Curbing freedom through Preventive Detention with special focus on NSA – By FAHAD GHANI

Curbing freedom through Preventive Detention with special focus on NSA – By FAHAD GHANI

Introduction

The repeal of MISA in 1977 had created a void in India’s history of Preventive Detention laws. This void was filled again in 1980 with the passage of the National Security Act, hereinafter NSA. The concept largely reeks of paranoia. Preventive Detention is, in simple terms, the detention done by the State on mere apprehension that a person or group of persons may indulge in certain activities which are likely to affect law and order, public order, public safety, peace and tranquillity and in some cases supply of essential commodities. Although the main reason for this kind of law is to prevent a crime from being committed in the future the trends have been totally contrary to the aforementioned reasons. Since the inception of the concept of Preventive Detention, it has been used against and to curb and restrict the liberties of those who do not agree with the functioning and methodology of the government. The Preventive Detention laws have always acted as a handmaiden of the government to curb dissent. It is mainly because of this reason that Preventive Detention laws are considered ‘Black Laws’.

Pedigree of India’s Preventive Detention Laws

India’s tryst with Preventive Detention laws dates backs to the British era. Although it was only during the first World War that the UK had enacted laws, such as the Defence of the Realms[i] Act and Emergency Power Defence Act, that conferred power to the government of Preventive Detention but the formula was tested a century ago in India. India saw its first-ever Preventive Detention law in 1818which came into force as Bengal State Prisoners Regulation, III of 1818. This regulation empowered the State authorities to arrest on the pretext of maintaining public order[ii]. The detainee was also not given the right to judicial proceedings. Then the Defence of India Act was promulgated in 1915 with the same motto.

1919 saw the biggest bloodbath of the era in Jallianwalabagh. General Dyre had, indiscriminately, opened fire upon the innocent Indians. The martyrs were protesting against one such Preventive Detention law, namely, Anarchical and Revolutionary Crimes Act. The aforementioned law, also popularly known as Rowlatt Act, gave legal sanction to confinement without trial. Bengal Criminal Law Amendment Act of 1925 was one such law of the Preventive Detention series.

At last, when ‘Swaraj’ was attained and India awoke to life and freedom it found herself filling the shoes of the Britishers. The draconian laws that were fought vehemently by the Indian freedom fighters were introduced with different faces. THE first PDA was passed in 1950 and then there was looking back for the newly and soon to be the largest democracy of the world. Although PDA was repealed it was reincarnated by any such laws, through NSA in particular.

National Security Act, 1980.

The provisions of the National Security Act empower the Central and State governments to detain individuals to protect the national security and interest of its citizens. It provides for a maximum confinement period of 12 months which can be extended if new and fresh evidence is provided against the detainee. Moreover, the detainee can be left incarcerated for up to 10 days without even making clear to him the grounds for his incarceration. The detainee doesn’t even have the right to engage a lawyer.

The provisions of the Act may seem inconsistent with Articles 22(1) and 22(2) but the law derives its sanctity and authorization from Article 22(3)(b). The only remedy available to the detainee is by approaching the Advisory Board or through the writ of habeas corpus. Although the principle attached with the writ of habeas corpus is that the Judge should first take up the issue of habeas corpus but that rarely happens. The lack of will to entertain the writ of Habeas Corpus by our High Courts and in particular by the Supreme Court, on a priority basis has left a scar on India’s image. It might be the reason that, according to the Freedom House Report, India has found herself at the 67th position[iii] out of 100 countries. But a recent report published by The Indian Express shows a change in the trend. The report shows how grossly NSA has been misused in the State of UP[iv] and how the Allahabad High Court had intervened[v] in time to uphold Fundamental Rights. In doing so that HC has reiterated that that “the individual liberty granted by the Constitution of India cannot be taken away without proper application of mind.” And in doing so it made clear that liberty is the most precious of all rights. It is the central concept of the Indian Constitution. Previously, Justice Khanna had observed in his landmark dissenting Jabalpur Judgment[vi] that, “The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary (corollary) of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution.” Granville Austin had said that Fundamental Rights and Directive Principles of State Policy in the Constitution of India had their deep roots in the struggle for independence and were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India.”[vii] But since this right is systematically being curtailed, the onus is upon our High Courts and in particular the Supreme Court to ensure its availability to the citizens. Judiciary should make sure that NSA is not used as a tool of oppression and suppression.

Conclusion

In conclusion, it can be said that although repealing of National Security Act in its entirety is not much of an option keeping in mind the sporadic secessionist uprising in the country but our Courts should strive to impose appropriate restrictions on the use of such laws. The petitions of Habeas Corpus should be heard forthwith. Also, not only the judiciary but every State institution should work together harmoniously in order to realize the objectives enshrined in Fundamental Rights. Every attempt should be made to stop arbitrary use of the Act. Arbitrariness hampers the basic Constitutional rights of the citizens. Even the Supreme Court had observed that the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards is mandatory and vital.[viii] The real freedom will only come to India when freedom and liberty are celebrated and not constrained arbitrarily with draconian laws.

ENDNOTES

[i] Defense of the Realm Act, 1914

http://www.nationalarchives.gov.uk/pathways/firstworldwar/transcripts/first_world_war/defence_ofthe-realm.htm

[ii] Bengal State Prisoners Regulation, 1818

 https://www.legitquest.com/act/bengal-state-prisoners-regulation-1818/78AE

[iii] Freedom in the World 2021, Freedom House

https://freedomhouse.org/country/india/freedom-world/2021

[iv]Kaunain Sheriff M, Express Investigation:Citing lack of due process & glaring gaps in FIRs, Allahabad HC struck down 20 of 20 orders, The Indian Express (Apr. 14, 2021, 3:45 AM)

 https://indianexpress.com/article/express-exclusive/uttar-pradesh-allahabad-high-court-nsa-cow-slaughter-cases-communal-incidents-7261875/

[v] Editorial, The Bench Mark,The Indian Express (Apr. 15, 2021, 10:00 AM)

https://indianexpress.com/article/opinion/editorials/allahabad-hc-individual-freedom-national-security-act-7265120/

[vi] Swapnil Tripathi, Remembering Justice H.R. Khanna: The Judge who spoke out fearlessly and eloquently for freedom, The Basic Structure (Apr. 15,2021, 11:00AM)

https://thebasicstructure.com/2020/04/28/remembering-justice-h-r-khanna-the-judge-who-spoke-out-fearlessly-and-eloquently-for-freedom/

[vii] Granville Austin, The Indian Constitution: Cornerstone of Nation 50(1966)

[viii] https://indiankanoon.org/docfragment/79601657/?big=3&formInput=right%20to%20liberty

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