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National Security Act, NSA, the increasing gap between its spirit and application.

Revisiting SC’s Interpretation of Preventive Detention in the Wake Manipur’s Spree of NSA Arrests

On May 17, the National Security Act, 1980 was invoked against the two men, a journalist and an activist in the Manipur immediately after they were released from the police custody on bail by the Court of Chief Judicial Magistrate, Imphal West. The duo were charged under the provisions of section 153-A/505(b)(2) of the Indian Penal Code (IPC). They had made two separate social media posts on those who advocate cow dung and urine as cure for COVID-19, after the death of Manipur BJP president Tikendra Singh due to the virus. The order of the District Magistrate, Imphal West had invoked the provisions of Section 3 (2) stating in the order that the two might “resume activities which are prejudicial to the security of the state and maintenance of public order on being released on bail”.  At the time of writing this article, the detainees were yet to make a representation to the appropriate authority challenging the order of their detention issued by the District Magistrate-Imphal West. Also, it is important to add the two concerned persons here were already under the special attention of the State with each of them having been booked multiple times under the Sedition Law and one of them –Kishorechandra Wangkem, for whom this is the second time to be booked under the NSA for their strong criticism of the present BJP regime in the State.

This article is an attempt to examine the various interpretations given by the Hon’ble Supreme Court and High Courts in this regard from time to time since this preventive detention legislation was enacted in the year of 1980. And whether this particular provision of Section 3(2) of the National Security Act, 1980 has ever been invoked in the history of India for exercising the freedom of speech and dissent against the policies of the government of the day and that whether a reasonable person could be apprehended for any disturbance to public order based on their social media posts and especially at such grave time of the Covid pandemic.

Before beginning with the examination of the various Supreme Court decisions, it is important to understand the difference between general criminal laws and the preventive detention laws. Arrest is made under the general criminal law only in pursuance of the alleged crime having been committed by the accused. However, in Preventive Detention the object is not to punish but to prevent the detenu from doing something which is prejudicial to the State. This difference is pertinent to understand because the present Act being discussed is a preventive detention law. Normally, during the time of arrest of a person/s, the grounds of arrest are to be immediately communicated to the Accused. However, this is not the case in detention under the Preventive Detention Laws like the NSA where the grounds of his detention are communicated ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention. Preventive detention is necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. In case of preventive detention, no offence is to be proved, nor any charge formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities.

Let us examine as to what the Supreme Court says in this regard.

At the first blink, the issue that may come to one’s mind is whether there is legality on the invocation of the National Security Act, 1980 and pass a preventive detention order in cases where the person is already in custody and about to be released on bail? Or as soon as the person is released on bail, can they be detained under the preventive detention law?

The answer is in the affirmative and some of the recent SC judgments include Union of India versus Dimple Happy Dhakad [AIR 2019 SC 3428] wherein the SC has stated that “It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities.” This particular observation in the Dimple Happy Dhakad has flowed from the cantena of settled cases decided by the SC which amongst others includes the law enunciated in Kamarunnisa v. Union of India and Another (1991) 1 SCC 128; Union of India v. Paul Manickam and Another (2003) 8 SCC 342. It is pertinent to mention here that most of the decisions for quashing the detention orders are based on the decisions of the Hon’ble Supreme Court rendered in Union of India vs. Paul Manickam, which has been followed in Rekha vs. State of Tamil Nadu & Ors. reported in MANU/SC/0244/2011 : (2011) 4 SCC 260.

I think what makes the NSA a stringent law with very less room for interference by the Judiciary is that the court cannot go into the correctness of the decision of the detaining authority but can look into the decision-making process. In other words, the court can scrutinise the materials relied upon by the detaining authority in coming to the conclusion. the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability.

By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested. Further while examining the correctness of the decision-making process, two issues are required to be considered by the court – one, whether there are materials on which reliance was placed by the detaining authority in passing the detention order and two, the detaining authority was justified in arriving at a finding based on the said materials that the detenu be detained without any trial. Since a person can be detained on suspicion, the procedural safeguards are to be strictly observed in order to prevent misuse of the law of preventive detention.

The High Court of Manipur itself has had numerous occasions to deal with habeas corpus petitions challenging detention orders passed under the National Security Act, 1980 based on non application of mind as regards the satisfaction of the detaining authority. A Division Bench of Justice Kotiswor ansd Justice Nobin while quashing the detention order had the occasion to discuss the validity of the detention made under section 3(2) of the NSA, 1980 whether procedural safeguards had been observed by detaining authority while passing order of detention or not in the case of Ningthoujam Yamba Singh vs. The State of Manipur and Ors. (08.09.2017 – Manipur): MANU/MN/0077/2017?

I find this particular judgment a very detailed one clearly laying out as to what are the procedural safeguards that the detaining authority have to observe. The Court in this particular case also took notice of the fact that despite previous directions and observations issued in earlier occasions the detaining authorities and other concerned authorities continue to issue defective detention orders. The Court also took note of the fact that that most of the persons who have been detained under the National Security Act in Manipur have been accused of being members of or associated with various outlawed organizations and of having committed serious heinous crimes. Further, the Court took a bold step by adding that Court may be constrained to pass appropriate orders in future against those persons responsible for issuing defective detention orders by way of imposing exemplary costs who continue to issue such defective orders as these defective orders may amount to illegally detaining persons and violating their Fundamental Right as guaranteed under Article 21 of the Constitution. It is important to mention here that Section 16 of the NSA, 1980 protects the Central Government or a State Government or any person from any suit or legal proceedings for anything done in good faith or intended to be done in pursuance of this Act.

So, it is interesting that this particular instant case of the duo been booked under the NSA for their social media posts over cow urine and cow dung will take an interesting turn as to how the Court will interpret in the light of the previously well settled cantena of SC as well as HC of Manipur cases.

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