Yesterday (11 Sept 2020), a news report appeared in Indian Express newspaper, highlighting the fact that “this year, till August 19, the UP Police had invoked the NSA against 139 people in the state, 76 of them for cow slaughter”.
There have been follow-up stories in media, particularly the liberal media.
So, there has been criticism that NSA has been applied in more than half of the total cases in Uttar Pradesh only for cow slaughter cases.
NSA stands for the National Security Act, 1980, under which a person can be placed under preventive detention for a maximum period of 12 months, even without conviction from a court and also different from pre-conviction trial or investigation stage.
Relevant Legal Provision under the National Security Act.
Let me first highlight that sub-section (2) of Section 3 of the National Security Act, 1980, allows preventive detention of a person, inter alia, to prevent him from acting in any manner prejudicial to the maintenance of public order:
“(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.”
This is the legal provision that is generally used for preventive detention of a person under NSA for being involved in a case of cow slaughter.
Of course, there are other reasons for invoking NSA detention under the above Act, such as for defence of India, the relations of India with foreign powers, the security of India, etc. But, detention under NSA for a cow slaughter case is generally ordered for preventing acts prejudicial to the maintenance of public order.
Can cow slaughter be prejudicial to maintenance of public order?
So, the relevant question would be whether cow slaughter can lead to disturbance of public order? If yes, then only NSA can be applied to a person involved in cow slaughter. This is so because other heads under which NSA detention may be ordered, may not generally be applicable in the case of cow slaughter.
Firstly, it needs to be understood that cow is considered very sacred by Hindus generally, and they constitute about 79.8% population in India. Most Hindus consider cow as mother and many of them worship it. Several Hindus even drink cow urine (Gau Mutra). Just a couple days back, a famous actor, Akshay Kumar mentioned that he drinks cow urine daily. Cow dung is also used in Hindu religious fire (agni) yajna as an important ingredient. Cow milk, of course, is widely used by most human beings, including Hindus.
Many Hindus are very sensitive about the protection and welfare of cows.
In fact, in recent years, there have been cases wherein cow slaughter led to law & order and public order problems, leading to riotous situations. There have been many cases wherein cow protection wings of Hindus stopped those illegally transporting cows in vehicles, suspecting them to being taken for slaughter.
Moreover, in many states in India, cow slaughter is banned under law.
Thus, there can be no doubt that cow slaughter can, and has in the past, led to disturbance of public order.
In this factual matrix, firstly, one fails to understand why should some people still indulge in acts of illegal cow slaughter? That too, knowing fully well that most Hindus may not take such acts kindly? More so, when such act is illegal and banned under law? Can’t there be other lawful sources of income for such people, if at all they do it for living?
One possible inference could be that some persons (though not all) deliberately indulge in cow slaughter to provoke riots and violence. It may be a conspiracy to destabilise the social fabric in the nation. So, why not use NSA detention against at least those miscreants who want to create public order problems?
Has NSA been applied in all cow slaughter cases?
So, then, the question arises – do all persons who slaughter cow are trying to do so to create public order problems? Or, is NSA applied to all cow slaughter cases?
Well, the answer is “no” to both these questions.
The aforementioned Indian Express news report itself mentioned that this year, in 2020, till August 26, a total of 1,716 cases had been registered under the Uttar Pradesh Prevention of Cow Slaughter Act and over 4,000 people were arrested.
And, out of these 4000 people arrested in connection with cow slaughter in UP, only 76 persons were detained under NSA. This is a miniscule, less than 2% of those responsible for cow slaughter; in fact, the percentage may be much less than that, given that many culprits would not even have been arrested (many cases remain undetected or accused abscond).
This clearly shows that NSA has been applied only against very few persons out of all those who are responsible for cow slaughter. The reason may clearly be that only those persons are detained under NSA for cow slaughter where the administration fears that such act may lead to serious disturbance of public order situation in the locality.
What are safeguards against wrong use of NSA?
It is not that once a detention order is issued under the NSA, the matter ends there itself, with the person having to spend full 12 months in custody. There are safeguards against wrong and/or illegal detentions.
Firstly, an advisory board is required to be set up under law by the State Government, consisting of 3 members who are or have been or are qualified to be appointed as High Court judge. The chairperson of this advisory board is a person who is or has been a High Court judge.
Each NSA detention case is scrutinized and inquired into by this advisory board and it has to give its recommendations to the state government within a period of 7 weeks (from the date of detention of the person) about whether to continue or revoke the detention. Importantly, if the advisory board recommends that there are no sufficient grounds for detention, then it is binding on the state government to revoke the detention order under NSA and to release the person forthwith. On the other hand, if the advisory board is satisfied with the grounds for detention, then it is up to the state government to continue the detention and it is not binding to continue detention. See, Section 12 of the National Security Act in this regard:
“12. Action upon the report of the Advisory Board.—(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.”
Secondly, a person detained can approach the high court against the detention order. It is done in almost every case of detention, where the advisory board approved of the detention.
Thirdly, thereafter, the detained person can approach the Supreme Court too, if the need arises.
And, let me emphasise that the courts have come down heavily in cases where they find that the detention under NSA was ordered on wrong grounds. Preventive detention is one area of law, where the courts have been harsh on the authorities. In fact, I have personally seen cases in my IPS days, wherein the authorities concerned were penalised with personal fines (not against the government, but against the officers concerned themselves) by the courts for wrong detention orders.
Therefore, there are reasonable safeguards in the system to take care of wrong detention orders, and the government is not the final authority in this regard.
One can understand one or two individual cases of wrong detention escaping the vigilant eyes of law, but not so many.
How many of NSA detentions have been set aside?
To find out whether the NSA detentions in cow slaughter cases were wrongly ordered, one important yardstick would be to check in how many cases the detention orders were set aside by courts (such as High Court or Supreme Court) or were recommended to be without sufficient grounds by the advisory board.
Curiously, the Indian Express is completely silent on this issue. I have no means of fully verifying it personally as my reach is only to the information available in the public domain. My search on Google did not yield any substantial results for the detention orders being set aside, barring in one or two cases (that too of previous years). One recent order of High Court setting aside NSA detention was in the case of Dr. Kafeel Khan, but he was not detained for cow slaughter.
So, it appears that most of these NSA detention orders have not been found to be wrong by the advisory board and/or the courts. Had it been otherwise, a liberal newspaper like Indian Express (its story was followed by leftist liberal, the Wire website) would not have missed the opportunity to point out that most of such NSA orders were reversed by courts or advisory board. But, they have not done so. One can safely presume that they did not find any material adverse to the government.
So, to conclude, it appears that there is sufficient legal power to detain a person under NSA if he is involved in cow slaughter and where the authorities concerned find it necessary to prevent such act from being prejudicial to maintenance of public order. NSA is not being applied mechanically in all cow slaughter cases; it has been applied only in less than 2% case of cow slaughter in UP. Moreover, most of these orders (nay, almost all them) have been directly or indirectly upheld by advisory board or courts, or have not been set aside.
