Radhika Chitkara
On 11 July 2024, the Maharashtra Special Public Security Bill 2024 (MhSPSB) for the âpreventionâ of certain unlawful activities of individuals and organizations was tabled before the Maharashtra State Assembly. Civil society has variously condemned this Bill for adding another tool in the arsenal of governments to indiscriminately criminalize democratic forms of political speech and association as âunlawful activitiesâ, enforced through special procedures that vest arbitrary powers in police and the government. In this sense, the MhSPSB joins the ranks of central legislations such as UAPA, PMLA, and state legislations such as the Control of Organized Crimes Acts in Karnataka (2000), Andhra Pradesh (2001), Uttar Pradesh (2018), Rajasthan (bill pending, 2023); Criminal Law (Amendment) Act in Jharkhand (1908) (CLA); Public Security Acts in Jammu and Kashmir, Chhattisgarh etc., as well as various central and state preventive detention laws like NSA. Maharashtra itself has such special laws of all stripes, including the Maharashtra Control of Organized Crimes Act (MCOCA) enacted in 1999, along with the operation of the central UAPA, and now, the MhSPSB.
The above background is certainly critical to understanding the legal landscape within which the MhSPSB makes an appearance. Common amongst all these laws is a criminalisation of association, tied to vague definitions of offences, under stringent bail conditions and investigative powers, eventually culminating in high rates of acquittals following trials. In this piece, however, I argue that the bite of laws such as the MhSPSB lies in the nature of punitive powers flowing from these offences which are enforced outside the criminal process, and under the MhSPSB, effectively outside the judicial apparatus. These are powers to ban organizations (also found under the UAPA), and the power to forfeit property (also found under UAPA, PMLA and the Bharatiya Nagarik Suraksha Sanhita).
I proceed in three parts. In the first part, I describe âcriminal processâ through the prism of criminal jurisprudence and statute. The second and third parts describe the powers to ban organizations and forfeit property in the MhSPSB, as compared to similar powers under UAPA. At focus in all these parts is the operation of independent checks and balances demarcated in the procedure for exercise of these powers, especially those relating to judicial oversight and fair trial rights of accused.
What is the criminal process?Â
Substantive criminal law declares certain acts as offences, while procedural law serves to regulate and prepare a case for trial. The function of the trial is to determine, independently and fairly, whether the person has committed an offence. To enable this adjudication, procedural law vests coercive powers in the police towards the collection of evidence through investigations. These coercive police powers do not stand on their own, but bear an intrinsic nexus to the adjudication of guilt at the stage of trial.
Here, rights serve to ensure fairness in adjudication and as external limits to coercive state power. Criminal jurisprudence thus deeply entrenches fair trial rights of the presumption of innocence, casting the burden on the state to prove guilt beyond reasonable doubt; for adjudication to be undertaken by an independent judicial tribunal, publically and through reasoned orders; for the right of an accused to be heard and to effectively defend themselves against accusations, etc.
The Code of Criminal Procedure (CrPC) and the BNSS encode the criminal process as a formal response to crime, geared towards guilt adjudication through a trial, where coercive police powers are recognized for the collection of evidence. While the entire gamut of fair trial rights may be limited to the trial itself, criminal process here mandates ante– or post-facto review of coercive police powers even for the collection of evidence. Thus, arrests must necessarily be followed by productions before Magistrates; searches must follow the procurement of warrants; recording of handwriting, voice samples etc., require prior permission from Magistrates, and so on.
It bears noting that these forms of external judicial scrutiny of police action constitute a routine part of criminal process, and are distinct from the kind of judicial review exercisable by constitutional courts in exercise of their writ or appellate jurisdiction. The former are recognized by statute, exercised by subordinate courts, and operate upon the routine exercise of coercive powers at the stage of investigations. The latter are recognized by the Constitution, exercised by constitutional courts, and operate exceptionally when individuals choose to do so. As such, these are non-derogable powers that lie above and beyond the criminal process, activated when grounds for appeal and rights violations are made out independent of the subject-matter of the case.
The MhSPSB follows the criminal process under Section 8, where it defines four offences: membership, participation and financial contribution to unlawful organization (UO); non-membersâ financial contribution or harbouring members of UO; management or assistance to activities of UO; and the actual commission, abetment or planning of unlawful activities (UA).
