The National Security Act (NSA) in existence for more than four decades has been questioned for its draconian effects and its potential misuse.
Recently some state governments have invoked the National Security Act to detain citizens for questionable offences.
In this post, we shall learn and analyse the National Security Act in detail.
India is one of the few countries in the world whose constitution allows for preventive detention during peacetime. Article 22 (3) says that the rights available to an arrested person will not be applicable in case of preventive detention.
The National Security Act (NSA) has its roots in the preventive detention laws. The first iteration of these laws was framed during the British rule. However, post-independence these laws were carried forward as the Preventive Detention Act of 1950. This was replaced by the Maintenance of Internal Security Act of 1971 and finally the National Security Act of 1980.
Provisions of the National Security Act 1980
- NSA empowers the Centre or a State government to detain a person so that he does not act in any manner prejudicial to national security. The person need not be charged during the period of detention.
- An individual can be detained without a charge for up to 12 months.
- The detained person can be held for 10 days without being told the charges against him.
Grounds of Detention
- Acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
- Regulating the continued presence of any foreigner in India or to make arrangements for his expulsion from India.
- Preventing them from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do.
Constitution of Advisory Board
- The central or state government shall constitute one or more Advisory Boards.
- It consists of three persons who are qualified to be appointed as Judges of a High Court.
- The grounds of detention must be placed before the Advisory Board within 3 weeks from the date of detention.
- The detained person can appeal before the Advisory Board but they are not allowed a lawyer during the trial.
- If the Advisory Board finds no sufficient cause for the detention, the government shall revoke the detention order and release the person.
- No suit or other legal proceeding shall lie against the Central or State Governments, or any other person, for anything in good faith done or intended to be done in pursuance of this Act.
Criticism of the National Security Act
- Article 22 and various provisions of Cr.PC safeguard the interests of an arrested person.
- The person arrested has to be informed of the grounds of arrest.
- The arrested person cannot be denied the right to consult and to be defended by a legal practitioner of his choice.
- The arrested person should be produced before the nearest magistrate within 24 hours.
- However, none of these safeguards are available if a person is detained under NSA.
- A person could be kept in the dark about the reasons for his arrest for up to 10 days.
- Even when providing the grounds for arrest, the government can withhold information which it considers to be against the public interest to disclose.
- The arrested person is also not entitled to the aid of any legal practitioner in any matter connected with the proceedings before an advisory board, which is constituted by the government.
- Detaining someone without trial during normal times is hard to justify when it is difficult to prove the legitimacy of the threat posed by the person.
- While it is true that Constitution provides for Article 22 (3) that does not extend safeguards of the criminal system to preventive detention, the justification for persisting with the same provisions even 70 years after independence needs to be reviewed.
- Since the NSA allows custody of people without framing a charge, it has become a convenient tool for the government and police to circumvent the formalities of the Criminal Procedure Code and the courts of the land.
- The police make use of NSA when they are unwilling or unable to make a criminal case. Instances of journalists critical of the establishment being charged with NSA are becoming common.
- Rather than for stopping future crimes, NSA is often used as a response to ordinary law and order cases. The NSA morphs into a punitive measure in such instances.
- The vague language of the law means NSA being used for the detention of individuals based on the government’s satisfaction that an individual is a threat to foreign relations, national security, public order, or the maintenance of essential supplies and services. Thus, theoretically, the government can invoke the NSA if an individual’s act threatens to disrupt public order like causing a commotion or obstructing the traffic.
There are no separate figures currently available for detentions under the NSA. The 177th Law Commission Report of 2001 reveals that 14,57,779 persons were arrested under preventive provisions in India. It is paramount to review the continued usage of NSA and to close the loopholes that permit law enforcement to abuse constitutional and statutory rights.
Preventive detention must not be used for regular law and order issues.
The endeavour must be to guard liberty – one of the fundamental rights guaranteed by the Constitution.