By Tirthankar Mitra
KOLKATA: West Bengal Public Safety and Control of Anti-Socials Bill has been passed and enacted into law It permits the state to detain individuals deemed to be a threat to public safety without trial. Under its provisions, habitual offenders can be barred from entering specific districts for a year. The state is empowered to confiscate property related to organised crime. Scams and extortion rackets are being unearthed daily in West Bengal. Together with it, the focus is also on such property built from these ill gotten gains.
In the backdrop of criminal activities and extortions in West Bengal, the first BJP government of the state moving the West Bengal Public Safety and Control of Anti-Socials Bill is indeed a welcome move. But even as it underscores the government’s resolve to lay down the law of the land with a firm hand, the scope of “anti-social activities” has not been clearly defined.
Coming to the West Bengal law, one would not be quite off the mark if there are apprehensions of its misuse. It leaves room for mischief. Yet much can be said to support it. It seems to be. necessary to correct the way laws were given a go by and public life disrupted for the past several years in West Bengal. Its goal is commendable. Not bringing public order under duress is an essential pre-condition for any government.
The new dispensation at the helm of the state is no exception. Yet the concern lies in the possibility of overreach. Generations of yore who are now senior citizens and not so young ruefully recall the early ’70s during which India in general and West Bengal in particular witnessed this state into a killing field and a vast detention camp. Blood of many an innocent were shed to uphold public order which was buttressed by Maintenance of Internal Security Act (MISA).
Numerous youth of the state spent valuable years of their lives behind the bars for having committed crimes they were unaware of. The MISA gave sweeping powers to the government which was misused leading to its withdrawal in 1978.
One can recall unpleasant memories of the MISA as Opposition leaders including Jaya Prakash Narayan, Atal Behari Vajpayee and Lal Krishna Advani were put behind bars under it. The same time span witnessed journalists like Magsaysay award winner Gour Kishor Ghosh and Barun Sengupta being imprisoned.
The BJP state government justifies the law by the inadequacy of the existing laws against organised criminal networks, extortions, illegal mining, land grabbing and violence that damaged private and public property. But it requires a second look and it ought to be a long hard one.
This legislation is not the first of its kind in the country. Similar laws have been enacted earlier in Gujarat, Uttar Pradesh and Tamil Nadu. These Acts also include preventive detention and externment as indispensible tools against habitual offenders and organised crimes. But a cautionary lesson needs to be drawn if experiences from these states are anything to go by.
Judicial criticism has often been directed at preventive detention. It has good reasons to do so after its arbitrary application against political activists, protestors. Individuals with tenuous criminal records have been brought under it. The courts have questioned the indiscriminate use of Uttar Pradesh Control of Goondas Act against persons without stained criminal records. High Court in Tamil Nadu have repeatedly quashed detention orders under the state’s Goondas Act. Such detention orders, the court noted were hobbled by procedural lapses and lack of sufficient grounds.
Telangana’s externment law was controversially invoked against film critic, Kathi Mahesh after remarks on religion. It raised concern over its use to suppress free speech. Coming to this law in West Bengal, one would not be quite off the mark to say that it’s definition confer wide discretion upon the executive, allowing preventive detention to be imposed without trial.
Restriction on some detainees to engage lawyers of their choice and restricting themselves to government legal aid is particularly troubling. It marks a departure from the constitutional guarantee of legal representation of one’s choice. One wonders whether dissent and civil protest would remain unscathed. After all, broad executive discretion with weak procedural safeguards create fertile ground for state abuse.
It is the government’s duty to combat and prevent organised crime. But the way to this end cannot have inadequate constitutional restraint when there are extraordinary powers in the hands of the executive to justify the legislation. (IPA Service)
