~ Chandrashekar Azad, Bhim Army.
On September 14, Chandrashekar Azad , the 31-year-old lawyer, firebrand Dalit leader and co-founder of Bhim Army, walked out of Saharanpur jail after spending 15 months behind bars under the draconian National Security Act (NSA), slapped against him by the Chief Minister Yogi Adityanath-led Uttar Pradesh government. Azad, with his quintessential moustache, synonymous with the slogan 'The Great Chamar', has become a veritable symbol and icon of a new Dalit self-respect and self-assertion movement, and his stint in jail under NSA, "preventive detention" as it were, had led to a widespread agitation that had garnered international headlines from press outlets as well as strong words of condemnation against the UP government's patently illegal incarceration of the youth leader from human rights organisations worldwide.
Bhim Army is a non-registered organisation which originated in Western Uttar Pradesh. It started schools for the Dalits and spoke against the atrocities and caste discrimination meted out against the Dalits by the dominant upper-caste Thakurs of western Uttar Pradesh. Azad was arrested from Dalhousie on June 8, 2017 by the Uttar Pradesh Special Task Force in connection with his alleged role in the Thakur-Dalit clash in Saharanpur on May, 2017 and was held on several serious charges, including rioting, attempt to murder, unlawful assembly and looting.
Despite the Allahabad High Court granting him bail on November 2, 2017 and calling out his arrest as "politically motivated", Chandrasekhar Azad was slapped with charges under preventive detention by the BJP ruled Uttar Pradesh government under the National Security Act on the next day and was kept under detention for 10 months, only to be released on September 14. Various attempts were made by the Uttar Pradesh administration to link the Bhim Army with the Maoist Party. Azad, after his release told Chal Chitra Abhiyan — a film and media collective based out of western UP — that he had become an eyesore to the BJP after he prevented a clash between the Dalits and Muslim orchestrated by the ruling BJP.
Azad has sworn to launch a struggle for the release of the Dalits who have been arrested under the National Security Act after the April 2, 2018 All India Bandh called against the highly criticised Supreme Court decision diluting the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
The National Security Act (NSA) — which was first promulgated as an ordinance and few months later legislated by the Parliament in 1980 by the then newly elected Indira Gandhi government — is a preventive detention law which has been used time and again to infest the entire criminal jurisprudence. It is used as an unconstitutional measure to deprive an individual of their constitutional rights violating the basic criminal jurisprudence tenets: prosecution must prove its case beyond reasonable doubt, the accused must be presumed to be innocent until proven guilty, and the onus of the prosecution to prove the guilt never shifts.
Photo Credit: Amnesty International India
Recently, the journalist Neha Dixit in The Wire reported that on January 16, 2018, the Adityanath government issued a press statement stating that UP police had invoked the NSA against 160 people in order to control law and order. The report also goes on to say that those put behind bars were invariably Muslims. It is interesting to note that 38 years back, the statement of intent of the Act was to equip the administration in dealing with situation arising out of the "anti-social elements, anti-national elements including secessionist, communal and pro-caste elements".
Preventive detention in India can be traced back to the early days of colonial rule. The then enactment Bengal State Prisoners Regulation III of 1818 allowed detention without trial. It was extended by the British to other provinces and eventually took the shape of Defence of India Acts of 1915, justified as World War I measures. The emergency measures of preventive indefinite detention, incarceration without either trial or judicial review were indefinitely extended under the Rowlatt Act of 1919. The Jallianwala Bagh massacre ordered by Colonel Reginald Dyer was against the "dissenters" flouting Rowlatt Act. Although repealed in 1922, Defence of India Act of 1939 was implemented, again as a war-time measure.
