section "theft" includes trick theft, theft from vehicle, dwelling house or
business premises, cargo theft, pick pocketing, theft through card skimming, shop lifting and theft of
Automated Teller Machine.
PUNISHMENT
(2) Whoever commits any petty organized crime shall be punished with imprisonment for a term
which shall not be less than one year but which may extend to seven years, and shall also be
liable to fine.
It is a cognizable, non-bailable offence, triable by the Magistrate of the first class.

INTERNATIONAL SCENARIO
The United Nations oversees a number of treaties that deal with transnational organized crime,
notably the United Nations Convention against Transnational Organized Crime which is
supplemented by three Protocols on crimes often carried out by organized criminal groups:
1. Trafficking in Persons Protocol: the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children ;
2. Smuggling of Migrants Protocol: the Protocol against the Smuggling of Migrants by Land, Sea
and Air; and
3. Firearms Protocol: the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their parts and Components and Ammunition (Firearms Protocol).

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Furthermore, the United Nations Convention against Illicit Traffic in Narcotic Drugs and
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Psychotropic Substances of 1988 does not address transnational organized crime as such, but the
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illicit activities commonly carried out by organized criminal groups.

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Finally, the United Nations Convention against Corruption, adopted in 2003, specifies and
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recognizes different forms of corruption, and it provides a legal framework to criminalize and combat
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a crime widely committed by organized criminal groups around the globe.

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Organized Criminal Group

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The Organized Crime Convention does not define organized crime as organized crime’s illicit
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activities are often changing and a definition would quickly become out-dated. In its place, its
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Article 2(a) defines an organized criminal group as:

"A structured group of three or more persons, existing for a period of time and acting in concert
with the aim of committing one or more serious crimes or offences established in accordance
with this Convention, in order to obtain, directly or indirectly, a financial or other material
benefit."

Under the convention, a structured group does not require any formal hierarchy or continuity of
its membership. Therefore, loosely affiliated groups without any formally defined roles for its
members or any developed structure or hierarchy are also included.
 TERRORISM
Terrorism generally means an act conducted with the intent of striking terror in the hearts and
minds of common people.
At the international level, there is no consensus on the definition of terrorism. Globally, there are
19 instruments dealing with terrorism but there remains a complete lack of consistency/uniformity
over what act constitute terrorism.
For instance,
The European Union (EU) defines terrorism as the unlawful use of violence and intimidation.
According to US START, a terrorist event constitutes threatening or the actual use of illegal force and
violence to attain political, economic, or religious goals through fear, coercion, or intimidation.
According to the UN, certain activities shall be considered terrorist if they are intended to provoke a
sense of terror in the general public, any group of persons, or a particular person for political
purposes.
In addition, the United Nations Security Council (UNSC) and General Assembly (UNGA) have
issued multiple resolutions in connection with terrorism and developed the United Nations Global
Counter-Terrorism Strategy, adopted by Member States in September 2006 and reviewed by the
UNGA every two years.

Terrorism Definition under BNS

Section 113
Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security,
economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in
the people or any section of the people in India or in any foreign country:

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms
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or other lethal weapons or poisonous or noxious gases or other chemicals or by any other
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substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any
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other means of whatever nature to cause or likely to cause—

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1. death of, or injuries to, any person or persons; or

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2. loss of, or damage to, or destruction of, property; or

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3. disruption of any supplies or services essential to the life of the community in India or in any
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foreign country; or
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4. damage to, the monetary stability of India by way of production or smuggling or circulation of
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high quality counterfeit Indian paper currency, coin or of any other material; or
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5. damage or destruction of any property in India or in a foreign country used or intended to be

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used for the defence of India or in connection with any other purposes of the Government of
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India, any State Government or any of their agencies;

or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes
death of any public functionary or attempts to cause death of any public functionary;

or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any
other act in order to compel the Government of India, any State Government or the Government of a
foreign country or an international or inter-governmental organisation or any other person to do or
abstain from doing any act; or commits a terrorist act.

Punishment:
• Punishment for terrorist act
• Punishment for raising funds for terrorist act.
• Punishment for conspiracy, etc.
• Punishment for organising of terrorist camps
• Punishment for recruiting of any person or persons for terrorist act.
• Punishment for harbouring, etc
• Punishment for being member of terrorist gang or organisation.
• Punishment for holding proceeds of terrorism.—
• Punishment for threatening witness.

