‘Having passed 10 years of my total life in prison dungeons and condemned cells. I know the tortures which detention without trial means and I can never reconcile with it’ said, Shibban Lal Saxena in Constituent Assembly while the assembly was discussing Article 22 of the Indian Constitution[1].
Article 22[2] of the Constitution allows to preventively detain a person even before he has committed any offense. This power is often used to curb the voice of dissent. Preventive Detention is often justified as the state action to prevent total-warfare, the dissent of those indulging in fifth-column activities, et-al. For such justifications, United Kingdom used preventive detention legislation during both World War whereas United States of America used preventive detention powers during World War II.
India, on the contrary, continues to use preventive detention even during peacetime. Entry 9(Union List) and Entry 3 (Concurrent List) empowers both the Centre and State government to enact preventive detention legislation.
In India, Preventive Detention Act was passed within one month of being a republic nation i.e. in February 1950. While introducing the Bill, Sardar felt the need to re-examine it[3], still, various provisions of the National Security Act, 1980 (NSA) are taken directly from the Preventive Detention Act, 1950.
Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned. A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense
Preventive detention enables a person to be deprived of liberty, by executive determination, for the purposes of safeguarding national security or public order without that person being charged or brought to trial.
The NSA[5] was brought in by the Parliament of India in the year 1980. The Act provides for preventive detention in certain cases and matters connected therewith. The Act focuses on maintaining law and order in the country and provides for the detention of individuals who try to impede the law and order situation of a state or country. The Act contains 18 sections and confers power on states and central government to detain any person in the presence of the following grounds:
India has had preventive detention laws dating back to the start of the colonial era. In the year 1818, Bengal Regulation III was passed which empowered the then government to arrest anyone in matters relating to defense or maintenance of public order without giving the person option of judicial proceedings. Again, after 100 years, the British government passed the Rowlatt Acts of 1919 that provided for the confinement of a suspect without trial.
After India got independence, the first Act that provided for preventive detention rule was enacted in the year 1950 during Prime Minister Jawaharlal Nehru’s government. The Act was called the Preventive Detention Act, 1950. The NSA is enacted on similar lines with the 1950 Act. After the expiration of the Preventive Detention Act, 1950 on December 31, 1969, Indira Gandhi, the then Prime Minister, brought in the contentious MISA, 1971 (Maintenance of Internal Security Act), giving similar powers to the government. Though the MISA was abrogated by the Janata Party government in 1977, the successive government, headed by Indira Gandhi, brought in the NSA, 1980.
Section 8 of the Act states that when a person is detained in pursuance of a detention order made under the NSA, the authority, making the order shall as soon as may be, but ordinarily not later than 5 days, and 10 days from the date of detention, in case of exceptional circumstances, for reasons to be recorded in writing, communicate to him the grounds on which the order of arrest was made and shall afford him the earliest opportunity of representing himself against the order to the appropriate government.
However, as per sub section 2 of Section 8, the authority has the right to not disclose the facts which it deems to be against the public interest to disclose.
Section 9 of the National Security Act states that:
Section 10 of the Act states that, save as otherwise expressly provided in this Act, in every case where the detention has been made under NSA, the appropriate government shall, within three weeks from the date on which the person was detained under the order, place before the Advisory Board commissioned by it under Section 9, the grounds on which the order has been made and the representation if made, by the person affected by the order and in the case where the order has been made by an officer specified in sub-section 3 of Section 3, also the report by such officer under sub-section 4 of that Section.
Section 11 of the National Security Act emphasizes that the Advisory Board shall, after taking into account materials placed before it and after calling for further information as it may consider necessary from the appropriate government or from any person called for the purpose through the appropriate government or from the person concerned, and if, in any specific case, it considers it essential so to do or if the person concerned wishes to be heard, after hearing him in person, submit its report to the appropriate government within 7 weeks from the date on which the person concerned was detained.
It specifies that the report submitted by the Advisory Board to the appropriate government must separately specify the opinion of the Advisory Board as to whether or not there exists a sufficient cause for the detention of the person concerned.
It further states that when there is a difference of opinion among the members of the Advisory board, the majority opinion of such members shall be deemed to be the opinion of the Board.
The Section further reads that nothing in this Section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter related with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting that part of the report where the opinion of the Advisory Board is specified, shall be confidential.
Section 13 of the National Security Act: talks about the maximum period for which a person can be detained.
It states that the maximum period for which a person may be detained in pursuance of any detention order that has been made and confirmed is twelve months from the date of detention. However, the section contains a proviso that suggests that the appropriate government has the power to revoke or modify the detention order at any earlier time.
