“The history of personal liberty is largely the history of insistence upon a procedure and adherence to safeguards.” — Justice H R Khanna, ADM Jabalpur v. Shivkant Shukla (1976)

IN the name of combating organised crime, the Government of West Bengal has introduced the West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026. The administration argues that the legislation is necessary to deal with hardened criminals and organised anti-social activities. Yet a careful reading suggests that the Bill is far more than another crime-control measure. It proposes to confer extensive preventive powers upon the executive, allowing the State to curtail personal liberty before guilt has been established through ordinary judicial process.

No constitutional democracy can function without an effective criminal justice system. Organised crime, extortion, narcotics trafficking, land-grabbing and habitual violence require a firm response from the State. The issue, therefore, is not whether criminals should be punished — they unquestionably should be. The real constitutional question is whether, despite the existence of the Bharatiya Nyaya Sanhita (BNS) and established criminal procedures, the executive should receive extraordinary powers capable of bypassing ordinary judicial safeguards.

The most significant feature of the Bill is its reliance upon preventive detention. Unlike ordinary criminal law, which punishes proven offences after trial, preventive detention authorises incarceration based upon the anticipation of future conduct. In effect, it reverses one of the oldest principles of criminal jurisprudence: trial first, punishment later. Such powers have historically been tolerated only as exceptional constitutional measures, subject to rigorous safeguards. Whenever those safeguards weaken, the possibility of executive excess inevitably grows.

VAGUENESS, EXECUTIVE DISCRETION AND THE RULE OF LAW

Another constitutional concern lies in the Bill’s remarkably broad definition of “anti-social activity”. Beyond clearly identifiable criminal offences, it extends to conduct capable of generating “fear”, "alarm", "a sense of insecurity", or disrupting lawful business. While these expressions appear reasonable at first glance, they possess no precise legal boundaries. Their application ultimately depends upon administrative interpretation rather than objective legal standards.

The Rule of Law rests upon legal certainty. Citizens must know, with reasonable precision, what conduct is prohibited. Where statutory language becomes vague, executive discretion expands. In such circumstances, the practical meaning of the law is determined less by legislature than by those entrusted with enforcing it.

The Bill's definition of a "goonda" raises similar concerns. Although it contains safeguards such as previous convictions or multiple charge-sheets, it also leaves considerable room for executive assessment regarding whether an individual constitutes a threat to public security. Constitutional democracies are founded upon the presumption of innocence. Suspicion, reputation, or administrative opinion cannot substitute for judicial determination. Personal liberty should never depend solely upon executive satisfaction.

The Bill further grants extensive powers of warrantless search, seizure and detention, while simultaneously protecting officials acting in "good faith" from legal proceedings. Such immunity clauses are not unusual in security legislation. However, without strong judicial oversight they risk insulating executive action from meaningful accountability. The strength of a democratic State lies not in the breadth of its coercive authority, but in the constitutional restraints imposed upon it.

PREVENTIVE DETENTION AND CONSTITUTIONAL LIMITS

The central constitutional challenge posed by the Bill concerns the doctrine of preventive detention itself. Article 22 of the Constitution permits preventive detention, but the framers never intended it to become an ordinary instrument of governance. It was conceived as an exceptional mechanism, justified only under narrowly defined circumstances and accompanied by stringent procedural safeguards.

Its operation must therefore be understood alongside Article 21, which guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law.

The meaning of that guarantee was fundamentally transformed in Maneka Gandhi v. Union of India (1978). The Supreme Court held that the constitutional requirement extends far beyond the mere existence of legislation. Any procedure affecting personal liberty must also be fair, just and reasonable. Administrative convenience cannot become a constitutional justification for restricting individual freedom.

Although the proposed Bill requires the communication of detention grounds and provides for reference to an Advisory Board, it also permits the administration to withhold information where disclosure is considered contrary to the public interest. This raises an obvious constitutional difficulty. A detainee who is denied knowledge of the essential allegations against him cannot meaningfully challenge the detention. The principles of natural justice require not merely an opportunity to respond, but an effective opportunity founded upon adequate disclosure.

The Supreme Court has repeatedly cautioned against treating preventive detention as a substitute for ordinary criminal prosecution. In Khudiram Das v. State of West Bengal (1975), the court held that the executive's "subjective satisfaction" remains open to judicial review and must rest upon relevant and objective material.

In A K Roy v. Union of India (1982), while upholding the constitutional validity of the National Security Act, the court emphasised that preventive detention laws require the narrowest possible interpretation because they directly encroach upon personal liberty.

Finally, in Rekha v. State of Tamil Nadu (2011), the court ruled that preventive detention cannot be employed where ordinary criminal law is capable of addressing the alleged offence. Executive detention is an exceptional remedy, not a convenient alternative to criminal investigation and prosecution.

HISTORY, LIBERTY AND THE CONSTITUTIONAL CHOICE

The reasoning adopted in Rekha assumes particular significance in the context of the West Bengal Bill. Most of the offences it seeks to address — including extortion, organised violence, land-grabbing and criminal intimidation — are already punishable under the Bharatiya Nyaya Sanhita (BNS), the Arms Act, and the NDPS Act. If the ordinary criminal justice system is legally capable of dealing with these offences, the constitutional question naturally arises: why create an additional framework that allows the executive to bypass the ordinary judicial process?

