One common factor among all these laws, national or state level, is that they give unchecked immunity “in acts in good faith” performed by law enforcement agencies.

Let us have a look at these outdated laws that have been used by several governments over the years, all of which violate fundamental human rights.

NATIONAL SECURITY ACT, 1980 (NSA)

Despite the NSA being a central law, it is being increasingly used by states to detain individuals. Its misuse has even been brought into question by the Supreme Court. In recent times, the apex court expressed shock that NSA was invoked against Samajwadi Party leader Yusuf Malik in a revenue recovery case without application of mind. In another case, NSA was invoked by Tamil Nadu against a YouTuber from Bihar who was arrested for spreading fake videos of attacks on migrant worker and the apex court questioned this decision as well.

• Under the NSA, a person is detained to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of public order” or “to the maintenance of supplies and services essential to the community”
• Such authority to detain lies, apart from the Central and state government, with the District Magistrate or a Commissioner of Police; thus allowing detention on a mere administrative order.
• Such Order of Detention can be issued for a period of three months at a time and the administrative order has to be approved by the state government within 12 days of issue, for it to remain operative for 3 months.
• Section 5A of the NSA states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the Court to be vague or invalid, even that one ground would still remain and the detention order sustained.
• The grounds of detention are to be communicated to the detainee within five days or latest within 15 days in exceptional circumstances.
• The detention order is to be placed before Advisory Board within three weeks whereby it shall consider the grounds and the detainee’s representation.
• Once confirmed by the Board, the person can be detained up to one year. Once this period expires, the person can be detained once again without any fresh facts, for another period of one year.
• Under section 14A, the detention order can be extended beyond three months, without the Board’s confirmation, for up to six months if the person is detained to prevent him in any “disturbed area” from interfering with efforts of Government in coping with the terrorist and disruptive activities as also from acting in manner prejudicial to defence, security of the nation and state, maintenance of public order or maintenance of supplies and services essential to the community
• Delhi Lieutenant Governor Anil Baijal had authorised the Delhi Commissioner of Police to detain people under the National Security Act till October 18, 2021 amid the farmers’ protest and then upcoming Independence Day celebrations.
• Dalit leader Chandrashekhar Azad had been detained by the Yogi Adityanath led UP govt in November 2017 for his alleged involvement in violence over installation of Dr Babasaheb Ambedkar’s statue in Sharanpur in May that year. One year later, Azad was released from detention after this decision was challenged before Supreme Court.

JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978 (PSA)

• The law was brought in by the state’s first chief minister, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial.
• Its provisions are similar to NSA but was enacted two years before the national law.
• Under section 3 and 4, the government has power to declare any place or area as prohibited or protected vide a notified order and any person, even unaware of such a notified status of the place can be imprisoned for contravention.
• Under section 6, the Government may deem any document to be detrimental to communal, sectarian or regional harmony or even public order and can prevent its circulation within the State.
• Under section 8, a person can be detained if he/she is deemed to be prejudicial to public order.­
• The reference to the Advisory Board, about the detention order, is to be made within 4 weeks and once confirmed by the Board, the person can be detained for up to 2 years
• Section 19 grants the Government the power to re-issue a detention order on basis of same facts.
• A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
• The PSA was indiscriminately used in the erstwhile state after August 5, 2019 to detain political leaders after Article 370 was abrogated by the Parliament.
• A detailed analysis of the Act may be read here.

THE ARMED FORCES (SPECIAL POWER) ACT, 1958 (AFSPA)

• AFSPA gives the armed forces the power to maintain public order in “disturbed areas”
• It was passed to curb increasing violence in north-east states in 1950s
• The law gives a free hand to armed forces to maintain law and order in these disturbed areas declared so from time to time by the Ministry of Home Affairs.
• The armed forces may use force or fire at anyone found contravening the law (for instance violating the curfew or assembling in larger numbers). They may also detain a person without warrant and search any place without warrant
• AFSPA was revoked in Meghalaya as of April 1, 2018 and in Tripura in 2015
• Under section 6 of the Act, no prosecution, suit or other legal proceeding shall lie against any person in respect of anything done or purported to be done in exercise of the powers conferred under AFSPA; thus giving complete impunity to armed forces.

Arunachal Pradesh

• As of April 1, 2021 up until September 30, 2021 districts of Tirap, Changlang and Longding as well as (i) Namsai and Mahadevpur police stations in Namsai district; (ii) Roing police station in Lower Dibang Valley district; (iii) Sunpura police station in Lohit district have been declared as disturbed areas as per section 3 of AFSPA

Manipur

• As of December 1, 2020 the entire state of Manipur, except Imphal municipal area has been declared as disturbed area for a period of one year i.e. until December 1, 2021

Assam

• On February 22, 2021 the entire state of Assam was declared as a disturbed area for 6 months citing the state Assembly elections and the activities of extremist outfits like ULFA(I).

