Seven months ago, Chandrashekhar Azad was supposed to walk out of Saharanpur Jail, where he’d been held for five months. Members of the Bhim Army, a Dalit human rights group that rose to prominence in the Saharanpur protests in May 2017, were excited that their leader would soon be released, telling the Times of India:
We had been waiting for this moment for the past five months and now it’s just a matter of time when our hero will be out of jail and among us. His release will certainly revolutionise our movement.
The excitement was understandable, of course. On that day, the Allahabad High Court had granted Azad bail in the cases filed against him while noting that they seemed politically motivated.
Seven months down the line, however, Azad remains behind bars, and is likely to remain there till at least August 2018. How did it all go so wrong?
No Vakil, No Appeal, No Daleel
Despite the horrors inflicted on common people by the British preventive detention laws, the Indian Constitution didn’t declare such laws to be unconstitutional. Even Dr BR Ambedkar, of all people, justified such laws, and drafted Article 22(3) of the Constitution to expressly say that people detained under preventive detention laws didn’t need to be given legal representation, or told why they were being detained, or even be produced before a magistrate after 24 hours.
The National Security Act 1980 (NSA) is a legacy of this decision, a law which allows the Central or State Governments to detain any person to prevent them from doing anything prejudicial to:
- the defence of India;
- the relations of India with foreign powers;
- the security of India;
- the maintenance of public order; or
- the supply of essential services
Like the Rowlatt Act and the draconian laws of old, people detained under the NSA are not allowed to hire a lawyer to defend themselves. The government can detain them for repeated three-month periods, can withhold the reasons for their detention for ten days, and representations by the detenu against his or her custody are to be made before a special Advisory Board, not the courts.
The NSA can therefore best be summed up by the old description of the Rowlatt Act – ‘No Vakil (lawyer), No Appeal, No Daleel (argument)’.
Yogi Govt Invokes NSA Against Azad
Barely a day after the Allahabad High Court granted Azad bail, the Saharanpur district magistrate issued a preventive detention order against him under the NSA. This detention order has been renewed twice, meaning Azad will remain in preventive detention till at least August 2018.
It should be noted that a district magistrate does not have the power to decide whether or not someone needs to be detained under the NSA – the decision has to come from the Central Government or relevant State Government. In Azad’s case, the decision was made by the Uttar Pradesh Government headed by Chief Minister Yogi Adityanath.
Azad filed a petition before the Allahabad High Court earlier this year, asking for the detention order to be quashed. In May, the High Court dismissed his petition, finding no illegality in the detention order. According to Justices Ramesh Sinha and DK Singh, “The action taken by the concerned authorities is absolutely in accordance with the provisions of the National Security Act.”
No Petition to Supreme Court?
When Azad was first detained under the NSA, the Bhim Army leadership saw this as a ploy by the BJP government to stop him from using his influence with Dalits in UP and elsewhere. Satish Gautam, one of their leaders, told The Hindu:
The highest court of the State saw the false grounds on which he was accused of violence and arrested by the UP Police and hence granted him bail. The BJP government did not like that and wanted to ensure that he remains in jail. But even the NSA would not last for long because soon the High Court will realise that the State government was being vindictive and completely unjustified in booking him under the stringent Act.
When the High Court upheld the NSA order, Manjit Nautiyal, a spokesperson for the Bhim Army, told The Wire on 2 May 2018:
“This is the BJP’s political vendetta. The NSA on Chandrashekhar is totally illegal. The government is only trying to suppress our voice. We will now approach the Supreme Court against this decision.”
Sources in the Bhim Army told The Quint that the petition in the Supreme Court is yet to be filed – but will be once the Court’s vacations end on 1 July. It seemed strange that Azad had not approached the apex court against his detention thus far, but they clarified that this had been because of the High Court’s delay in deciding the matter.
The High Court reportedly delayed hearing the case for over two months, transferring it from bench to bench, before finally arriving at the same bench which had started to hear the case. By the time the judgment was delivered at the beginning of May, they did not have time to file the petition in the Supreme Court before it closed for vacations on 19 May.
Valid Detention or Political Vendetta?
Apart from the Bhim Army, other members of civil society have also raised questions about the detention of Azad. For instance, activist Teesta Setalvad, filmmaker Anand Patwardhan, Prakash Reddy of the CPI and several others signed a statement demanding the release of Chandrashekhar, noting that the Allahabad High Court had in November 2017 raised concerns about the motivations behind the charges against him of inciting violence in the Saharanpur protests.
When the petition finally comes up before the Supreme Court, it should be noted that they will not be able to interfere with the order of preventive detention unless the grounds on which the State Government seeks to keep him detained are found to be irrelevant.
The UP Government would need to satisfy the apex court that they have grounds to believe that Azad’s release from jail will be a danger to public order – the other grounds for preventive detention are surely not met. Azad, for his part, will seek to argue that he does not pose any such threat and the government’s grounds are vague.
Unfortunately for him, apart from relevancy, the courts cannot normally go into the truth or sufficiency of the grounds for detention, and this may mean he gets no relief from the Supreme Court either, despite the findings of the single judge of the High Court when granting him bail.
As a result, the detention order against him may be allowed to run till its maximum limit – which is 12 months as per Section 13 of the NSA. However, with the Government seemingly intent on keeping him away from public action, we can probably expect him to remain in custody beyond November 2018 as well.
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