SC raises concern over frivolous use of NSA

The court observed that the SP leader was detained for about a year without application of mind by the detaining authorities


The Supreme Court expressed shock that the National Security Act (NSA) was incorrectly invoked against Samajwadi party leader Yusuf Malik in a revenue recovery case. A Division bench of Justices SK Kaul and Ahsanuddin Amanullah observed that NSA was invoked against Malik without application of mind.

The allegation against Malik was that he did not allow the revenue officials to collect land revenue from one Jamal Hasan and that he threatened the officials from sealing the residence. Two FIRS were filed against him and he secured bail in both in July 2022. However, proceedings under National Security Act were initiated against Malik in April 2022 by the SHO Moradabad and Senior Superintendent

In the detention proposal it was alleged that since Malik threatened the Additional Municipal Commissioner and used abusive language, an atmosphere of fear and terror had been created in the officials of Nagar Nigam. Accordingly, the District Magistrate passed an order on April 24, 2022 detaining Malik as a prisoner of general class under Section 2(3) of NSA. On June 1, 2022 the UP government gave direction to tentatively detain him for 3 months which was further extended for another 3 months and then again for 3 months.

The court observed that the revenue officials went to the property to recover dues despite it not being a usual practice. The court said that even if it is assumed that the allegations against Malik are true, the invoking of NSA is “shocking and unsustainable”.

“That such a proposal was made, received the imprimatur of the senior officer(s) and even of the Advisory Board does not reflect well on the manner in which the authorities exercise their mind by invoking the provisions of the said Act,” the court said.

Upon perusal of statement of objects and reasons, the court noted that NSA is to be invoked to control the anti-social and anti national elements including secessionist, communal and pro-caste elements, that affect the services essential to the community, thereby posing a grave challenge.

The court observed that this was a case of non-application of mind by the authorities and thus decided to quash the proceedings.

“We find no element present in the case for exercise of this power of detention and extension of detention and have no hesitation in quashing the proceedings under the said Act as wholly without any basis”.

The complete order may be read here:

About NSA

The National Security Act is one of the many draconian laws in the country and comes in the category of laws that deal with what is popularly known as states of exception i.e. situations which are exceptional and which cannot be dealt with under or by ordinary law. “The state carves out exceptions to the law under the guise of dealing with emergent situations which in turn are defined by the state as per its own discretion. They derive popular acceptance under the pretext of security of state, public safety coupled with jingoistic nationalism and judicial deference. Slowly the state of exception starts widening its reach and spreads its tentacles from measures for dealing with extraordinary times to measures for dealing with ordinary times. Thus preventive detention law which was initially a law valid for two years with a sunset clause has now become a permanent law in the form of the National Security Act, 1980,” said Mihir Desai in his lecture in September 2021 at an online event organised by the Gauri Memorial Trust and Citizens for Justice and Peace.

“Some of the worst state inflicted crimes have historically been carried out under the cover of legislation. Many atrocities are not through a flouting of the law but a result of the laws. These laws enable and legitimise state repression in various ways,” he added.

NSA allows preventive detention up to 1 year and it follows the ‘jurisprudence of suspicion’ in the sense that persons are detained not because they have committed any crime but because it is suspected that they might commit a crime.

Dr Kafeel Khan in UP was detained under NSA and so was Chandrasekhar Azad, who was arrested in 2017, released on bail and immediately placed under preventive detention.

The constitutionality of NSA has also been challenged in the Supreme Court but the same has been upheld in A.K. Roy vs Union of India [AIR 1982 SC 710]. In this case, the court held that NSA act was neither vague or arbitrary and issued certain directions to safeguard the detenus. These directions include, informing the kith and kin about detention, detention should be in place of usual residence of detenu, the detenue must be housed separately from the convicts and that No treatment of punitive character should be meted out to him.







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