Nagaland

On June 30, 2021 the application of AFSPA to the entire state was extended for another 6 months

MAHARASHTRA CONTROL OF ORGANISED CRIME ACT (1999),

• Organized crime is a grouping of highly centralized enterprises run by Criminals who tend to engage in illegal activity. Unlawful activities like terrorism, theft, prostitution, robbery, drug trafficking, human trafficking, forced labour which are practiced collectively by group of people are called as organized crimes.
• Section 2(e) defines ‘Organised Crime’ which means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”.
• Under section 3 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.
• Presumption of offence means the court shall presume the accused to be guilty unless the contrary is proved, thus putting the onus of proving himself innocent upon the accused.
• The investigating authority has special powers like intercepting wire and oral communication in the process of investigation.
• Further, under section 18 confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• The offences under the Act includes conspiring, attempting to commit or abetting organized crime or harbouring member of organized crime or being a member of such syndicate.
• Under section 21(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Under sub-section 5 of section 21, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• MCOCA was passed to curb such activities of “gangs” that were part the “underworld” in Mumbai.
• In March 2003, the Bombay High Court had struck down as illegal the powers under MCOCA to intercept communications. However, these powers under section 13 to 16 were upheld by the Supreme Court in 2008.
• In 2002, the application of MCOCA was extended to Delhi as well.

KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000 (KCOCA)

• The KCOCA was modelled on MCOCA and was legislated during the tenure of a Congress government in 2001.
• In 2009, KCOCA was proposed to be amended bringing terrorism within its purview with a maximum punishment of death. If the investigation is not completed within 180 days, the Court is authorized to extend the period up to 365 days, which means an accused can be detained for a year without filing of chargesheet.
• Under the proposed amendment Organized crime has been defined expansively to also include ‘terrorist act’ apart from ‘any continuing unlawful activity’. A terrorist act includes within its definition, acts committed with the intent to ‘disturb law and order’ or ‘public order’.
• The proposed amendment, empowered courts to attach the properties of terror suspects and there is a provision for a fine of Rs 10 lakh for terrorist acts. Also, terror suspects can be in police custody for a maximum of one month and in judicial custody for 180 days.
• However, the amended law has not received the President’s assent and thus these 2009 amendments do not stand. The following provisions, however, are part of the main Act as it is operational in present day.
• The investigating authority has special powers, under section 14, like intercepting wire and oral communication in the process of investigation.
• The police officer also can seek an order from the competing authority directing a cellular phone operator to de-activate any mobile phone and delink the calls from or to any mobile phone reasonably suspected of being used for any criminal act or conspiracy.
• Further, under section 19, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• If a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government.
• Under sub-section 5 of section 22, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• Under section 23 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.

CHHATTISGARH SPECIAL PUBLIC SECURITY ACT (2005)

• Under the Chhattisgarh Special Public Security Act (CSPSA), 2005, or the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, “unlawful activities” include posing a danger to public order, peace or tranquility in society, posing an obstacle to maintenance of public order, interfering with administration of law and encouraging the disobedience of law among others.
• The Act borrows heavily from UAPA in its formation of Advisory Board, declaring organizations as unlawful, penalising membership of unlawful organization and so on.
• The government is also empowered to forfeit funds of such organization and District magistrate (DM) is empowered to take possession of places used for unlawful activities.
• The decision of the DM and/or state government in matters under the Act is final and cannot be appealed against, saving writ jurisdiction of the high courts and Supreme Court.

GUJARAT CONTROL OF TERRORISM & ORGANISED CRIME ACT, 2019 (GCTOCA)

• The law received the President’s Assent 16 years after it was first introduced in the state assembly. Three Presidents before Ram Nath Kovind had returned the bill to the state
• While the law borrows significantly from MCOCA, what it misses out on is the checks on interception of communication. Also, the definition of “terrorist act” also includes “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the state”.
• Economic offences include ponzi schemes, extortion, land grabbing, contract killings, cybercrimes, human trafficking, and multi-level marketing schemes and organised betting.
• MCOCA has 5 sections dealing with interception of communication having checks like application for extension of period beyond 60 days must include a statement of the results of the interception thus far or officer above SP level is required to supervise the investigation.
• GCTOCA deals with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication.
• under section 16, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• Under Section 18, if a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government. Further, is any property is suspected to be proceeds of terrorist act or organized crime, the police can have it seized once confirmed by the Special Court.
• Under section 20(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail. Bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
• Under section 21 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene

