26, May 2018 | Jannani Murugan and Alifiya Khan
The National Security Act (NSA) has several draconian provisions, many of which are being increasingly used to incarcerate human rights defenders across India. Here’s a brief history of how the NSA came into being and how it is being increasingly used against to target Dalit leaders and activists in the state of Uttar Pradesh.
Soon after the application of on Chandrashekhar Azad ‘Ravan’ was extended for another three months on May 2, the Act has been invoked against Bhim Army’s Muzaffarnagar district president Upkaar Bawara, 37. Upkaar was in jail when the NSA was imposed on him, in connection with violence that ensued in the district during the Bharat Bandh on April 2. The widely successful Bandh was called against the proposed dilution of the Prevention of Atrocities (PoA) SC-ST Act, 1989.
CJP has been fighting for the rights of the vulnerable and marginalised Dalit Community. We strongly condemn the use of draconian laws like NSA against political and human rights activists working in the interest of people. We urgently demand that NSA charges be dropped against Chandrashekhar Azad. We have also moved a petition demanding the immediate release of Dalit leader Chandrashekhar Azad Ravan. Sign our petition NOW!
The Nai Mandi police station SHO, Hari Saran Sharma said, “Upkaar is facing two criminal cases. On report prepared by me, the district magistrate invoked NSA.” Saharanpur Bhim Army General Secretary Praveen Rupdi confirmed Upkaar was facing NSA charges. He said, “We have come to know that police has invoked NSA against Upkaar.”
On May 8, the Meerut administration also invoked NSA against former BSP MLA Yogesh Verma in connection with the protests that took place on April 2. Just recently, Sachin Walia, brother of Kamal Walia, Bhim Army’s Regional President for Saharanpur area was shot dead on the first anniversary of the Saharanpur clashes as Kshatriya community members took out a procession.
Why is the Adityanath government using the draconian NSA against a vibrant Dalit leadership?
The Genesis of the NSA
The seeds of this draconian law were sown by Indira Gandhi replacing the National Security Ordinance in 1980. The act (through section 3) gives power to the Central Government, State Government or even Commissioner of Police or a District Magistrate to detain any citizen or a foreigner, to prevent him from acting in a prejudicial manner against the ‘security of the State’, ‘maintenance of public order’ or ‘maintenance of supplies and services which are essential to the community.’ It allows for the arbitrary exercise of power, giving the government the power to take preemptive measures, and does not set boundaries to the extent of applicability of these provisions.
The act not only fails to define ‘public order’ and ‘state security’ but also fails to define what may amount to an action deemed to be prejudicial.
Experts have pointed out how, the structure of this Act is similar to the British Raj’s Rowlatt Act  which denied access to courts or lawyers to those who were detained leading to the coining of the phrase “No Vakil, No Appeal, No Daleel“.
Though the act has been criticized since its implementation, the recent case of the founder of Bhim Army, Chandrashekhar Azad has led to persistent questioning the vagueness of the NSA. In Uttar Pradesh, the government has proved the extent of misuse of power by the State and is all set to apply it even in cases of ‘Sugarcane Mafia’, ‘Cow slaughter’ and ‘Power theft’.
Preventive Detention in India
Preventive detention is, unfortunately, constitutionally authorised and hence a law cannot be said to be invalid if it allows such detention. The preventive detention powers of the government were enhanced with the implementation of the National Security Act of 1980. Article 22 (3) of the Indian Constitution provides that if any person is arrested or detained under a law providing for preventive detention, then the protection against arrest and detention under Article 22(1) and 22(2) shall not be available.
Consequences of NSA
Human Rights Abuse
The Indian security laws do not comply with the international human rights laws. They restrict freedom of association, freedom of speech, freedom of movement, impose restrictions on the rights to a fair trial which is guaranteed by the International Convention on Civil and Political Rights, to which India is a party. Women have faced sexual violence, families of detainees loose an earning member and detainees are victims to assault, torture and mental abuse.
