Semi-emergency being imposed on Delhi: SC lawyer Rajiv Dhawan on NSA powers to Delhi Police
Delhi LG Anil Baijal has given the National Security Act powers to the Delhi Police Commissioner. Senior Supreme Court lawyer Rajiv Dhawan counters the police’s “routine work” claim, saying “the belief that this is routine is nothing more than a blasphemy on the Constitution”.
The Delhi Police Commissioner has been given powers of detention and arrest under the National Security Act (NSA) by Delhi Lieutenant Governor Anil Baijal. As per the notification issued, between January 19 and April 18, the Delhi CP can exercise the powers under the NSA’s subsection two of section three. Importantly, the Delhi Police has maintained that the notification is routine work and happens quarterly.
However, Opposition leaders such as Asaduddin Owaisi criticised the move, terming the NSA as a “draconian” law. Owaisi claimed that the NSA allows detention up to one year and it means no vakeel (lawyer), no appeal and no daleel (argument) for the detainee.
The law allows the administration to arrest an individual even if there is no case against him. Senior Supreme Court lawyer Rajeev Dhavan, in conversation with Asiaville, countered the claims of the Delhi Police. Dhavan, the former chairman of the International Commission of Jurists (a non-governmental organization for defending human rights and the rule of law worldwide), argues that it is “nothing more than a blasphemy on the Constitution”. Here are excerpts from the conversation:
What do you have to say about the NSA powers given to the Delhi Police Commissioner?
Any form of preventive detention is unacceptable – even in the form of a crisis. In the present situation, to give this power to the Commissioner of Police is nothing more than an invasion of civil liberties. Article 22, subsection 4 to 7, is meant for extreme situations and not to put down democracy.
This is like semi-emergency being imposed on Delhi with no accountability whatsoever. Unless the government clearly indicates why this is being done and for what purpose, it means the NSA will be imposed and the people of Delhi can be picked up with the minimal due process. He noted that the amendments to Article 22, made after the Emergency, have still not being brought into effect.
But the police is saying this is routine work and that the notification is brought quarterly?
Look, no country can survive on a system that is known as administrative detention. There are enough powers with the police to control situations without violence and without picking up people. Preventive detention means there is not even a charge, there is no judicial interference. This is about the extreme limits from which we cross into an emergency.
Nothing is routine. The belief that this is routine is nothing more than a blasphemy on the Constitution.
The NSA is also being interpreted as – no vakeel (lawyer), no appeal and no daleel (argument) for 12 months for those detained. How right is this interpretation?
The NSA itself is an exercise in preventative detention which means administrative detention. Theoretically, you have the right to be informed of the reasons (of detention) and the matter can go to an advisory board. This was how the preventative detentions had started in 1950, borrowed from the British. But the question of vakeel (lawyers) doesn’t arise when you just detain the person. If you go to the court and file Habeas Corpus, then the court will say – let the procedure take its course.
So all this is administrative detention. If it was judicial detention, then the answer might have been different.
When I was a member of the International Commission of Jurists, we had passed a resolution that the administrative detention should be abolished everywhere in the world. The police is not short of powers, it has powers under several sections such as section 144 (of the CrPC) (curfew) and CrPC sections 109, 116.
Nothing is routine, all is a pressure.