Offensive tongue: Varun Gandhi has been arrested under the act for making anti-Muslim statements

What do Atik Ahmed, member of the legislative assembly (MLA), Uttar Pradesh, a 14-year-old boy languishing in Lucknow jail, BSP MLA Shekhar Tiwari and Varun Gandhi have in common? Well, all of them have been detained under the National Security Act (NSA), 1980, by the UP government headed by Mayawati.

In fact, UP has the dubious distinction of having a lot of NSA detainees. The BJP, which has raised a stink about Gandhi being charged under the draconian act, has used that same act at least twice when it was in power in UP — against the then Janata Dal (now Samajwadi Party) MLA Vijay Singh Gond and eight others in 1992 and businessman Pradeep Nagotia in 1999.

So what exactly is the NSA? The act was passed in 1980 to enable the government to detain any person who could be a threat to national harmony or who was allegedly involved in extremist activities without submitting proof of the offence.

“The NSA provides for preventive detention of the accused; it is not a punitive law. Despite being a detailed law, only Section 3 of the act can be used to detain a person. The rest is just procedure — what needs to be done to book a person or get a person released,” explains Sarfaraz Ahmed Khan, associate professor and lecturer, West Bengal National University of Juridical Sciences, Calcutta.

“Section 3 has two sub-sections. According to 3(a), if the central or state government is satisfied that the future activities of a person can threaten national security, it can detain any person, Indian or foreign, with the view of preventing him from acting in any way prejudicial to the defence of India. This Section is, however, not applicable in the case of Varun Gandhi,” says Calcutta High Court advocate Amjad Ali Sardar. “Only a part of sub-section 3b) can be applied to justify Gandhi’s arrest,” he explains. The relevant sub-section gives the central or state government the power to detain any person whose words or actions, it feels, can threaten the security of the state or maintenance of public order or maintenance of supplies and services essential to the community.

Since the NSA is a preventive detention law, there is no provision for bail and a detainee can be kept behind bars for a maximum period of 12 months. Once a person is booked under it, the state government has to write to the Centre within seven days, explaining the reason for the order. “The state government also has to set up an advisory board, comprising three members and normally headed by a sitting or retired judge of the high court. The board evaluates the government’s case, hears the detainee’s side of the story and then decides whether to uphold or quash the case. This has to be done within seven weeks from the date of detention. However, in most cases, the advisory board’s report can be manipulated,” warns Sardar.

If Sardar speaks about the less than objective way the law is implemented, Harish Dhawan, a Peoples Union for Democratic Rights (PUDR) activist, questions the effectiveness of the law itself. “Did slapping NSA on L.K. Advani during the Rath Yatra prevent the riots? Unfortunately, once things were under control, Advani was let off without having to face any criminal charges. The NSA is just a way of holding people that the government develops a dislike for,” he says.

“When a ‘crime’ — according to the law of the land — is committed in public view, what reason can there be for not prosecuting the perpetrator under the Indian Penal Code (IPC) but invoking the NSA, as in the case of Varun Gandhi,” asks Moushumi Basu, secretary, PUDR, New Delhi. “A person who has committed a crime ought to be prosecuted and convicted rather than booked under such preventive laws. Conversely, even when no crime has been committed many common people have been slapped with the NSA and incarcerated, at times for more than the stipulated period,” she points out.

In fact, most of the legal fraternity finds the entire Varun Gandhi-NSA incident a farce. “Is the state so weak that a stray statement by Varun Gandhi is enough to threaten its security? If his speech was offensive, why wasn’t Section 153b of the IPC slapped on him for promoting enmity between people on grounds of religion,” asks Sardar. A person convicted under this Section can be imprisoned for up to two years and a person convicted of an offence with imprisonment of not less than two years can be barred from contesting the election. “The government gets the police to slap the NSA on a person they want to detain without having to produce much evidence,” Sardar adds.

Joginder Singh, former director of the Central Bureau of Investigation, seconds his view. “The order passed by the district magistrate is merely executed by the police. They have no say other than producing the arrest warrant and detaining the person,” he says.

“The NSA should be scrapped,” says Dhawan. “It is not effective and it is only misused.” Says Amitava Ganguly, senior special prosecutor, Government of India, “Tada, Misa and other such laws have been done away with to avoid their misuse. In today’s scenario, I see no reason for the existence of NSA. The Indian Penal Code is just enough to put the accused behind bars. All that is needed is to produce witnesses in order to ensure a conviction.”

It may be time to do a rethink on this authoritarian law.