Express investigation: Individual liberty cannot be taken away without proper application of mind, says Allahabad HC


  • District Magistrate handed orders in a mechanical approach, in some circumstances simply at the foundation of police reviews.
  • The procedural safeguard of efficient illustration for the ones detained used to be significantly infringed.
  • Individual liberty assured by way of the Constitution can’t be taken away with out right kind utility of thoughts.

THESE ARE one of the vital key observations made by way of the Allahabad High Court because it quashed 30 of 41 circumstances that confirmed how the National Security Act (NSA) is being abused in Uttar Pradesh during the last two years.

The Indian Express tracks felony data of the entire NSA circumstances that have been disregarded to determine what the courtroom mentioned and why. Here are key illustrative examples:

NON-APPLICATION OF MIND

Detained: Laiq alias Lakku

NSA issued: On July 31, 2017, by way of District Magistrate (DM) Kannauj depending on FIR alleging cow slaughter in “open field”.

High Court steps in: It placed on report submissions from accused that “detention order has been passed solely on account of some applications/ complaints/ representations given by and given at the behest of political parties”. It mentioned “subjective satisfaction as recorded (by the DM) is bad in law”, and that the federal government “could not demonstrate as to what was the cogent material with the detaining authority on which the satisfaction has been recorded”.

Key commentary: Recorded submission that “detaining authority was unduly swayed by the representations and the applications given by the City President of the BJP as well as the District President of Hindu Yuva Vahini and… the detaining authority has not evaluated the circumstances with a free mind, individually and independently.”

Detained: Inam

NSA order issued: On August, 14, 2017, by way of DM Muzaffarnagar on FIR that claimed police won an tip-off from “informer” about cow slaughter in “vacant field”; police staff heard a “conversation” that the accused would “dispatch the material to Delhi and will bring more cows…from Haryana to make their profession flourish”.

High Court steps in: It mentioned the order used to be handed in a “mechanical manner…merely on the basis of the report of police”, and that the DM used to be “not at all conscious of all the relevant aspects of the case”.

Key commentary: “It is essential that the detaining authority must have applied its mind to the question whether it is necessary to detain a particular person with a view to prevent him from acting prejudicially to any of the objects mentioned in the Act.”

Detained: Irfan Qureshi

NSA issued: On August 30, 2017, by way of DM Azamgarh on FIR alleging cow slaughter inside of a space.

High Court steps in: It placed on report Qureshi’s submission that the order used to be handed “in a routine manner without application of mind” at the police document. It mentioned the federal government argued that Qureshi used to be detained underneath NSA as “there was anguish among people of the other community” however “could not point out that the act of the petitioner was prejudicial to disturbance of public order”.

Key commentary: Citing Supreme Court, it mentioned that “the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum, but not circumvent it by passing an order of detention merely to supersede the bail order.”

NO EFFECTIVE REPRESENTATION

Detained: Najar Qureshi

NSA issued: On April 13, 2018, by way of DM Muzaffarnagar on FIR alleging cow slaughter “inside a house, located behind a graveyard”.

High Court steps in: Notes that order has been challenged at the “only ground” that petitioner “was not given any opportunity by the Advisory Board to be represented through a legal practitioner/ counsel of his choice before the Board so as to enable him to place his case effectively before the Board”. But “at the time of hearing of the case before the U.P. Advisory Board, Lucknow, officers of the detaining authority were present and heard in the course of proceedings”.

Key commentary: Citing Supreme Court, it mentioned: “If the detaining authority or the government takes the aid of a legal practitioner or legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. If it is denied to him then a clear case of breach of Article 14 is made out in favour of detenu.”

Detained: Afsar

NSA issued: On July 26, 2019, by way of DM Bulandshahr on FIR alleging cow slaughter “inside a house”.