THE PREVENTION OF ANTI-SOCIAL ACTIVITIES, 1985 (PASA)

• The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.
• A “cruel person” means a person, who either by himself or as a member or leader of a gang, commits an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.
• A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, any of the offences punishable under Chapter XVI (offences affecting human body) or Chapter XVII (offences against property) of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
• Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”.
• public order is deemed to be affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general publicor any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.
• Under section 5, the law provides for place and conditions of detention which means a detainee can be kept under prolonged detention so as to maintenance, discipline and punishment for breaches of discipline, as may be specified in the order.
• Section 6 states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the court to be vague or invalid, the one ground would still remain and the detention order sustained.
• In case a person against whom a detention order has been made “is believed” to have absconded or is concealing himself, the concerned authority is empowered to attach or sell his property within the State.
• The detaining authority has up to 7 days to communicate the grounds of detention to a detainee, from the date of detention order and if any of these are facts that are against the “public interest”, then they may not be disclosed.
• The Advisory board hears the detainee without legal representation and decides a within 7 weeks whether the detention is confirmed. The Board is empowered to confirm detention for a maximum period of one year.
• The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA.
• It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.

Related:

J & K’s PSA Law: How Draconian is Draconian?

SC OBSERVES PREVENTIVE DETENTION LAWS TO HAVE A COLONIAL LEGACY WITH A HIGH POTENTIAL FOR ABUSE AND MISUSE

LAW ON ARREST AND DETENTION: KNOW YOUR RIGHTS!

DEMOCRACY CAN NEVER BE A POLICE STATE: SUPREME COURT

The post Beyond UAPA: Examining other central and state laws granting vast powers to Govt appeared first on SabrangIndia.

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.

Related:

TERROR LAWS UNDER A PROTO-FASCIST REGIME

A LEGAL HISTORY OF NSA: INDEPENDENT INDIA’S VERSION OF THE DRACONIAN ROWLATT ACT

NATIONAL SECURITY LAWS PROMOTE JURISDICTION OF SUSPICION AND DENY REMEDIES: GAUTAM BHATIA

The post SC raises concern over frivolous use of NSA appeared first on SabrangIndia.

Erendro Leichombam is a 40-year-old political activist who reportedly holds a postgraduate degree in public administration from Harvard Kennedy School, and is a former associate of civil rights activist Irom Chanu Sharmila. Leichombam has been lodged in the Sajjwa jail since May 13, 2021, along with journalist Kishorechandra Wangkhem for a Facebook post condoling the death of the state Bhartiya Janta Party President S. Tikendra Singh, who succumbed to Covid-19.

The post highlighted that cow urine and cow dung as cures for the Coronavirus, something often advocated by many members of the Bharatiya Janata Party (BJP) and its other right-wing affiliates, is incorrect. The post also said that it is science and common sense that will save people from the pandemic.

According to media sources, Leichombam was picked up by the Police on May 13 from his Imphal residence after a complaint was filed by state BJP general secretary P. Premachanda Meitei and party vice president Usham Deban. His sister Anupama Leichombam told The Wire, “That night the police team, while dragging him out of the house, also hit my mother on her chest because she asked them to allow him to at least change his night clothes.”

Previous legal troubles over Facebook posts

This is not the first time that Leichombam has been embroiled in a case on trumped up charges. In July 2020, as per a Scroll.in report, Manipur Police had filed a sedition case against him for a particular picture he had posted on July 24 about Sanajaoba Leishemba, the newly-elected Rajya Sabha MP and the titular king of the state. In the image, Leishemba, who was elected on a BJP ticket, was seen bowing down with his hands folded in front of Union Home Minister Amit Shah. Erendro had captioned the picture “Minai macha”, which roughly translates to “son of a servant”.

He was arrested in May 2018 for posting a video on Facebook that the police said amounted to “promoting enmity between different groups and criminal intimidation”. After spending about 2 weeks in prison, he was released on bail in June by a local court.

Latest case

In the 2021 case related to a Facebook post over Cow dung as a cure for Covid-19, Erendro and journalist Kishorechandra have been detained under the National Security Act. The District Magistrate, Th. Kirankumar, in his official letters to Kishorchandra and Erendro on May 19, listed out a number of reasons as to why he had ordered their detention under NSA.

