PUCL Bulletin,May, 1981

NSA, A Weapon of Repression

Since the National Security Ordinance was promulgated on September 23, 1980 and the National Security Acts became a permanent part of our law from December 27, 1980, the total number of detentions made all over the country under it have exceeded 732. The figure excludes the persons arrested in the States of North East and Punjab.

About a third of these arrests were made in Uttar Pradesh alone; Madhya Pradesh and Gujarat followed with 149 and 114 respectively. The Maharashtra government detained 71; Delhi alone detained 61; Bihar, 33; Karnataka, 18: Rajasthan, 11.

The government had earlier said that it needed these powers to deal with blackmarketeers and smugglers; and that the question of its use to curb political action did not arise. But the evidence gathered so far suggests that ever since the NSA was made an act of law, not one big smuggler nor a black marketeer has been hauled in.

A list of the prominent amongst those detained under the NSA reads like a Who's Who of political activists and trade unionists. Perhaps the first to be detained anywhere in the country under the NSO were A.K. Roy, M.P., and K.S. Chatrerjee, M.L.A., both active trade unionists from Dhanbad belonging to the Marxist Coordination Committee. In Gujarat, of the 114 held so far, as many as 92 were arrested in connection with the anti-reservation agitation. They included Harm Pathak and Surendra Vyas, both BIP Municipal Councillors of Ahmedabad and Ramesh Parmar, the President of Gujarat Dalit Panthers.

Other states provide similar examples. In Andhra Pradesh, G. Ramamoorthy, Chairman of Joint Council of Action of the state N.G.O.s, was arrested in December 1980 during the non-gazetted officers' strike; K. Guruva Reddy of CPI (M) and Veera Redcly of CPI were arrested in February 1981; Pujerla Sambiah, a peasant leader in Andhra Pradesh, was arrested on March 5, 1981 for "actively organising peasants and agricultural labourers to revolt against landowners"; and four trade unionists belonging to the Indian Federation of Trade Unions (IFTU) were arrested in connection with the Singareni mines strike, in Tamil Nadu, C. Narayanaswami Naidu, President of TN. Agriculturists Association, was arrested on December 22, 1980. In Uttar Pradesh, Than Singh, a CITU leader from Ghaziabad was detained. In Orissa, two student lenders, Bishnu Das and Chittaranjan Mohanty, were arrested for being, among other reasons, supporters of the Lok Dal. In Madhya Pradesh, three prominent trade union leaders Shankar Guha Niyogi and Sahdev Sahu belonging to Chattisgarh Mines Shramik Sangh and T.P. Akela of the IFTU, were detained under the provisions of the NSA. In Himachal Pradesh, the lone arrest under the NSO was that of Madhukar, the President of Himachal Pradesh Non-gazetted Employees Federation.

In some cases, as in Delhi, the Act has been used to detain small-time criminals which shows that now even for an ordinary law and order problem the government feels it must resort to what is normally regarded as an extraordinary measure-the use of preventive detention.

Provisions of NSA
Preventive detention is different from ordinary detention under normal laws, i.e. the Indian Penal Code (I.P.C.) and the Criminal Procedure Code (Cr.P.C.). Under the I.P.C. and the Cr.P.C. persons are arrested for having committed acts violative of the law. Under preventive detention, however, persons are arrested to prevent them from doing whatever the government does not wish them to do.

And so .you have the COFEPOSA enabling the government to arrest any person to prevent him from violating the laws relating to the regulation of foreign exchange and smuggling activities. Likewise, there exists the Prevention of black marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which empowers the government to detain any person who is likely to disturb the maintenance of supplies of commodities essential to the community.

The scope of these powers of the government to detain a citizen on presumption alone, i.e. as a pre-emptive measure, has been extended under the National Security Act. The Act (vide Section 3) provides powers to the Central Government as well as the various State Governments or even a Commissioner of Police or a District Magistrate to detain an Indian citizen or a foreigner to prevent him from acting in any manner prejudicial to the defence of India, the Security of India and its relations with foreign powers, or to the maintenance of public order and the maintenance, of supplies and services (not commodities) essential to the community. Similarly, a foreigner may be ordered to be detained 50 as to regulate his continued presence in India or even to expel him from the country.

Section 5 of the Act empowers the government to regulate the place and conditions of detention, enabling it to shift a detainee from one place to another anywhere in the country.

There are specific provisions (under Section 7) to prevent the evasion of arrest. For example, the property of an absconding person can be attached by the State and he is liable to prosecution under relevant sections of the Cr. P.C. He can be punished with imprisonment up to one year, or with fine, or both.

