It is to be noted that while the Maharashtra Special Public Security Bill was being introduced avowedly to tackle “urban naxals”, the term has been in usage from the Indian ultra-right as politically stigmatising and defiling term used by proto-fascist forces to criminalise protest and dissent, jail writers, academicians, activists and opposition Leaders especially. The said weapon has been, even prior to the year 2014, has been weaponised against Adivasis and Dalits, who protest against the unjust anti-minority policies of the state.

As the bill became public, experts and lawyers referred to the same as draconian and a dangerous piece of legislation that is being brought in to further supress dissent and cause alarm amongst the citizenry. Notably, the justification being offered for bringing in the bill is that similar versions of the Public Security Act currently are currently in force in Chhattisgarh, Telangana, Andhra Pradesh and Odisha. However, the state of Maharashtra already has the Maharashtra Control of Organised Crimes Act (MCOCA, 1999) under which several abusive prosecutions have been launched. Now, as this suppressive bill looms like a sword over the people of Maharashtra, the insistence of introducing more such that curb the rights of freedom of expression, movement, association (Article 19) and right to life (Article 21) and equality before the law (Article 14) in other states is no justification for Maharashtra, a rather progressive state, for enacting such a law.

Another reasoning that is being offered to bring in the MSPS Bill is that it will provide more effective prevention of certain unlawful activities of individuals and organisations. However, with the newly enforced Bharatiya Nyaya Sanhita, 2023 bringing in offenses such as “terrorist activities” (Section 113), “organised crimes” (Section 111) and “petty organised crimes” (Section 112) into the criminal laws governing the country, a separate MSPS bill was not required at all. Through the BNS, provisions of the Unlawful Activities (Prevention) Act and MCOCA have already been centralised, ensuring multiple tools in the land of a State and Police to use against its own citizens, raising questions over the necessity of bringing in the said bill.

Citizens for Justice and Peace, Mumbai, in consultation with experts and advocates, has dissected the said bill and its impact on the citizens.

Problematic Provisions of MSPS 2024

The draft MSPS Bill of 2024 has extremely vague, broad and therefore problematic definitions of “an unlawful activity” ((Section (2) (f) (i) to (vii)).  This loose definition is liable to malicious misuse. For instance, the interpretation of the ((Section (2) (f) (i)) phrase …” which constitutes a danger or menace to public order, peace and tranquillity” has been left open for interpretation, with potential for misuse. The usage of the word “menace” in the definition in itself problematic as the term “menace” is not defined anywhere in the law. It is crucial to highlight that the dictionary meaning of the word means, dangerous act of person, and leaves it open to the authorities to bring anything under the Act according to their discretion and penalise the ones being targeted. (They can say cooking on streets is a menace to public and arrest people).

This vagueness of definitions to make and include undefined “acts” as criminal acts is extremely problematic. In any law, any criminal act should be well defined and should not be left to be interpreted loosely by the police. Unfortunately, or rather consciously, this practice has been done away with in order to get away with accountability.

In addition to this, the definition of criminal act under Section 2(f) describes unlawful activity as:

As can be seen in the above provided definition, no concrete ambit is provided, and only vague words are used to define the nature of the acts that can be deemed as unlawful activities by the authorities. The law tends to give arbitrary powers to the police and it is an open secret that the political party in power is many times misusing police authority.

In lines with certain special legislations as well as state legislations, Section 5(1) (2) of the MSPS Bill provides for the setting up of the “Advisory Board” set up under the Act to adjudicate on the Actions of the State Government, police and Administration. Curiously, as per the said provision, the Advisory Board is required to be consisting of “three persons are, have been, or are qualified to be appointed as Judge of the High Court”, which means that existing retired or “non appointed officials or lawyers” also qualify to be a part of the Advisory Board. Since the Advisory Board is to be formed by the state government itself, one need not use their imagination to think of the ways in which the said provision can be used (or misused).

Section 9, through sub-section 1, provides draconian and arbitrary powers to the administration and the Police (DM or Police Commissioner) to take possession of or seize any notified area an evict persons from that premise (if women and children live there “reasonable time” is the only protection given to them!). Moreover, Section 10 (1) extends this arbitrary power to seize moveable properties, monies etc within this seized property making this one more power given to arbitrary use.

As per Section 12 of the draft MSPS Bill also denied those arrested any recourse of law at district level, and declares the High Court and Supreme Court as proper forums to file any petition to challenge action against this law. This militates against the four-tier system of Justice Redressal as laid down in the Indian Constitution. The reasoning behind the same remains to be clarified.

Under Sections 14 and 15 of the MSPS Bill, protection has been granted to every Police Officer and District Magistrate (bureaucrat) to be penalised or held accountable for any strictures are passed by the High Court or Supreme Court on misuse of prosecution, as the said two sections state that no actions can be initiated against them.