Section 14 talks about the revocation of a detention order. It states that, without prejudice to the provisions of Section 21 of the General Clauses Act, 1987 (10 of 1987), a detention order may be revoked or modified at any time:
The expiry of revocation of a detention order (hereinafter referred to as earlier detention order) shall not [whether such detention order has been made prior to or after the commencement of NSA (Amendment), 1984] bar the making of another detention order (hereinafter referred to as subsequent detention order) under Section 3 against the same person.
However, in a case where fresh facts have arisen after the revocation of the earlier detention order made against the person concerned, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case extend beyond the expiry of a period of 12 months from the date on which such person was detained under earlier detention order.
Section 16 states that no suit or legal proceeding shall lie against the Central Government or a State government, and no suit, prosecution or other legal proceedings shall lie against any person for any action taken in good faith or intended to be done in pursuance of the Act.
| Normal Detention | Detention under NSA |
| When a person is detained normally, he has a right to be informed of the grounds of his detention. | Under the NSA, a person can be detained for 10 days without informing him of the charges against him. |
| A person who has been detained normally has a right to bail. | A person detained under the NSA does not have such a right. |
| A person detained normally has the right to consult a lawyer. | A person detained under the NSA cannot take the help of the lawyers. |
A doctor from Gorakhpur in Uttar Pradesh, he first came under scrutiny after being hailed as a hero for saving the lives of children in a hospital. In charge of the encephalitis ward of BRD Medical College at a time when the hospital was battling an oxygen shortage supply, he had stepped up to make sure that the oxygen supply was not disrupted for critically ill children. Reports say that he made multiple trips to try and collect oxygen cylinders and spent his own money when needed for the same.
In December 2019, amid protests over the Citizenship Amendment Act, Khan was arrested for speeches he had made at the Aligarh Muslim University[6].
As protests and unrest roiled across swathes of the country, Khan was booked by a team of the Uttar Pradesh police for ‘instigating’ the protests in Aligarh.
December 12, 2019: Khan delivered a speech at the anti-CAA protest at Aligarh Muslim University.
January 30, 2020: Uttar Pradesh police arrested Khan from the airport for his speech at AMU, saying he made ‘inflammatory’ and ‘provocative’ statements. The FIR was filed under IPC Section 153A.
January 31, 2020: Khan was remanded to judicial custody and sent to a Mathura jail.
February 10, 2020: Khan was granted bail by an Aligarh court, but not released from jail.
February 14, 2020: Charges under the National Security Act invoked against Khan.
August 17, 2020: UP government extended Khan’s National Security Act detention by three months.
September 1, 2020: The Allahabad high court set aside Khan’s detention under the NSA. He was released from jail at night.[7]
A division bench of the Allahabad High Court, in a verdict delivered on September 1, has unequivocally held that the detention of Dr. Khan under the National Security Act (NSA) was utterly unsustainable.
It has set aside the order for his detention that was passed by the District Magistrate of Aligarh on February 13, despite him having secured bail on February 10 itself.
The Chief Justice of the Allahabad High Court specifically criticised the manner in which the Uttar Pradesh government had proceeded in the case. It first registered an FIR on 12.12.2019 and arrested him only on 29.01.2020, after 45 days. It subsequently slapped the National Security Act, three days after the grant of bail in February. The judgment observed that there was no causal link between the alleged speech in December 2019 and the imposition of NSA in February 2020.
The court also observed that while preventive detention is an exceptional mode to curtail liberty and freedom of a person, the same must be used in the rarest circumstances
After observing the entire record pertaining to his detention, the court found that the grounds of detention were completely silent on the risk to public order on account of the offending act attributed to Dr. Khan. “What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded”, the High Court observed[8]
The Court relied upon a test laid down by the Supreme Court in Khudi Ram Das v. State of West Bengal, and held that neither there is any objective material giving rise to the subjective satisfaction nor the subjective satisfaction is found to have been reached in a legal and regular manner but on whim and humor.
REMEDIES UNDER NSA AND ITS LACUNAS WHEN SOMEONE IS DETAINED WRONGFULLY
Public law remedy for miscarriage of justice on account of wrongful prosecution, incarceration or conviction finds its roots in the Constitution of India. In such cases, it is the violation of fundamental rights under Article 21 (the right to life and liberty), and Article 22 (protection against arbitrary arrests and illegal detention etc.) that invokes the writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution respectively.