Discriminatory use of law
The empowered governments often misuse or outright abuse the power bestowed upon them. Due to religious and ethnic discrimination, politicians have targeted members of a certain communities. Individuals who belong to minority communities have been detained, disproportionately investigated and prosecuted under these security laws.
Punitive rather than Preventive measure
Preventing a crime would mean discouraging a criminal from committing a crime without taking any severe action on the criminals. Rehabilitation would be more effective than punishing and making them suffer. The NSA proves to be punitive as it strips away the basic rights of the detainee and creates a difficult environment for the detainee in the prisons.
Misuse of NSA in UP
In the state of Uttar Pradesh, NSA was initially invoked in the case of ‘cow slaughter’ and ‘cattle smuggling’ which stated offences have been largely used to target the Muslim and Dalit communities involved in cattle trade. It gives the District Magistrate the power to keep a person under detention for up to a year. The Act permits the police to seek remand of an accused for a maximum of 60 days as compared to a maximum of 14 days under normal circumstances.
The case of Chandrashekhar Azad, founder of the Bhim Army deviates from the human rights standards and is in contravention of the principles of natural justice. After the Allahabad High Court granted bail in 27 separate cases calling the charges “politically motivated”, NSA was applied on November 1, 2017. If this isn’t deliberate targeting, what is?
The application of the NSA is vague and hence gives more discretionary powers to the authorities, making misuse powers possible. The NSA completely deprives the citizen under detention, right to freedom of speech, expression and movement. Hence, the Uttar Pradesh government has efficiently used this feature of the Act. Under Section 9, the Act gives the government the discretion to constitute one or more advisory boards ‘whenever necessary’ which allows for the possibility of the board members acting biased and unfair. Since, ‘sufficient cause’ is not defined under the Act, the detainee cannot question whether, the cause of action under which he has been detained, satisfies the category of being ‘sufficient’ or not.
The Act has a wide scope of application which has been evident in the manner in which Adityanath’s government has applied it in an ‘assortment of cases’. In the case of cow slaughter, the sufficient cause was slaughter or in some cases even the mere possession of a cow (by a Muslim) was looked upon as a crime. The act of slaughtering a cow, not uncommon after the animal is past a certain age, was suddenly deemed or termed as a ‘crime’. What might be seen as an offence now, was previously just a way of earning a living and feeding empty stomachs. On the other hand, no actions were taken against cow vigilantes when they killed, damaged property, assaulted and promoted violence not just in the state of UP but in other parts of the country, on innocent cattle traders. On a serious note, shouldn’t the NSA be slapped on the cow vigilante’s more than normal citizens whose livelihood was solely dependent on selling meat?
This sets a vague, even prejudicial standard on what may or may not be a ‘sufficient cause’ for invoking the draconian law. The act gives a discretionary power to the government to decide when, where and on whom the NSA applies.
In 2002, the government of Gujarat used the Prevention of Terrorism Ordinance (POTO) and POTA, heavily against Muslims but not against Hindus after the widespread communal violence in the state and hence other political parties argued for repealing POTA in parliament. POTA was later repealed when the political coalition that authored it lost the next national election.
Need for Judicial Review
One of the other drawbacks of the Act is the subjectivity in applying the law. The act mentions, “if satisfied with respect to any person that such an order is necessary”, the law may be invoked. Here, too, the satisfaction is entirely subjective. In Anil Dey v. State of West Bengal, the Supreme Court held that “the veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency”. Although the courts “ cannot substitute their own opinion for that of the detaining authority by applying an objective test to decide the necessity of detention for specified purpose, they do review whether the satisfaction is “honest and real, and not fanciful and imaginary”. Indian courts have less scope to constrain the use of preventive detention in effective ways.
The NSA only allows judicial review on whether the decision-maker complied with the necessary procedure. Not only is the scope of judicial review limited to procedural questions, some security laws set up administrative review mechanisms compel an applicant to comply with these before approaching the courts for a judicial review. Administrative review under older security laws, including the NSA, 1980 and the UAPA, 1967, is designed to oversee each decision the government makes on a particular issue. 
