Maharashtra Special Public Security Act, 2025: Criminalising dissent under the guise of safety

The Maharashtra Special Public Security Act, 2025 (MSPS Act), passed on July 9, 2025, marks a disturbing shift in the State’s legal framework by criminalising dissent under the guise of public safety.

The Act aims to provide for more effective prevention of "certain unlawful activities of individuals and organizations". Such political language allows the State to brand any group - whether farmers’ unions, student collectives or civil rights organisations - as public threats, purely based on dissent. This fundamentally distorts the legislative intent and raises grave constitutional concerns.

The first part of this piece explains the various provisions of the Act. It highlights the potential for misuse by the authorities owing to the broad and unclear language used. The second part emphasises on the definition of "unlawful activity" as given under the Act considering the jurisprudence surrounding the freedom of speech. The wording of the limitation is eerily reminiscent of the now overruled Section 66A of the Information Technology Act.

Sections 3 to 7 allow the executive to deem organisations "unlawful" without Advisory Board approval. This Board, made up of a retired High Court judge, a district judge and a government pleader, lacks independence and impartiality. Importantly, affected parties have no remedy against gag orders, monitoring, cross-examination or evidentiary standards. Lack of procedural fairness, transparency and judicial independence undermines due process.

Section 8 of the Act criminalises membership, meetings, financing, publication and sponsorship of any “unlawful” association. Regardless of violence, the sentence is three to seven years in prison. These laws mimic the Unlawful Activities (Prevention) Act (UAPA), but have a lower threshold, inhibiting free thought, democratic mobilisation and ideological affiliation.

According to Sections 9 and 10, the State government and District Magistrate/Commissioner of Police may seize an unlawful organisation's notified places, remove individuals from them, confiscate movable property in them, seize its funds and restrict access to them.
These government actions may infringe constitutional rights such as the freedoms to associate, life, liberty and property.

Section 11 expands authoritarianism to financial surveillance and asset confiscation. Without legal warrants, the government can take monies used by “unlawful organizations.” Although 15 days are allowed for hearings, the executive makes the final decision. Unchecked powers promote fiscal repression and undermine due process and judicial scrutiny.

Sections 12 and 14 limit legal remedies by preventing district courts from hearing petitions and limiting judicial review to High Courts and the Supreme Court. This exclusion destroys India's four-tier judicial system and hurts the poor and marginalised who use lower courts for relief. It violates Articles 14 and 21, which provide justice and a fair hearing.

The Act allows petitions to the High Court contesting government decisions exclusively regarding (i) illegal entity designation or extension and (ii) cash seizure. In all other cases, the legislation precludes court appeals and stays.

Perhaps the worst is Section 17, which allows government personnel “in good faith” blanket immunity. No independent recourse, liability for improper prosecution, or monitoring exists. It institutionalises impunity and encourages power abuse against dissenters, protestors and opposition voices.

The procedure for identifying an organisation as illegal is outlined below. The government releases a public proclamation. The Advisory Board subsequently reviews the case and if it determines the same to be invalid, the government is obligated to rescind the notice. This prompts an inquiry of the appropriateness of such a method since the Act does not mandate the release of the Advisory Board's report that assesses the legitimacy of an organisation's classification as illegal.

Conversely, the law fails to satisfy the criteria for a fair, just and reasonable process as stipulated in Article 21 of the Constitution, as held in the case of Maneka Gandhi v Union of India. In that case, the Court concluded that procedure under Article 21 means fair, not formal procedure. Thus, executive authorities, when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done.

The law in the present scenario fails to pass this test, as an unlawful governmental action may inflict significant damage on an organisation, including reputational injury. These repercussions may occur prior to the organisation being given a chance to present its case. Furthermore, even the UAPA mandates that the Tribunal's ruling, which conducts a comparable review role, must be published in the gazette, a requirement missing in the MSPS.

This deviates from the norm established by the Bharatiya Nagarik Suraksha Sanhita (BNSS), which mandates that such activities need the issuance of warrants by a judicial magistrate. Under BNSS, a warrantless search may be conducted if immediate action is necessary. In such instances, the officer is required to document the rationale for his belief and the justification for the search. A duplicate of this record must be sent to the judicial magistrate. Conversely, the Act does not mandate any court review for these activities.

Further, the Supreme Court has noted that search is inherently an arbitrary procedure, necessitating the imposition of rigorous legal criteria. In contrast to existing legislation, the Act lacks provisions for protection against such searches. In the case of State of Rajasthan v. Rehman, the Court held that officers exercising powers under specific legislative frameworks must adhere to the general procedural laws such as the CrPC when performing searches. It further held that failure to comply with procedural mandates, like recording reasons for a search, can invalidate the search and any subsequent legal actions derived from it.

The Supreme Court in Shreya Singhal v. Union of India noted that a lack of definition for words might significantly restrict a substantial volume of protected and innocuous communication, as it annulled Section 66A of the Information Technology Act, 2000. The provision penalised communication deemed annoying, threatening, or excessively unpleasant, without providing additional clarification of these words. The Court deemed the terms ambiguous and indeterminate, rendering them invalid and held that limitations on freedom of speech and expression must have a direct link or nexus to threats to public order; distant or hypothetical connections cannot justify reasonable limits. The basis of “danger or menace to peace or tranquility” under the Act in Section 2 may just pertain to law and order concerns (localised disturbances) and may not satisfy the criteria for a threat to public order (broader disruptions impacting the population at large).  Further, it held that ambiguous and expansive criteria may result in a chilling effect, causing individuals to self-censor their speech to evade potential offences. Any legal limitation that is ambiguous and imprecise thus contravenes Article 14 and Article 21.

The Court in Dr. Ram Manohar Lohia v. State of Bihar and Others extensively delineated that "law and order constitutes the broadest circle, within which lies the circle of public order, and the smallest circle signifies the security of the State." It might be argued that the limitations on acts that "tend to interfere" may possess merely a tenuous or theoretical link, therefore failing to meet the criteria for a reasonable restriction.

The Act under Section 2 limits speech and expression that may not constitute incitement. It forbids speech and expression that "promotes or advocates disobedience to the law and its established institutions.”

Further the Supreme Court in 1960 annulled a comparable clause of the Uttar Pradesh Special Powers Act, 1932. The clause forbade speech and expression that "incites any individual or group to evade or postpone obligations." The Court noted that it cannot endorse the notion that a democratic framework allows no room for an agitational approach, nor that any incitement to violate an unjust legislation inherently constitutes a disruption of public order.

The MSPS Act does not exist in a legal vacuum. Maharashtra already has the Maharashtra Control of Organised Crime Act (MCOCA), while central laws such as the UAPA and the Bharatiya Nyaya Sanhita (BNS), 2023, provide comprehensive frameworks to deal with terrorism, secession and organised crime. The addition of the MSPS Act creates a redundant and excessively repressive legal tool that is unnecessary, given these existing statutes. It adds to the arsenal of laws used to suppress civil society, while diluting constitutional safeguards even further. The legislative process itself has been deeply flawed. The Joint Committee constituted to examine the Act failed to reflect opposition voices or concerns raised by civil society. While it held five sittings, it did not conduct any public hearings, refused personal appearances and ignored hundreds of written objections. The final report did not even document dissenting views. The process reveals a performative exercise aimed not at scrutiny, but at legitimising pre-determined outcomes.

Varun Pandey and Rudra Krishna are fourth-year students of West Bengal National University of Juridical Sciences.