Investigation Process under UAPA

As discussed, the UAPA happens to be the special statute that deals with terrorist acts, which are
mentioned as a scheduled offence under the National Investigation Act, 2008, thereby giving
jurisdiction to the National Investigation Agency (NIA) to investigate such cases.

So, the process is that at the time of the receipt of the offence, the officer-in-charge of the police
station is to forward a report to the state government, which in turn would forward it to the Union
government as expeditiously as possible.

After receiving the report, the Union government within 15 days determines on the basis of the said
report whether the offence is a scheduled offence (under the UAPA) and is fit to be investigated by
the NIA by considering the ”gravity of the offence” and ”other relevant factors.”

Further, it is to be noted that if during the investigation, the NIA after due consideration of the certain
factors thinks it would be beneficial or necessary, it can ask the state government to be a part of the
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With the prior approval of the Union government, the NIA also has the power to transfer the entire
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case, including the responsibility for the investigation and trial, to the state government.
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Therefore, not all cases of the UAPA are investigated by the NIA, but even when a state
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government investigates these cases, it needs to follow the investigating procedure of the NIA.
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This means the agency may seek assistance or cooperation from the government of the
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specific state where the offense took place.

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It is important to mention here that the objective of the NIA Act was to constitute an investigating
agency at the national level to investigate and prosecute offences affecting mainly the sovereignty,
security and integrity of India, the security of the state and friendly relations with foreign states.

The NIA aims to set the standards of excellence in counterterrorism and other national security-
related investigations at the national level by developing into a highly trained, partnership-oriented
workforce, and holds importance over state police due to its specialised mandate and jurisdiction.

Issues with Inclusion of Terrorist Act under BNS

Superintendent of police has been given discretionary powers
Section 113 of the BNS states that whether a person would be booked under the BNS or the
UAPA for a terrorist act will be decided by an officer not below the rank of superintendent of
police (SP).

As a result, if an SP books a person under the BNS for a “terrorist act”, the state police will
investigate the offence. However, if booked under the UAPA, the NIA would investigate the same
crime.

This arbitrary power given to the SP, which was earlier not found in the IPC, means that it is now up
to the SP to decide whether an offence should be investigated by an agency as specialised as the
NIA or by the state police.

This discretionary authority vested in the SP raises concerns about potential arbitrariness in
determining the course of the investigation and prosecution of offences deemed as acts of
terrorism.

The pivotal issue lies in the subjective interpretation by SPs to selectively book people under
either of the statutes.
How is the SP supposed to decide whether to book a person under the UAPA or the BNS when the
definition of a terrorist act under both statutes is the same?

The absence of clear and objective criteria for invoking either of the statutes adds an element of
ambiguity to the application of anti-terrorism laws.
The expansion of the SP’s role from a law enforcement officer to a decision-maker with
significant implications for the choice of investigative agencies introduces challenges to the uniform
and impartial application of anti-terrorism legislation.

The powers of an SP can be misused to selectively book under the UAPA or the BNS

This further raises concerns regarding potential arbitrariness, favouritism and selective application.

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In the context of a hypothetical scenario involving riots between Groups A and B, both potentially
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falling within the ambit of terrorist acts, the discretion granted to the SP becomes a pivotal factor.
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Expansive Powers under UAPA

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The UAPA, with its expansive powers allowing searches, seizures and arrests based on the
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“personal knowledge” of the police without judicial validation, has been criticised for potentially
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infringing upon the presumption of innocence.

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The provisions of the Act, allowing action against individuals for acts deemed “likely to threaten”
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or “likely to strike terror”, raise concerns about the principle of proportionality in punishment.
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The recent cases of Father Stanislaus Lourduswamy and journalist Siddique Kappan highlight the
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far-reaching implications of the UAPA’s provisions, including prolonged detention without bail and
extended periods of custody without trial.

The potential for the abuse of these provisions underscores the need for a thought-through and
principled approach in the application of anti-terrorism laws.

In a situation where both Group A and B technically meet the definitions of offences punishable
under both the UAPA and BNS, there is a risk of the SP’s decision being influenced by political
considerations.

Suppose individuals from Group A are perceived as dissenting voices against the government’s
ideology. The SP may selectively book them under the UAPA, utilising its stringent provisions to keep
them incarcerated, while the other group may be charged under the BNS. This creates potential for
the legal framework to be manipulated for political ends.

The risk of differential treatment based on ideological considerations poses a direct challenge to
the principles of equality before the law and fairness in legal proceedings. The potential misuse of
these powers could result in the suppression of dissenting voices and the erosion of fundamental
rights.

