Last month, the Hon'ble Allahabad High Court quashed the detention of Dr. Kafeel Khan, a Gorakhpur-based doctor, who was detained under the National Security Act since January this year in Mathura jail. On a Habeas Corpus petition filed by his mother, a Division Bench of the Hon'ble High Court of Allahabad comprising Chief Justice Govind Mathur and Justice S D Singh found no substance in the state's accusations against Dr. Khan and ordered his immediate release from Mathura jail. In its 42-page order, the Court strongly rejected the detention story of the state against Dr. Khan who was alleged to have delivered a provocative speech at the Aligarh Muslim University campus last year during the Anti-CAA/NRC protests when many people had come on the roads against the CAA in different parts of the country. The High Court did not find his speech provocative or objectionable. The Court said the speech was "a call for national integrity and unity" and did not mirror "any effort to promote hatred or violence". In addition to this, the subjective satisfaction of the District Magistrate of Aligarh, who had passed the detention order against Dr. Khan, was also found baseless, invalid, and bad in law. The District Magistrate used selective reading of some phrases of Dr. Khan's speech and ignored its true intent while passing the detention order, the Court observed in its judgment.
The Hon'ble High Court has set a fine precedent to protect the personal liberty and human rights of the people by quashing the detention proceedings against Dr. Kafeel Khan. The Court has truly protected the mandate of Article 21 of the Constitution. This is what people expect from the constitutional courts which are empowered to protect their fundamental rights under Articles 32 and 226 of the Constitution respectively. It is a landmark judgment that would encourage other courts as well to uphold the constitutional principles at crucial times when people are badly suffering because of executive excesses. Our top court should also learn something from this courageous order of the High Court. The Court observed: "Testing the action taken against the detenue on the above principle, it appears other things apart, there is serious lack of objective material on record as may have given rise to a valid subjective satisfaction with the detaining authority to preventively detain the detenue on 13.02.2020. -----Mere apprehension expressed in the grounds of detention, not founded on any material shown to exist on record, if allowed to stand, would fall foul with the test laid down by the Supreme Court in Khudi Ram Das in as much, neither is there any objective material giving rise to the subjective satisfaction nor the subjective satisfaction is found to have been reached in a legal and regular manner but on whim and humour."
This incident has highlighted a case of clear misuse of preventive detention laws particularly the National Security Act in the State of U.P. The due process of law is openly violated in this case of preventive detention and in its subsequent extension. Dr. Khan spent nearly seven months in jail without any fault. Who will return his days? Who will compensate him? Should not the state government answer these questions? These questions would disturb the mind of every law-abiding citizen who wants to be governed by the rule of law. Many people rightly believe that the only release from preventive detention is not sufficient and the police and administrative officers who slap the NSA on innocent people should face legal consequences so that others should take lessons from such incidents. The High Courts have full powers to award compensation under Article 226 in case of violation of fundamental rights by the state or any of its agencies. It can also direct the government to initiate disciplinary proceedings against the officers who violate the legal procedure deliberately.
It is a matter of fact that some draconian laws such as NSA are politically misused to restrict the liberty of those who do not agree with the ideology or functioning of the ruling dispensation. The police believe that they are above the law and can send people behind the bars as and when they think it necessary to satisfy their arrogant minds. It presents the unwelcome attitude of 'Either My way or the High Way'. Not only in U.P., but in many states these detention laws are misused on a large scale by the police. First, people are booked under the general criminal laws and if they get bail from the courts of law, the police detain them under the preventive detention laws immediately. In some cases, the police pick up the accused persons from the jail itself whenever the person comes out of the jail premises on bail. This is nothing but executive anarchy that has no place in a country governed by the rule of law. This reflects a bad mindset of our police and administrative machinery. It goes against the fundamental principles of a civilised country. Many preventive detention laws are enacted for specific purposes, particularly for controlling the anti-social elements in society. But these laws should not be used to suppress the dissent or fair criticism. In recent times, the state authorities have frequently invoked the preventive detention laws to criminalise free speech, dissent, and peaceful protests. A democratically elected government is constitutionally bound to have equal respect and concern for each citizen irrespective of his political choice. Once elected, the government belongs to all including those who do not support it in elections. So, there is no scope for political vendetta in a constitutionally controlled system. The government is duty- bound to treat people equally with their dignity.