According to a report in The Wire, DM Kirankumar referred to the 2018 Facebook post of Erendro to buttress his argument in support of the invocation of a draconian law and also to add to his list of “crimes”. The DM’s letter read, “One video clip (that was) uploaded depicting protest by you and team against the existing government by way of throwing eggs on posters of the Prime Minister of India, Shri Narendra Modi, the then VC (vice chancellor) of Manipur University, Shri A P Pandey, Shri N. Biren Singh, honourable chief minister of Manipur, Shri Syamkesho, Registrar of Manipur University and Shri Yugindro, pro-VC of Manipur University which are displayed on a gate wall.”

Further, citing his latest Facebook post, the DM said, “Your very statement brings or attempts to bring hatred or contempt, or incites or attempts to incite disaffection towards the government established law in India, recites or utters obscene words in social media platform, thereby wilfully insulted and outraged the religious feeling and sentiments of the BJP workers and family members on the occasion of demise of president of BJP Manipur Pradesh namely late Professor S. Tikendra Singh…” The DM has also called him a “habitual offender” committing offences that intend to cause fear or alarm to the public, reported The Wire.

The NSA detention order was issued on May 17, the same day when Leichombam got bail from the local court in Imphal. With most preventive detention and anti-terror laws, it is routine for the executive to invoke such statutes after the alleged accused gets bail. This vindictiveness can be traced in many cases, that of Dr. Kafeel Khan, Dalit rights activist Chandrashekhar Azad among many others. This serial crime registration ensures extended periods of detention and amounts to an abuse of due process of the law.

 Leichombam father has moved a habeas corpus petition against his illegal detention before the Supreme Court and the matter is likely to be heard on July 17.

Draconian Preventive Detention Laws

Despite Constitutional protection provided to every person under Articles 20 and 22 of the Constitution, some laws throttle this very protection. Article 22 specifies rights guaranteed to a person if the person is arrested: (Protection Against Arrest and Detention in Certain Cases). 

Interestingly this Constitutional protection –which includes the right to defend, have a lawyer, be produced before a Magistrate within 24 hours, also allows Parliament in certain instances to enact laws that legitimise/legalise preventive detention beyond three months without obtaining the opinion of an advisory Board (Clause 7 of Article 22). It is under this constitutional cover that such laws remain in our statute books. There is also the critical Article 20 (Protection in Right of Commission of Offences especially sub clause (3) which states, “No person shall be deprived of his life or liberty except according to procedure established by law.” It is under these constitutional protections that law enforcement agencies, executive (State Power) is, supposed to at any rate be accountable and transparent especially when it comes to curtailing freedom of an individual.

Figures

According to the National Crime Records Bureau (NCRB) data of 2017, Manipur recorded six detentions under National Security Act (NSA), and by the end of the year, only one person was released from custody by the Advisory Board. The National Security Act mandates the constitution of Advisory Boards where the Authority issuing the detention order must refer all cases to such a Board within three weeks from the date of the detention order.

The government is also responsible for forwarding any representation made by the detenu and the report of the detaining authority to the Board, under the Act. The Advisory Board is required to submit a report to the detaining Authority within seven weeks of the date of detention. The prime consideration before the Advisory Board is the detention of the person and not the period of detention.

Surprisingly, the NCRB data published under ‘Crime in India’, which was also referred to by the Union Government in September last year to answer a question on imposition of NSA, revealed that Manipur had recorded zero cases under the said Act.

But, the same year, journalist Kishorechandra Wangkhem was detained under the NSA in November, for posting critical comments on Facebook against the Chief Minister N Biren Singh, Prime Minister Narendra Modi and the Rashtriya Swayamsevak Sangh (RSS). He allegedly posted videos on Facebook calling the Chief Minister a “puppet” of the Prime Minister, and also criticising the move of the state government to celebrate the birth anniversary of Rani Jhansi as totally unnecessary. This suggests an absence of accuracy in data presented before Parliament.

His representation against the detention order was rejected by the District Magistrate on December 7 and the State Government confirmed his detention on December 14 and fixed the detention period for 12 months. On April 8, 2019, the Manipur High Court quashed his detention order on coming to the conclusion that the detaining authority did not provide Wangkhem with the copies of the Facebook posts and compact disc containing the videos uploaded by him, which resulted in depriving him of the opportunity to make an effective representation against the detention order. This case, somehow, did not reach NCRB data, opening a can of worms regarding the veracity of such government statistics.

Source: National Crime Records Bureau (Crime in India 2019) Table 19A.11

In order to get more details about NSA cases, CJP looked through the Manipur High Court website. In the year 2019, the high court disposed of 7 cases related to habeas corpus writ petitions. Out of these 7 cases, around 5 cases involved the National Security Act. Similarly, in the year 2020, the court disposed of 9 cases, out of which at least 3 were under NSA.