Therefore, the intertwining of terrorism clauses in general law and the discretionary powers granted
to the SP necessitate a robust mechanism for accountability, oversight and adherence to legal
principles. Striking a delicate balance between national security imperatives and safeguarding
individual rights becomes paramount to ensure the fair and just application of anti-terrorism laws,
preventing their misuse for political ends.

Could lead to jurisdictional manipulation

The pivotal role of the SP in choosing between the UAPA and the BNS introduces a risk of
jurisdictional manipulation for political purposes. As detailed above, in routine scenarios, the
customary process involves the officer-in-charge forwarding a report to the state government, which
then sends it to the Union government for analysis and potential assignment to the NIA under the
UAPA.

In a hypothetical scenario, where a terrorist act occurs in a state, say like West Bengal, which
characterised by political discord between the state and Union governments due to differing
ideologies, the potential for misuse becomes apparent.

The SP’s decision to register a case under either the UAPA or the BNS determines the course of
investigation. Further, intentionally or otherwise, the state police may register the case under the
BNS to retain jurisdictional control and prevent the case from being forwarded to the Union
government.
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In cases of political divergence between the state and Union governments, ego-driven reluctance
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to transfer the case to the NIA could pose a challenge to effectively addressing the menace of
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terrorism.
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This scenario poses a significant challenge, potentially leading to an obstruction of the prescribed
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legal process. The risk of selective application of anti-terrorism laws based on political
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considerations may undermine the principles of fairness, equality and the rule of law.
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It is noteworthy that this issue may be less pronounced in states where the Union and state
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governments share similar political affiliations or ideologies. However, in regions marked by political
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divergence, the potential for abuse of discretion in the application of anti-terrorism laws requires
careful scrutiny.

Conclusion

In a context where individuals are being subjectively and selectively charged under anti-terrorism or
related laws, the courts lack authority to influence the choice of offences by the prosecuting agency.

The judiciary has a limited role before the case comes to it. The court’s duty is to adjudicate the case
based on the charges presented, ensuring a fair and lawful trial without intervening in the executive’s
discretion in selecting specific charges against the accused.

The statement of objects and reasons for passing these three criminal law Bills is that the
government considers it expedient and necessary to review the existing criminal laws to strengthen
law and order and also to focus on “simplifying legal procedure so that ease of living is ensured to
the common [person]”.
So, we ask one simple question – will the common person have a better tomorrow with this
duplication? You decide.

Difference between Terrorism and Organized Crime:

Terrorism Organized Crime (OC)
Motivation
Ideological
Non-ideological
Goals
Political power
Economic power
Detection
Broadcast
Secrecy
Confrontation with the State
Direct
No direct confrontation
Similarities between Terrorism and Organized Crime (02:26 PM):
i) The common enemy is the State.
ii) They generally tend to recruit from a common pool (i.e. their resource pool is the same).

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iii) None of them shy away from the use of force, intimidation, or even violence.
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iv) Membership is restricted across both of these groups.
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v) There is some sense of hierarchy.

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Relationship/Linkages between Terrorism and Organized Crime (02:51 PM):

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Alliance - Transformation - Complete Convergence.

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Theoretically, the relationship between OC and terrorism is three-fold.

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Taken together these three levels are called "Crime-Terror Continuum".

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a) Alliance:
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The first type of relationship which is an alliance occurs when criminal groups associate with terrorist
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organizations or vice-versa, to leverage each other's comparative advantage which is the sharing of
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expert knowledge (bomb making, assembling firearms, money laundering).

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This relationship may be a one-time occurrence or might last longer.

