More than one third of the 120 cases in which authorities in Uttar Pradesh invoked the National Security Act between January 2018 and December 2020, were against Muslims who were accused of cow slaughter, The Indian Express reported on Tuesday.
An investigation of police and court records conducted by the newspaper showed that between January 2018 and December 2020, the Allahabad High Court ruled in 120 habeas corpus petitions challenging preventive detention under the National Security Act, which gives the state powers to arrest without formal charge or trial.
In 94 cases of detention, the High Court quashed orders of the district magistrates of 32 districts in Uttar Pradesh, and released the detainees.
At 41, the maximum number of cases filed under the NSA were on allegations of cow slaughter, where the accused, all Muslims, were detained by the district magistrate based on FIRs against them, the newspaper reported.
The 41 rulings were delivered by 10 two-judge benches of the Allahabad High Court, involving a total of 16 judges. In more than 70% or 30 of these cases, the High Court came down heavily on the Uttar Pradesh government and quashed the NSA order against the accused.
In the remaining 11 instances, where the Allahabad High Court upheld the detention of the accused for cow slaughter, 10 were eventually granted bail by a lower court or the High Court itself, The Indian Express reported.
High Court identified several red flags
Uttar Pradesh Chief Minister Adityanath has been accused of launching a crackdown on cow slaughter and small-scale beef trade – run largely by Muslims and Dalits – as part of his Bharatiya Janata Party’s Hindutva agenda. In June 2020, the Uttar Pradesh Cabinet had approved an ordinance increasing the penalty for cow slaughter to up to 10 years imprisonment and a fine of up to Rs 5 lakh.
In October, the Allahabad High Court had expressed concern about the “frequent misuse” of provisions of the Uttar Pradesh Cow Slaughter Act, 1955, and noted that it was being used to implicate innocent people. Adityanath responded that his government will “protect cows at any cost”.
The investigation by The Indian Express on Tuesday revealed that the High Court had raised several “red flags” while setting aside NSA orders on cow slaughter detentions between January 2018 and December 2020.
In 11 detentions, the court cited “non-application of mind” by the district magistrate while passing the order. In 13 detentions, the High Court said the detained person was denied the opportunity to represent himself effectively while challenging the NSA, the newspaper reported.
In seven instances, the court noted that the cases came under the ambit of “law & order” and there was no need to invoke the NSA. In another six, it flagged that NSA had been invoked on the basis of a solitary case, and that the accused had no criminal antecedents.
Additionally, the Allahabad High Court also spotted several discrepancies and loopholes in the records of the cow slaughter cases.
Records investigated by The Indian Express showed that the authorities had given verbatim reasons to invoke the NSA in several cases. Not only the content of the FIRs, but even the grounds of detention mentioned by the district magistrates in NSA orders were identical.
In nine detentions, the NSA was invoked on the basis of FIRs that claimed that police were acting on inputs received from an anonymous “informer” .
Thirteen detentions were based on first information reports that claimed that slaughter allegedly took place in an “open agricultural field” or a forest. In nine detentions, authorities relied upon FIRs that said the slaughter allegedly took place inside the four walls of a private residence, and in five other cases, they relied on FIRs that said slaughter allegedly took place outside a shop.
There were several other examples of verbatim quotations, The Indian Express reported. In seven detentions, the NSA order said that “atmosphere of fear and terror has engulfed the whole vicinity” because of the cow slaughter incident.
In six detentions, the NSA orders used six identical grounds for action, citing “unknown persons” fleeing from the spot, attacks on police personnel and “people started running helter-skelter and the situation has become tense”.
The National Security Act
The National Security Act 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 them 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.
Rights bodies in India have criticised the act 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.