NSA Invoked For FB Post On 'Babri Masjid': "Detention Justified But Delay In Disposing Representation": Allahabad HC Quashes Detention Order

The Allahabad High Court today quashed a detention order passed by the DM, Lakhimpur Kheri under the National Security Act, 1980 against a man for his alleged Facebook post on Babri Masjid ("Babri Masjid will one day be rebuilt, just like Turkey's Sophia Mosque was rebuilt", the accused had posted on FB).

The Bench of Justice Ramesh Sinha and Justice Saroj Yadav was hearing the habeas corpus plea of one Mohd. Faiyyaz Mansuri and found justification in his detention by the Detaining Authority, however, quashed the same on the ground that there had been a delay in disposing of his representation by the Union Government.

Importantly, emphasizing that our Constitution guarantees various freedoms and personal liberty to all persons in our Republic, the Court further added thus:

"However, it should be kept in mind by one and all that the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedom and personal liberty is designed to grow and flourish."

Case in brief

An FIR was filed on August 6, 2020. against the detenue/ petitioner at Police Station Mohammadi, District Kheri alleging that he had posted one derogatory message on his Facebook account, on which one Samreen Bano had made an indecent comment on God and Goddess of the Hindu community.

The FIR was registered under Sections 153A, 292, 505 (2), 506, 509 I.P.C. and 67 of the Information Technology (Amendment) Act, 2008 and on August 8, 2020, he was arrested in connection with the aforesaid F.I.R. and was sent to jail.

The grounds of detention showed that in view of communal tension and enmity, people at different places gathered and raised slogans against the said message, by which communal harmony was disturbed and, therefore, the additional police force was deployed and after serious efforts, the public order could be restored.

It was submitted by the State Government that the Detaining Authority had considered the entire material placed before him by the sponsoring authority, particularly the fact that the material posted by the detenue/petitioner through his Facebook I.D. had absolutely disturbed the communal harmony of the society.

It was also submitted that the authority considered the fact that in his Section 161 Cr.P.C., the detenue/petitioner had himself admitted the fact that he has posted the alleged material from his Facebook I.D.

Therefore, it was argued that since the Authority was satisfied that after being released on bail, the detenue/petitioner shall again indulge in activities prejudicial to the public order, hence, the Detention order was passed and was extended from time to time.

Court's observations

At the outset, the Court observed that the responsibility for the security of the State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention.

The court also opined that subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person, the Court noted.

Adverting to the facts of the case, the Court opined that the posting of a provocative message through his Facebook wall by the petitioner, strikes at the root of the State's authority and is directly connected to 'public order'.

"This act of the detenue/petitioner was not directed against a single individual, but against the pubic at large having the effect of disturbing the even tempo of life of the community and thus breaching the 'public order," the Court said.

Importantly, the Court held that the Detaining Authority was justified in law in passing the impugned order of detention and further observed thus:

"This Court, therefore, has no hesitation in holding that the instance of petitioner's activities enumerated in the grounds of detention, clearly show that his activities cover a wide field and fall within the contours of the concept of 'public order' ... Hence, there is no substance on the plea of the petitioner in this regard."

Thereafter, the Court took into account the argument of the Petitioner that there had been undue delay in the disposal of his representation on the part of the Central Government, Ministry of Home Affairs, and noted that the Government had received his representation on October 12, 2020, but processed it on 21, October, 2020.

The Court noted that the Government's affidavit did not contain a day-to-day explanation while dealing with the petitioner's representation between October 25, 2020 to November 11, 2020. Also, his representation was rejected on November 13, but it was communicated to him only on November 17.

Against this backdrop, the Court found that there was a delay in disposal of the representation by the Central Government, and therefore noted thus, having regard to the nature of detention and rigor of law, we are of the view that there was a disproportionate delay at the end of the Central Government.

"For the reasons aforesaid, we are of the view that the plea of the detenue/petitioner that there is delay in forwarding the petitioner's representation on the part of the respondent no.1 (Union of India), has substance and on this count alone, the impugned detention order is liable to be quashed," the Court further held.

Consequently, the instant Habeas Corpus Petition was allowed and the impugned order of detention dated September 17, 2020, and the consequential orders were quashed and the detenue was ordered to be set at liberty by the respondents forthwith unless required in connection with any other case

Case title - Mohd. Faiyyaz Mansuri Thru. Brother Mohd. Siraj v. Union Of India Thru. Secy. Min. Of Home N.Delhi & Others

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