A striking feature of the Act is that the government can detain a person for as long as it wishes to. This is made possible by the powers of the government to continue to detain a person even after the expiry or revocation of the original detention order on the plea that fresh grounds of detention have arisen.

The Act (under Section 8) requires the detaining authority to disclose the grounds of detention to the detainee within a specified number of days. However, the arbitrary nature of the government's powers is revealed by the fact that the authorities need not disclose such facts as are not supposed to be in the public interest.

Under the Act (Sections 9 to 12), the government may constitute one or more Advisory Boards to review the grounds of detention of each case and confirm or revoke every detention. However, the detainee cannot engage a lawyer to argue his case before the Advisory Board. Furthermore, the proceedings and report of the Advisory Board will be confidential, except for its over-all opinion.

The NSA gives blanket immunity (under Section 16) to the government. It cannot be proceeded against legally for any act gone or intended to be Clone in good faith in pursuance of the Act.

Vague Provisions
The specifications of the Act are us vague as they can be. Nowhere in the Act are provisions like 'acting in prejudicial to the defence of India….the security of India and the State…..the relations of India with foreign powers….or to the maintenance of supplies and services essential to the community" clarified. Moreover all detentions ultimately hinge on. whether the relevant detaining authority is 'satisfied' that any'. or all of the above provisions apply.

For example, a scathing criticism of the Chief Executive of the land can easily qualify to being prejudicial to the security of the State.

Similarly, invocation of the clause 'prejudicial to the relations of India with foreign power' can lead to to arrest of any one who calls Idi Amin "An Idiot!'' or leads an anti-Brezhnev demonstration, for Idi Amin and Brezhnev are or have been Heads of States with whom India has had relations of one kind or another.

Likewise, the phrase "maintenance of public order'' is open to wide interpretation as any breach of law and order can be interpreted as a breach of public order.
Prime Minister Smt. ludira Gandhi announced on Oct. 1, 1980 that the government needs the National Security Ordinance, to deal with black marketeers, smugglers and anti-social elements, and not to end civil liberties.

M.P. Chief' Minister Mr. Arjun Singh stated last month: "Though NSA provisions were not directed against political or labour leaders. any activity detrimental to the State interest would certainly lend to its use"'
Though the ostensible purpose of the NSA, as stated by the government. '.vas to haul in black marketeers and smugglers, it is precisely these very activities which have been kept outside the purview of this Act (vide explanation to Section 3).

But the implementation of the Act has been even worse than the vagueness of the Act would entail. Persons have been detained not for what they have done but for having made statements criticising the government's stand on certain issues, for having participated in a public meeting. for giving a call for non-cooperation with the government, for demanding the payment of arrears as in the case of the Dalli-Rajahara incident, for appealing against a five day s' salary cut by the government in Assam.

In the implementation of this Act, the executive has not shown even a scanty regard for the criterion laid down by the Supreme Court in a dozen judgements about the grounds on which a person may be detained preventively. In fact there is nothing in the Act which enables governments to get around these criteria.

The Supreme Court has stressed that the ground must be specific and not '.ague; that each of the grounds (and not just a few of them) must be specific and substantial, for the detention is triggered by the subjective opinion of the detaining authority and there is no gainsaying what the authority would have concluded if some of the grounds had been left out: that the breach. for instance of public order, which the detaining authority apprehends would result from the actions of the persons must he one that is like to have community-wide ramification and not a breach whose consequences are limited to a few individuals; and, finally. it follows from several decisions of courts and review hoards that the relations between the acts of the person to be detained and apprehension, say, of public disorder must be direct and immediate, not far fetched and remote.

Upon reviewing the grounds on which persons have been detained under the NSO and the NSA in the past six months, we find that each of these criteria as ell as the requirements of the Ordinance and Act have been violated .with impunity.

Here are a few typical cases which reveal not only that persons have been detained on vague and flimsy grounds but that they were detained for legitimate political and democratic activity, and for voicing legitimate political and democratic demands in a just and peaceful manner.

The latest ease is that of Shankar Guha Nivogi who is a leader of the Dalli-Rajahara iron ore mine workers. The grounds of Niyogi's arrest refer to allegations like "instigation leading to misbehaving'', ''gheraoing'', "improper abusing of officers and staff of Bhilai Steel Plant and contractors", "leading a procession of 3,000 labourers", "detaining of trucks', "indulging in mar peet", "holding public meetings". Most of the allegations leading to his detention relate to events which supposedly occurred as far back as a year and a half ago-well before the NSO was decreed or the NSA came into force. Guha Niyogi's real crime-as brought out in the accompanying focus on him-is that he is organising the iron ore mine workers for higher 'wages and better working conditions as well as trying to educate and socially transform them.

