This article is authored by Pragun Goyal, a first year student of NLU Delhi.
A government that robs Peter to pay Paul can always count on Paul’s support. But in the Indian context, the Uttar Pradesh (‘UP’) government has robbed people of their personal liberty to pay Paul who is already dead. According to an investigation by the Indian Express, between January 2018 and December 2020, in cases related to communal incidents, the Allahabad High Court struck down all 20 National Security Act (‘NSA’) detention orders it had adjudicated on habeas corpus petitions citing lack of due process and glaring gaps in FIRs. In the 120 cases that reached the high court during that period, 41 (or one-third) were linked to cow slaughter and involved the NSA. One of the most startling revelations was that almost 70% or 75% of the detained under the NSA belong to the minority community, especially the Muslims. The arbitrary detentions by the UP government not only violate Article 21 of the fundamental rights under the Indian Constitution but also Article 9 and Article 3 of the Universal Declaration of Human Rights 1948. The country, USA, from which we derived the right to life and personal liberty, itself doesn’t have laws on preventive detention but India seems to love it and that love is so excessive that it is pushing India down in various civil liberties rankings.
Why are detentions in UP worrisome?
An act interfering with personal liberty must satisfy a triple test-
a) It must prescribe a procedure
b) the procedure must withstand the test of one or more of the fundamental rights conferred under article 19 which may be applicable in a given situation
c) It must also be liable to be tested regarding article 14.
But the Allahabad High Court order reveals that a large number of the First Information Reports (FIR) had the same content, showing that they were part of a cut-and-paste job, and there was "no application of mind’’ on the part of the district magistrates who issued the orders. The court also said that the accused had been denied the due process of law, and in many cases, the detained persons did not get the opportunity to represent themselves effectively while challenging the NSA, and could not secure bail. The court also discovered many inconsistencies and flaws in the proceedings. Many different cases had the same explanations and situations for invoking the NSA, and many cow slaughter cases had the same definitions and venues.
Background of Preventive Detention in India
1818’s Bengal Regulation III gave India the concept of detaining anyone for maintenance of public order without giving the person recourse to judicial proceedings and paved the way for other legislations too. Preventive detention in the Indian Constitution is not self-executionary, and requires a separate legislation to enforce itself. Therefore, the Preventive Detention Act 1950 was passed which was accompanied by the Maintenance of Internal Security Act (MISA) in 1971 (repealed now), and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (COFEPOSA). All these legislations were finally substantiated by National Security Act 1980 which provides for preventive detention in following cases according to Section 3(2)-
When a person is acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
When regulating the continued presence of any foreigner in India or making arrangements for his expulsion from India.
While preventing an individual or group of individuals from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
Why DMs love NSA?
Article 22 (1) of the Indian Constitution provides that an arrested person cannot be denied the right to consult and to be defended by a legal practitioner of his choice. Article 22(2) further provides that an individual must be brought before the nearest magistrate within twenty-four hours of being arrested, and no one can be held in custody beyond that time without the permission of a magistrate. According to Section 50 of the Criminal Procedure Code,1973, any person arrested has to be informed of the grounds of arrest and has the right to bail. These facilities are negated in the case of NSA as article 22(3) states that these rights are not available to the person detained under preventive detention.
Section 3(3) indirectly gives the power of arrest to the District Magistrate or a Commissioner of Police based on suspicion that activities of a person could be prejudicial to public order, which itself is prone to misuse. Section 16 gives immunity to the state under which no action can be taken against the District Magistrate even by the High Court or Supreme Court. A detainee under NSA only has a recourse to the Advisory Committee to represent his detention under section 10. In most cases, the advisory committee has given a green signal to the passed detention orders. The detainee is left only with the option of Habeas Corpus petition under HC or SC as there is no formal charge or trial before the District Court. A South Asian Human Rights Documentation’s (SAHRDC) internal review of habeas corpus petitions showed that when police are reluctant or unable to make an effective criminal case under the constraints of constitutional and statutory law, they often turn to the NSA. It was discovered that preventive incarceration is often used to address the actions of recidivists and organised crime, to avoid a conviction when witnesses refuse to testify, and to prohibit release on bail.
NSA and Cow Slaughter
In 7 FIRs, it was stated verbatim that due to cow slaughter, an atmosphere of terror and fear has engulfed the vicinity. Still, cow slaughter is looked at from a religious angle. Article 48 of the Indian Constitution is misconstrued by taking into consideration religious beliefs. It is for this very reason that cow slaughter allegedly forms a massive chunk of NSA cases. Cow slaughter was deliberately put into Directive Principles of State Policy so that flexibility could be allowed. Due to economic reasons in animal husbandry, cow slaughter (including other milch animals) was prohibited not banned.
Cow slaughter has become a new invention for NSA grounds. Due to the majority opinion of society, DMs find a way to punish the accused. Just to deny bail to that accused, DMs slap NSA charges on the accused satisfying the misconception of the majoritarian society. Ironically, in 2019, Union Home Ministry told the Lok Sabha that cow slaughter was not a punishable offence in the NSA. G Kishan Reddy further explicitly stated that transportation of cattle to farm activities and cow slaughter is not a punishable offence under NSA. Cases of cattle slaughter should be a simple matter under law and order for the police and not under NSA.
Need to relook
The findings of the investigation reveal denigration of civil liberties in India. The NSA is being strategically and tactically being used to suppress the right to life and personal liberty. In Dr. Kafeel Khan’s case, the court stressed that:
‘The system of governance is to promote fraternity with assurance to maintain the dignity of every individual as well as unity and integrity of the nation. The strong and valuable fabric of our nation is well designed with the support of fundamental rights given in Part-III of the Constitution. These rights are a golden thread in the fabric, which is further illuminated by extending the protection of life and personal liberty under Article 21 of the Constitution of India’.
The Supreme Court in Rekha v State of Tamil Nadu said that 'Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law.’ In the cases of Alpesh Navinchandra Shah v. State of Maharashtra , State of Maharashtra v. Bhaurao Punjabrao Gawandeand, the detention orders were set aside by the Supreme Court on the ground that the object of a detention order is to prohibit the detainee from continuing his prejudicial actions for a year, not to punish him for anything that happened in the distant past.
The state should relook the mechanical approach being followed in matters related to NSA and respect individual liberty. The officials who are snatching away essential liberty to purchase a little temporary safety in the garb of preventive detention, deserve neither liberty nor safety.