National Security Act 1980

FEB 14

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WHY IN NEWS?

Different State governments across the country have invoked stringent provisions of the National Security Act (NSA) to detain citizens for questionable offences, which has brought the focus back on the potential abuse of the controversial law.

PREVENTIVE DETENTION:

  • Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime. It is the extra-judicial measure.
  • In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
  • Preventive Detention is the most contentious part of the fundamental rights. Article 22(3) provides that if a person has been arrested or detained under preventive detention laws, then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available to that person.

HISTORY:

  • Preventive detention laws in India date back to early days of the colonial era when the Bengal Regulation III of 1818 was enacted.  It empowered the government to arrest anyone for defence or maintenance of public order without giving the person recourse to judicial proceedings.
  • Later the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial.
  • Post-independence India got its first preventive detention rule when the government enacted the Preventive Detention Act of 1950.
  • After its expiration in 1969, the government brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 with similar provisions.
  • Though the MISA was repealed in 1977 after the Janata Party came to power, the successive government, led by Mrs. Gandhi, brought in the NSA.

NATIONAL SECURITY ACT, 1980

  • It is an Act that provides for preventive detention in certain cases and for matters connected therewith.
  • It empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security. However, the state must inform about detention to central government within 7 days.
  • As per the National Security Act, the grounds for preventive detention of a person include:
    • 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 with a view to making 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 of essential commodities.
  • A person detained under the Act can be held for 10 days without being told the charges against them. The detained person can appeal before a high court advisory board but they are not allowed a lawyer during the trial.
  • The maximum period for which one may be detained is 12 months. But the term can be extended if the government finds fresh evidence.
  • Constitution of Advisory Boards:
    • The Central Government and each state Government, shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.
    • Every such Board shall consist of three persons who are, or have been or are qualified to be appointed as, Judges of a High Court and such persons shall be appointed by the appropriate Government.

ISSUES SURROUNDING THE ACT:

  • Misuse by governments:
    • The government has exploited the NSA by regularly detaining individuals, using the plea of preventing future disturbances of public order. But in reality, it has been used as a weapon to suppress dissent and ideological differences or to respond to straightforward matters of law and order.
    • Also, the act has been used to manage offences which could be properly dealt with by the ordinary criminal law. The authorities detain the suspect on the current crime and support it by any previous crime committed by that person or body. But it fails to establish the basic essence of the Act that is to prove the probability of future commission of the offence. Hence in those cases it is more of punitive detention rather than preventive detention.
  • Tool to hide inefficiencies of justice system:
    • There are serious offences and several sections of the Indian Penal Code that can be leveraged against offenders. The NSA however allows the government to keep such serious offenders in custody without charging them for any of these serious offences. This is convenient for the government and police because it allows them to escape the strictures of the Criminal Procedure Code and the courts of the land.
    • Relying on preventive detention to deal with common criminal legal offences relieves the criminal justice system of its burden to prove guilt beyond a reasonable doubt and denies the detenu the presumption of innocence.
  • Lack of clear definitions:
    • The Act provides no clear guidelines on what all constitutes as the grounds of detentions. There is no definition given of either ‘national security’, ‘public order’, or ‘supplies and services essential to the community’.
    • It leaves it to the subjective satisfaction of the detaining authority. The use of the subjective satisfaction of the detaining authority as the sine qua non of such a law has been widely disapproved as it leaves the Act wide open for erroneous interpretations and misuse.  
  • Questions over its relevance:
    • The law was created in 1980s when the country was suffering from communal disharmony, social tensions, extremist activities and industrial unrest. However, over the decades such situations have eased but detentions based on the Act continues to rise.
  • No data on its use:
    • The National Crime Records Bureau (NCRB), which collects and analyses crime data in the country, does not include cases under the NSA in its data as no FIRs are registered. Hence, no figures are available for the exact number of detentions under the NSA. Experts say these cases point to the fact that governments sometimes use it as an extra-judicial power.
  • Violation of international treaties:
    • The absence of judicial involvement is in direct contravention of international human rights laws such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR).
    • E.g.: Various articles of the ICCPR provides that anyone who is arrested shall be informed of the reasons for his arrest, informed of any charges against him, right to compensation for unlawful detention etc. None of these provisions are found in the NSA.

WAY FORWARD:

  • Given that India occasionally staggers through bouts of violence and disorder, it is possible that very narrowly tailored preventive detention laws with stringent judicial controls could be appropriate to counter such threats, at least in times of particular unrest.

  • If preventive detention is to remain in the Constitution, constitutional provisions must include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised - and these standards must be designed to allow meaningful judicial review of the official's actions.
  • India’s parliament and judiciary must revisit the NSA to close any loopholes that permit law enforcement to abuse constitutional and statutory rights. Also, they must force the criminal justice system to directly and appropriately address its weaknesses. The police must be deprived of this convenient tool for punishing alleged criminals without having to uphold accused persons’ fundamental rights.
  • The NSA was created during the turbid times of 1980s. However, such situations are non-existent today. Also, no democratic country in the world has yet made preventive detention an integral part of the Constitution. Hence, there should be serious reconsiderations on the necessity of such provisions in the Indian constitution or in the legal statutes.

Practice Question

Q. What is preventive detention. Critically examine the significance of National security Act, 1980?