Could these not be taken care of under the relevant sections of the Indian Penal Code and Criminal Procedure Code? Perhaps not. For, in that event, the government would be obliged to let the normal judicial process take its own course. Therefore, it bypasses the normal judicial processes and denies the detainee the right to defend himself.

There is another case from Orissa of Bishnu Das, a college student. He is charged of being "behind the screen in creating a number of law and order situations arising out of the political controversy". The charge sheet further says, "It is his habit to mobilise and misguide the innocent students in the negative direction.. he is always trying to scandalise the government, the administration and the police officers.. ..he gives all fictitious statements to the press and the public with a view to gaining his own political ends... .from his day-to-day activities it is quite evident that he will never hesitate to commit any unwarranted situation [sic] to demoralise, scandalise the government..." The fact is that Bishnu Das is a popular student leader having been elected President of the Jagatsinghpur College Students Union three years in succession. Recently he was active on the Birdi murder case demanding that the government institute a judicial inquiry into the rape and murder of Mrs. Chabirani Mahapatra.

Similarly, in another case, the first ground for detaining Joganand Goswami of Jorhat was that "he instigates student agitators and always keeps himself in touch with students, government employees and teachers of schools and colleges. He is always in search of opportunity to continue the movement in a militant way and is out to create violence, clash, communal troubles and public disorder in a clandestine manner, taking full care that he is not caught..."

Some of the typical lists of grounds reveal that the deten-tions under the NSA have been made on flimsy and vague grounds, such as "he visited Namrup police station and vehemently criticised the central government.. .he brought forth baseless charges against the police tp demoralise the police force.. .in observation of protest.. .he along with others...assembled in a public meeting.. .wherein he delivered a speech criticising the imposition of PD Act! Disturbed Areas Act, arrest and suspension of government employees...that he delivered a speech criticising the government for deducting five days' pay of employees who did not attend office.. .he delivered a speech urging government employees not to be demoralised by the repressive measures taken by government.. .he presided over a public meeting and delivered speeches on the present situation in Assam and criticised the govern-ment and leaders of different political parties for the failure to solve the foreigners issue and urged people to be in readiness for the next phase of the agitation if the Delhi talks fail..."

Not just this. Even those explicitly calling for peaceful forms of protest have not been spared by the NSA. Another typical grounds list (this one from the grounds list of Upendra Nath Dutt, an advocate in Assam) says "At the public meeting he made a speech asking everyone to join non-cooperation movement.. .he went house to house urging non-cooperation….he presided over the public meeting at which government's decision to cut five days' pay was criticised and employees who refrained from work were congratulated...he attended a public meeting wherein a call was given to all employees to launch non-cooperation with government..."

Further, a number of facts are revealed when we look at the chart showing the position of detentions under the NSA.

First, that a large number of detentions were not approved of by the very state governments whose officials had detained them. Out of 239 detentions made in Uttar Pradesh, as many as 107 were not approved by the state government. Another 51 were struck down by. the
Advisory Board. In Bihar, 33 were detained by local NSA executors and 22 out of them were released by the state government itself. In Gujarat, 114 were hauled in out' of which 23 were not approved by the state government and another 36 released by the High Court. In Madhya Pradesh, out of 149 detained under NSA, 41 were released by the Advisory Board. Even in Delhi, out of 49 cases referred to the Advisory Board, the detentions of only 22 were confirmed and the remaining 27 were acquitted.

These figures reflect the illegal and arbitrary manner tn which the local administration is abusing the sweeping powers under the NSA.

Unfortunately, it is only when there has been some conflict between the local authorities and the state that the detainees have been released; it is only when a case got public support from outside that a detainee was freed; it is only because of such pressure that these cases were even referred to Advisory Boards.

Is the NSA ultra-vires ? It is now an established law that a person can be deprived of his life and liberty only by a procedure which is just, fair and reasonable. But the definition of the conduct which attracts the application of the NSA is vague and elastic, leaving ample scope for misuse. This elasticity which offers overwhelming discretionary powers to the detaining authority is inconsistent with the normal lega?I process.
The direct and inevitable consequence of a citizen's detention under th~ NSA is to deprive him of his rights of speech and expression and movement. Even legitimate democratic activity can be (and, as we have seen, has been) censured under section 3 of the Act.
The Act does not make it obligatory on the detaining authority to consider using lesser measures in case the activities of a detainee so require. To that extent the Act is void, as it constitutes a procedure which is not just, fair and reasonable.