Preventive detention was discussed at length during the Constitution Assembly Debates, and here are the words of HV Kamath, criticising its great assault on fundamental rights of citizens:
"In the Preamble to our Constitution we have paraded the ideals of justice, liberty, equality and fraternity and have proclaimed that our Sovereign Democratic Republic will secure these to all its citizens. The Chapters close to the Preamble, Chapters III, IV etc., seem to bear the impress of the Preamble, but as we wander further and further from the Preamble and especially when we come to the end of the Constitution one gets the impression that we have forgotten the Preamble. It seems to have slipped from our memory altogether and it looks as if, in very many cases, justice is being delayed, if not denied, and liberty is being suppressed. It is a very unfortunate state of affairs that, after having proclaimed so many fundamental rights in our Constitution, we should proceed to abrogate them and in some cases even nullify them."
~ H V Kamath during Constituent Assembly Debate
This was the conversation that took place in the Constituent Assembly while debating Article 22(3) to 22(7) of the India Constitution's then Article 15. These clauses deal with preventive detention, stating:
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention,
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
(5) 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
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation
Article 13 of the Indian Constitution says: "The State shall not make any law that takes away or abridges the rights conferred by this Part [fundamental rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void." Thus, the law-making authority while drafting any law is subject to the fundamental rights guaranteed in Part III of the Constitution. However, over time, Article 22 has prevailed. It not only empowers the Parliament to legislate preventive detention laws in contradiction to fundamental rights, but also abrogates the normal rights of legal defence to those booked under it making "any law" all laws except preventive detention law.
Sardar Vallabhbhai Patel introduced the Preventive Detention Act in February 1950, and thus started the saga of colonial measures in post-colonial India sanctified by the very Constitution that was meant to protect the citizens from the whims of those in power. The validity of this Act was challenged in A.K. Gopalan v. State of Madras where a Supreme Court bench of six judges upheld the law and took the conservative opinion that " 'procedure established by law' [Article 21] must mean procedure prescribed by the law of the State" instead of implying the natural law of justice.
The Preventive Detention Act expired in 1969 only to be replaced by Maintenance of Internal Security Act, 1971 (MISA). The misuse of MISA to curb dissent and unlawfully detain any individual opposing Indira Gandhi's rule during the period of Emergency is known as the darkest hour of Indian democracy. In the infamous ADM Jabalpur case also known as the Habeas Corpus case, where the question was whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition, the majority opinion of the Supreme Court upheld the decision under AK Gopalan v. State of Madras case and stated:
"It is true that, if, in a situation of emergency, judicial scrutiny into legality of detention is held to be barred by a Presidential Order specifying Article 21, illegalities might conceivably be committed by the Executive in exercise of the power of detention and unlawful detentions might be made against which there would be no possibility of redress. The danger may not be dismissed as utterly imaginary, but even so, the fact remains that when there is a crisis-situation arising out of an emergency, it is necessary to vest the Government with extraordinary powers in order to enable it to overcome such crisis-situation and restore normal conditions."
They went on to say, "The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. The checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom."
On behalf of the respondents, it was argued that if during Emergency no person has any right to life or personal liberty, then "…it would be open to Executive to whip the detunes to starve them, to keep them in solitary confinement and even to shoot them."
The 44th Amendment of the Constitution bought out by the Morarji Desai government after Emergency amended various Articles of the Constitution. Among them were Article 352 with the following changes: the ground of "internal disturbance" was substituted by the ground of "armed rebellion". Article 359 relating to suspension of the enforcement of the rights conferred by Part III of the Constitution during Emergencies was amended, saying enforcement of rights under Article 20 and 21 cannot be suspended.
In Maneka Gandhi v. Union of India, the Supreme Court of India held that the "law" in Article 21 affecting personal liberty must satisfy the test of infringing one or more of the rights under Article 19 and the test of reasonableness under Article 14. The Supreme Court further held that "procedure" in Article 21 cannot be arbitrary, unfair, oppressive or unreasonable: rules of natural justice must be followed. It overturned the AK Gopalan v. State of Madras.
The ADM Jabalpur judgment was overtly overruled in 2017 in Justice K.S. Puttaswamy vs Union of India, wherein it was held that: "During Emergency, the fundamental rights were read even more restrictively as interpreted by the majority in ADM Jabalpur v. Shivakant Shukla. The decision in ADM Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. We now expressly do so."
