Legislatures pass special laws to empower the state to address certain situations where the existing common laws may be toothless. The National Security Act, 1980, was such as a law that was brought in to keep preventive custody of persons who could act prejudicial to the defence of India, its relations with foreign powers, national security, public order or the maintenance of supplies and services essential to the community.
The Supreme Court on Tuesday expressed its shock at the detention of a politician in Uttar Pradesh for almost a year under the NSA in case related to the collection of municipal tax and ordered his immediate release. The court said it found no element in the case — the very proposal to detain a person in such a case and it receiving the imprimatur of the senior officers and even of the advisory board — warranted exercise of this power of detention and extension of detention; It quashed the proceedings after finding them to be “wholly without basis”. The court also reminded the government that such detentions were against the legislative intent of the law and could trigger allegation of political vengeance.
It is noteworthy that the petitioner had approached the apex court under Article 32 as the Allahabad high court kept postponing the hearing in the case. The Supreme Court was forced to say in an earlier occasion that it generally did not entertain petitions against delays in hearing by high courts but the facts in this case are “quite gross, which persuade us to issue notice”.
Taken together, the case reflects the calumny with which a vengeful state can act and throw citizens inimical to it in jail using laws which were never meant for the purpose and that how the system of checks and balances looks the other way until the highest court of the land intervened. It is also a sad reflection on the functioning of even the constitutional courts which are duty bound to protect the constitutional rights of the citizens.
The NSA is not the first piece of legislation which governments invoke at their convenience to penalise people through the process of the law. The sedition law used to be a favourite tool of the government to drag its critics in court cases; it required a forceful intervention by the Supreme Court to stop the abuse of the Raj era law. Two other special laws — the Unlawful Activities (Prevention) Act, 1967, and the Prevention of Money Laundering Act, 2002 — which make it extremely tough for the courts to grant bail to an accused — have also been used by the governments to lock people inside for long durations. It is only some cases, like the one mentioned above, that get the attention of the courts.
“Bail is the norm, jail is an exception” is the dictum that most democracies follow, and nothing stops India, a country which Prime Minister Narendra Modi often claims is the mother of all democracies, from following it. It is time every arm of the state sat back and introspected how they have helped the cause of democracy while using the law as a tool; lip service hardly serves.