It is the duty of the Indian Judiciary to keep a check on the laws made. This is integral to the Constitutional Scheme. Under Article 13, the Constitution grants ‘Power to Review’ to the Supreme Court in order to review whether a legislation is constitutional or not. The Supreme court has repeatedly failed to justify why individuals detained preventively are not given higher procedural protection and more liberal conditions of detention compared to individuals undergoing criminal trials.
The advisory board proceedings have been clearly established under Section 11 of the Act and are not formal judicial proceedings or criminal trials. The procedure does not have rules of evidence and the detainees do not have the right to counsel, compulsory process or confrontation. The government carries a minimal burden of proof, little evidence if presented to the board.
The constitutionality of the National Security Ordinance was challenged in the case of A K Roy v. UOI. The ordinance was challenged on the grounds of vagueness, denying the detainees their fundamental right to representation by legal counsel in hearings before the Advisory Board and undefined powers of detention which is similar to that of NSA. In AK Roy, when the petitioners argued the procedure violates the rules of natural justice as it bars legal representation for the detainees.
The Supreme Court reminded the petitioners that the Constitution did not extend the right to legal representation to individuals who are preventively detained. However, the Court did not consider that while the Constitution does not grant the right to legal representation to detainees, it does not expressly bar this right either.
What is the remedy available?
In the case of SareLaxmaih Naidu vs. The Collector & District Magistrate, YSR District, Kadapa and others, W.P.No.32190 of 2013, the Bench, comprising Acting Chief Justice Dilip Bhosle, Justice S.V. Bhatt and Justice A. Shankar Narayana was examining the question whether a petition for a Writ of Habeas Corpus, under Article 226 of the Constitution of India, can be entertained against the order of preventive detention passed under the provisions of any enactment authorizing preventive detention.
The Bench referred to the judgment in the case of Dr. Ram Manohar Lohia v. State of Bihar and Others, 1966 SCR (1) 709. In this case, the Apex Court dealt with a petition under Article 32 of the Constitution of India for a Writ of Habeas 3Corpus seeking a direction for the release of Ram Manohar Lohia from detention under an order passed by the District Magistrate of Patna. The order of detention was made under Rule 30(1) (b) of the Defence of India Rules, 1962.
It was contended that the order was not in terms of the Rule under which it was made and, therefore, furnishes no legal justification for detention. On the other hand, it was argued that in view of the President Order, such as one under challenge in the said writ petition, the detainee has no right to move the Court under Article 32 for his release and, therefore, the Supreme Court should not hear the application at all. In this case, the Supreme Court after referring to its several judgments and the relevant provisions entertained the petition and set aside the order of detention.
The three organs of the State follow the doctrine of checks and balances. This is to ensure that all the organs are functioning efficiently and separation of powers is maintained. Separation of power was introduced to avoid the excessive exercise of power by one organ.
When we encounter the case of Chandrashekar Azad, and the Bhim Army, what hits us is how little power the citizens of the country have. Though the constitutionality or the validity of NSA has been questioned from time to time since its implementation, the Uttar Pradesh government has been slapping it across individuals according to its whims and fancies. Often to silence political and individual dissent.
The only remedy provided to the detainees is judicial review which is again limited when it comes to NSA. The loopholes within the Act abuse the constitutional and statutory rights of the citizen. Provisions to enable questioning of an arbitrary executive decision should available at a much earlier stage as this would prevent the misuse of power by government.
In many cases of adjudication, the judiciary has gone along with and agreed with the assessments made by government, failing to understand the plight of detainees. The scope and applicability of the NSA may range from being a political dissenter, a Dalit or Muslim organising his own community, a person owning a cow to someone planting a nuclear bomb. More specific and less subjective criteria would prevent rampant abuse.
The possibility of reforming a law like the NSA is remote, leaving, at present, the judiciary as the last resort available to victims of the law. A more conducive and democratic debate, in future may create conditions for a complete repeal. Such a time seems however a distant dream.
(The authors are interns with CJP)
Article 22, Indian Constitution