Liberty is a highly cherished constitutional value, as interpreted by most courts, but people like Erendro Leichombam remain incarcerated under a claustrophobic legislation without bail for a mere online post. Attention should be paid to certain sections like section 16 of the NSA. Under this provision, no legal action or proceedings can be initiated against the Central Government or a State Government for it is to be assumed that they acted in “good faith”.

Leichombam, who was whisked away to an Imphal jail, has managed to garner support against his detention. The Harvard Graduate Students Union have started a petition on June 5, urging the government to release him.

Related:

Manipur: Journalist, activist post comment on cow dung, charged under NSA
Manipur journalist jailed under NSA for criticizing BJP on social media
A Legal History of NSA: Independent India’s version of the draconian Rowlatt Act
How NSA is being used against Human Rights Defenders

The post Manipur activist jailed under NSA for Facebook post criticising BJP appeared first on SabrangIndia.

Between January 2018 and December 2020 the Allahabad High Court quashed as many as 94 out of the 120 detention orders issued by District Magistrates (DM), reveals an investigation by the Indian Express. The newspaper studied police and court records to reveal a pattern where the court has pointed out in several cases that police FIRs have been copy-pasted across locations, detention orders issued without application of mind, accused has been denied due process, using the National Security Act (NSA) to block bail and so on. Furthermore, the advisory board, where the detained person is allowed to make a representation, has upheld the detention in all these 120 cases.

The investigation shows that as many as 41 NSA cases, out of the total cases that came before the High Court, pertained to incidences of cow slaughter. It was found that all the accused were from the minority community and in 30 cases (more than 70%) the High Court quashed the NSA detention order, and ordered the release of the petitioner. In the remaining 11 cases, except one, bail was granted to the accused persons stating that judicial custody was not required.

In each of these cases, the lower court or the DM had cited similar grounds for invoking NSA: that the accused had moved for bail and their release was “imminent.” And that if the accused was out of jail, he would “again” indulge in “activities prejudicial to public order”.

The IE investigation revealed some key points while setting aside detention orders in these cow slaughter cases:

• In as many as 11 detentions, the court cited “non-application of mind” by the DM while passing the order.

• In 13 detentions, the court said the detained person was denied the opportunity to represent himself effectively while challenging the NSA.

• In seven detentions, the court noted that these cases came under the ambit of “law & order” and there was no need to invoke the NSA.

• In six detentions, the court flagged that NSA was invoked on the basis of a solitary case — and that the accused had no criminal antecedents.

An analysis of police records revealed that In nine detentions, the NSA was invoked on the basis of FIRs that claimed that police were set into action on the basis of a lead given by an anonymous “informer” on the cow slaughter. Few other observations include:

• 13 detentions were based on FIRs that claimed that slaughter allegedly took place in an “open agricultural field” or a forest

• In 9 detentions, DMs relied upon FIRs that said the slaughter allegedly took place inside the four walls of a private residence

• In 5 detentions, DMs relied upon FIRs that said slaughter allegedly took place outside a shop.

The investigation has also drawn out similarities in the detention orders passed by DMs and point towards the striking similarities in these orders, many of them being ad-verbatim:

• In seven detentions alleging cow-slaughter, the NSA order said that “atmosphere of fear and terror has engulfed the whole vicinity”.

• In six detentions, the NSA orders used six identical grounds: some “unknown persons” fled from the spot; minutes after the incident, police personnel were “attacked”; due to attack on the police party, “people started running helter-skelter and the situation has become tense”; people “started running to reach to a safe place”; due to the “atmosphere, people are not attending their day to day work”; due to the act of the accused, “peace and tranquility of the area and law and order situation was badly disturbed”.

• In two detentions, the NSA orders have identical grounds: “women, in particular, became reluctant to go out of their house and do their routine work”; and that “tempo of life was adversely affected and the public order was shattered”.

• In two other detentions, the grounds were the same: “An atmosphere of fear had developed, nearby girls school was closed as also doors of the neighbouring houses”.

Further analysis of the records showed that the NSA was invoked in cases to prevent the person from being released from judicial custody after getting bail. In 12 detentions under NSA between January 2018 and December 2020, the person remained in jail more than 200 days after the criminal court had already granted bail; in three detentions, the persons remained in jail for more than 300 days — in one case, for 325 days, and in another, for 308 days.

Analysis of court records in cases such as these where a draconian law like the NSA has been invoked is imperative to understand whether it is being misused to intimidate a certain class, community or caste of the society. The fact that the majority of these detentions were nullified by the Allahabad High Court show the malafide intentions of the police as well as the DMs behind invoking NSA, which is to keep people under detention, without trial, for the maximum period of time. It is only when the petition comes before the High Court, when the accused is hopeful of his release from such unreasonable detention, albeit validated by law.