Dangers of New Bill (MSPS Act) in the face of existing BNS, 2023, UAPA, 1967 & PMLA, 2002

Various sections in the BNS, 2023 including Section 152, which reintroduces ‘Sedition’ under IPC 124-A and has been described by experts as ‘Sedition Plus’, Section 113, which criminalises terrorist acts, and Section 111, which brings in organised crimes, give arbitrary powers to the authorities to take action against those individuals who commit actions deemed to be against national integrity and national security.

CJP would specifically like to highlight Section 152 of the BNS, which states that  “acts that are endangering sovereignty, unity and integrity of India, purposefully or knowingly, by words, either spoken or written, or by science, or by visible representation, or by electronic communication or by use of financial means or otherwise, excites or attempts to excite cessation or armed rebellion or subversive activities, or encourages feeling of separatist activities, or endangers sovereignty or unity and integrity of India’ or indulges in or commits any such acts shall be punished with imprisonment for life or with imprisonment which may extend to 7 years, and shall also be liable to fine.” While being vague and broad by itself, the MSPS Bill also bears an uncanny resemblance to the said provision.

Additionally, Section 113 (1) of the BNS, 2023, which covers under its ambit anyone who does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the 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, mirrors Section 15 of the UAPA. The only difference is that it deals with acts committed in a foreign country as well.

Similarly, Section 113 (2) that deals with committing of such a terrorist act that results in death or otherwise, mirrors Section 16 of the UAPA verbatim. Section 113 (3), which covers those who conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, mirrors Section 18 of the UAPA verbatim. Section 113 (4), which deals with those who organise or cause to be organised any camp or camps for imparting training in terrorist act mirrors Section 18A of the UAPA verbatim. Section 113 (5) states that any person who is a member of an organisation which is involved in terrorist act mirrors Section 20 of the UAPA verbatim.

Section 113 (6), which covers the offense of voluntarily harbours or concealing those such person that commits a terrorist, has been taken from Section 19 of the UAPA verbatim.

Section 113 (7), which criminalises the offense of knowingly possessing any property derived or obtained from commission of any terrorist act, has been taken from Section 21 of the UAPA, present in BNS with a wider ambit.

The whole section has been picked from UAPA almost verbatim, without the relevant safeguards being present in BNSS (sanction). The question that arises is on what was the need to inculcate these draconian and stringent laws into the criminal laws of India and now, in Maharashtra to table one more such.

In the overall background that the nation is in today with a government that has jailed critics through a rampant misuse of the PMLA Act 2002 and the UAPA, 1967 –and the political revengeful manner in which investigation arm like ED is acting, the newly table MSPS Bill, is addition of another draconian face to the laws in the state and in the country.

Persecution by Multiplicity of Statute Charges

Another dangerous implication that will accompany this attempt to enact one more draconian state law is its impact on the provision for undertrials seeking statutory bail under the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 479 of the BNSS contains very stringent bail provisions for statutory bail. The said section limits the conditions for granting statutory bail to under trials—is a section in the new law which corresponds to section 436 A of the Carps, provides for the procedure to be adopted in case the under trial is to be given statutory bail after spending a particular period under detention. In the older CrPC, if an under trial has spent half of the maximum period of imprisonment for an offence in detention, they must be released on a personal bond (not to be applied to offences which are punishable by death) BNSS, 2023 retains the said provision, and makes it further stringent.

However now, under Section 479, the provision of granting bail to under trial prisoners will now be limited to those under trials who are first-time offenders if they have completed one-third of the maximum sentence. Since charge sheets often mention multiple offences, this may make many under trials ineligible for mandatory bail. Furthermore, through the said provision, the prohibition of getting bail under the said section had also been expanded to those offences that are punishable with life imprisonment. Therefore, the following under trials are barred from applying for statutory bail under the said section if: offences punishable by life imprisonment, and persons who have pending proceedings in more than one offence.

Nothing but a move to muzzle protests?

Former Chief Minister and Congress MLA Prithviraj Chavan spoke to the media, calling the bill to be “nothing but a move to muzzle protests”. Media reports have quoted Chavan as saying. “The government wanted to present and pass this bill today itself. We opposed it and requested the Speaker not to push it through. We will oppose the bill vehemently.”

Furthermore, the Maharashtra State Committee of the Communist Party of India (Marxist) has even called for the withdrawal of the bill, stating that it will have a deep impact on the democratic processes of governance. Therefore, the state of Maharashtra, like Karnataka and Tamil Nadu, should set about the task of amending the more draconian provisions of the BNS, 2023 and repeal earlier passed laws that have been abused and misused, rather than introducing more authoritarian legislations.

The complete bill can be accessed here:

Related:

Supreme Court: “Authorities cannot randomly accuse people of being foreigners, initiate investigation without material basis”

New Criminal Laws: Future risks for democracy and rights in India

Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

Modi’s government bypasses SC & Law Commission, no nuanced, strong penal sections on Hate Speech: BNS, 2023

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