Maharashtra Adds To Its Stable Of Draconian Laws, Civil Society Protests

Civil society and journalists have raised concerns over the recently tabled Special Public Security Bill, 2024 by the Maharashtra government. The government tabled the Bill claiming that the existing anti-terror laws are “insufficient” to tackle what they term “Urban Naxalism.”

The Bill empowers the state to criminalise “unlawful activity” by individuals and prescribes stringent punishments against organisations it deems unlawful.

There has been a concern over the Bill as Maharashtra already has the Maharashtra Control of Organised Crime Act or MCOCA, which is as draconian as Unlawful Activities (Prevention) Act (UAPA).

The Maharashtra Control of Organised Crime Act was the first State legislation which was enacted to address organised crime in India. It is also known as the MCOCA 1999 bare act. It was introduced in the Legislative Assembly by Mr. Gopinath Munde and was passed by the Maharashtra State Legislative Assembly.10 Aug 2023

The MCOCA grants the State police powers to investigate and prosecute crime syndicates, including intercepting communications, and secret witnesses and seizing property.

Critics believe with the State’s MCOCA and Centre’s UAPA 1976, already in place, the new Bill seems unnecessary.

Speaking to The Citizen Lara Jesani, lawyer at Bombay High Court and General Secretary of civil organisation People's Union for Civil Liberties (PUCL), Maharashtra said, “PSA has been used in other states against dissenters and protestors, especially adivasis, activists, lawyers, journalists and those raising human right concerns. In that regard we have observed the trend of how laws such as the Public Security Act or Public Safety Act are used".

In Maharashtra for organised crime we have a special law, which is the MOCOCA and there is also the anti-terror legislation UAPA for unlawful activities. These laws are also draconian, but at the same time they are in force and being used in Maharashtra for a long time now.

While the processes are the same as UAPA, the tabled Bill expands its definition of unlawful activity, bringing under its ambit everything from “being a menace to public order” and “interfering with administration of law,” to “generating fear and apprehension in public” and “preaching disobedience of law.”

Jesani explains that the whole Bill is vague wherein they can arrest including dissenters or protesters.

“We are seeing a plethora of laws now in this one area of internal security. So, the question that is being raised is whether there is even any need for such an Act in Maharashtra.

“Second, what is the purpose of this act? If you see the statements and objectives of this act and the statement by Chief Minister (Eknath Shinde) who was the state Home Minister on how there is a need to counter Naxalism,” Jesani said.

The proposed law brings “Urban Naxals,” the term that has been used, controversially, to target students, writers, activists, into the legal vocabulary.

In its Statement of Objects and Reasons, the Bill says that the “menace of Naxalism is not limited to remote areas of the Naxal affected states but its presence is increasing in the urban areas.”

“The term ‘Urban Naxal’ was also used by deputy chief minister Fardanvis. When the Bill was introduced, he said ‘there are these urban naxals who are living in urban areas and are spreading naxalism’. It is important to see how the term ‘Urban Naxal’ has been used against activists and dissenters,” Jesani added.

The courts have consistently called for a higher bar for the state to invoke stringent laws. The Delhi High Court, in the 2019 Delhi riots case, said that “the more stringent a penal provision, the more strictly it must be construed”.

“The extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law,” the HC had said.

In the 2019 Bhima Koregaon cases, the SC has in the last two years granted bail to several accused. The “mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 (UAPA) Act…”, the SC said.

The Bill was tabled on the last day of the Monsoon Session in Maharashtra Assembly.

PUCL in a statement while criticising the law said that the Bill, was drafted on the lines of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (2005) (“Chhattisgarh Act”) and the Andhra Pradesh Special Public Security Act (1992).

“In the state of Chhattisgarh, and Jammu and Kashmir - where similar law being the Jammu and Kashmir Public Safety Act, 1978 was first introduced, it has received extensive criticism for being used to target journalists, lawyers, environmental defenders, citizen activists and adivasi protestors who have dissented against state action. A constitutional challenge to the Chhattisgarh Act is pending before the Hon’ble Supreme Court,” the PUCL statement noted.