Related:

MP High Court pushes for guidelines to prevent procedural lapses in NSA detention orders

Dr. Kafeel Khan moves Allahabad HC, seeks quashing of criminal case

J&K HC: Notice issued in plea challenging “maximum” period of detention under PSA

The post UP: More than a third of NSA cases about cow slaughter, majority quashed by HC appeared first on SabrangIndia.

Allahabad High Court quashed a detention order issued against a person accused under National Security Act (NSA) on the ground that unreasonable delay was caused in processing the representation made by the petitioner and in placing the same before the Advisory board. A two-judge bench comprising Justices Pradeep Kumar Srivastava and Pritinker Diwaker in its order dated December 7, 2020 directed the petitioner to be released forthwith and quashed the order while making important observations pertaining to following proper procedure in preventive detention cases.

The petitioner, Javed Siddiqui filed the habeas corpus petition against the detention order passed against him under the NSA on July 10, 2020.

The background of the case is that the petitioner along with around 80 other companions entered a slum locality used casteist words against everybody who came in the way and abused them and also beat them up while also damaging their houses with lathis, even lit the houses on fire. Eventually an FIR was filed against the petitioner and many others under relevant sections of the Indian Penal Code, Prevention of Damage to Public Property Act, Epidemic Disease Act, Disaster Management Act as well as Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and UP Gangster Act.

The petitioner was able to acquire bail in all other cases except under crime registered under UP Gangster Act and hence continued to remain in jail. The District Magistrate found that the petitioner is making all efforts to obtain bail and it was felt by the DM that after coming out from jail, the petitioner will again start similar kind of lawless activities and it will not be possible to maintain law and order and communal harmony and hence decided to initiate action for preventive detention under Section 3(2) of the NSA.

The petitioner was informed about his rights of making a representation, through the Jail Superintendent, before the State Advisory Board and the details thereof, including limitation. Accordingly, the petitioner made a representation with a request to set aside the detention order and in the alternative, also made a request to make available the relevant documents to him as early as possible. However, it was not forwarded in time and the same was rejected on the basis that it was not received in time. He was also not supplied with relevant documents thus unable to make effective representation against the detention order.

The petitioner contended that his representation was dealt with by the State Government and Central Government in such a way that it would reach only after the recommendation of the Advisory Board and it gave rise to the preliminary rejection of the representation. He was also not given adequate opportunity of hearing before the Advisory Board and his representation was not referred to the Advisory Board; neither was he given the opportunity to put his case through a counsel or through a legal expert.

The court observed, through the facts of the case, that even though representation was made by petitioner within the limitation of 12 days of receiving detention order, the same was not placed before the Advisory Board until August 12, when the Board made recommendation for approval of his detention order. The petitioner’s recommendation remained pending before the State government and after 2 days from the date the Advisory Board sent the recommendation, the same was rejected. The representation was kept pending for more than 3 weeks and was never placed before the Advisory Board. The court held that the inaction on the part of authorities resulted in denial of fair opportunity of hearing and on this ground alone, the impugned detention order stood vitiated.

The court observed that delay in taking a decision on representation, and not placing the same before the Advisory Board, are important factors to adjudicate upon the legality or illegality of the order of detention. However, the court clarified that such delay could have reasonable explanation and hence depends upon the factual situation in that particular case.

The court held that Even on the date when the case was fixed before the Advisory Board, the authorities could have placed the representation of the petitioner before the Board and stated that no reasonable explanation was provided by the state for not placing the representation before the Board.

The court further observed, “it is evident from the record that, while extra ordinary haste was shown in taking action against the petitioner, the authorities remained reluctant and there was complete inaction on their part causing unjustified delay in processing the representation of the detenue and in not placing the representation before the Advisory Board. This inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of fair opportunity of hearing and it also resulted in denial of the opportunity of fair hearing to the petitioner as provided under law. This is not permissible and is in gross violation of established legal and procedural norms and legal and constitutional protection”.

The court made further pertinent observations relating to following the legal procedures when it comes to preventive detention since it concerns with right to liberty of an individual,

“The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed.”

On the basis of above mentioned grounds, the court held the detention order under NIA and subsequent extension orders to be “arbitrary and illegal and is liable to be quashed.”

The complete order may be read here.

Related:

Dalit worker killed for touching food at ‘Upper Caste’ party in Madhya Pradesh!

Witness Protection Scheme: Allahabad HC seeks State’s response over implementation

Justify ‘attempt to murder’ charge on Tablighi Jamaat attendee: Allahabad HC

The post Unreasonable delay in forwarding detainee’s representation: Allahabad HC quashes NSA detention order appeared first on SabrangIndia.

