New Delhi: The Allahabad high court has struck down orders and directed the release of detainees in nearly 80% of cases related to cow laughter and communal incidents in which the Uttar Pradesh government had invoked the draconian National Security Act (NSA) over the last three years.
According to an investigation by the Indian Express, between January 2018 and December 2020, in cases related to communal incidents, the court struck down all 20 NSA detention orders it had adjudicated on habeas corpus petitions.
Of the 120 cases that reached the high court in the said period, as many as 41 cases (one-third) were related to cow slaughter where the NSA was invoked.
The report notes:
“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 in the cow slaughter cases were found to be Muslims. The draconian NSA gives the state powers to arrest someone without formal charge or trial.
According to a break-up of cases between January 2018 and December 2020 provided by a UP government spokesperson, the NSA was invoked in 534 cases. Of these, it was revoked in 106 cases by the advisory board and in 50 cases by the high court, the break-up said.
The Express investigation however revealed that the Allahabad high court had revoked the NSA in 94 out of 120 habeas corpus petitions.
In six cases, the Allahabad high court said that “the bald statement” – made by District Magistrates that if the petitioner in the case was released on bail, the accused would repeat his criminal activity affecting public order – “was not enough” to justify the NSA order.
In the case of Farkhund Siddiqui, District Magistrate of Kanpur had invoked the NSA alleging that Siddiqui had participated in a “Tazia” procession and disturbed religious sentiments after entering a Hindu area whilst brandishing swords which led to violent and communal riots.
In connection with the case, the high court, citing the Supreme Court, said, “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”.
In another four cases, the high court accepted the defence argument that the NSA was invoked on the basis of multiple FIRs where those who had been detained were either not named or not assigned any specific role.
In a case registered in 2018 by DM Muzaffarnagar, alleged that one Sumit was attacked while returning home by 15-20 unnamed Muslim men armed with sticks and raising religious slogans. The FIR in question did not name Shamsher or his family. Another FIR said that Shamsher had “spread a false rumour” over his servant being beaten following 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”. The high court noted that 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.
The court further said that even though the petitioner has been named, “no specific role has been assigned to him”. It also said that even thought it was mentioned that a mob of hundred people had gathered, nobody had received any single injury “even an abrasion”.
In another case where the NSA was invoked in 2018 by DM Aligarh, the high court noted that 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. The court further named that “no specific role had been assigned” to him and that “There is no injury report whatsoever on record which may show that anybody had received grievous injury”.
In other cases, the high court held that the only constitutional safeguard of processing representation of detained persons before the advisory board without unjustified delay had been violated.
In the case of Noorey Alam, against whom the NSA had been invoked on the basis of an FIR, which claimed that a communal incident had started after Alam “forcibly tried to take” a haystack from one Mahendra Kumar. Villagers in the area then tried to intervene and resolve the altercation but Alam and “other persons belonging to Muslim community” allegedly attacked Kumar at a tea shop with pistols, sticks and stones and “started terrorising” people. This, the FIR claimed, led to persons from both communities assembling and shouting slogans against each other. In Alam’s case, the high court held, “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.
Additionally, in at least four cases, the court took on record submissions that flagged the fact that the accused were from the minority community.