By TAHA BIN TASNEEM & AFIF KHAN & KAIF SIDDIQUI

Aligarh, Uttar Pradesh: Those detained but wrongfully held under India’s restrictive preventive detention law, the National Security Act (NSA) 1980, in Uttar Pradesh spent 306 days in jail before their cases were quashed and they were set free by the Allahabad High Court.

In general detenus, innocent or otherwise, spent about 76% of their maximum period of detention under India’s restrictive preventive detention law, the National Security Act (NSA) 1980, before their petitions were finally disposed of.

These are the findings of an empirical study of 101 NSA cases in the Allahabad High Court that we conducted using data over a nine-year period, between 2010 to 2019.

Our other main findings:

–On average, the Allahabad High Court gave a decision after 276 days after the date of the detention order

–On average, the Allahabad High Court gave a decision after 170 days from the High Court was moved, though habeas corpus petitions

–On average, a detenu spent 314 days (the maximum was 767) in detention before either a decision by the Allahabad High Court or the maximum possible period of detention lapsed

–In 18% of all cases, the time spent by the detenu in actual detention was greater than a year, the maximum allowed under the NSA

–The police made arrests after criminal complaints, offences, or detained them only on suspicion. When detenus struggled to post bail, a detention order under the NSA was passed, prolonging detention

We also studied 73 ‘successful cases’, where the Allahabad High Court quashed detention orders and set detenus free. Our findings in those cases:

–On average, the Court gave its decision after 268 days, calculated from the date of the detention order.

–In ‘successful’ cases, on average, the Court gave its decision in 157 days, calculated from the date the Court was moved, that is, the date the habeas corpus petition was filed.

Despite the consistent advocacy (here, here and here) of the Supreme Court on the prompt disposal of habeas corpus petitions, our data reveal that in practice, detenus spent the major part of their maximum possible detention period in jail, whether guilty or not.

Habeas Corpus: Not The Remedy It Should Be

The purpose of this investigation was to analyse how effectively the judiciary guards the personal liberty of citizens against arbitrary executive action in Uttar Pradesh.

We wanted to answer the broad question of whether it was meaningful for an individual placed under illegal preventive detention to move the Allahabad High Court under Article 226 for a writ of habeas corpus—literally, in Latin, to produce the body.

The answer from the findings of our study: the habeas corpus is not the remedy it was meant to be.

The object of habeas corpus proceedings to bring accountability to such preventive detentions, “to make them expeditious”—as the Supreme Court said in 1959 in the case of Ranjit Singh vs The State Of Punjab—is almost, if not completely, frustrated.

The NSA allows the union or state governments to detain suspects without charge for up to a year, to prevent them “from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India”.

People may also be detained to prevent them “from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community”.

Once such a detention is made, the suspect loses certain rights, for example, the right to consult a legal practitioner of his choice. Article 22(3) of the Constitution excepts a preventively detained person from the Constitutional protections guaranteed by Articles 22(1) & 22(2) to an arrested person which include the right to a legal practitioner. The right to bail may also be affected. In fact, our study found that the State often passed detention orders against an already arrested person with the sole motive to not let the person avail his right to bail in the case(s) going on against him.

Preventive Detention Obstructs Fairness, Justice

Preventive detention laws continue to be an obstacle to established principles of justice and fairness in India, owing to the lack of trial or judicial oversight and the amount of latitude available to the executive.

Some examples of preventive detention laws, apart from the NSA are: the Public Safety Act, 1978, of Jammu and Kashmir; The Unlawful Activities (Prevention) Act, 1967; The Gujarat Prevention of Anti-social Activities Act, 1985; State-Specific Goonda Laws such as in Uttar Pradesh, Andhra Pradesh, and Tamil Nadu.

Various preventive detention laws have survived the test of constitutionality (here, here and here) and this is why courts have limited their interference to quashing detention orders in individual cases. The court does this on the limited grounds of procedural safeguards, such as an absence of relevant material before the detaining authority, or if there is an unjustified delay in deciding the detenue’s representation.

The only recourse for an individual placed under such preventive detention is a writ of habeas corpus under Article 32 or Article 226 of the Constitution.

If the detention does not meet the limited procedural safeguards contained in the relevant Act, the Court may declare it as illegal and issue a writ of habeas corpus for the release of the detenu.

All preventive detention laws in India have a maximum detention period, and even if the detention is otherwise illegal, the person must be released after this period.

This is why it is important to analyse how prompt the courts are in deciding habeas corpus petitions so they do not become infructuous or pointless when they drag on.

Why We Chose Uttar Pradesh

Our study was inspired by a July 2020 paper by Shrutanjaya Bhardwaj on the average disposal rate of habeas corpus petitions in preventive detention matters with respect to the Supreme Court.

Bhardwaj found that the habeas corpus was reduced to a “meaningless remedy” in most cases. He came to this conclusion after noting that in at least 36% of the habeas corpus petitions before the Supreme Court in cases of preventive detention, the Supreme Court had delivered its judgment after the maximum period of detention under the statute had already passed. He concluded, therefore, that the Supreme Court’s role in rendering the writ of habeas corpus meaningless has been significant.

Although each High Court must be studied individually, we began with the Allahabad High Court in the present study owing to the fact that Uttar Pradesh is India’s most populated state with more than 200 million people.

The 177th Report of the Law Commission, issued in 2001, noted that in Uttar Pradesh 73,634 arrests were made for substantive offences—a criminal act that has been committed—compared to 479,404 preventive arrests made for a criminal act that the police suspect may be committed.

These numbers also seem to grant some legitimacy to the criticism (here, and here) of the Uttar Pradesh government as using preventive detention laws arbitrarily, and among other ends, to curb dissent.

Only judgments reported on SCC Online, a legal research website, were used for this study.

Other places such judgements are available were the website of the Allahabad High Court and other legal research databases, such as Manupatra, LexisNexis, or Indian Kanoon. We chose SCC Online primarily because we had access to it, and because it has a ‘phrase search’ tool, which others do not.

We could not study these judgments directly from the Allahabad High Court website, since the number of such cases was impossible to handle. A right-to-information query we filed in 2021, revealed that over 10,000 judgments were delivered in habeas corpus cases between 2010 & 2020 by the Allahabad Bench only.

Of 602 search results obtained after running a Boolean phrase search for ‘habeas corpus‘ on SCC Online and limiting the search results to the Allahabad High Court for the period 2010-2019, we studied 101 cases of preventive detention under the NSA.

One Constitution Bench judgement was excluded because it pertained to the year 2002, and the detenu had been released earlier. Two more judgments were excluded because the reported judgments in these cases as well as the orders available on the High Court’s website had logically inconsistent dates…

This story was originally published in article-14.com. Read the full story here