The Madhya Pradesh High Court on October 6, 2020 dismissed charges against four Muslim youths, booked for carrying swords during a Muharram procession in 2019 and levied a Rs. 10,000 fine on the state government for filing the statement under the National Security Act (NSA.)

After hearing four habeas corpus petitions, the Court said, “It appears that only in order to detain the petitioner’s brother under the National Security Act, 1980 such an incorrect statement is being made before this Court and therefore, the petition deserves to be allowed and is accordingly allowed with a cost of Rs.10,000.”

Similar petitions are also to be given similar compensation and warned officials to only use the NSA for serious matters.

Justices S.C. Sharma and Shailendra Shukla, observed that the Rajgarh Collector had incorrectly invoked NSA charges against Hakim, Salman, Abdul Karim and Zahir Khan on September 4 for allegedly smuggling sharp-edged weapons and potentially disturbing communal harmony. Barring one boy, the accused persons did not have any criminal record.

“Preventive detention involves serious encroachment on the right of personal liberty and therefore, it is the solemn duty of courts to ensure that this power is exercised strictly in accordance with the requirement of the Constitution and the law,” said the Court order.

According to the Rajgarh police, they had detained the four youths to maintain peace and to “prevent them from acting in any matter prejudicial to the security of the state.” The SP submitted a report on September 3 following which the district collector passed the NSA detention order.

However, the bail petition filed by Hakim’s elder brother said that the police had detained him on the intervening night of August 23 and 24 and later sent him to district jail under section 25 of the Arms Act. Following this, the Collector invoked NSA charges and passed an order of detention.

“The brother of the petitioner is not a hardcore criminal and was only charged with section 25 of the Arms Act. But, the collector invoked NSA against him, that too when he was in jail for an alleged crime which was done a year ago. The order of detention has been passed in a vindictive manner,” said Advocate Manish Vijaywargiya for the petitioner.

He argued that the detention under NSA was also not approved within 12 days as per requirement.

The court in turn questioned why the order was not issued on September 14 when the approval to the detention was granted. They suspected the administration ante-dated the order of approval.

The grounds of detention were served to Hakim along with supporting documents on September 5, when he was in jail while the state government gave its approval on September 14. Hakim received the approval on September 17 and the matter was still pending before the advisory board.

“This court really fails to understand that based upon a Rojnamcha entry, dated August 30, 2020, in which it was stated by police that the brother of the petitioner participated in Muharram procession last year carrying swords, how can he be a threat to law and order? Participation in Muharram last year, even if it is presumed to be correct, has got no relevance with the procession which was to take place this year,” said the Bench.

“In this case, the district magistrate acted with non-application of mind and passed detention order under NSA. Similarly, in the other petitions, approval was not given within 12 days, so the order of NSA is revoked in them also,” the court said.

While hearing the pleas, the Court referred to another case on September 15, where the Court disposed of similar detainment under the NSA imposed by the Indore Collector on five Muslims for participating in a Muharram procession on August 30.

Related:

SC quashed Guj government’s anti-worker notification
Bombay HC quashes Tablighi Jamaat FIR;  says trial would be abuse of process of law
Communal Riots 2019: Communal Discourse Raging On in India
Muslim festivals left out of NPR instruction manual

The post MP HC drops NSA charges, grants bail to 4 Muslim youth appeared first on SabrangIndia.

Dr Kafeel Khan, detained under National Security Act (NSA) for delivering a speech during a protest against Citizenship Amendment Act (CAA) has penned down a heartfelt letter from behind the bars. He has been lodged in Mathura jail since January; while he was granted bail by a court, immediately he was charged under National Security Act and his detention is being extended every 3 months and can be extended until February without framing charges against him. Currently, his detention has been extended until November.

The letter has been written in Hindi. Here’s the translated version:

My dear fellow Indians,

The government says that if I am released from jail, there would be a law and order crisis. Why will I disturb law and order? Am I a criminal? If I am released, first of all I would tour Bihar, Assam and Kerala since a post flood crisis situation has emerged and would do everything that a doctor and patriot would do to help contain the spread of the pandemic. As a Covid warrior I would have helped in containing the spread of the coronavirus- would have done some research to help the government find a new medicine, new treatment.

The BRD College (Gorakhpur) incident completed 3 years this August. The life that I spent saving children’s life, the government’s stubbornness is keeping me away from my children. Behind these silent walls of this prison, my heart keeps yearning for my mother, wife and children. I don’t eat well, I can’t even cry, I just want to hug them and weep; I just want to tightly hug my daughter, my son, who I hear has started walking and talking.

