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Friday, April 16, 2021

Express investigation: Individual liberty cannot be taken away without proper application of mind, says Allahabad HC

The Indian Express tracks how the National Security Act (NSA) is being abused in Uttar Pradesh over the last two years.

Written by Kaunain Sheriff M | New Delhi |
Updated: April 7, 2021 7:19:48 am
The Indian Express tracks legal records of all the NSA cases that were dismissed to find out what Allahabad High Court said and why.
  • District Magistrate passed orders in a mechanical manner, in some cases merely on the basis of police reports.
  • The procedural safeguard of effective representation for those detained was seriously infringed.
  • Individual liberty guaranteed by the Constitution cannot be taken away without proper application of mind.

THESE ARE some of the key observations made by the Allahabad High Court as it quashed 30 of 41 cases that showed how the National Security Act (NSA) is being abused in Uttar Pradesh over the last two years.

The Indian Express tracks legal records of all the NSA cases that were dismissed to find out what the court said and why. Here are key illustrative examples:

NON-APPLICATION OF MIND

Detained: Laiq alias Lakku

NSA issued: On July 31, 2017, by District Magistrate (DM) Kannauj relying on FIR alleging cow slaughter in “open field”.

High Court steps in: It put on record submissions from accused that “detention order has been passed solely on account of some applications/ complaints/ representations given by and given at the behest of political parties”. It said “subjective satisfaction as recorded (by the DM) is bad in law”, and that the government “could not demonstrate as to what was the cogent material with the detaining authority on which the satisfaction has been recorded”.

Key observation: Recorded submission that “detaining authority was unduly swayed by the representations and the applications given by the City President of the BJP as well as the District President of Hindu Yuva Vahini and… the detaining authority has not evaluated the circumstances with a free mind, individually and independently.”

Detained: Inam

NSA order issued: On August, 14, 2017, by DM Muzaffarnagar on FIR that claimed police received an tip-off from “informer” about cow slaughter in “vacant field”; police team heard a “conversation” that the accused would “dispatch the material to Delhi and will bring more cows…from Haryana to make their profession flourish”.

High Court steps in: It said the order was passed in a “mechanical manner…merely on the basis of the report of police”, and that the DM was “not at all conscious of all the relevant aspects of the case”.

Key observation: “It is essential that the detaining authority must have applied its mind to the question whether it is necessary to detain a particular person with a view to prevent him from acting prejudicially to any of the objects mentioned in the Act.”

Detained: Irfan Qureshi

NSA issued: On August 30, 2017, by DM Azamgarh on FIR alleging cow slaughter inside a house.

High Court steps in: It put on record Qureshi’s submission that the order was passed “in a routine manner without application of mind” on the police report. It said the government argued that Qureshi was detained under NSA as “there was anguish among people of the other community” but “could not point out that the act of the petitioner was prejudicial to disturbance of public order”.

Key observation: Citing Supreme Court, it said that “the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum, but not circumvent it by passing an order of detention merely to supersede the bail order.”

NO EFFECTIVE REPRESENTATION

Detained: Najar Qureshi

NSA issued: On April 13, 2018, by DM Muzaffarnagar on FIR alleging cow slaughter “inside a house, located behind a graveyard”.

High Court steps in: Notes that order has been challenged on the “only ground” that petitioner “was not given any opportunity by the Advisory Board to be represented through a legal practitioner/ counsel of his choice before the Board so as to enable him to place his case effectively before the Board”. But “at the time of hearing of the case before the U.P. Advisory Board, Lucknow, officers of the detaining authority were present and heard in the course of proceedings”.

Key observation: Citing Supreme Court, it said: “If the detaining authority or the government takes the aid of a legal practitioner or legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. If it is denied to him then a clear case of breach of Article 14 is made out in favour of detenu.”

Detained: Afsar

NSA issued: On July 26, 2019, by DM Bulandshahr on FIR alleging cow slaughter “inside a house”.