The National Security Act, 1980, enacted by Parliament in 1980, permits preventive detention — up to a maximum of 12 months — "in certain cases and for matters connected therewith". Prevention detention curtails the personal liberty of the people. The Hon'ble High Court of Allahabad observed in Dr. Kafeel Khan's case: "Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right. This precious fundamental right must always be protected. Under our constitutional scheme the nation of India is weaved as a democratic republic where social, economic and political justice to every citizen is secured, where liberty of thought, expression, belief, faith are constitutionally protected, where every citizen is at equal status with equal opportunities. The system of governance is to promote fraternity with assurance to maintain the dignity of every individual as well as unity and integrity of the nation. The strong and valuable fabric of our nation is well designed with support of fundamental rights given in Part-III of the Constitution. These rights are golden thread in the fabric, which is further illuminated by extending protection of life and personal liberty under Article 21 of the Constitution of India. True it is, the right so given under Article 21 is not absolute but no one can be deprived of his or her personal liberty except on such grounds and in accordance with such procedure as are established by law. Any act that causes injury to the valuable rights given in Part-III of the Constitution would be nothing but an effort to weaken the fabric of our nation, a democratic republic."
These insightful words show the judicial commitment towards the pious cause of the protection of human rights and dignity. The Hon'ble High Court of Allahabad has defended this great constitutional mandate in Dr. Khan's case. Hope other High Courts in the country would also follow this great path. As mentioned earlier, under the NSA, certain cases are fleshed out to indicate that a person can be detained, among other reasons, to prevent him from acting in a manner prejudicial to the security of India and the maintenance of public order but this should be in accordance with a just, fair, and reasonable procedure as guaranteed in our Constitution. This is rather imprecise: public order remains subject to the State's interpretation, and the security of India could be made to mean the security of the ruling regime and its agenda. This is not the right interpretation. These laws need objective interpretation, not the narrow-minded political interpretation that favours a particular ideology and punishes others who think differently. The District Magistrates are expected to exercise this significant power on the police report. But it has been observed in several cases that the District Magistrates exercise their powers under the NSA mechanically without any valid material and trust the police report blindly. They should read the papers carefully and if necessary, should seek legal advice from the law officers of the government. They should not trust the police version blindly. They should see if the police version is based on some valid material that could justify the preventive detention of the person to be detained. Many legal experts and human rights activists have rightly spoken up against the indiscriminate use of the NSA and other preventive detention laws which are badly misused to curtain civil liberties in the country. It is a valid concern that deserves serious attention. The state governments should not use the preventive detention laws without valid material to justify its application, and police officers using it wrongfully should be penalized. Why should the people suffer because of administrative faults and arrogant behaviour of the police and administrative officers who are adamant to flout the legal procedure? After all, the Constitution gives certain rights and liberties to the people that have to be protected and honoured by all courts of justice. Civil liberties deserve full protection and respect by the guardians of the rule of law. If such people violate the constitutional mandate, the courts of law should not hesitate to fix their responsibility.
Notably, many people are detained under this law without valid reasons for months in different states. Their detentions are extended from time to time without valid justification. Aggrieved people go to the courts but they become the victims of our slow judicial system. Habeas Corpus petitions stand pending for adjudication in the High Courts for months. The Courts should be more sensitive towards the protection of civil liberties. The police or administration cannot be permitted to violate the precious mandate of the personal liberty, rule of law, and human rights enshrined in our great Constitution. Although successive governments have misused the NSA from time to time, its application has become almost a daily practice under the present regime in the U.P. which restricts the personal liberty of the people for unjustified political reasons. For example, from dumping cow carcasses to protesting against the government, Anti- CAA/NRC protesters, the NSA is imposed for anything that strikes the government's whim and fancy. It is widely observed that this law is being used to punish, not prevent, because people can be locked in jail for 12 months although most cases, like Mr Khan's, would not pass legal scrutiny. Is it not a mockery of the Rule of Law? No, this is not a good signal at all for our democracy. It disappoints all those who respect the rule of law and constitutional commitments. It reflects the poor state of affairs of our law and order situation and commitment towards the cause of human rights. Should the violators of detention powers not be punished? I think they should face legal consequences.
