Allahabad High Court's Contribution In Protecting The Human Rights And Personal Liberties Of The People

Last week, the Allahabad High Court has once again reprimanded the U.P. Government for misusing the National Security Act, 1980 in Javed Siddiqui'case. In September also, the High Court had released the Gorakhpur-based doctor, Kafeel Khan, who was detained under the NSA for allegedly 'inciting hatred' in a speech delivered at the Aligarh Muslim University campus during the Anti-CAA/NRC protests held last year. In his Habeas Corpus petition, the Court had observed that Dr. Khan's remarks had been taken out of context, and had criticized the decision-making authorities for having applied the NSA against him mechanically without any valid grounds. The Court had found his detention unjustified and illegal and ordered his release from Mathura jail. The author had written a column on that issue titled "Taking Misuse of National Security Act Seriously" which was published in the reputed digital law journal Live Law on 16 September 2020. Now the State Government has challenged the order of the High Court in the Supreme Court which is likely to hear the case within a day or two. It is very difficult to understand the reasons why the state has approached the Supreme Court so late.

Unfortunately, despite the directions issued by the High Court the Government of Uttar Pradesh has not changed its usual mindset and practice regarding the use of draconian laws such as NSA, and UAPA. It is still using these laws aggressively particularly against the minorities who have registered their protest on a few occasions against the policies of the government. This time, while hearing a Habeas Corpus petition in Javed Siddiqui v. Superintendent, District Jail, Jaunpur and Others, Writ Petition No. 458 of 2020, a Division Bench of the Allahabad High Court comprising Justices Pradeep Kumar Srivastava and Pritinker Diwaker quashed the order of detention of Javed Siddiqui who was arrested under the NSA for alleged arson and rioting during a clash. The Court found his detention illegal and observed that "where the law confers extraordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care."

In this case, the High Court has focused on the procedural violation of the constitutional rights of the detenus. The representation submitted by Mr Siddiqui to the Advisory Board, although submitted within the stipulated time, was not forward to the Board till two days after the advisory board had approved of his detention; then it was rejected. This seems to be a calculated step only to delay the decision-making process of the Board. The Court thus stated that "The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed". These powerful observations remind the government to follow the constitutional procedure strictly while passing orders to detain people under the preventive detention laws. There is no space for a casual approach in these kinds of serious matters touching upon the personal liberties of the people. But the state government hardly cares about these constitutional guarantees and apply the laws as per its convenience and interpretation. This attitude frustrates the mandate of the rule of law and constitutional supremacy in a democratic state.

It is apposite to state that the violations of constitutional rights of the petitioner as laid out by the High Court in Siddiqui's case suggest a calculated executive practice used against some people who do not fall in line with the political views or agenda of the government of the day. It is well-known that such people are booked under the NSA on flimsy grounds overnight and detained for several months without any trial. If they are released on bail by the courts of law, they are again arrested/detained in some other cases and packed in jails. This is nothing but complete anarchy which negates the foundations of the rule of law. Who will guard these guards? Should not the responsibility of the government be fixed in these kinds of cases when people are illegally detained? Are we governed by the rule of law or the rule of police? It should certainly be fixed so that the people should not suffer due to arbitrary exercise of powers by the government or its agencies. This is certainly a disturbing trend which undermines the personal liberty of the citizens and the rule of law. No government can be allowed to violate the constitutional procedure while making important decisions regarding people's personal liberties. The government is constitutionally bound to treat each citizen equally irrespective of his/her political choice or affiliation. Once elected to the public office, the government belongs to all including those who have not voted in its favour in the elections. The District Magistrates, who pass detention orders under the NSA on the basis of police reports, cannot rely blindly on the gospels of the police officers. They should apply their mind and go through the police reports carefully to find the valid grounds of preventive detention.

Allahabad High Court's most important statement in Siddiqui's case: "when the law gives the executive 'extraordinary power' to detain someone without recourse to usual laws or legal trial, the executive must exercise the power with "extreme care" clearly upholds this requirement. The government is bound to apply these harsh laws with extreme care given our commitment to the cause of human rights. There should not be a casual application of laws. It is sad to note that the NSA is being applied extensively, particularly in the State of Uttar Pradesh although not there alone, to people charged with cow slaughter and those protesting against the new citizenship laws. The government identifies such people and impose the NSA casually. This is a flagrant abuse of power intended to create fear in a particular community and among dissenters, for even if nothing can be proved — as has repeatedly been the case — the NSA allows detention for 12 months. 12 months matter a lot in a person's life. This is not a short period. Their lives are ruined. Their families are suffered. Their reputations are butchered by the executive agencies openly without any fault. Is it an offence to express dissenting views in this land of Mahatma Gandhi? Who will return the precious days of such people who are deliberately framed by the administration in NSA cases? The people cannot be left at the mercy of the administration. Preventive detention laws such as NSA are not enacted to harass the people who express dissenting voices against the government. These kinds of laws must be applied carefully. In a government governed by the rule of law, the administration is duty-bound to exercise its powers within the four corners of the law. It has no power to manipulate the law just to satisfy its political ego. Law is the king of kings. We are governed by the rule of law, not by the rule of rulers who identify people with their political choice. It is not permissible in our constitutional scheme.

Not only in U.P., many draconian laws with a similar thrust, such as the Unlawful Activities (Prevention) Act and the NSA, are being used with similar intentions by different governments throughout the country to suppress the dissenting voices including the journalists. This has become an All-India trend. All such governments must be admonished and advised to exercise their powers under the constitutional mandate. This trend of application of detention power constitutes a big threat to the rule of law and something needs to be done soon to undo this unsavoury practice which goes against the fundamentals of our constitutional ethos and human rights commitment. The Constitution gives fundamental rights to the people against the mighty state so that the state could not violate their liberties by making just laws or policies. 'Deprivation of liberty even for a single day is one day too many' rightly observed the Supreme Court in Arnab Goswami case recently. The Allahabad High Court's clarion call for justice comes when it is extremely needed. Let us hope for the best. It is up to the people to ensure that it is effective, visible and the administration takes it seriously. Time has also come when the Court should award compensation to the victims of unlawful detentions or arrests. The High Court of Allahabad deserves credit for breaking this disquieting pattern during a crucial time when personal liberties are in danger and people look towards the judiciary for protection. Its order provides a template for other courts including the top court to follow in cases that involve the fundamental rights of citizens particularly personal liberties and their encroachment by a state armed with repressive laws like the NSA and UAPA.

Views are personal.

(Author is a practicing Lawyer at the Supreme Court of India)