The Maharashtra State Assembly in India recently passed the Maharashtra Special Public Security Bill (MSPS) with the stated objective of combating left-wing extremism, including what it terms the urban “frontal organisations”. The Bill is almost identical to pre-existing laws in the Indian states of Chhattisgarh and Andhra Pradesh/Telangana). Despite the Chief Minister’s assurances against misuse, the Bill warrants significant concern. This piece contends that by cloaking itself in the rhetoric of national security, the MSPS introduces vague, overbroad, and unconstitutional provisions that imperil fundamental rights and the rule of law.

Vague, Overbroad, and Unconstitutional

The Supreme Court has linked over breadth of legislation to the reasonable restrictions on the freedom of expression, association etc., with proportionality serving as the key metric for the determination of such reasonability. Consequently, restrictions permitting greater control over expression and association than the non-obstante clauses of Article 19 of the Constitution of India are deemed overly broad. A vague law, on the other hand, is one that does not outline illegality with sufficient definitude. Essentially, individuals must be able to understand which actions are impermissible, while those enforcing the laws should be able to apply the law with uniformity.

An “unlawful activity” under MSPS is defined to include actions that ‘tend to interfere with the administration of law or its institutions and personnel’ and ‘encouraging or preaching disobedience to established laws and its institutions’. The MSPS also lays out punishments for non-members that harbour any member of an unlawful organisation. While the Supreme Court previously read a mens rea requirement into a similar provision, the precedent is rendered ineffective when the process punishes before establishing guilt, as discussed hereunder. These overly broad provisions indiscriminately capture both constitutionally protected and proscribed activities. The Bill’s vagueness in defining illegal conduct with sufficient precision becomes especially problematic when an ‘unlawful activity’, as noted elsewhere, has been defined differently under Unlawful Activities (Prevention) Act, 1967 [“UAPA”].

Disregard for Natural Justice

The MSPS has been introduced with the contention that existing laws are insufficient for controlling frontal organisations of left-wing extremist groups. The scant justification for this claim has been called into question, given the declining rates of left-wing extremism-related violence, and with only 2 of the country’s 38 districts declared affected lying in Maharashtra. Nonetheless, this control is exercised in the form of police power whose purported safeguards are effectively nullified by their provisos. While the MSPS necessitates providing grounds for declaring an organisation unlawful, it simultaneously allows for withholding any facts considered to be ‘against public interest’. The Advisory Board, intended to serve as a check on executive authority, may be circumvented by the government when it opines that an organisation must be declared unlawful with immediate effect. This could result in an organisation being declared ‘unlawful’ without the opportunity to present its case for over four months.

When the executive believes a place is used for the activities of an unlawful organisation, it may take possession of such property and evict its occupants. Any movable property found therein may likewise be seized and forfeited to the government if the executive opines its potential for use in service of the organisation’s purposes. Any appeals against this forfeiture, however, lie with the Government, violating the rule against bias. This is in contrast to the UAPA, which provides for similar powers of forfeiture but outlines an appellate procedure to the High Court instead. Any money, securities, or other assets that the Government believes is being/intended to be used for the purpose of the organisation may likewise be forfeited to the Government. Against such forfeiture, the MSPS allows only for a revision petition to the High Court and not an appeal. This curtails the scope of judicial review, as the High Court can only rule on the ‘legality, correctness, and propriety’ of any order of forfeiture, precluding any re-appreciation of the evidence.

Conclusion

Ultimately, the MSPS is a deeply flawed piece of legislation. By adopting pre-existing laws aimed at curbing left-wing extremism from other states, the Maharashtra government has once again reinvigorated the debate on balance between national security imperatives and the constitutional mandate. Its overly broad and vague provisions are not mere follies of imperfect drafting. They represent fundamental assaults on constitutional guarantees and the rule of law. Legitimate state concerns cannot be leveraged as justifications for oppression. Even in the pursuit of security, a democracy must never sacrifice its foundational principles.