Sadly, the State of Uttar Pradesh is well-known for its misuse of the NSA and other preventive detention laws. The state leads to arbitrary use of the NSA and other preventive detention laws. The state is promoting 'Dandaraj' prominently by openly flouting the rule of law. It has given huge powers to the police and Babus to restrict people's civil liberties. These Babus and Cops have developed a strong feeling of impunity. They think nobody can stop them; nobody can punish them because they are politically protected. 'Thok denge, bahar nahi nikalne dengey, culture" is on the rise in this land of Lord Shri Ram. The NSA has become a great weapon of harassment and torture in the state. As per media reports, while 13 arrests under it this year have been of anti-Citizenship (Amendment) Act protesters — they evidently threaten security, even if not the country's — 76 of 139 NSA arrests till August 19 were of those accused of cow slaughter. This use of the NSA upends all notions of justice and fair process that is the foundation of a country governed by the rule of law. A person can be lodged in prison for 12 months under the draconian NSA. This is not a small thing. A 12-month period is not a short period. Many lives are ruined because of these illegal detentions mostly made because of political vendetta and ego clash with the citizens who do not fall in the line of ruling parties. The administration has full support from the political masters to slap the NSA on people as per the circumstances and their subjective satisfaction.
The time has come when the responsibility of those who misuse the preventive detention laws should be fixed by the courts. Only the quashing of criminal proceedings by the High Court is not sufficient to do justice to the people. More steps are required to humanise the judicial process and give justice to the people. In all cases of misuse of NSA, reasonable compensation should be awarded to the victims and the amount of compensation should be recovered from the salaries of the officers involved in forging the detention orders. The people cannot be left at the mercy of the police or the administration. Arrest by police is not good news in Indian society. It invites stigma. A great ignominy, humiliation, and disgrace are attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family, relatives, and friends also. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. Anybody who goes to jail gets a bad treatment in society. People make a bad opinion about him. This is why people want to avoid arrest or detention. The police cannot be allowed to detain people without justifiable reasons. If individuals have been deprived of months and years of their life for no justifiable reason or violation of law at all, compensation of some sort must be provided to them by the government. While their lost time and honour cannot be returned, and harassment and torture cannot be undone, at the very least, compensation can mitigate some of the harm caused. It would also be a lesson for those who misuse the legal process to satisfy their ego. Wrongful imprisonment is a serious violation of human rights. This is the right time when the Supreme Court should also lay down some guidelines to eliminate the culture of false imprisonment and detention. Parliament can also make necessary reforms in our criminal justice system to abolish this unsavoury practice which violates the human rights of the masses. People should be saved from state persecution and those who misuse laws should be punished in accordance with the law of the land. Their responsibility should be fixed. They should face disciplinary proceedings. They should be sent behind the bars so that they could get the experience of prison life. How can they escape the legal consequences? Let them think twice before sending someone to jail in false cases. A democratic government should not be allowed to run its administration in a dictatorial manner. The government is elected to serve the people, not to torture them or harass them by applying monstrous detention laws wrongly just to satisfy its ego. In a democracy, people are sovereign, not the government. No government is above criticism or public scrutiny. Criticism is a must to bring responsibility, transparency, and maturity in the administration. The DMs and the police officers should never forget: "In this land of Dr. B. R. Ambedkar, nobody is above the law. The Law is the King of Kings".
Views are personal only.
(Author is a practising Lawyer at the Supreme Court of India)