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But why did a state Bill go to the President in the first place? Why is the Bill controversial? And what happens now that it has been returned?

What is the Bengal anti-Goonda Bill?

West Bengal already has a preventive detention law dating back to the 1970s. The present Bill is wider in its ambit. 

It allows authorities to detain a person for up to 12 months — without trial — and bar (or extern) them from entering a specified “area, district or districts” for up to the same period to prevent ‘anti-social’ activity. 

The Bill has expansive definitions of the term ‘goonda’, as well as ‘anti-social activity’. A goonda is a person who is “generally reputed to be desperate and dangerous to the community” or is a “Habitual Offender.”

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An “anti-social activity” covers conduct that directly or indirectly causes “alarm or insecurity among the public, danger to life or property, disturbance of public order, unlawful dispossession, or illegal mining, quarrying, sand or forest activity that drains the public exchequer.”

The Bill also allows for search and seizure, punishes the harbouring of a detained or externed person, grants officials good-faith immunity, and makes offences cognizable and non-bailable.

Goonda laws exist in several states, most notably in Gujarat, as the Prevention of Anti-Social Activities Act, 1985. The Bharatiya Nyaya Sanhita also has provisions to deal with organised crime. Preventive detention is permitted under Article 22 of the Constitution with certain safeguards. Such issues are legislated under “public order,” which is a state subject.

The many controversies around the Bill

The proposed legislation triggered multiple controversies ever since its introduction. Three Public Interest Litigations challenging the Bill were moved in the Calcutta High Court over its sweeping provisions, as detailed above. The Opposition had alleged that it could be used for political vendetta. 

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And Adhikari himself claimed that the ‘Goonda Daman Bill’ had already received the Governor’s assent and became law. He also told the Assembly that the “Act” had been invoked against all those accused of orchestrating violence during a July 24 protest march in Kolkata’s Esplanade.

However, the state has now informed the High Court that the Bill is still awaiting the President’s assent and has, therefore, not yet become law. This means that the chief minister’s claims are incorrect.

The High Court, therefore, dismissed the three PILs mentioned above, saying the petitions were premature because the Bill had not yet received the President’s assent to become a law

Is a state Bill going to the President unusual?

Not really. Normally, a Bill passed by a state Assembly (and a Council, if the state has one) requires only the Governor’s assent to become law. But Article 200 of the Constitution gives the Governor the power to decide whether any Bill needs to be referred to the President.

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Article 200 states: “When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.”

While this is usually left to the Governor’s discretion, there is one condition in which it is mandatory for the Governor to refer a Bill to the President. 

This is also set out in Article 200: “Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

In simple terms, this means that if a state Bill weakens the High Court’s powers, so much that it threatens its constitutional role, the Governor must refer it to the President.

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A Governor can also return a Bill — if it’s not a Money Bill — to the legislature for reconsideration or revision. If the legislature passes it again, even without change, the Governor cannot withhold assent, Article 200 says.

Why was this Bill returned?

It is unclear why the Bill was referred to the President in the first place.  But in its note before the Bill was returned, the Union government pointed to similarities with central legislation.

The note said: “Section (B) of the proposed Bill, insofar as it includes within the definition of ‘goonda’ a person who commits, attempts to commit, abets, promotes, finances or facilitates any offence punishable under the NDPS Act, 1985, may overlap with the preventive-detention framework provided under the PITNDPS Act, 1988, which is a specific Central legislation dealing with preventive detention of persons engaged in illicit traffic in narcotic drugs and psychotropic substances.”

“The proposed provision may, therefore, create an overlapping or parallel preventive-detention mechanism in respect of drug-related activities and may give rise to an issue of repugnancy under Article 254 of the Constitution of India. Accordingly, the reference to offences under NDPS Act, 1985 in Section 2(d)(iii)(B) may be deleted to avoid duplication and overlap with the existing Central statutory framework,” it added.

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What will happen now that the President has returned it?

When a Bill is reserved by a Governor for the consideration of the President, the President can either assent to the Bill or withhold assent.

The latter is what has happened in the case of the West Bengal Bill.

A senior official of the state administration told that this was a setback for the government. The official also said, however: “There is a provision to table this Bill again in the Assembly after making the necessary changes in the proposed Act where it is conflicting or overlapping with Central law. After that, it will be sent again for the assent of the President of India.”

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Indeed, Article 201 of the Constitution states: “Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200…” 

According to Article 201, the state legislature has six months to reconsider the Bill from the date of receipt of such a message. “….if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration,” the Article says.