This question is not merely legal; it is constitutional. Preventive detention was never intended to compensate for ineffective investigation or slow prosecution. It exists only for the rarest circumstances where ordinary criminal law is genuinely incapable of protecting public safety. History offers repeated warnings about the consequences of allowing exceptional powers to become ordinary instruments of governance.

During the Emergency (1975-1977), the Maintenance of Internal Security Act (MISA) became synonymous with the suppression of political opponents, journalists, trade unionists and civil society activists. Enacted in the name of national security, it demonstrated how extraordinary legal powers can be transformed into instruments of political control. More recently, laws such as the National Security Act (NSA), the Unlawful Activities (Prevention) Act (UAPA) and several state-level preventive detention statutes have attracted sustained criticism for prolonged incarceration without timely trial. In many instances, the detention itself became the punishment, regardless of the eventual outcome of criminal proceedings.

The constitutional danger therefore lies not merely in the text of such legislation but in its practical operation. A power designed for exceptional circumstances can gradually become part of ordinary administration.

This concern is reflected not only in Indian constitutional law but also in international human rights jurisprudence.

Article 9 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) prohibit arbitrary arrest and detention. Even where preventive detention is considered necessary, international standards require that it remain exceptional, proportionate, and subject to prompt and effective judicial review. The West Bengal Bill therefore raises questions that extend beyond state politics. It invites scrutiny against constitutional principles recognised both within India and across democratic legal systems.

THE CHILLING EFFECT

Perhaps the greatest constitutional danger of legislation of this nature is what lawyers describe as the "chilling effect." The law need not be applied frequently to influence public behaviour. Its very existence may discourage citizens from exercising their constitutional freedoms. When executive discretion becomes expansive and statutory definitions remain uncertain, journalists may hesitate before exposing corruption. Trade unions may reconsider organising industrial action. Civil society groups may become reluctant to mobilise peaceful protests. Ordinary citizens may think twice before criticising those in power.

More often, liberty recedes gradually, as uncertainty replaces legal certainty and citizens begin to censor themselves through fear of administrative consequences rather than judicial conviction.

That gradual erosion is considerably more difficult to detect than dramatic constitutional crises. Yet history suggests that it is often far more enduring.

THE CONSTITUTIONAL CHOICE

No democratic society can tolerate organised crime, violence or lawlessness. The State has both the authority and the constitutional obligation to protect public order. Equally, constitutional democracies recognise that the protection of liberty is not an obstacle to effective governance; it is one of its central purposes. The relationship between the State and the citizen has always rested upon a simple constitutional bargain.

The State receives extraordinary powers because it agrees to exercise them within constitutional limits. Once those limits become uncertain, the balance between liberty and authority begins to shift.

The essential question raised by the proposed law is therefore neither partisan nor ideological. It is constitutional.

Should executive suspicion ever become sufficient to deprive an individual of liberty? Or should personal freedom continue to be restricted only through a fair, transparent and independent judicial process? The Constitution of India clearly favours the latter.

Public security is indispensable, but it cannot be secured by weakening the very constitutional safeguards that distinguish democratic government from executive rule.

A constitutional State investigates thoroughly, prosecutes fairly and proves its allegations before an independent court. It does not ordinarily substitute administrative satisfaction for judicial determination.

History reinforces this lesson.

THE FASCIST LAW

Under Benito Mussolini, the Leggi Fascistissime (Ultra-Fascist Laws) concentrated extraordinary authority in the executive, curtailed political opposition, restricted press freedom and greatly expanded police powers. In Germany, following the Reichstag Fire Decree signed by President Paul von Hindenburg at Adolf Hitler's request, fundamental civil liberties were suspended and extensive executive powers were exercised in the name of protecting state security. These historical experiences should not be treated as direct comparisons with contemporary legislation. They nevertheless demonstrate a recurring constitutional truth: governments frequently justify exceptional powers by invoking exceptional dangers, while the long-term consequences often extend far beyond their original purpose.

This Bill should therefore be examined not merely as an isolated legislative proposal but as part of a broader constitutional debate concerning the proper limits of executive authority. Ultimately, every democracy must answer the same enduring question: Does public security derive from unrestricted state power, or from a constitutional order in which even the State remains subject to law? The Constitution of India answers unequivocally.

The strength of a democracy lies not in the breadth of executive power but in its restraint. Governments earn legitimacy not by imprisoning citizens on suspicion, but by investigating diligently, prosecuting fairly, and proving guilt beyond reasonable doubt before an independent judiciary. For the true measure of a constitutional democracy is not the power of the State to deprive its citizens of liberty, but its willingness to protect that liberty even when doing so is difficult.

These judgments establish a consistent constitutional principle: preventive detention is constitutionally permissible only when ordinary criminal law proves genuinely inadequate, and even then it remains subject to the strictest judicial scrutiny.