Two months after the Assam Police arrested peasant leader Akhil Gogoi, a panel set up by the state government confirmed that he would remain behind bars under the provisions of the National Security Act.

At a rally held by his organisation, the Krishak Mukti Sangram Samiti, on September 12, Gogoi had allegedly said that if Hindu immigrants from Bangladesh were “forced upon Assam”, residents of the state would take up arms. He was initially booked for sedition, a provision that has received its own share of criticism. Days later, he was charged in 12 cases under the National Security Act. The courts will rule on his alleged offences, but the Assam government’s ready recourse to the stringent law has raised misgivings.

The National Security Act

The National Security Act was promulgated in 1980 under the Indira Gandhi regime. It enables the Central or state government to order the detention of a person “with a view to preventing to preventing him from acting in any manner prejudicial to the defence of India, the relations with foreign powers, or the security of India”. It may also order detention to prevent him from acting in any manner prejudicial “to the security of the State”, the “maintenance of public order” or the “maintenance of supplies and services essential to the community”.

The police and district magistrates have the power to issue detention orders, subject to approval by the state government within 12 days. The law stipulates that the Central and state governments set up an advisory board, consisting of members who are, have been or are qualified to be judges of a high court. This board must submit its report to the government in seven weeks and can recommend detention for up to 12 months and, in a few rare cases, two years.

Acts of insecurity?

To begin with, it is a law for preventive detention, which allows the problematic practice of incarcerating a person before trial, usually for the purposes of security or maintaining public order. Most Western democracies have strong safeguards against it. India, however, seems to have few qualms about using such a measure, even in peacetime.

Other laws that prescribe preventive detention include Jammu and Kashmir’s Public Safety Act, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and the Preventive Detention Act of 1950, introduced to deal with a period of turmoil but soon used against “habitual goondas” in Mumbai and Kolkata.

The courts have been ambiguous. In AK Roy and Others vs Union Of India And Others (1981), the Supreme Court found that the Constituent Assembly had made space for it for reasons concerned with defence, foreign affairs and the security of the state.

But in 1982, the Supreme Court, hearing a detention case under the Public Safety Act, said the “danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law”.

Even the 1981 judgment takes note of the imprecise wording of the law, especially the charges under which a suspect may be booked: “defence of India”, “security of India”, “security of the State” and “relations of India with foreign powers...are not of any great certainty or definiteness”. It was up to the courts, the bench argued, to interpret them more narrowly and to “restrict their application to as few situations as possible”.

Rights bodies have criticised the act and other laws used in counter-terrorism for vaguely worded charges, procedures that subvert the due processes of law, provisions that require courts to draw “adverse inferences” against the accused, which goes against the principle of innocent until proven guilty, lack of mechanisms to prevent arbitrary or discriminatory detention and sweeping immunities for government officials.

According to police officials, Gogoi will not be able to appeal for bail over the next year and it can take up to six months or more for a habeas corpus petition to be filed in the high court, all for a crime that he may or may not have committed.

A political arrest?

The application of the National Security Act does not inspire faith that the law has been used strictly in the interests of security or public order. Back in 1981, the People’s Union for Civil Liberties called it a “weapon of repression”, used to silence politically inconvenient voices. The list of people arrested under the law read like a roster of dissent: trade unionists, peasant leaders charged with organising agitations against landowners, communists, student leaders and other other activists who raised their voice against the state.

Researcher Arvind Verma notes that, according to a 1993 report, 72.5% of the 3,783 people arrested under the law were released for lack of evidence. Between 1980 and 1990, two-thirds of the 16,000 detentions were deemed invalid by the advisory boards. In more recent years, the law has been wielded against political opponents in a state and persons accused of cow slaughter, which may be a pet peeve of the Bharatiya Janata Party but not a clear threat to national security.

Gogoi, for his part, has had a long and fractious relationship with the political establishment in Assam, whether it was the Congress or the BJP. After rising to prominence as a peasant leader agitating for land rights, Gogoi turned his attention to corruption and big dams. Given the history of the National Security Act, the Assam government will have to fight the suspicion that it is merely putting away another inconvenient voice.