The civil society and journalist associations have argued that the draft of the Maharashtra Special Public Security Bill was not made available in the public domain nor made open to public scrutiny and objections.

“The tabling of the Bill in haste in the last few days of the Monsoon Session, just two months before the State Assembly elections are to be held, is itself indicative of the opacity of the entire process and suspect motives behind its introduction at this critical time of democratic engagement,” PUCL added.

Civil societies have pointed out that the Bill contains an “unacceptably broad and vague definition” of “unlawful activity” that includes any action which ‘constitutes a danger or menace to public order, peace or tranquillity’; or even ‘interferes or has a tendency to interfere with the maintenance of public order’; or ‘interferes or tends to interfere with the administration of law, or its established institutions and personnel’.

“Even the time-honoured practice of Satyagraha and any non-violent act of civil disobedience would be hit by such provisions, as also peaceful protests which are in no manner associated with violence or terrorism, but are in fact a constitutional right associated with democratic expression of citizens. In any event, these activities are already provided for and could easily be dealt with under the ordinary criminal law,” the PUCL observed.

Jesani further said that the law is going to be a major repressive tool “All of this points to just one thing that this law is being introduced to silence dissenting voices and to use it as a repressive tool,” she said.

Advocates meanwhile point out that the Bill includes not just actions but any act of expression, like spoken words, online messages or posts, articles, artworks, demonstrations, placards, even gestures.

“Even an act or expression of support or solidarity provided by a person or group of persons could constitute an unlawful activity. It follows that all freedoms protected under Article 19 of the Indian Constitution can thus be curtailed - including freedom of speech and expression, association and assembly, press freedoms, academic freedoms etc.

“Even making a statement, lending of a book, or social media meme prepared or posted by an individual could be considered “unlawful activity” under the Bill. This is wholly dangerous, and can be potentially used against journalists, writers, filmmakers, artists and any citizen expressing their dissent or critiquing the government, in any form or manner,” PUCL added.

According to the Bill “organisation” can be notified as ‘being unlawful or having become unlawful’ even before such notification is placed before an Advisory Board within 6 weeks; and the Advisory Board can take up to three months in deciding whether there is sufficient cause for issuance of the notification.

“The notification that the government issues regarding declaration of unlawful organisation requires only the grounds to be stated (which is likely to be vague terms around danger to public order), but the Bill provides that the disclosure of any fact can be dispensed with by the Government in public interest, making the entire process non-transparent and making it easy for the Government to outlaw an organisation and target its members, without even providing reasons.

“Even if such an organisation has formally dissolved itself, it can be prosecuted. The organisation in question is granted an opportunity to make a representation to the government only within 15 days of such notification.

“Even personal hearing before the Advisory Board is provided only to the authorised office bearer of the organisation, who can be promptly arrested, since being a member per se is an offence under the Act. Moreover, no hearing whatsoever is provided before issuing such a notification against the organisation,” PUCL explained.

Human Rights Lawyer Colin Gonsalves in an editorial explains the law as draconian and said that anyone involved in peaceful dissent can also be arrested under this law.

“If I encourage disobedience by peaceful means, of authorities promoting illegalities such as tree cutting and environmental degradation, or if I innocently participate in a meeting of social workers protesting against torture by the police and fake encounters, I am immediately liable to be arrested and kept in jail for three years.

“It is no excuse for me to say that I did not know the identity of some of the organisers who, according to the police, had dubious links with certain organisations. I will be caught nevertheless under Section 8 even if I am not a member of any unlawful organisation,” Gonsalves wrote.

Meanwhile, an “unlawful organisation” is defined under the Bill as ‘any organisation which indulges in or has in pursuance of its objects abets, assists or gives aid, or encourages directly or indirectly through any medium, devices or otherwise, any unlawful activity’.

This means that any or every organisation, whether fictitious or real, whether directly or indirectly engaging in any of the broad activities defined as “unlawful activity”, could be potentially declared as an “unlawful organisation”. The definition of “unlawful organisation” also mischievously fails to mention that it is required to be declared as unlawful under the Bill.