In cases of wrongful incarceration, prosecution involving infringement or deprivation of a fundamental right, abuse of process of law, harassment etc., though it has evolved as a judicial principle that the Supreme Court and the High Courts have the power to order the State to pay compensation to the aggrieved party to remedy the wrong done to him as well as to serve as a deterrent for the wrongdoer
LACUNA
There is no set framework (statutory or otherwise) within which the right to compensation or the quantum of compensation is determined. Compensation for violation of fundamental rights is a public law remedy but there is no express provision in the Constitution of India for grant of compensation by the State in such cases.
The legal framework in India has a provision for victim compensation under Section 357 of Code of Criminal Procedure, 1973
Under Section 357A of the Act[9], if the accused have been acquitted or discharged, then he needs to be compensated. The presumption made in the law is that the accused can commit an offence against a State or its constituent organs, the state itself cannot commit any offences (punishable under IPC) against the citizens.
Back in 1983, Supreme Court of India delt with the question of compensation for unlawful detention in the case of Rudal Shah v. State of Bihar (1983 AIR 1086). In this case, the petitioner who was detained in the prison for more than 14 years after his acquittal filed a habeas corpus petition under Article 32 of the Constitution, praying for his release on grounds that his detention was unlawful. Additionally, he prayed for other reliefs such as compensation for his illegal detention. The Supreme Court held that, the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. The court passed an order that State must pay to the petitioner sum of Rs. 30,000/- as compensation.
LACUNA
The state is itself not considered to have done any offence which does not make the state directly liable and weaken the Right to compensation of any person detained illegally.
The National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) established, under The Protection of Human Rights Act, 1993, have the power to inquire suo motu or on petitions filed for matters pertaining to human rights violations, which is often the case in matters of illegal detentions, wrongful investigations, incarcerations etc.
When a person is arrested normally, he or she has certain basic rights. Such rights include: the right to be informed of the reason for arrest and the right to bail. These rights are ensured by the various laws functioning in the country. Section 50 of the Criminal Procedure Code (Cr. PC) provides that an arrested person has the right to be informed of the grounds of such arrest, and the right to bail. Likewise, Section 56 and 76 of the Cr. PC also enumerates that an arrested person shall be produced before a court within 24 hours of arrest. Furthermore, Article 22(1) of the Constitution of India guarantees that an arrested person cannot be denied the right to consult, and to be defended by a lawyer of his choice.
However, such basic rights are not available to a person who has been detained under the provisions of NSA. A person has no right to know about the grounds of his detention for up to 5 days and in certain circumstances, not later than 10 days. While providing the reason for arrest, the government has the power to reserve information which it thinks would go against the public interest if disclosed. The arrested person has no right to seek the aid of any lawyer in any matter concerned with the proceedings before an Advisory Board, which has been constituted by the government to deal with the NSA cases.
The Act, though, provides for maintaining law and order in the country, lacks reasonableness. Certain provisions of the Act are arbitrary and there is no recourse available against such provisions. The Act also ignores the basic rights of the arrested persons that are available to them if they are arrested normally.
Moreover the Act is usually criticized on these grounds:
A person wrongfully prosecuted though acquitted and released from jail is free to go back to his life; but is it actually possible for him to go back to the same life – the life he had before he were subjected to the ordeal of wrongful prosecution. For a person who has been accused of a crime, who underwent criminal proceedings (often long drawn), whose name and reputation has been affected for being accused and/or convicted of a crime he did not commit, who has spent time in prison for a crime he did not commit, there still lies an uphill battle even after acquittal.
Article 14(6) of the ICCPR read with the General Comment 32 of the United Nations Human Rights Committee (supra), dealing with miscarriage of justice, requires that the victims of proven cases of such miscarriage to be compensated „according to law‟. These provisions collectively create an obligation on the state parties to it to enact a legislation ensuring that the said victims are compensated, and such compensation is made within a „reasonable period of time‟.
many countries including the United Kingdom, the United States, and Germany have converted this commitment into law, where the State has assumed statutory responsibility for compensating the victims of such miscarriage of justice. India ratified ICCPR in the year 1968 (with certain reservations) but is yet to comply with its obligations and enact a legislation laying down the law for compensation of the victims of this miscarriage of justice.
under the current Indian laws remedies, claim and grant of compensation for the said miscarriage of justice still remains complex and uncertain. Under public law a violation of fundamental rights due to police and prosecutorial misconduct can invoke State liability but the amount and payment of compensation remains arbitrary and lacks transparency. In other words, despite decades of jurisprudence on compensation under public law, there is no set legislative principle regarding the basis for determining the award of compensation or its amount thereof.
In this manner, the currently available remedies only create an ex gratia obligation, and not a statutory obligation on the State to compensate.
