The benchmark

When a law is used to curtail individual freedoms in a constitutional democracy, crucial checks and balances must kick in to draw the red lines that protect against state arbitrariness. This is especially so when the state wields a law as harsh as the National Security Act, which gives it powers to arrest without formal charge or trial. In Uttar Pradesh, over the last three years, this newspaper has investigated and found, out of the 120 habeas corpus petitions that came before it under the NSA, more than half of them citing cow slaughter and communal incidents, the preventive detentions of 94 individuals were struck down by the Allahabad High Court. Behind those statistics lies a story of the disturbing failure of systemic safeguards, of constitutional protections not kicking in when and where they should have — while quashing NSA orders across 32 districts, and calling for the release of the petitioners, the court’s orders showed that there were cut-and-paste police FIRs in multiple locations, “non application of mind” by the district magistrates, denial of due process to the accused and repeated use of the law to block bail. There is a dismal pattern here. At the same time, however, the pushback by the Allahabad HC also frames the one important check that did work — that did come to the rescue of the individual against the transgressing state.

In asking questions, in pointing to the questions not asked by the detaining authorities, the high court was upholding, in letter and spirit, constitutional guarantees and the promise made by the higher judiciary — that preventive detention under NSA must be strictly construed keeping in mind the “delicate balance between social security and citizen freedom”. The Supreme Court has called for “meticulous compliance with the procedural safeguards”. In case after case, and especially in those related to cow slaughter and communal incidents — issues that have often been politically weaponised to target members of the minority community in the state — the balance was abandoned, and available safeguards given the go-by. “… 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”, the HC observed in the detention of Shahid Qureshi, on April 4, 2019. How was the act a disturbance of public order, there is “no reference of petitioner being involved in any serious or any anti-national activity”, it said in another case.

The overall message underlined by the Allahabad High Court — “the individual liberty granted to the petitioner by the Constitution of India cannot be taken away without proper application of mind” — must be heeded. By the district magistrates who passed orders in a mechanical manner, in some cases only on the basis of police reports, in others showing signs of being swayed by political pressures. The court orders should also be read carefully by the state government. The people’s mandate casts a responsibility to make the institutional safeguards stronger and better, it does not give any government the licence to bypass them.