“Owing to such broad definitions provided in the Bill, the government is only required to be of the opinion that an organisation is or has become unlawful. There is no burden of proof whatsoever that is required to be borne by the government in declaring any persons or group and their activities as unlawful.

“In effect, the Bill gives the government the power to go after any individual or organisation that it perceives as a threat, can declare all its activities (including non-violent activity, speech or communications) as unlawful, and restrict its activities and punish some or all the individuals associated with it.

“Furthermore, the government will also have the power to bring an entirely fictitious ‘organisation’ into existence, simply on account of a common purpose or shared ideology of a group of individuals, and act against the individuals that it deems to be associated with it, even in the absence of any evidence to substantiate the claim,” PUCL added.

The Bill has also delegated draconian powers to a District Magistrate or Commissioner of Police or any officer authorized by him, who can notify a particular area or a particular building which in his opinion is used for unlawful activities; and then proceed to take possession of it, seize all articles in it and evict all persons in it.

Like other anti-terror laws, no notice or opportunity of hearing is provided before issuing notification in respect of an area or building, instead sweeping powers have been given to notify, raid and take over possession of notified places without recourse to the aggrieved organisation or individuals.

“Discretionary powers have been given to take possession of moveable property (including moneys, security and other assets found in the notified place) and even forfeit articles in favour of the government after considering representation of the person claiming the same. Even appeal from such order of forfeiture is before the Government itself!

“This gives rise to a serious apprehension of mass arrests, forfeiture of property and evictions, especially in remote areas where adivasis and forest dwelling communities are protesting against forest diversion and deforestation activities, mining, or high impact, high stake developmental projects that seek to displace them,” PUCL further said.

The civil society added that the Bill cannot be allowed to “silence the active citizenry and vitiate the democratic ethos of Maharashtra”.

“There are lessons to learn from the Chhattisgarh Act, which has been used against ordinary adivasis forced to attend a meeting, or a doctor whose prescription was found in the kit bag of a Naxalite, or a tailor who unknowingly fulfilled an order of stitching uniforms, or a security guard whose vehicle was seized at gunpoint by Naxalites.

“When the Act was proposed in Chhattisgarh in 2005, journalists were the first to protest, since it was clear from the language of the Act that even publishing the press release of an unlawful organisation, or reporting on the activities of such an organisation could attract punishment. Such a law if allowed in Maharashtra would only serve as a tool of abuse and repression, and will result in a chilling effect in the state,” it added.

Meanwhile, BrihanMumbai Union of Journalists in a statement said that the Bill poses a serious threat to freedom of expression and speech. They further said that the law can be misused against media persons.

“These provisions lack definitional clarity and have the potential to be misused against media persons investigating or reporting any acts that the police or the administration may deem to be a menace to public order.

“Arguably, the provisions could be invoked against journalists reporting on natural disasters, a health epidemic or even the collapse of a bridge,” it said in a statement.

They further said that during Covid-19 lockdowns, more than 50 journalists were arrested or charged with spreading panic for merely reporting on administrative failures or the plight of citizens struggling to return home.

Speaking about similar laws that have already been enacted in Chhattisgarh, Telangana, Andhra Pradesh and Odisha have already enacted similar laws, BUJ said, “The BUJ notes that, in all these states, Public Security Act cases have been filed against journalists for their professional work. In Chhattisgarh, for instance, journalists have been charged under the Chhattisgarh Special Public Security Act, 2005 for their reporting on the conflict between security forces and Maoists.”

Journalist Santosh Yadav, arrested under this act in 2015, spent more than one and a half years in jail after being acquitted by a National Investigation Agency (NIA) court in Jagdalpur in 2020.

“The BUJ asserts that such legislation is eventually repressive. While purportedly aimed at curbing unlawful activity, its provisions will eventually be misused against various law-abiding citizens and criminalise the mere reportage of existing social and economic inequalities in society and people’s legitimate protests,” the statement added.

The BUJ demanded that the Bill be withdrawn till wider consultation is initiated over its provisions and suggestions and recommendations are invited from the public as well as journalist organisations and civil society associations.

Jesani meanwhile added that discussions regarding this will take place in the coming days.