Bengal's New 'Anti-Social Activities' Law Is Alarming and Erodes Due Process

In Charles Dickens’s A Tale of Two Cities, the trial of Charles Darnay at the Old Bailey begins as a fatal foregone conclusion. Accused of treason against the British Crown, trapped in a cage of circumstantial state dossier and bloodthirsty public opinion, Darnay stands entirely helpless. His salvation comes not from his own mouth, but from the sharp, detached eye of his legal counsel, Sydney Carton. By orchestrating a brilliant cross-examination that exposes a startling case of mistaken identity, Carton tears through the state’s "airtight" prosecution. Dickens’s timeless scene was not merely dramatic flair; it was a profound testament to a structural truth – that when an individual faces the immense, crushing apparatus of the state, an independent legal advocate is the only shield between life and the meat-grinder of unchecked power.

It is this foundational shield that has been aggressively dismantled by the West Bengal Assembly with the passage of The West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026. Such laws are commonly called "Goonda Acts" across India. Under the guise of maintaining public order, the law empowers the executive to detain individuals for up to a year on the subjective assessment that they are "desperate and dangerous to the community." Most alarming, however, is Section 10(4) of the Bill, which mandates that a detained person "shall not be ordinarily represented by a legal practitioner before an advisory board." By effectively stripping away the right to legal counsel, the state has resurrected an archaic, pre-constitutional arbitrariness that fundamentally subverts the rule of law.

Also read: Why Are Criminals Called ‘Goonda', 'Mafia' or 'Don’?

 The defenders of the Bill point to Article 22(3)(b) of the Constitution, which provides a textual exception to the right to counsel for persons arrested under preventive detention laws. Yet, to rely on a literal, hyper-technical reading of this exception to completely banish lawyers from Advisory Boards is to ignore seven decades of constitutional evolution. A harmonious and common-sense reading of Articles 21 and 22 reveals that the right to legal representation in any proceeding that curbs life and personal liberty is not a statutory luxury; it is a fundamental natural right. Article 21 guarantees that no person shall be deprived of liberty except through a procedure that is "just, fair, and reasonable."

Can a procedure where a caged citizen, devoid of legal training, must match wits with state actors before an administrative board ever be deemed "fair"?

The Supreme Court of India has consistently rejected such procedural asymmetry. In the landmark case of A.K. Roy v. Union of India (1981), a Constitution Bench addressed this exact loophole in preventive detention laws. The court held that while a detenu may not have an absolute right to an active legal defence under Article 22(3), a fundamental inequality arises if the state utilises its own legal officers or sophisticated system to present its case while leaving the detenu unassisted. To ensure a level playing field and satisfy the basic tenets of natural justice under Article 21, the detenu must be permitted the assistance of a friend or legal companion. By shutting out legal practitioners by default, the Bengal Bill establishes a stark, unconstitutional asymmetry.

The right to legal counsel

Furthermore, our constitutional jurisprudence treats the right to a lawyer as a non-negotiable threshold of civilised governance. Even when national survival was at stake, the judiciary refused to compromise this ethos. In Md. Ajmal Amir Kasab v. State of Maharashtra (2012), a case involving a terrorist captured red-handed during the horrific 26/11 Mumbai attacks, the Supreme Court held that the state is under a mandatory constitutional obligation to provide legal access to an accused from the very moment of arrest. The Supreme Court emphatically pointed out that the right to be defended by a legal practitioner is a right that flows from Article 21. It is an essential ingredient of a reasonable, fair, and just procedure. If an accused person is not provided legal assistance, the trial itself would be vitiated.

If a self-confessed foreign insurgent waging war against the nation is fundamentally entitled to the protective umbrella of legal counsel under Article 21, by what logic can the state deny that very protection to its own citizens under the vague, expandable label of "anti-social activities"?

Statutory disconnect: The Advocates Act

The restriction also runs completely afoul of central parliamentary statutes that govern the Indian bar. Section 30 of the Advocates Act, 1961 explicitly states that every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories of India – not only before all courts, including the Supreme Court, but also before "any tribunal or person legally authorised to take evidence" and "any other authority or person before whom such advocate is... entitled to practice." 

An advisory board under a preventive detention law, presided over by a sitting or former high court judge, is undeniably an authority acting in a quasi-judicial capacity. By erecting a statutory barrier against legal practitioners, the provincial legislature is attempting to override a right guaranteed by a central legislation, setting up a clear constitutional conflict.

Chief Minister Suvendu Adhikari’s political assurance that the law "will not be misused for political vendetta" is cold comfort. The architecture of human liberty cannot be built upon the shifting sands of executive benevolence or the temporary good intentions of those in power. Laws survive administrations. When a statute permits District Magistrates to issue sweeping warrants and bars the entry of lawyers, it creates a Frankenstein legislation.

Preventive detention is inherently a draconian measure – it punishes a citizen for an anticipated, future act based on administrative suspicion rather than judicial proof. When the state takes away a person’s physical liberty without a trial, the absolute minimum requirement of natural justice is that the detenu must have an advocate to scrutinise the state's secret dossiers, point out procedural deficits, and articulate a defence.

To systematically exclude legal representation is to reduce the constitutional Advisory Boards to a mere rubber stamp for administrative overreach. The West Bengal Public Safety Bill fails the test of Article 21, insults the statutory mandate of the Advocates Act, and forgets the foundational lesson of our constitutional democracy: that justice cannot exist when the accused is left to stand alone in the dark, stripped of their voice.

Also read: The Perils of Practising Law in a Polarised Environment

Ultimately, the right to an advocate is not a mere procedural formality or a technician's tool; it is a vital shield that protects the citizen's physical personhood from being arbitrarily swallowed by administrative overreach. When a state enacts a law that cuts off the detenu from the legal architecture of the nation, it reduces the individual to a mute subject, exposed completely to the unrestrained power of executive decree.

A jural faux pas 

To prevent this distortion of the social contract, our legal system must remain anchored to the humane values that justify its existence. As the celebrated jurist and senior advocate Indira Jaising observes in The Constitution is My Home: Conversions on a Life in Law:

"The system of governance we have chosen grant the State an absolute monopoly over violence in the name of maintaining public order. Our individual demands for autonomy and self-respect encounter the equal demand of others. This mutual exchange takes place on the basis of trust and the human need for community, peace and fraternity. Unlike all other sentient beings, we have the capacity to change the quality of our lives...The purpose of all laws is to enable human life to flourish. Justice must focus on the primary needs of the human body as we know it."

If the true purpose of law is indeed to enable human life to flourish, then a statute that silences a citizen's defence before an administrative board abandons that sacred mission. By stripping away the right to legal counsel, the West Bengal Public Safety Bill forgets that a nation is its people, not its police stations. The judiciary must step in to restore this broken equilibrium, striking down the restriction and ensuring that the constitutional citadel remains a place where human life, liberty, and dignity are actively nurtured – never quietly suppressed.

Faisal C.K.is deputy law secretary to the Kerala government and author of The Supreme Codex: A Citizen’s Anxieties and Aspirations on the Indian Constitution.

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