The Maharashtra government is in the process of formulating a new law, named the Maharashtra Protection of Internal Security Act (Bill), 2016 (MPISA) to regulate ‘internal security’ within the state. A draft of this law was released for public circulation and discussion about a week ago, but was abruptly withdrawn from the public domain on August 27 after being roundly castigated by civil liberties groups, opposition parties and even the BJP’s own ally within the state, the Shiv Sena.
Through this proposed bill, the government sought to introduce a new, and loosely defined, offence of ‘subversive act’ and to introduce the concept of Special Security Zones (SSZ) within the state where the government would enjoy untrammelled power to regulate the entry and movement of money, devices and materials of any sort. Essentially, this proposed Bill was meant to turn Maharashtra into a police state where free movement and free speech could be curbed as per the discretion of the nearest police officer. While the Bill has been withdrawn for now, there seems to be political intent to convert it into a law sooner or later, considering its stout defence by the state additional chief secretary (home) just before the Bill was withdrawn from the public domain. Clearly, the intent of the Maharashtra government was to continue the ongoing onslaught on civil liberties and fundamental rights in the name of state security.
The MPISA, as per the draft released, was meant to empower the police in almost absurd ways to create a police state. Section 14 (6) of the MPISA states, “Any Police Officer may use such force as may be necessary, in order to stop the commission of any offence under this Act, within his view”. This is unprecedented in the laws of India, apart from the Armed Forces (Special Powers) Act, which Maharashtra, for one, has never been subjected to. The police have powers to defend themselves and to stop offences and the law protects police officers unless their actions are contrary to any law.
The MPISA, on the other hand, seeks to empower police officers to use any and all force as may be necessary, citizen’s rights and criminal law notwithstanding. Similarly, it gives the state government and police the power to regulate entry of anything into an SSZ if the state government feels that it would be necessary for maintenance of internal security. This section is so widely worded that it would cover everything from cash, funding, cameras and mobile phones to arms and ammunition. The difference, of course, is that arms and ammunition are already regulated. Insofar as this law seeks to regulate funding in SSZ, it seems reminiscent of the Foreign Contributions (Regulation) Act, 1976 as it gives the government an excuse to regulate the funding of groups that disagree with it. It is absolutely pertinent here to mention that funding of illegal activities is already banned under general criminal laws and specifically under the Maharashtra Control of Organised Crimes Act, 1999 and the Unlawful Activities (Prevention) Act. This Bill does not just seek to block funding of illegal activities but goes beyond these other laws and empowers the police to block funding to any activity that would be considered a threat to internal security or public order in the area. This would leave local newspapers and institutions completely at the mercy of the government.
The MPISA Bill was also remarkable as it seemed to have been drafted with no regard for the requirements of constitutionality, or indeed even for the basics of legal drafting. In one instance, the Bill seeks to empower the state government to ban the entry of “electronic content of potentially explosive nature” in a Special Security Zone. Whether this refers to bombs or to electronic media is left open to interpretation. Unfortunately, this was not the only example of shoddy drafting. Section 14 criminalises ‘subversive acts’ stating that “No person shall do any subversive act with intent to injuriously affect whether by impairing the efficiency or impeding the working of anything or in any other manner whatsoever….” For the first time in the history of this country, or perhaps any country, has impairing the efficiency or impeding the work of ‘anything’ been declared a criminal offence. One of the reasons for the withdrawal of this Bill would surely be that it has been drafted in such an imprecise manner that courts of law would have found it impossible to uphold it, simply by reason of its shoddiness. However, even if one makes allowances for the shortcomings in the language of the proposed Bill, it would be hard to ignore the serious violations of fundamental rights that the MPISA contemplated.
The proposed Bill also seeks to punish ‘subversive’ activities. The definition of subversive activities includes “any act which is intended or is likely (a) to endanger – (i) communal harmony, and/or (ii) the safety or stability of the State or any part thereof; (b) to prejudice the recruiting of, or the attendance of persons for service in any police force or fire brigade, or any other body of persons entered, enrolled or engaged as public servants or to tamper with the loyalty of such persons; (c) to impede, delay or restrict – (i) any work or operation; or (ii) any means of transport or locomotion, necessary for the production, procurement, supply or distribution of any essential commodity, except in furtherance of an industrial dispute as defined in the Industrial Disputes Act, 1947.”
As such, a rail roko agitation, a demonstration in front of a municipal office, a denunciation of the caste system or the triple talaq system and a speech about police corruption would all be considered “subversive acts”. The Bill does seek to soften the blow of “subversive act” somewhat by including an explanation that “Acts bona fide indicating disapprobation of the policy or measures of the Government with a view to obtaining their alteration by lawful and peaceful means, shall not be deemed to be acts which are intended or are likely to endanger the safety or stability of the State.” The problem with this explanation is that a similar qualifier in our law, to the law of sedition under Section 124A of the Indian Penal Code, does not seem to have checked the rampant misuse of that provision and it is safe to conculce that it would not check the rampant misuse of this provision. When only “bona fide” criticisms are to be allowed, the decision about what criticisms are “bona fide” becomes all important. This decision will be taken by the police and the state government. Past experience in this country forces us to think that the determination of what is “bona fide” criticism may not always be based on fair and objective parameters.
A discussion on civil disobedience would technically come within the purview of “subversive act” as it may cause feelings of disloyalty among members of the police and may impede the efficiency of the police. Regarding the damage to governmental buildings being a subversive act, there already exists a Prevention of Damage to Public Property Act, as well as general criminal law, which punishes these acts. This proposed new law is bizarre in this way, in that it only seeks to address issues which have already been addressed through existing laws and then further empowers the police to absurd lengths.
There is much more in this Bill which should concern any citizen of this country, only the most egregious violations of citizen’s rights are mentioned in this article. The MPISA criminalises the act of giving false information to a police officer conducting an investigation. One of the bedrocks of criminal law in India has been that it is only a witness’s statements before a judge which are considered believable and not the statements before the police. Under this Act, however, if any witness seeks to resile from any part of his statement recorded by the police (which statements are always recorded by the police and are often found during trial to contain inaccuracies, errors and omissions), he would be liable for prosecution under the MPISA. The police would be able to dictate to the witness what is to be stated on pain of prosecution and a jail sentence for upto five years. The process of investigation followed by trial would become meaningless. It is, after all, the police which would, under the provisions of the MPISA, decide who had provided them false information.
The acronym of this proposed bill, MPISA, is eerily reminiscent of the ill-remembered MISA or Maintenance of Internal Security Act which was one of the most draconian laws enacted in modern India. Where MISA provided for detention without trial, the new MPISA seeks to convert the state of Maharashtra itself into a glorified jail. The MPISA, as per its stated objectives is meant to help the state of Maharashtra deal with the challenges of “terrorism, insurgency, communalism, caste violence, etc”. Aimed as it is at combating so many evils, the Bill allows the Maharashtra government and the police a variety of powers which cannot but become instruments of repression. There is no mechanism to check misuse of powers by the police under the MPISA.
In fact, the MPISA is so extreme in its prescriptions that it seems hard to believe that any state government would seriously consider bringing in such a law. It is possible that this proposed law was only a political ploy to divert attention from the many challenges faced by the BJP, to create a false dichotomy of state security versus civil liberties, which is publicly promoted by that party. Regardless of the real intentions behind the MPISA, the fact that any government is looking to enact a draconian law which cannot but have the effect of trampling all political opposition, including societal movements, is cause for grave concern. It is also perhaps a sign that India is facing challenges that, at least in terms of their insidiousness, she has not faced before.
Sarim Naved is a Delhi-based advocate.