INTRODUCTION
Justice H. R. Khanna asked the then-Indian attorney general during the ADM Jabalpur hearing if there would be any recourse if a police officer detained a law-abiding citizen and even took his life out of personal animosity or for another reason unrelated to the state. The attorney general unequivocally answered, “Consistently with my arguments there will be no judicial remedy as long as emergency lasts”.[1] He then went on to say: “It may shock your conscience, it shocks mine, but consistently with my submissions no proceedings can be taken in a court of law on that score during the Emergency.”[2]
The Bengal State Prisoners Regulation, III of 1818 (or The Bengal Regulation III of 1818 as it is popularly known) was a preventive detention law enacted by the East India Company in the Bengal Presidency in the year 1818. This law gave the administration a tool to indefinitely detain an individual on the account of mere suspicion and without having to commit the detainee to examination.[3]
The then government felt that the lapse of Defence of India Act would re-enable a perceived threat from the so-called nationalistic revolutionary leaders. And this apprehension laid the foundation for the Anarchical and Revolutionary Crimes Act of 1919 which was also referred to as the Rowlatt Act.[4] The Emergency Provisions of indefinite preventive detention, imprisonment without trial, and judicial review were expanded under the Defence of India Act of 1915, which was enacted by the Imperial Legislative Council in Delhi on March 18, 1919.[5]
After India gained independence, the Maintenance of Internal Security Act (or MISA) was passed by the Indian parliament, giving Prime Minister Indira Gandhi’s government and her law enforcement agency unrestricted powers for the indefinite preventive detention of people, the search and seizure of property sans search warrant, and wiretapping to quell civil and political unrest in India under the garb of combating foreign-inspired terrorism and sabotage. Throughout the national emergency (1975–1977) – which was declared later – it was used to stifle political dissent, and the statute was altered numerous times. It was finally repealed when Indira Gandhi lost the 1977 general election in India and the Janata Party took office. The void created by this repeal thus laid the foundation for the National Security Act (NSA in short) of 1971.[6]
RECORDS: SIN QUA NON
It is significant to note that there is no legitimate, authorized and admissible data from any governmental source concerning the cases registered under the NSA as the record for any and every detention under the NSA is not maintained by the National Crime Records Bureau (or NCRB in short) as no FIRs are registered in the cases pertaining to NSA.[7] Therefore there is no reliable statistical data available about arrests made under the NSA.
The Second Police Commission Report of 1979[8] read effectively that a thorough examination of the issue of crime in society would necessitate the analysis of a much wider range of data, including information on the very frequency of various types of crime, regardless of the offenders involved, as well as several facets of the conduct and personalities of people who are found to be prone to criminal behaviour or who are involved in the commission of particular crimes, regardless of whether they are detained or found guilty in any given case. … … In light of this, it envisioned that the proposed Crime Record Bureaus at the State and National levels act as an authorized repository for a range of data and information that will aid not only the police in the conduct of their investigative duties but also probation officers, jailers, and other correctional facility staff, in addition to criminologists and social scientists, in their respective fields of correctional work and analytical studies. And in order to fulfil this wide range of goals, it was stated that the Crime Record Bureaus should be given the right to gather data from all the various branches of the criminal justice system, including the police, prosecutors, courts, probation departments, jails, and other correctional facilities.
Further paragraph 17.10, the aforementioned report[9] effectively read that when it begins operations, the proposed Crime Record Bureaus would be able to receive, store, and provide back a variety of data and information relevant to various purposes, such as police investigation needs, research into the impact of the current system of court trials, procedures, and sentencing policy on the criminal’s conduct moving forward evaluation of the impact of probation and correctional services currently in operation, and research into a variety of environmental and social factors.
Thus, it is argued that the unavailability of official data on account of non – cognizance of cases registered under the NSA by the NCRB has resulted in an increased probability of its misuse by the administration and higher political echelons with greater opacity and has reduced the accountability by infringing upon the Right to Information that the general civilians have about the law that they are subject to.
USE, MISUSE, AND ABUSE – DEATH BLOW TO THE REQUIREMENT OF DUE PROCESS OF LAW
The Indian Constitution’s Article 22 clause (5)[10] imposes twofold obligations on the state when ordering preventative custody: firstly, it must inform the detainee of the reasons for the imprisonment “as soon as may be,” and secondly, it must provide him the “earliest” opportunity to make representation against such order.
It can be thus concluded that the use of such a phrase imports an element of immediacy, urgency, and exigency that is to be exercised to prevent any transgression of the basic right of the detainee. Further Section 8 of the NSA[11] in the same vein also uses the same phrase to read: “When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be…………. communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.”
The due process of law requires that the reasons for arrest (sic detention) are revealed without any undue delay as sans such information the detainee is left in dark without any cogent reason eventually abrogating his right to avail legal aid.