b) Transformation:
Transformation occurs when either of the two tries to assume each other's tactics/roles for
operational motivations.
For example, criminal groups may engage in political activity to change operational conditions for
them or terrorist groups may focus on criminal activities for financial reasons.
c) Conversions:
Conversions mean transformation and mixing of tactics/motivations to an extent that it becomes
practically impossible to differentiate between the terrorist organization aspect or organized crime
aspect of the same group.
Examples of linkages:
a) Drug trafficking and terrorism:
According to the World Drug Report, 2021, one in every 17 people across the world has used a drug
at least once.
There has been a 23% decadal increase.
Drug trafficking amounts to roughly one-third of the profits of all organized crimes taken together.
Consequently, terrorist organizations are taking a keen interest in illicit drug trafficking.
For instance, before 2022, nearly 80% of the world's illicit opium was cultivated in Afghanistan alone.
Over 40% of terror plots in Europe were partly financed from the proceeds of drug trafficking.
The Aimjuma network and Al Qaeda is an established links.
b) Human Trafficking:
Trafficking for sexual exploitation and forced labour are the most common reasons but it can be
exploited in other ways also.
For example, organ trade, begging, pornography, forced marriages, etc.
Abduction, rape, and sexual slavery have been used by terrorist organizations to subjugate local
populations and advance their ideologies.
For example, the 2014 attack on the Singer district of Iraq by ISIS and the consequent abduction of
over 60,000 Yazidi women and children.
Boko Haram and Al Shabab (Somalia) have been documented for trafficking children into fighter
roles to carry out suicide bombings.
c) Trade in cultural property:
Terrorist organizations are increasingly taking a keen interest in cultural property not only as a source
of revenue generation but also as the destruction and removal of cultural property is used to
undermine the morale of the local people (cultural cleansing).
For example, the 2001 attack on Bamiyan statues in Afghanistan.
d) Intellectual property theft (03:39 PM):
Intellectual property crime constitutes the largest black economy even surpassing the global
narcotics trade (3.3% of the world's total trade value).
Cigarettes are more frequently pirated products.
In 2016, terrorist organizations in the North Africa region itself were responsible for the contraband
tobacco trade valued at 1 billion US dollars annually.

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e) Exploitation of natural resources: l.c
Several terrorist organizations have involved themselves in the illicit trade of natural resources.
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For example, ISIS is involved in oil trafficking, and Al Shabab is involved in illicit charcoal trafficking.
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Reasons for the increasing closeness between Organised Criminal Groups (OCGs) and Terror
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Groups (TGs):
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• The forces of globalization and modern communication methods have facilitated a more
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collaborative working relationship between OCGs and TGs.

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• The Global War on Terror, initiated after the 9/11 attacks and the withdrawal of Soviet forces
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from Afghanistan, led to a decline in funding for TGs, forcing them to rely on OCGs for support.
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• OCGs may generate funds through criminal activities, launder them, and then use them globally to
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sponsor terrorism.
• OCGs see developing links with TGs as a means to expand their global influence.

Consequences or Threats Arising from the Connections between OCGs and TGs:
• Developing countries with weak rule of law are susceptible to infiltration by this network.
• In such situations, the state may either be co-opted or experience a further weakening of
governance.
• Linkages between OCGs and TGs can undermine stability in governments and free markets,
fostering corruption in governance.
• Examples of this collaboration can be seen in the control of territory and illegal activities by
OCGs and TGs in Somalia.
• The close cooperation between the two groups results in resource sharing, making it
challenging for security agencies to combat both effectively.

Challenges Associated with Dealing with OCGs:

• Inadequate legal frameworks: These exist in only a few states, such as Delhi, Maharashtra,
 Gujarat, and Karnataka, to address organized crime. Although the UAPA has been in force since
1967, the Parliament inserted a dedicated Chapter towards punishing terrorist activities only in
2004, by way of the UAPA Amendment Act, 2004 (Chapter IV). Thereafter, amendments were
made to the legislation in 2008 and 2013 as well.
• Prior to this redesigning of UAPA, terrorist activities were primarily dealt with under the now
repealed Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of
Terrorism Act, 2002 (‘POTA’). Over the years, a number of challenges have been made to the
constitutional validity of both TADA and POTA.
• Weak enforcement agencies, particularly state police forces, lack the capability to combat
organized crime due to insufficient training and shortages of arms and ammunition.
• Lack of coordination among agencies like CBI, NCB, ED, State Police, etc., weakens the fight
against organized crime on an international scale.
• The growth of technology poses a significant challenge, with security agencies lacking the
capacity to combat new-age organized crimes like cyber fraud.
• Nexus between politicians, bureaucrats, and criminals, driven by vested interests, compromises
the investigation and prosecution of organized criminals.
• Lack of public awareness and the glorification of organized criminals in popular media and
cinema attract youth to such organizations.

The Way Forward:

• Consider enacting a model law on organized crime at the national level, in addition to section 109
and 111 of THE BHARATIYA NYAYA SANHITA, 2023
• Promote bilateral and multilateral arrangements among countries to share intelligence and
collaborate in combating organized crime effectively.
• Establish a nodal agency to facilitate cooperation between state and central agencies.
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• Sensitize popular media and cinema to discourage the over-glorification of organized criminals.
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• Enact legislation to regulate the misuse of cryptocurrencies for sponsoring organized crime and
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terrorism.
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• Upgrade training infrastructure for state police and establish special crime cells in states.
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