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IDSA COMMENT

The Draft Maharashtra Protection of Internal Security Act 2016: A Review

September 07, 2016

On 19 August 2016, a draft of the Maharashtra Protection of Internal Security Act 2016 (MPISA) was released into the public domain by the State Government. The draft statute, virtually first of its kind in the realm of internal security to be prepared by a state government, was under the scrutiny of various stakeholders including political parties and the public at large. A copy of the draft is reported to have been forwarded to the National Security Adviser. At a follow-up press briefing, Maharashtra’s Additional Chief Secretary concerned with law and order had observed that the security protocols followed under existing laws were inadequate and, inter alia, clarified that the MPISA has not yet been cleared by the State Government at the political level. There has, however, been criticism from some political quarters in Maharashtra to the effect that the proposed statute is likely to impinge on the basic rights of citizens enjoyable under normal circumstances and guaranteed under the Constitution. Consequently, the draft of the MPISA has been withdrawn from the public domain for reconsideration.

It is understood from administrative circles and the media that MPISA had been conceived quite some time back, even before the present political dispensation came to power. The latest draft had been worked out by a committee of senior IPS officers tasked for the purpose. The draft MPISA released on 19 August provided for a six-member apex or oversight body headed by the State’s Home Minister and including the Chief Secretary, Additional Chief Secretary (dealing with the Home Department), Director General of Police, Mumbai Police Commissioner and the Commissioner (in charge of the State's Intelligence Department) as Member Secretary.

It is noteworthy that different Maharashtra governments have been attempting to devise a state-specific internal security structure, taking into account the key lacunae in the existing set-up observed by the R.D. Pradhan Committee established in the aftermath of the 26/11 Mumbai terrorist attack. The attempt was essentially to view internal security holistically and adopt a system that was less dependent on the human element; for instance, the activation of counter-protective measures apropos inputs generated through a wireless protection scheme. Furthermore, the approach was to have an internal security framework encompassing every segment of society, involving different establishments and organisations (governmental and private), with internal security protocols to be observed by all while performing their normal domain-related activities. For appropriate oversight, a view within the state government was that an Apex State Internal Security Committee headed by the Home Minister and including the Leaders of the Legislative Assembly and Legislative Council would serve the purpose. This would have also helped to achieve a linkage between the internal security institution managed by the political executive and the state legislature. The draft MPISA of August 2016 has, however, provided for a smaller oversight committee of six members and does not include the leaders of the legislative assembly and council.

Some basic features of the MPISA draft under reference are as follows:

  1. it enjoins all authorities – private and public – to ensure security in the public zones or ambits under their control where more than 100 persons may assemble, with the stipulation that special permission is to be obtained from the police for such an assembly;
  2. it enables the government to invoke the Act and take specific protective measures at critical infrastructural installations like nuclear reactors, dams, bridges, major projects, coastal areas, etc., to combat terrorism;
  3. it empowers the government to take measures against organizations and groups promoting sectarian interests, subversive activities, etc.;
  4. it provides for segmenting the state into different special security zones with powers to maintain oversight and control movement of arms and explosives, contraband items and unaccounted funds; and
  5. offences under the Act will be punishable by a jail-term that may extend up to three years plus fine.

An apparent objective of the draft Act was to put in place a seamless network of internal security with a superimposed additional infrastructure of personnel and materials and a special standard operating procedure.

While the comprehensive approach being considered by Maharashtra in regard to internal security in the backdrop of the State's strategic disposition and past occurrences of security breaches is unexceptional, a point to ponder is whether it is necessary to have state or province-based internal security laws of the type of MPISA, notwithstanding the fact that, as per the Constitution, ‘law and order’ is a subject in List-2, i.e., the list of subjects exclusively assigned to the states for governance and enacting laws. Furthermore, varying internal security laws – as is likely if different states were to emulate the Maharashtra example, may have implications for nationwide, integrated and fool proof internal security management. Apart from the availability of the existing Criminal Procedure Code and Indian Penal Code, different Union Governments have, from time to time, as per the exigencies of the situation and their perceptions during their tenure, have enacted supporting laws. Some of the supplementary laws have stood the test of time while others have either had lacunae from the juridical angle or attracted human rights-related objections.

Notwithstanding all this, the instrumentality of a wide range of internal security laws and the operative machinery thereunder have been at the disposal of both the Union and the states for internal security management if viewed in the broadest perspective. The National Investigation Agency (NIA) is the most recent such a statutorily created Union institution in the existing internal security management framework, whose resources the states can always draw upon.

While the need for re-evaluating internal security holistically is undeniable, it may be appropriate to deal with this matter in the national context. Prior Union-State and inter-State consultation is needed before state-based laws are promulgated because of the overall implications as also the need to consider the similar or near-similar internal security milieu prevalent in many states that are contiguous to each other. Financial implications, the need for synchronization of inter-State efforts and the obtaining of optimum outcomes also cannot be lost sight of. Constitutionally established institutions like the Inter-State Council have a significant role in these matters, and should be the appropriate forum where laws like the MPISA are deliberated upon at the preliminary stage before their actual formulation. This will also be in keeping with the spirit of cooperative federalism.

A more appropriate course of action may be to draw up a set of parameters on internal security based on political consensus at the Union level and have it adopted through a Parliamentary Resolution. That would convey ‘the Sense of the august Houses’. Thereafter, States could be induced or prevailed upon to enact state-specific statutes within the contours of the national parameters that have been laid out.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.