New Delhi: Maharashtra Chief Minister Devendra Fadnavis reintroduced the Maharashtra Special Public Security Bill, 2024 during the winter session of the state assembly last month, saying that the proposed law does not attempt to suppress genuine dissenting voices, but to close down the dens of urban Naxals instead.
The bill has been sent to a joint committee and will be brought up again during the monsoon session later this year.
The bill aims to bring in a new law that would provide for “more effective prevention of certain unlawful activities of individuals and organisations”. Section 2(f) of the Bill defines “unlawful activity” as “any action taken by an individual or organisation”, either by committing an act or by words (spoken or written), or even by signs, visible representation or otherwise.
Although other anti-terror laws, like the Unlawful Activities (Prevention) Act, 1967 have defined terms like “unlawful activity” in the past, there exist significant differences in the way that it has been done.
Moreover, this is not the first time that the Maharashtra government has attempted to introduce such a legislation in the state assembly. On 9 July, 2024, the Maharashtra Special Public Security Bill was introduced by the Eknath Shinde-led government in the assembly during the monsoon session, but it was met with opposition.
Mumbai-based lawyer Hamza Lakdawala told ThePrint, “This is just a fresh remix of what you had—starting from MISA (Maintenance of Internal Security Act), TADA (Terrorist and Disruptive Activities (Prevention) Act), POTA (Prevention of Terrorism Act), to UAPA, NSA (National Security Act) to MCOCA (Maharashtra Control of Organised Crime Act), which are effectively the same bills reshuffled every five years. Although the bill has some ‘safeguards’ to reassure you that the bill isn’t old wine in a new bottle, they seem prima facie ineffective and futile.”
Why the bill was reintroduced
According to the bill’s statement of objectives and reasons, the “menace of naxalism” is not limited to remote areas of naxal-affected states and its presence in urban areas through “naxal frontal organisations” has only been increasing.
Emphasising how “active frontal organisations” of naxal groups provide constant and effective support when it comes to logistics and the safe refuge of armed cadres, the bill adds that seized naxal literature often talks about “safe houses” and “urban dens” of the Maoist network in Maharashtra.
“The activities of naxal organisations or similar organisations through their united front are creating unrest among common masses to propagate their ideology of armed rebellion against the constitutional mandate and disrupting public order in the state,” it says.
Underlining how such “unlawful activities” of frontal organisations need to be controlled by effective legal means, the bill adds that existing laws are “ineffective” and “inadequate” to tackle naxalism.
According to the bill, the Ministry of Home Affairs (MHA) has issued directions, from time to time, to counter activities of such organisations in urban areas and to block the flow of funds to them.
For instance, the MHA’s guidelines for security-related expenditure for naxal-hit states also advised enacting a state-specific law to tackle unlawful activities of naxal and extremist organizations, it says.
States like Chhattisgarh, Telangana, Andhra Pradesh and Odisha have already enacted the Public Security Acts for effective prevention of unlawful activities of such organisations, and banned 48 frontal organisations.
As the chief minister reintroduced the bill in the assembly, Congress leader Nana Patole questioned the need for a separate law when existing ones have provisions to tackle Naxalism. Fadnavis, however, replied that Maharashtra does not have a law that tackles Naxalism. “We have IPC (Indian Penal Code) and UAPA (Unlawful Activities (Prevention) Act). UAPA is for handling cases related to terror activities.”
Defining ‘unlawful activity’
“Unlawful activity” has been defined under Section 2(f) of the bill as “any action taken by an individual or organisation, whether by committing an act or by words, either spoken or written, or by signs, or by visible representation or otherwise”, which constitutes a danger or menace to public order, peace and tranquility.
Alternatively, if such words or actions or signs interfere with or tend to interfere with the maintenance of public order, or if they interfere with the administration of law or established institutions and personnel, they could also constitute “unlawful activity”.
Moreover, if they are “designed to overawe by criminal force” or show criminal force to any public servant, including that of the state government or the Centre, while they are lawfully exercising powers, it could also amount to an offence under this provision.
Indulging in or propagating acts of violence, vandalism or other acts generating fear and apprehension in public, or encouraging use of firearms, explosives or other devices or disrupting communications by rail, road, air or water will also amount to “unlawful activity”.
Other instances of such activities include “encouraging or preaching disobedience to established law and its institutions”, and collecting money or goods to carry out any one or more unlawful activity mentioned above.