According to several High Court decisions in India, the FIR is a “public document” as defined by Section 74[12] of the Indian Evidence Act. As a result, upon request and payment of the necessary legal fees, the accused individual must be provided with a certified copy of the FIR.[13]
But no FIR is registered in cases lodged under the National Security Act and contrary to the general practice it is incumbent upon the State to communicate to the detainee such reasons in not more than five days and under exceptional circumstances in less than fifteen days from the date of arrest but usually, there is undue delay in such record of reasons in blatant disregard to the rule of law.
In Nuzhat Perween v. State of U.P.[14], it was effectively held that in the 31st year of the Republic of India, Parliament passed the National Security Act, of 1980 to establish preventive detention in specific circumstances and address issues related thereto. Preventive detention is an unusual way to restrict someone’s freedom and liberty in extremely uncommon and rare situations. Alongside the right to life, the right to personal liberty is a precious fundamental right under Article 21[15] of the Indian Constitution.
In the same case[16], it was effectively held by the Hon’ble Supreme Court that it is important to note that Dr. Kafeel Khan’s detention proceedings were not started for almost two months after he addressed the students. The only action taken at that time was to file a criminal complaint against him for offenses under Section 153A of the Penal Code, 1860[17]. Later, certain new offenses were added to it. In the aforementioned instance, Dr. Kafeel Khan, the accused, was taken into custody on January 29, 2020, which was more than 45 days after the incident. The Chief Judicial Magistrate of Aligarh accepted an appeal to have the accused released on bail in the case on February 10, 2020. Even then, there was no advice for using the authority granted by Section 3 of the National Security Act of 1980, subsection (2)[18]. Only after the release order of February 12th, 2020 was passed did three police officers ask the Deputy Inspector General/Senior Superintendent of Police in Aligarh to ask the District Magistrate in Aligarh for a detention order. Dr. Kafeel Khan eventually received the order of detention, a memo explaining the reasons for it any supporting documentation.
This indicates the high-handedness with which the administration has used NSA in the recent times to circumvent, annul and revoke illegally the grant of bail to effectively strike at the heart of personal liberty.
CONCLUSION
Indian constitutional courts have dynamically interpreted the Constitution in favour of the rights protected under Part III. Devices such as issuing directions to fill the gaps in the operation of a law and continuing mandamus have been employed to expand the notion of due process. Therefore, in that respect, The National Security Act in the modern time requires fresh consideration in the view of progressive jurisprudence with a special emphasis on the mechanism and system to ensure due record of the cases registered under NSA by an independent governmental organization and reduction in the time frame for communication of reasons of such detention and inter alia following of the due process at every step to prevent misuse and abuse of the law.
Author(s) Name: Himanshu K. Mishra & Sumit Gautum (National Law Institute University, Bhopal)
References:
[1] F Nariman, Before Memory Fades (Paperback edn, Hay House Publishers 2020).
[2] P Advani, The Indian Judiciary – A Tribute (Paperback edn, HarperCollins Publishers 1997).
[3] Omar, Imtiaz, Rights, Emergencies, and Judicial Review (Martinus Nijhoff Publishers 1996)
[4]Wikipedia contributors, Rowlatt Act, Wikipedia, The Free Encyclopedia, <https://en.wikipedia.org/w/index.php?title=Rowlatt_Act&oldid=1122276263> (accessed November 23, 2022).
[5] Popplewell, Richard, Intelligence and Imperial Defence: British Intelligence and the Defence of the Indian Empire 1904–1924 (1st edn., Routledge 1995)
[6] ibid
[7] ‘What is National Security Act’ (Business Standard) <https://www.business-standard.com/about/what-is-national-security-act-nsa > accessed 08 October 2022; Aishwarya Ingle ‘Unjust provisions of UAPA and NSA have no place in 21st century’ (Inventiva, 15July 2021) < https://www.inventiva.co.in/stories/provisions-of-uapa-and-nsa/> accessed 08 October 2022
[8]<https://police.py.gov.in/Police%20Commission%20reports/2nd%20Police%20commission%20report.pdf> accessed 08 October 2022
[9] ibid
[10] The Constitution of India, 1950 art 22(5) reads-
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
[11] THE NATIONAL SECURITY ACT, 1980 (65 of 1980) s.8.
[12] Indian Evidence Act, 1872 (1 of 1872) s. 74
[13] Shyam Lal v State of UP., 1998 Crl. L.J. 2879; Chnnappa Andanappa Siddareddy v. State, 1980 Crl. L.J. 1022.
[14] 2020 SCC OnLine All 984: (2020) 113 ACC 7: (2021) 1 All LJ 105: (2020) 215 AIC 925
[15] ibid
[16] ibid
[17] The Indian Penal Code, 1860 (45 of 1860) s. 153A
[18] THE NATIONAL SECURITY ACT, 1980 (65 of 1980) s.3(2).
