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Express Investigation: Citing lack of due process & glaring gaps in FIRs, Allahabad HC struck down 20 of 20 orders

Taken together, cow slaughter cases and communal incidents account for over half of all cases adjudicated by the Allahabad High Court in which the Uttar Pradesh administration invoked the draconian National Security Act (NSA) over the last three years — 61 of 120. In as many as 50 of these habeas corpus cases it ruled in — almost 80% — the High Court struck down the orders and ordered the release of the detainees.

But when it comes to communal incidents alone, this went up to 100% — between January 2018 and December 2020, this is the only category where the court has struck down all NSA detention orders it adjudicated on: 20 out of 20, all on habeas corpus petitions.

All the accused were from the minority community — and in at least four cases, the court took on record submissions that flagged this fact, an investigation by The Indian Express of police and court records show.

On Tuesday, responding to the first part of The Indian Express investigation, a UP government spokesperson sent a break-up of NSA cases and related proceedings between January 2018 and December 2020. According to this break-up, the NSA was invoked in 534 cases out of which it was revoked in 106 cases by the advisory board and in 50 cases by the High Court.

Read | Court’s refrain: Individual liberty cannot be taken away without proper application of mind

However, The Indian Express analysis of NSA cases adjudicated by the High Court between January 2018 and December 2020 found that it revoked the NSA in 94 of 120 habeas corpus petitions.

Festive offer

Again, like in the cases of cow slaughter, the records reveal a pattern in which the law was invoked in communal incidents:

* In six cases, the High Court cited the Supreme Court to point out that “the bald statement” made by DMs that if the petitioner was released on bail, he would repeat his criminal activity affecting public order “was not enough” to justify the NSA order.

* In four cases, it noted the defence argument that NSA was invoked on the basis of multiple FIRs where those detained were either not named or not assigned any specific role.

* In four other cases, the court said the only Constitutional safeguard of processing the representation of detained persons before the advisory board without unjustified delay was violated.

Explained | Detention despite bail: Why District Magistrates love the NSA

The records also reveal several identical grounds cited by DMs with text repeated ad verbatim.

* In four cases, the DMs said “panic and terror gripped the members of the public”; an “atmosphere of fear and terror had engulfed the local residents”; and “tempo of life and public order in the area was totally disturbed”.

* In three others, the NSA orders claimed “there was a stampede in the village and the villagers closed the doors of their houses”; “they started running helter-skelter to save their lives”; and “communal tension gripped the atmosphere and communal harmony was totally shattered”.

* In four other cases, “there was panic all-around, villagers had shut their shops and fled on account of terror, people hid themselves in their houses”.

On March 7, The Indian Express sent a detailed questionnaire to UP Chief Secretary R K Tiwari flagging the quashing and seeking the state government’s response to whether there has been a review of NSA orders issued by DMs that were quashed by the High Court and if any corrective action has been taken. No response was received.

The court’s calling out of the abuse of the law is best illustrated in the following key cases:

‘Just to say he will repeat crime not enough’

Detainee: Farkhund Siddiqui

NSA issued: On November 3, 2017, by District Magistrate (DM), Kanpur, on FIR alleging that Siddiqui and others participated in a “Tazia” procession, brandishing swords, and entered a Hindu area and shops, shouting slogans, which affected religious sentiments. Facing resistance, they turned violent and communal riots broke out.High Court cited the Supreme Court: “If the State thinks that he does not deserve bail, the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough”.

Detainee: Noorey Alam

NSA issued: On February 5, 2018, by DM Allahabad on FIR alleging a communal incident that started as Alam “forcibly tried to take away” a haystack from one Mahendra Kumar. Villagers intervened to resolve the dispute but Alam and “other persons belonging to Muslim community” attacked Kumar at a tea shop armed with “country-made pistol, bombs, baton, sticks, stones” and “started terrorising” people. This, the FIR alleged, led to people from both communities assembling and shouting slogans against each other.

High Court again cited SC: “… Apprehension of detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person” under NSA.

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‘Not named in the FIR, no role’

Detainee: Shamsher

NSA issued: On October 6, 2018, by DM Muzaffarnagar on two FIRs. The first was registered on the basis of a complaint by one Sumit alleging that he was attacked while returning home, after resolving a dispute involving a cousin, by 15-20 unnamed Muslim men armed with sticks and raising religious slogans. FIR does not name Shamsher or his family.

The second FIR, also on a complaint by Sumit, alleged that Shamsher has “spread a false rumour” over his servant being beaten upon which “about a hundred members of Muslim community” armed with sticks, sharp-edged weapons, bricks and stones started a procession “shouting provocative and communal slogans”.

High Court: It noted the petitioner’s contention that “detention order has been passed primarily on the ground that the petitioner belongs to Muslim community without appreciating the fact that the second FIR was a logical conclusion of the first FIR” in which he was not named.

“At the very outset, it has been mentioned that even though the petitioner has been named, no specific role has been assigned to him. Even though it has been mentioned that a mob of a hundred people had gathered, nobody had received any single injury, even an abrasion,” it said.

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Detainee: Adab

NSA issued: On May 25, 2018, by DM Aligarh on three FIRs. The first related to a rioting case registered after nearly 100 protesters had gathered outside Jama Masjid during Friday prayers, demanding stringent punishment for accused in murder of two Muslim men, and compensation to families. The two other FIRs were also registered on the same day.

High Court: It noted the petitioner’s contention that “detention order has been passed primarily on the ground that the petitioner belongs to Muslim community without appreciating the fact that the second and third FIRs were a logical conclusion of the first FIR” in which he was not named.

It noted that “no specific role had been assigned” to him. “There is no injury report whatsoever on record which may show that anybody had received grievous injury,” it said.

‘Lack of effective representation’

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Detainee: Javed SiddiquiNSA issued: On July 10, 2020, by DM Jaunpur on FIR alleging that Siddiqui along with 56 known and 25 other unknown persons reached a slum locality, committed rioting and arson, and used casteist words.

High Court: “…while extraordinary haste was shown in taking action against the petitioner, the authorities remained reluctant and there was complete inaction on their part causing unjustified delay in processing the representation of the detenu and in not placing the representation before the Advisory Board.”

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It concluded that “where the law confers extraordinary power on the executive to detain a person without recourse to the ordinary law of and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care”.

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