I wish to peacefully sleep in my mother’s lap, hug my siblings for hours. I wonder why life is taking a test. As a free individual I was always busy in medical camps and taking care of little children and was away from my own, and ever since this government has come to power, false cases are being made out against me and I am being kept in jail and tortured. I wouldn’t even call this government’s arrogance, this is a childlike stubbornness, as saint Valmiki had said.

I have been married for 5 years and I have spent about 2.5 years in jail, but my wife is strong and she is standing with me. They have destroyed my family financially, my brother was attacked, elder brother’s business has shut. We have been made to go around in circles, lower court to high court, to supreme court, back to high court, we have been made miserable. Why? For what reason? Why are they scared of me, what have I done so that I have been charged under the National Security Act?

I am thankful for your (public) support and I hope the government leaves its arrogance behind and gives me a chance to serve the nation. I hope I will be able to attend my daughter’s birthday this time. JAI HIND JAI BHARAT

Dr. Kafeel Khan

There’s still a flickering flame of hope for Khan as his habeas corpus petition, filed by his mother, is pending before the Allahabad High Court and the Supreme Court has ordered that the hearing be heard expeditiously, preferably within15 days. However, this order came on August 11 and 15 days have already passed since this order, yet the case has not been heard on its merits even once. Firstly, the high court had not received original case records from the apex court, from where the case was transferred and secondly, the government is filing some or the other document at every hearing, thus delaying the outcome of the case. The case will next be heard on August 27. The court said it will go through the original record of the proceedings under National Security Act, 1980 which resulted in the detention of Khan as well as the extension of the detention.

The letter in Hindi may be read here.

Related:

Yet another adjournment in Kafeel Khan case in Allahabad HC
Release Dr Kafeel Khan: UP Congress holds demonstration at Vidhan Sabha
Dr. Kafeel Khan’s detention under NSA extended until November
SC directs Allahabad HC to decide on Kafeel Khan’s habeas corpus plea in 15 days

The post Hope to attend my daughter’s birthday this year: Dr. Kafeel Khan appeared first on SabrangIndia.

As per a Home Department notification dated January 10, the Lieutenant Governor of Delhi has granted the police commissioner emergency powers to detain people. The powers are granted under sub section 3 of section 3, read with clause e of section 2 of the National Security Act, 1980. The order will be valid from January 19 to April 18, 2020.

According to section 3 (3) of the NSA, “If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.”

Meanwhile clause e of section 2 clarifies, “”State Government”, in relation to a Union territory, means the administrator thereof.”

The notification may be viewed here:

In wake of protests as well as excesses inflicted upon university students in the national capital, this notification appears to be rather ominous. Now, it would be possible for the police to say, detain a protester for up to three months, if they choose to do so. But, the police on their part insist that this is a routine order.

The post LG grants Delhi Police emergency detention powers under NSA appeared first on SabrangIndia.

The post UP police trying to trap Azamgarh political activist Kalim Jamei under NSA: Rihai Manch appeared first on SabrangIndia.

The police had conducted a raid at Karkali village in Kandhwa on February 1 to nab the men, but they escaped. However, they were picked up the following day from different locations in Khandwa itself.

The New Lotus Blooming in Madhya Pradesh
But what came as a bigger surprise is that it was Madhya Pradesh, now a Congress ruled state under the Chief Ministership of Kamal Nath, that invoked the NSA against three men for cow slaughter. This leads one to wonder if this controversial move was an exercise to placate a slice of the electoral pie wrested out of the BJP’s control with much difficulty.
 
Chief Minister Kamal Nath’s predecessor Shivraj Singh Chouhan had used NSA against at least 22 people accused of cow slaughter. Keen to reap rich electoral rewards in the assembly elections held in December 2018, the Congress had promised, in its manifesto, to do more for cow protection. Now that it is finally in power, it is delivering on this promise.
 
In January, the new Congress administration announced that 1000 new government run cow shelters will come up across the state over the next four months… a time frame that mirrors the time left before the upcoming general elections!
  
However, building cow shelters is one thing and booking people under the provisions of NSA, an act that has attracted scathing criticism from various civil society voices and human rights groups for its use against dissenters as well as members of historically oppressed communities, is quite another!

Here is why the Congress should do everything in its power to steer clear of such a controversial legislation, if it wants the electorate to be able to differentiate between it and its opponents.
 
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.

Under the provisions of NSA, people can be detained for as long as the state wants and authorities are not even required to disclose grounds for detention!  

Experts have pointed out how, the structure of this Act is similar to the British Raj’s Rowlatt Act [1] 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“.  

Key Drawbacks 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 lose 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.
 

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