Section 2(f) of the MhSPSB defines UA in substantially different registers as compared to the definition of the same phrase under the UAPA, but comes close to the definition of âterrorist actâ under Section 113 of the Bharatiya Nyaya Sanhita (BNS). While casting the net wide under all three laws to include any acts done, words spoken or written, visual representation or âotherwiseâ, UA under the MhSPSB brings within its ambit acts prejudicial to public order. UO is defined in Section 2(g) as one that has as its object, indulges in, aids or supports, directly or indirectly, UA as defined above.
Three of the four offences under Section 8 pertain to UOs, which, as subsequent sections elucidate, is an executive power independent of the criminal process. The fourth offence relates to the actual commission or planning of UA, which may or may not be independent of unlawful organizations. Pertinent to note, however, that these offences do not carry serious punishments. Except for the commission of UA, which carries a sentence of seven years, all other offences carry sentences of two-three years. This is not to endorse a regime of harsher sentencing in penal laws. It is merely to point out that the offences are not treated as serious within the lexicon of the statute itself. Minimal punishments in the MhSPSB may perhaps be explained by the pre-existence of harsher punishments for the same offences under other general and special laws.
However, the MhSPSB encodes two other kinds of punitive powers, that of banning organizations and of forfeiture of property, which operate outside the criminal process as described above.
Power to ban organizations
Sections 3-7 declare the powers of the state government to ban an organization as unlawful. This resembles, but is distinct from the same powers contained in Sections 3-6 UAPA. Section 3 MhSPSB empowers the state government to ban a UO and prescribes the procedure for its notification, subject to confirmation by an âAdvisory Boardâ [AB]. Sections 3-6 UAPA follow a similar layout, except that here, it is a Tribunal and not an AB that confirms the notification.
The state government can declare an organization as unlawful through a notification in the Official Gazette. This notification must specify the grounds on which such declaration is made. The government may choose to withhold information on grounds of public interest. The ban is effective for a period of one year, subject to further annual renewals (under UAPA this was earlier three years, later revised to five years). The notification is to have effect subject to confirmation by the AB, but may also come into effect prior to such confirmation in emergent circumstances if the government deems it fit.
Formally, the MhSPSB provides for review of this executive decision by the AB, comprising three persons, either sitting or former judges of the High Court, but may also include those who are not judges but are otherwise qualified to be judges of the High Court.
This is clearly not a criminal process, which would bring the power to ban an organization before Magistrates and Sessions Courts for review as per the standards of criminal jurisprudence. That would trigger the presumption of innocence, requiring the executive to justify its decision through the process of trial to a standard of beyond reasonable doubt. This is also not the writ jurisdiction of the High Court, which would make such executive action subject to a review on rights compliance. Under the UAPA, these proceedings proceed as âshow-causeâ proceedings, where the banned organization is called upon to justify why it should not be banned. At best, these operate as mere administrative reviews, to determine whether there exist valid grounds for the executive to act as it did.
It also cannot be said that the AB secures independent judicial scrutiny over the exercise of this power. The (optional) presence of sitting or former judges on the AB pretends to give judicial colour to the confirmation proceedings, but this is only an illusion. If these were intended as judicial proceedings, then it was equally possible to place the matter before actual sitting judges of the High Court at the High Court itself. Instead, MhSPSB, like the UAPA, pulls these judges out of the High Court and seats them in administrative or quasi-judicial bodies. Here, the government itself constitutes and appoints members of the AB to confirm its own notification, compromising its independence at inception itself. As such, it is not subject to the supervisory control of the judiciary vesting in the High Court, but to that of the government itself.
The affected organization has a right to represent itself before the AB. Under the MhSPSB, this representation is channelized through the government itself, and not directly to the AB. This right of representation is also a mirage, since the declaration of the ban renders all its members susceptible to immediate arrest. Previous experience with bans on SIMI under the UAPA has demonstrated that in effect, these review mechanisms act as mere rubber-stamps on the decision of the government.
