Cementing security or criminalising dissent?

Vague wording, sweeping powers in Maharashtra’s proposed Public Security Bill reflect a threat to democratic expression, which could set a worrying precedent in the nation

With the Maharashtra state elections on the horizon, the tabling of the Maharashtra Special Public Security Bill, 2024 (MSPS Bill) by the BJP-led state government in the monsoon session of the state legislative Assembly on July 11, 2024, points to several signs of desperation. Even as the Assembly session came to an end without the Bill being passed, the shockwaves generated by this sudden action, taken by the government without any prior consultation, continue to persist, warning us of the imminent threat any such repressive law would pose to the vibrant democratic spirit of Maharashtra. 

The timing of the Bill is even more suspect, considering the overwhelming mandate of Maharashtra’s voters against BJP in the recently concluded Lok Sabha elections. A palpable fear of rejection and consequent need to increase control over citizens, critics and opponents through the forceful arm of the state appears to be at the heart of this latest move.

While introducing the Bill, Deputy Chief Minister Devendra Fadnavis declared that this law was being brought in to deal with the ‘menace of naxalism in urban areas’. Given that dissenters of the BJP government’s policy and action have been labelled “urban naxals” ever since the term was coined, it is clearly a declaration of the intent behind introducing this Bill. The text of the proposed law takes away any remaining doubt.

Vague wording

The proposed law, which bans unlawful organisations and targets its members, is a means to arrest any attempts at protesting by organising, meeting, speaking, writing or even conveying through social media, criticism of the government’s policies or decisions. All such democratic activities could constitute “unlawful activity” under the Bill, with the police given arbitrary powers to decide what constitutes danger or interference to maintenance of public order. 

Even the definition of “unlawful organisation” has been kept so broad and vague, so as to include any group of individuals labelled as urban naxals within its fold. The process of declaring any organisation ‘unlawful’ for a year at a time, is entirely non-transparent and arbitrary, lacking in safeguards. Hence, whether a group of individuals or the non-violent democratic activities it conducts are ‘unlawful’ or not, is left entirely to the discretion of the government.

The powers given to the police and government under the proposed law itself are draconian and excessive. Anyone can be implicated and arrested under this law before the organisation is held to be unlawful by the Advisory Board empowered to decide such matters. Further, the Advisory Board itself consists of government appointees, essentially political appointments. 

Even the grounds for declaring such an organisation unlawful can be withheld in public interest by the government. The Bill gives sweeping powers to not only raid and search premises but to also forfeit property in favour of the government even while the trial is pending before the court and before examination of the evidence against the accused individuals or organisations.

The wording of the law is so loose and powers given to the police so excessive, that any kind of engagement in democratic activity or even its planning is capable of being criminalised. The casual manner in which any form of association is included raises legitimate fear of abuse of the law by the law enforcement. This will have the effect of criminalising all forms of dissent that are constitutionally protected and the exercise of which constitute not only fundamental rights and freedoms but also a duty of active citizenry participating in a democracy.

At this juncture, we cannot look at the MSPS Bill in isolation from what is happening in the state and the rest of the nation. Public security and public safety Acts such as this have been used against active citizens historically, with protestors, Adivasis, journalists, lawyers, activists and intellectuals being criminalised for their critical speech and writings, and for standing up against the might of the State. They have been used to trample on citizens’ rights even through legal and judicial processes. 

The Chhattisgarh Special Public Security Act, 2005, for instance, which has ostensibly inspired the MSPS Bill, was invoked in its early days against Dr Binayak Sen, a medical doctor and human rights activist on allegations of linkages with Communist Party of India (Maoist). Recently, Suneeta Pottam, a young tribal activist who filed a PIL in the Supreme Court against extrajudicial killings in Bastar and has been raising her voice against sexual violence in the state, was arrested under a special law. Both are members of the People’s Union for Civil Liberties. The Chhattisgarh PSA has been used against Adivasi activists and protestors in the state who have been fighting for the protection of natural resources and resisting state excesses. The introduction of a similar law in Maharashtra is a retrograde step, and an attack on such democratic rights work across the country. It seeks to label those fighting to protect the human rights enshrined in the Indian Constitution as criminals and vilify their work as defenders.

It is not as though we lack laws on internal security in Maharashtra. In fact, stringent and draconian laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and the Unlawful Activities (Prevention) Act, 1967 (UAPA) are in force and are being used in the state. In fact, while UAPA covers a similar gambit of crimes as the Bill proposes, what the law attempts to do is to remove the requirement for permission from the government to prosecute the accused. This permission was provided in the UAPA to prevent unauthorised arrest or frivolous prosecution. An official was reported citing the case of Professor G N Saibaba, a former Delhi University professor recently acquitted along with others from UAPA charges due to the absence of sanction, as a reason for why this new law was being brought in to sidestep this requirement, thereby giving unsupervised powers to police officers.

Space for democratic expression

Maharashtra, which has a rich tradition of democratic protest and political engagement led by Ambedkar-Phule principles, has witnessed a systematic clampdown on citizens' right to democratic protest under the current dispensation. Most cities, like Mumbai, have been facing a continuous imposition of Section 144 of the Criminal Procedure Code, which restricts public protests, by branding them ‘unlawful assembly’. In Ratnagiri, the peaceful anti-oil refinery protests were met with police lathi charge and cases were slapped against protestors by the government. This selective denial of the right to protest of dissenters and shrinking of democratic space to voice public opinion is now made worse with the threat of criminal action under the Bill.

The intention of the proposed law is to instil fear in the minds of citizens and opponents and silence them, even as several contentious issues are being raised by citizens and are important election points. The need to come up with a new law to tackle ‘unlawful activities’ or curb ‘unlawful organisations’ in the state cannot be seen as anything but a statement against democratic expression and an attempt to silence any criticism of the government, in the wake of the upcoming state elections when conversations evaluating the performance of the current government will take centre stage. Even with the stiff opposition the proposed law has received, as the state government remains quiet on its intentions, the threat of it being introduced as an ordinance bypassing any debate in the legislature still looms large. For free and fair elections to happen in the state, it is pertinent that the environment in which such elections are conducted is free from the threat of a Maharashtra PSA. 

(Lara Jesani is an advocate practising in Bombay High Court and general secretary of the Maharashtra unit of People’s Union for Civil Liberties)