High Court steps in: Citing the government’s reply on December 16, 2019, that an officer from a central agency called for “some enquiry/report”, it said there is no explanation “as to why the report from the said independent agency was called for as there was no reference of the petitioner being involved in any serious or any anti-national activity”.

It also said that a delay of 19 days in furnishing an independent report by the central agency “remained unexplained” and ruled that “the right of the petitioner under Article 22 (5) of the Constitution of India was seriously infringed, rendering his detention as illegal”.

Key observation: “The officer dealing with representation of the petitioner acted in a most irresponsible and negligent manner and has failed to account for the reason as to why did he call for the report from the Central Agency”.

Detained: Imran alias Tendu

NSA issued: On August 6, 2017, by DM Muzaffarnagar relying on FIR alleging cow slaughter in “front of a shop”.

High Court steps in: State government “committed a mistake in not sending the matter to the Advisory Board before extending the period for another six months”.

Key observation: Citing apex court, it said: “Where law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in same manner following provisions of law, without deviating from prescribed procedure. Underlying principles cannot be ignored while passing orders of detention or extending detention period from time to time.”

LAW AND ORDER ISSUE

Detained: Jaheer

NSA issued: On July 9, 2018, by DM Hapur relying on FIR alleging cow slaughter “inside a house”.

High Court steps in: It said the government pointed to “reports that Hindu organisations staged demonstrations” and that “it can safely be assumed that there had been a breach of public order”. But, it noted, the “demonstrations, if any, appear to be a consequence of spread of information and rumours, not a direct consequence of the act”. It said that “who spread the news, with what motive, is not known”.

Key observation: “Such demonstrations are often fanned by vested interests for oblique purposes which, by itself, would not convert an act constituting a mere infraction of law and order into one which breaches public order”.

Detained: Shahid Qureshi

NSA issued: On April 4, 2019, by DM Bulandshahr stating that Shahid and associates hosted attendees of the Tablighi Jamaat congregation at a farmhouse — and that they went for “hunting”, and the meat was served as “keema” and “biryani” to guests.

High Court steps in: “…material nowhere indicates that while the prohibited meat was being served, any member of the majority community was present who could claim to be a witness to the serving of the prohibited meat”; there “is no material” to indicate that Shahid was “physically present at the time of slaughtering”; “only material” are confessional statements “recorded after more than 4 months of the alleged occurrence”.

Key observation: “…slaughtering and consumption of beef per se cannot attract the provisions of the National Security Act…It would be an offence under the provisions of the Cow Slaughter Act.”

Detained: Aman Saeed

NSA issued: On May 23, 2019, by DM Bulandshahr on FIR alleging cow slaughter inside residential compound.

High Court steps in: “…materials, including the grounds of detention, indicate that the alleged disharmony/ disruption of public order including religious sentiments was affected on account of a tip-off by a Peeping Tom that rumours spread in the area”.

Key observation: “If a Peeping Tom discloses the offensive activity taking place inside the residential premises in secrecy to the outside world, whereupon resentment/ protest/ disharmony ensued, same cannot be attributed to disruption of public order…”

NO PREVIOUS HISTORY

Detained: Murad Ali

NSA issued: On May 21, 2018, by DM Barabanki on FIR that an “informer saw…some persons trying to catch a cow” in the fields.

High Court steps in: “There is no criminal history of the petitioner and, as such, there is no history sheet operating against him”; “In such a situation, the Court is not in a position to appreciate the conclusion drawn by the District Magistrate that the petitioner is likely to indulge in activities leading to breaking down of public order”; “The individual liberty guaranteed to the petitioner by the Constitution of India cannot be taken away without proper application of mind.”

Key observation: “…In absence of any history, prediction could not have been made by the District Magistrate about the future behaviour of the petitioner…in case of principle and law, prediction has to be made on the basis of actual calculation based on relevant material and data.”

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