NSA: What are the options before Varun

The road ahead for Varun Gandhi seems to be a long and tiring one. Although he will not have many problems contesting the Lok Sabha elections, he sure has a lot to do legally, considering the fact that he has been booked under the National Security Act.

Confusion seems to have been caused when senior Bharatiya Janata Party leader Venkaiah Naidu said in Bengaluru on Monday that the Uttar Pradesh government could not have acted on its own while invoking NSA.

A close reading of the act, however, suggests that the power to invoke this act lies solely with the state government which in turn could delegate this power to the district magistrate or the Commissioner of Police under Section 3(3) of the NSA.

Senior advocate Navkesh Batra explains that the state government does not need to seek the intervention of the Centre while invoking this act.

Initially when invoked a 90-day detention period is handed out and this could be extended from time to time for a period not extending 90 days. However the authority will have to give an explanation each time the detention is extended.

In Varun Gandhi's case, Section 3(3) of the NSA was invoked and the order was passed by the district magistrate. This order will now be placed before the state government which will have to pass an order either accepting or rejecting it. However the law mandates that the order by the state government be passed in 12 days failing which Varun Gandhi is entitled to be released.

Once the order is passed by the state government it will have to be placed before the Union government. The Union government will have to pass an order on the same expeditiously failing which Varun could be released irrespective of the merits of the case.

Although the word 'expeditiously' has not been defined and no time frame clearly mentioned, it is expected that the government acts fast. Going by a Supreme Court verdict, three weeks is also considered to be a delayed judgment which would mean that the Centre acts on this order within the three weeks period.

In case the Centre agrees that there is a fit case to invoke the NSA then the detention would continue. In case the Centre agrees with the orders of both the district magistrate and the state government and decides to keep Varun in custody, then the next option would be to go before an advisory board.

Every state has an advisory board comprising three members who are judges of the high court. The matter will be heard by the advisory board and an order passed on the same. Ironically there is no time frame mentioned for the board to pass an order.

However, this does not mean that Varun will continue to languish in jail until the advisory board takes a call on the matter. Varun could skip all the above mentioned procedures and move either the high court or the Supreme Court and seek quashing of the order passed against him under the NSA.