Cow Protection Furor: Can the NSA be invoked? [Part I]


[In this two part post series, I shall be discussing the National Security Act and its application on the offence of cow slaughter. In this part I shall provide an overview of the Act and discuss its constitutionality]

At a time, when the government is faced with a problem of protecting human beings, the question of protecting cows cannot have priority’.
                                                                                                                             -Vallabhbhai Patel[1]

These words of Sardar Patel although uttered over 70 years ago, assume extreme significance today. At a time when the country is witnessing a rise in hate crimes and gross human rights violations, India is witnessing the re-emergence of the majority religion’s veneration of the ‘holy cow’.

This veneration has turned extremely violent. According to a study, the country has witnessed over 120 cases of violence caused on mere allegations of cows being slaughtered or their transport. This paranoia finds further expression with our elected representatives having introduced a Bill seeking death penalty for individuals who indulge in slaughtering of cows and a High Court Judge calling for declaring the ‘holy cow’ as our National Animal.

This paranoia is also evidenced by the demand of several state governments to invoke the National Security Act, 1980 [‘NSA’] for detaining the individuals accused of cow slaughter. The recent incident being in Madhya Pradesh, where the Chief Minister has invoked the NSA against two individuals accused of cow slaughtering. In this post, I aim to provide a basic overview of NSA, which shall include its constitutionality and the procedure under the Act.

What is the National Security Act?

In 1980, the Parliament of India enacted the National Security Act, to legalize preventive detention i.e. detaining someone to prevent the commission of a crime. The Act was the successor to the draconian Maintenance of Internal Security Act, which was used to detain thousands during the infamous Emergency in India.

The Act allows the central government or the state governments to detain an individual if they are satisfied that he/she may act in a manner which shall be prejudicial to:

(a) Defence of India;
(b) Relations with a foreign power;
(c) Security of India;
(d) Security of state or
(e) Maintenance of public order [§ 3] [collectively ‘grounds’]

The NSA is considered a draconian legislation as it allows the government to detain a person for a maximum period of 1 year on a mere apprehension [§ 13]. As per the Act, the detenue (person detained) has the limited remedy of challenging his detention before the Advisory Board created under the Act, where a personal representation has to be made, as a legal representative cannot be hired by the detenue [§ 10]. However, the Courts have entertained petitions against the detention orders under Article 32/226 of the Constitution,[2]  since detention violates one’s liberty which is a fundamental right.

1. Invoking NSA and the Procedure:
To invoke NSA, the government needs to be satisfied that the concerned individual may commit an act, which shall affect any of the above listed grounds. On satisfaction, a detention order is passed by either the government or a deputed officer (District Magistrate or Commissioner of Police) [§ 3(3)].

The government has to communicate to the detenue the grounds for his arrest within 5 days or in exceptional cases within 10 days. The government is also obligated to make a reference to the Advisory Board constituted under the Act, appraising them of the grounds of detention and the representation (if any) made by the detenue. The reference has to be made within three weeks of arrest.

Subsequently, the Board submits its report indicating whether there is sufficient cause for detention or not. Where the Board reaches a conclusion of lack of sufficient cause, the detenue has to be mandatorily released [§ 12]. This report has to be submitted within seven weeks of arrest. [Therefore, practically a person can be detained on a mere apprehension for seven weeks i.e. till the Board submits its report.]

Slide1[Figure 1: Procedure for Detention under the NSA]

The procedure under the Act and the timeline therein has to be mandatorily followed. Instances where the government detained a person without sufficient grounds[3] or violated the timeline,[4] the Courts quashed the detaining order and released the detenue. The basic requirement for imposing the Act is that the government should have enough material to show, that in future a person may act in a manner which prejudicially affects the listed grounds. A past act, no matter how heinous, is not sufficient unless it has future ramifications.[5]

For instance, person ‘A’ gave a speech to attack the government officials. As a result, the crowd discharged firearms on the officials and also brought the transport to a standstill. ‘A’ was immediately arrested. Here, it would be improper to detain ‘A’ under the NSA merely because he committed an act that caused unrest. NSA could be invoked only if the government has material to show, that A may commit such an act in future as well.

Slide1[Rights of Detenues under the NSA]

The Court has time and again cautioned the governments to apply the Act sparingly and restrict its application to as few situations as possible.[6]

2. Constitutionality of NSA-
As discussed in a previous post, the Seventh Schedule of the Constitution of India demarcates the subject matter on which the Parliament, the State Legislature, or both,  can make laws respectively. The NSA was enacted to provide for ‘preventive detention’. The above item falls under the ambit of Entry 3 of the Concurrent List (under which both the Parliament and State Legislature can make laws) titled ‘preventive detention for reasons connected with security of State, maintenance of public order…’.

The entry therefore, empowers both the central government and state government to enact a law on the subject matter. However, if both the governments enacted a statute, the central law would prevail, as per our constitutional setup. NSA being a central legislation is therefore, validly enacted.

The NSA is often attacked for violating the fundamental right under Article 22  of the Constitution i.e. protection against arrest and detention in certain cases. The Article guarantees every person arrested inter alia the right to be defended by a legal practitioner. The NSA is said to violate the Article, as the detenue cannot take the assistance of a legal counsel for his representation before the Board. The contention has been rejected by the Court stating that the said right is not available to individuals detained under a preventive detention law as per Article 23(3)(b).

The constitutionality of the Act in toto, has been upheld by the Supreme Court of India in A.K. Roy v. Union of India, despite admitting that by its very nature it generally violates several basic rights of an individual.

[In Part II of the post, I shall discuss the application of NSA against the offences of cow slaughter and its legality. A discussion on the imposition of NSA in Madhya Pradesh, shall also be undertaken.]

[The opinions expressed in the article are solely of the author.]

[1] The above words are excerpts from a speech delivered on 11th August, 1947 at a Public Meeting held in connection with Independence Week Celebrations. The full text of the speech is available at Pg.19 of Selected Speeches and Writings of Vallabhbhai Patel (Penguin: 2010).

[2] The articles guarantee the right to approach Supreme Court or the High Court, for violation of fundamental rights.

[3] S. Valarmathi v. Union Secretary, 2011 SCC Online Mad. 1228 (India).

[4] Khatoon Begum v. Union of India, (1981) 2 SCC 480 (India).

[5] Fazal Ghosi v. State of U.P., (1987) 3 SCC 502 (India).

[6] A.K. Roy v. Union of India, (1982) 1 SCC 271 (India).

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