Even the entire procedure and functioning of the Advisory Boards set up by governments to review the detention under the NSA is unfair and unreasonable and hence void. The only forum where a detainee can challenge the grounds of his detention is the Advisory Board. But even here a detainee is denied the right of cross-examination, and the services of a counsel to plead on his behalf. Denial of the services of a counsel would mean that he is not given an adequate opportunity to either explain his conduct or challenge the validity of the detention.

Besides, as explained earlier, the Act does not enable even the government to get around the criteria laid down by the Supreme Court in a number of judgements on preventive detention.

Grounds for Challenging Detention

Since preventive detention can only be ordered if the detaining authority is satisfied that sufficient grounds exist, a detention order has to be put under very strict scrutiny.

The foremost thing to be examined is whether the order is by a competent' authority and that there is no mistake in the identity of the person detained. If there is any such lacuna the order is ex-facia void.

The grounds of detention can be challenged on the basis that they are farfetched and have no real and proximate connection or relevance to the necessity of detention. If the grounds are vague, indefinite, not clear or precise the detention order would be void. If there is no conceivable nexus between the grounds and the objects of detention the detention order would be void. Failure to communi-cate the grounds to a detainee within the time mentioned or in the language understood by the detainee, or failure to speedily consider or reply to the representations of the detainee or failure to supply the relevant documents to a detainee would render the detention void. In case the Advisory Board does not consider the detainee's case within the time mentioned the detention would be void. If there is a time gap between the alleged prejudicial activity of the detainee and the date of the detention order the detention would be void.

The test whether a ground mentioned is vague or not is to see "if on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention".

If the government fails to consider the representation of the detainee but refers it to the Advisory Board, the detention order is void. If the detention order is passed on more than one ground and even if one of the grounds is either vague or irrelevant for the purpose of detention, the detention would be illegal since the detention order is based on the cumulative effect of all the grounds.

The grounds of detention can also be challenged on the basis of insufficiency. If the government states that the detainee is about to violate a law, then the mere violation or threat to a law should not be confused as an activity prejudicial to the maintenance of public order The violation of a law, however grave it may be, can only be regarded as a threat to law and order and would not constitute a threat to the maintenance of public order which would obviously involve a total collapse of the state machinery.

However, the best safeguard against any act of preventive detention is a vigilant people's support through pressure groups which question the grounds of detention and prevent misuse of the Act. For when the executive turns a deaf ear and a blind eye to the established social, political and judicial norms it is only people who are conscious of their rights who can challenge such threats to a just social order.

Historical Background

The National Security Act is not the first law of its kind to be enacted in India. The Defence of India Act of 1858 was amended at the time of the First World War to enable the state to detain a citizen preventively. The Rowlatt Committee, approved after the First World War, recommended that the harsh and repressive I provisions of the Defence of India Act be retained permanently on the statute books. The interesting feature of the Rowlatt Bills was that they empowered the State to detain a citizen without giving the detainee any right to move the law courts, and even the assistance of lawyers was denied to a detainee. The Jallianwalla Bagh tragedy was a direct result of the protest against these Rowlatt Bills. The Bills were best described then as "No vakil, no appeal, no daleel".

The Government of India Act, 1935 gave the powers of preventive detention to thc State for reasons connected with defence, external affairs or discharge of functions of the Crown in its.retations with the Indian States. The provincial legislatures had the power to formulate laws for reasons connected with the Maintenance of Public Order.
When the Constitution of India was enacted, Article 21 guaranteed to every person the right of life and liberty which could not be denied to him without honouring the due procedure established by law. In A.K. Gopalan's case the Supreme Court distinguished "the procedure established by law" from the "due process of law" saying that any procedure duly enacted would be a "procedure established by law". However, this view now stands reversed in Maneka Gandhi's case where the Supreme Court has held that the "procedure established by law" must also be just, fair and reasonable.

Article 22 of the Constitution laid down the scheme under which a preventive detention law could be enacted. The PD Act 1950 was enacted and it continued to be on the statute book until the Maintenance of Internal Security Act (MISA) was enacted in 1971. The MISA was repealed in 1977. And the only period in the Indian "republic without any preventive detention law was the three year period, beginning with the repeal of MISA in 1977 to the promulgation of the NSA in 1980.

Chart: NSO/NSA detentions in India in 1980

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