Power to forfeit property
Sections 9-11 MhSPSB encode powers to exert economic duress and coercion independent of the criminal process. Section 9 empowers the District Magistrate (DM) or the Commissioner of Police (CoP) to notify any place they believe to be used for UA, to take possession of such place and evict the inhabitants thereof. Sections 10 and 11 relate to the power to forfeit movable property and funds believed to be used towards UA. The powers under Section 10 are exercisable by the DM or CoP for properties recovered from the place notified under Section 9, while the power under Section 11 lies with the government for funds independent of Section 9.
Similar powers also exist under Chapter V of the UAPA, introduced pursuant to amendments in 2012. Their origin, though, can be traced all the way back to the now-repealed provisions of the CLA 1908. The difference between the MhSPSB and UAPA lies in the authorities that exercise these powers. Under the UAPA, action taken by the government (through the investigating agency or designated authority) is subject to confirmation by a court of law, and appealable to the High Court. Under the MhSPSB, these powers are exercisable entirely by the DM or CoP without subsequent judicial confirmation.
The MhSPSB does not prescribe any procedure for the exercise of powers under Section 9. This means that the DM or CoP may take possession of any place, and evict persons residing therein, simply by notifying a place as one that is used for UA.
Under Section 10, the DM or CoP must proclaim in two local newspapers the list of properties sought to be forfeited, providing an opportunity to anyone to contest the order of forfeiture within fifteen days. This may be contested by sending a representation to the DM or CoP itself. The decision of the DM or CoP is appealable to the government within thirty days, and not to a court of law. Under Section 11, the government may pass an order of forfeiture against any property believed to be used for UA, after giving fifteen daysâ notice to the person in whose custody such property lies. Under Section 11(5), the government can also issue a âwarrantâ to an investigating officer, where issuance of warrants is a judicial function under the criminal process, to enter into any place and make inspect financial records. Section 11(10) further prohibits the disclosure of information gathered under the Section 11(5) search without the consent of the government. The power of forfeiture under Section 11 is subject to revision powers of the High Court, should the affected party choose to pursue this remedy within thirty days.
Like the power to ban organizations, thus, the power to forfeit property also does not follow the criminal process in exerting punitive powers associated with the declaration of offence of UA. Relative to similar powers under the UAPA, the MhSPSB further entirely eliminates judicial scrutiny from the power to notify places, and forfeit property believed to be associated with UA. These powers, which exercise significant economic duress and coercion, operate entirely through the executive machinery, without prior or post-facto judicial scrutiny, except through non-derogable constitutional remedies. Â
Three things bear noting about the power to ban organizations and forfeit property under the MhSPSB. One, these powers, though coercive, are not geared towards a trial. Although exercisable by the executive (governments, DMs or police), they do not entail the collection of evidence, to serve an independent adjudication of guilt. As such, these lie outside the criminal process, even though they technically follow the declaration of criminal offences.
Two, even outside the criminal process, they are not disciplined by the rigours of due process, as the exercise of these powers do not have to be justified before an independent judicial authority. Neither the AB, nor the state government, qualify as independent judicial tribunals. These are executive powers that exclude routine judicial scrutiny by design. Only constitutional powers, or, in the case of forfeiture of property, limited revisional powers of the High Court apply.
Three, these sui generis processes under such special criminal laws serve to bypass fair trial guarantees accompanying the criminal process, such as the presumption of innocence, public trial, effective right to defend oneself etc. The enactment of penal powers through such sui generis processes requires vigilance within constitutional democracies with a commitment to liberty and due process. Ashworth identifies this phenomenon in common law jurisdictions as one of the four central threats to the presumption of innocence. The MhSPSB adds to the compendious arsenal of police and punitive powers which go towards rendering the trial effectively irrelevant for punishment, either by beefing up the pre-trial stages of the criminal process, or bypassing the criminal process altogether.
Radhika Chitkara is an Assistant Professor of Law at National Law School of India University, where she teaches criminal law and undertakes clinical legal education in the area of human rights. She is presently pursuing her PhD on counter-terror policing and its institutions at NLSIU, where she is the Dr. NR Madhav Menon Doctoral Fellow.
Artist featured: Somnath Hore
The opinions expressed in the Blog are personal to the authors. The University does not subscribe to the views expressed in the article/blog and does not take any responsibility for the same.