High Court steps in: Citing the federal government’s answer on December 16, 2019, that an officer from a central company referred to as for “some enquiry/report”, it mentioned there’s no rationalization “as to why the report from the said independent agency was called for as there was no reference of the petitioner being involved in any serious or any anti-national activity”.

It additionally mentioned {that a} lengthen of nineteen days in furnishing an unbiased document by way of the central company “remained unexplained” and dominated that “the right of the petitioner under Article 22 (5) of the Constitution of India was seriously infringed, rendering his detention as illegal”.

Key commentary: “The officer dealing with representation of the petitioner acted in a most irresponsible and negligent manner and has failed to account for the reason as to why did he call for the report from the Central Agency”.

Detained: Imran alias Tendu

NSA issued: On August 6, 2017, by way of DM Muzaffarnagar depending on FIR alleging cow slaughter in “front of a shop”.

High Court steps in: State govt “committed a mistake in not sending the matter to the Advisory Board before extending the period for another six months”.

Key commentary: Citing apex courtroom, it mentioned: “Where law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in same manner following provisions of law, without deviating from prescribed procedure. Underlying principles cannot be ignored while passing orders of detention or extending detention period from time to time.”

LAW AND ORDER ISSUE

Detained: Jaheer

NSA issued: On July 9, 2018, by way of DM Hapur depending on FIR alleging cow slaughter “inside a house”.

High Court steps in: It mentioned the federal government pointed to “reports that Hindu organisations staged demonstrations” and that “it can safely be assumed that there had been a breach of public order”. But, it famous, the “demonstrations, if any, appear to be a consequence of spread of information and rumours, not a direct consequence of the act”. It mentioned that “who spread the news, with what motive, is not known”.

Key commentary: “Such demonstrations are often fanned by vested interests for oblique purposes which, by itself, would not convert an act constituting a mere infraction of law and order into one which breaches public order”.

Detained: Shahid Qureshi

NSA issued: On April 4, 2019, by way of DM Bulandshahr pointing out that Shahid and co-workers hosted attendees of the Tablighi Jamaat congregation at a farmhouse — and that they went for “hunting”, and the beef used to be served as “keema” and “biryani” to visitors.

High Court steps in: “…material nowhere indicates that while the prohibited meat was being served, any member of the majority community was present who could claim to be a witness to the serving of the prohibited meat”; there “is no material” to suggest that Shahid used to be “physically present at the time of slaughtering”; “only material” are confessional statements “recorded after more than 4 months of the alleged occurrence”.

Key commentary: “…slaughtering and consumption of beef per se cannot attract the provisions of the National Security Act…It would be an offence under the provisions of the Cow Slaughter Act.”

Detained: Aman Saeed

NSA issued: On May 23, 2019, by way of DM Bulandshahr on FIR alleging cow slaughter inside of residential compound.

High Court steps in: “…materials, including the grounds of detention, indicate that the alleged disharmony/ disruption of public order including religious sentiments was affected on account of a tip-off by a Peeping Tom that rumours spread in the area”.

Key commentary: “If a Peeping Tom discloses the offensive activity taking place inside the residential premises in secrecy to the outside world, whereupon resentment/ protest/ disharmony ensued, same cannot be attributed to disruption of public order…”

NO PREVIOUS HISTORY

Detained: Murad Ali

NSA issued: On May 21, 2018, by way of DM Barabanki on FIR that an “informer saw…some persons trying to catch a cow” within the fields.

High Court steps in: “There is no criminal history of the petitioner and, as such, there is no history sheet operating against him”; “In such a situation, the Court is not in a position to appreciate the conclusion drawn by the District Magistrate that the petitioner is likely to indulge in activities leading to breaking down of public order”; “The individual liberty guaranteed to the petitioner by the Constitution of India cannot be taken away without proper application of mind.”

Key commentary: “…In absence of any history, prediction could not have been made by the District Magistrate about the future behaviour of the petitioner…in case of principle and law, prediction has to be made on the basis of actual calculation based on relevant material and data.”



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