UAPA, on the other hand, defines “unlawful activity” to mean any action, sign or words intended to or support any claim to bring about, on any ground whatsoever, “the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession”.
This definition also includes activities that disclaim, question or disrupt the sovereignty and territorial integrity of India, or those intended to cause disaffection against India.
However, the element of intention is absent in the definition given under the Maharashtra Special Public Security Bill and the contours of the term have been kept broad to include more activities in its ambit. The UAPA has a narrower definition of the term, which has also been substantiated through a series of judgments delivered by Indian courts.
While defining ‘unlawful activity’, the bill casts a very wide net, Lakdawala said, as it includes within its ambit everything—from words, signs and visual representation to actions—constituting a danger or menace to public order, or even encouraging the use of firearms. “For instance, if you are in a small fight with two-three people, you could be implicated under this. The law envisages several vaguely defined acts as offences.”
Underlining that this is not how a criminal law should be drafted, he said, “A criminal law, especially one with harsh punishments, should be drafted with precision and should very clearly define what constitutes an offence.”
Essentially, the proposed law contains the possibility of giving very wide powers to the police to arrest anyone that might constitute a danger to public order according to them, he said. “It is likely to criminalise fundamental freedoms, such as the right to protest.”
Declaring an organisation ‘unlawful’
An “unlawful organisation” has been defined as any organisation, which indulges in or in pursuance of its objectives, “abets or assists or gives aid, or encourages directly or indirectly through any medium, devices or otherwise, any unlawful activity”.
If the government is of the opinion that any organisation is, or has become an unlawful organisation, it may declare such an organization to be unlawful by notification in the Official Gazette. The proposed law would allow the Maharashtra government to declare any organisation as “unlawful”, Section 3 of the bill says.
Although the bill mandates that the process of declaring any organisation as unlawful must be backed by the grounds or reasons for its declaration, Section 3(2) contains a proviso or an exception that allows the government to refrain from disclosing facts that it considers against public interest.
Subsequently, such a declaration must be confirmed by an advisory board, which would be composed of three persons, who are high court judges or “qualified to be appointed” as high court judges. The latter can range from a lawyer with 10 years of practice to a person who has held a judicial office for a minimum of 10 years.
Although Section 3(3) says that no notification declaring an organisation “unlawful” will come into force until the advisory board confirms it, this requirement can also be done away with if the state government believes that existing circumstances render it necessary for the organisation to be declared “unlawful” with immediate effect.
If any organisation or individual wants to appeal this decision or have the opportunity to be heard, it can make a representation within 15 days of the notification’s publication.
Among other powers, the advisory board can act as a civil court while trying a suit, when it comes to summoning and enforcing attendance of witnesses and examining them, discovery and production of documents or other material objects as evidence, receiving evidence on affidavits, and while requisitioning public records from any court or office.
Lakdawala told ThePrint, “While on surface, it looks assuring that they are appointing a high court, or someone at least qualified to be one, the latter means they can appoint anyone who is an advocate. There are no restrictions to being appointed as a high court judge, except minimum age of 35 years, 10 years of practice and the screening of the candidate by the collegium, but in this case, since no candidate is being appointed, there is no screening happening either.”
Penalties
All offences under the proposed act will be cognisable and non-bailable, which means that the police can arrest without a warrant. The offences are to be investigated by a police officer not below the rank of a sub-inspector, Section 16 of the bill says.
No court shall take cognisance of any such offence, except on the report of an officer not below the rank of the Additional Director General of Police, it adds.
Section 8 says, “Whoever is a member of an unlawful organisation, or takes part in meetings or activities of any such organisation, or contributes or receives or solicits any contribution for the purpose of any such organisation, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine up to three lakh rupees,” Section 8 reads.
It also accords a maximum punishment of two years, along with a fine of up to Rs 2 lakh, even for non-members, who in any manner, contribute or receive or solicit “any contribution or aid for such organisation or harbours any member of such organisation”.
Whoever manages or assists in the management of an unlawful organisation, or promotes, or assists in promoting a meeting of such an organisation, can also be punished with up to three years imprisonment and a Rs 3 lakh fine.
The maximum punishment under the proposed law, however, is stipulated for those who commit, abet, or attempt to commit, or abet “any unlawful activity of such unlawful organisation”. For such persons, imprisonment can extend up to seven years, along with a Rs 5 lakh fine.
(Edited by Mannat Chugh)
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