MISA had become a hated word during the Emergency. In the image of MISA, National Security Act, 1980 was legislated to shrug off the political weight and unpopularity around MISA.
The terms "defence of India", "the relation of India with foreign power", "security of the State", "maintenance of public order", "maintenance of supplies and services essential to the community" under clause 1(a) and 2 of Section 3 are vague and general, which allow the Central government and the State government to invoke NSA on very flimsy grounds. In A K Roy v. Union of India, NSA was challenged on the grounds of being "vague, general and broad". The Supreme Court held that "the first four expressions are constitutional but must be narrowly construed. The power under the last expression is made subject to the prior enumeration and publicity of the supplies and services to be regarded as essential".
Clause 1 of Section 8 provides that authority making the order of detention communicate to the detune the grounds of the order within 5 days and under extreme circumstances extend it up to 10 days. Clause 2 further empowers the authority to not disclose facts if it "considers to be against the public interest".
The NSA provides for the detention of a person for three months at a time and for a maximum period of 12 months. However, sub-section (3) of Section 3 provides that a detention order may be amended, if felt necessary by the State government, "to extend such period [of detention] from time to time by any period not exceeding three months at any one time" — effectively meaning indefinitely. Even while Section 13 specifies that "the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention", it goes on to add: "provided that nothing contained in this section shall affect the power of the appropriate government to revoke or modify the detention order at any earlier time".
Further, Section 14(2) explicitly provides that "the revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same persons" and the grounds for making such a fresh detention order need be nothing more than the fact that the "Central government or a state government or an officer mentioned in sub-section (3) of section (3), as the case may be, is satisfied that such an order should be made".
The 1987 amendment further adds that a person may be detained "for periods longer than three months without obtaining the opinion of Advisory Boards …with a view to preventing him, in any disturbed area: (i) from interfering with the efforts of Government in coping with the terrorist and disruptive activities, and (ii) from acting in any manner prejudicial to: (a) the defence of India; or (b) the security of India; or (c) the security of the State; or (d) the maintenance of public order; or (e) the maintenance of supplies and services essential to the community." Further it states that "in Section 14, in the proviso to sub-section (2) for the words "twelve months", the words "two years" "shall be substituted".
The code of criminal procedure under Sections 41 (when police may arrest without warrant) and 151 (arrest to prevent the commission of cognisable offence) already authorises the police to arrest a person "either to prevent the commission of a cognisable offence or as soon as complaint of the commission of a cognisable offence has been received", without orders from a judicial magistrate and without a warrant. Under Section 107 (security for keeping the peace in other cases), the Executive Magistrate — upon receiving "information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding" — is empowered "to show cause why he should not be ordered to execute a bond as a preventive measure for keeping peace for such period, not exceeding one year, as the Magistrate thinks fit".
With all these provisions already present in the Criminal Procedure Code, one might question the requirement of a special law to deal with law and lawlessness. A criminal case is a case committed against the State. Preventive detentions are unconstitutional laws that equip the executive with judicial powers. Under these preventive laws, the State is the victim, the arbitrator and the judge. Section 8(1) of the NSA, there is provision for the "…earliest opportunity of making a representation against the order to the appropriate Government". Nemo judex in re sua — No one should be made a judge in his own cause — or, the rule against bias, goes for a toss providing the State the opportunity to circumvent the criminal procedures for political motivation.
Laws like NSA provide the Executive tools to escape the scrutiny of the judiciary. More often than not, preventive laws are used by the ruling parties against their oppositions. Personal liberty is corner-stone of dissent and dissent is the bedrock of democracy. If we desire the democracy to survive and thrive, it is time we do away with preventive detention laws. These are war measures and today there is no war — except the one the government is waging against anyone who is dissenting.
It's pertinent what Chandrashekar Azad, pointing towards present ruling government of UP and Centre, after his release said, "Kissi ko itna mat daaro ki woh darna bandh kar dey (do not scare a person so much that he loses all fear).
(Editor's note: Chandrashekar Azad in a statement has mentioned that he does not wish to referred to as Ravan hence the article has been edited to remove Ravan)