(I am happy to host a guest post by Ms. Aasavri Rai, a final year student of the B.A. LL.B. (Hons.) Program at National Law University Delhi)
The National Security Act, or as it is (un)popularly called the "no vakil, no appeal, no daleel" law, became effective from 27th December 1980, pursuant to a National Security Ordinance which was introduced by the then Prime Minister Indira Gandhi. The Ordinance promulgated on 23rd September 1980 was originally meant to "deal with black marketeers, smugglers and anti-social elements, and not to end civil liberties". Even in this brief period of three months, over 730 arrests (excluding figures from Punjab and North-East) were made under the Ordinance. These arrests did not target a single smuggler or black-marketeer; instead, well-known political activists and trade unionists were hauled up by the government. One such name was that of trade unionist AK Roy, whose writ petition, along with others, was heard by a Constitution Bench of the Supreme Court in 1981.
This disturbing trend has been exacerbated through the years, as the NSA has been used freely with little regard to the original purpose of this preventive detention legislation. The Act is employed as a weapon to stifle political dissent. Uttar Pradesh has seen glaring misuse of the statute with over 160 arrests being reported in January 2018. The arrest and re-arrest of a journalist who criticised the Prime Minister in a social media post, a Krishak Mukti Sangram Samiti leader’s re-arrest ahead of Amit Shah’s visit, and Bhim Army chief’s arrest under the Act, a day after acceptance of his bail petition, are other disturbing instances of the misuse of the Act.
The exceedingly broad and open-ended grounds of detention have resulted in a widespread misuse of the Act. In this post, it is argued that the grounds for detention under Section 3 are vague, disjunctive and thereby have a low threshold, and are determined as per the subjective determination of the detaining authority, which is shielded from judicial review.
Vagueness under Section 3 of the NSA
What are the grounds detailed under Section 3 of the NSA? Section 3(1)(a) of the Act tells us that orders for preventive detention can be issued in respect of any person, to prevent them from "acting in any manner prejudicial" to (i) the defence of India, (ii) India's relations with foreign powers, or (iii) India's security. Foreigners can also be subjected to preventive detention to regulate their continued presence in India or towards making arrangements for their expulsion [Section 3(1)(b)].
These were new grounds, and at least hypothetically speaking, limited. But the same cannot be said for the next set of grounds that follow in Section 3(2): preventive detention orders are possible to safeguard the (i) security of the State, (ii) maintenance of public order, or (iii) maintenance of supplies and services essential to the community. These were the grounds on which both central and state preventive detention legislation had been operating in the three decades of India's history as a republic.
The challenge in AK Roy was to both sets of grounds, where petitioners argued that these were vague. It harked back to the customary international law principle of legality, that seeks to curb uncertainty and arbitrariness in law through vague and imprecise definitions. The Supreme Court agreed that the problem of vagueness is grave, but found that there was no problem in this case. Not because it gave us a concrete interpretation, but instead, as the controlling opinion noted, "formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty". In doing so, it relied on the existing judicial engagement with Section 3(2) style grounds where the Supreme Court had consistently held that the vagueness was necessary.
I argue that this was incorrect. While there was an extensive body of law on preventive detention, an uncritical application of the same was uncalled for. Largely because there was a watershed moment in this time: the re-insertion of due process requirements through the Bank Nationalisation and Maneka Gandhi decisions. These decisions supported an argument against vagueness and uncertainty in a much broader fashion than the pre-existing position. However, while the Court in AK Roy did not fail to cite Maneka Gandhi, it was incorrect in thinking that the decision did not prevent reliance on the pre-existing case law.
The Court in AK Roy had an alternate path. Even if it was committed to saving the NSA - to avoid the wrath of the same Government that brought about the Emergency - it could have faithfully applied the stricter standards of judicial review that Bank Nationalisation and Maneka Gandhi offered and then built upon the existing law, where through decisions such as Romesh Thappar, Brijbhushan v State of Delhi, and Ram Manohar Lohia, the Court had in fact given guidance on how to interpret vague terms like public order. Instead, the Supreme Court went into full deference mode, and did not even attempt to venture into possible interpretations of the array of grounds provided under Section 3 NSA.
This wide discretion in interpretation of the grounds for detention has led to an alarming increase in the instances of arrests in recent times. In Uttar Pradesh, 81 people were preventively detained after violence broke out in Kasganj, pursuant to which the DGP quoted that the NSA will be invoked against "criminals (emphasis mine) for vitiating the atmosphere". After 51 people were arrested for cheating on an exam, UP CM Yogi Adityanath directed the investigating agencies to slap NSA provisions, to ensure "transparent and corruption free" examinations. Arrests have also been made for brawls during neighbourhood cricket matches, allegedly carrying beef, and uploading videos on Facebook criticising the Prime Minister. Children of multiple detenus have faced ostracisation at their school, for their fathers being ‘criminals’.
By no means is the vagueness of grounds under Section 3 the sole reason for calling the NSA a draconian law. Other notable features include the disjunctive requirement of satisfying the grounds, i.e., an order passed on many grounds can't be set aside unless all of the grounds are found to be bad. Together with this is the principle that courts cannot question the subjective satisfaction of executive officers who passed detention orders. But it should be clear that the vagueness issue greatly enhances the problematic nature of these other features. After all, it is the core of the NSA, and if the core is rotten, all else follows.
Preventive detention laws have found a place in the Indian legal system since the colonial era. Unsurprisingly, these legislations continue to be used to curb individual liberty and stifle dissent. The consequences of such statutes have historically proven to be dangerously repressive. The same can be witnessed at present where even trivial disturbances are being accorded the status of national security concerns. The idea behind preventive detention statutes is to detain people based on their previous conduct and the apprehension that they might engage in similar conduct in the future. The recent barrage of cases under the NSA has been against people with no previous history of misconduct. The cherry on the cake is the branding of the detenus as ‘criminals’, with the presumption of innocence being conveniently done away with.
These instances also highlight the disturbing trend of the NSA being used as a tool to keep certain people behind bars. If criminal cases are pending against the accused and the accused is granted bail, almost immediately NSA charges are slapped to send her away again. In most such cases, the order of extension of the detention is arbitrary and the grounds are not conveyed to the detenu and her family members. Even though Section 13 of the Act provides for a twelve-month period, as noted in AK Roy, such a time duration is the maximum period of detention possible, and the detaining authorities are at the liberty to modify the order of detention and reduce the term. However, such a reduction of the period of detention is rarely ever witnessed in practice. The majority of these cases also reek of the biased and discriminatory policies of the administration, as most of the detenus are Muslims, people belonging to the Scheduled Castes, or the poor. While the Court had the ability to do away with the draconian provisions of the Act in AK Roy, it comfortably expressed its inability to derogate from the Constitutional provisions and expressed regret for doing the same. Though the Court does throw in certain observations to pacify the citizens, even these minimum possible protections aren’t being provided to the detenus.