The National Security Act, 1980 (NSA) was introduced by former Prime Minister Late Indira Gandhi through Ordinance. NSA traces back its origins from Colonial Era from legislations such as the Bengal Regulation III in 1818, the Rowlatt Act in 1919, the Preventive Detention Act, 1950 and the controversial predecessor Maintenance of Internal Security Act (MISA) in 1971, which was also introduced by Late Indira Gandhi but was later repealed in 1977. The object of NSA is to provide for preventive detention in certain cases. Therefore, this Article further sheds some light on the issue of Preventive Detention under NSA and such preemptive orders granted within it.
NSA defines the meaning of 'Detention Order'1 as an order given by the Central or the State Government directing that any person be detained to prevent him/her from acting in a manner that is prejudicial to the defense of India, the relations of India with foreign powers, the security of India, maintenance of Public Order or the maintenance of supplies and services essential to the community.2
Extraordinary Powers of Detention Order
Since, the primary objective of the NSA is to detain such persons that are a threat to the security of India, the powers given to the Central and State Government become extraordinary. A Detention Order, for instance, can be executed in any place in India as per the provisions for execution of warrants of arrest of Criminal Procedure Code, 1973 (CrPC) and as per the specifications of the detention order, the person detained can be transferred from one place of detention to another place in the same state or even in a different state. Even the conditions of such detention can be specified to the extent of, but not limited to the maintenance, discipline and punishment for breaches of discipline. Moreover, a person can also be detained from outside the limits of the territorial jurisdiction of the Government or officer making that Detention Order, and that the place of detention can be outside the territorial limits.
The detention order will not disclose the grounds of the person's detention if it deems to be against the public interest if disclosed. Furthermore, the Detention Order will not be deemed invalid for the reason, that the grounds on which the order was granted are vague or non-existent, or not relevant to the person mentioned in that order. Also, this provision shall be applied retrospectively i.e. would extend to all the orders that were passed before the addition of this provision to the statute.
As per NSA, the maximum period for which any person may be detained in pursuance of any Detention Order is twelve months from the date of detention, however, the same has to be confirmed by the Advisory Board3. Though subsequent detention order can be made against the same person, the period of both order shall not exceed twelve months.4
No suit or other legal proceeding can be filed against anybody for anything done in good faith or intended to be done in pursuance of the Act.
Criticism of National Security Act
This Act has been criticized on various platforms as it curtails the basic right that everyone is entitled to, whether they are citizen of India or foreigners. The Constitution of India states that an arrested individual has the right5 to be informed of the ground of his arrest and not be denied the right to consult and be represented by a legal practitioner of his choosing. Similarly, Sections 56 and 76 of the CrPC further states that an arrested individual without unnecessary delay must be produced before the Court within 24 hours of being arrested.
Furthermore, National Crime Records Bureau (NCRB), has no record of the number of persons detained made under NSA due to no FIR being filed in such cases. Hence, there is no data on the actual number of persons detained under the Act further violation our Constitutional Right to Information.
Recent Use of National Security Act
- November, 2018: Manipur journalist Kishorechandra Wangkhem was detained for 12 months under the NSA for a Facebook post against the Chief Minister6.
- January, 2019: Three persons were arrested under NSA in connection with an alleged cow-slaughter case. According to the Additional Chief Secretary Awanish Kumar Awasthi, the UP Police had invoked the NSA against 139 people in the state and 76 of them for cow slaughter7.
- July, 2019: The Hon'ble Supreme Court in the case8, ordered the release of detained under NSA stating that the continued detention of the petitioner before the Court would amount to a violation of the right to life and personal liberty under Article 21 of the Constitution.
- January, 2020: Delhi passed an order conferring the Commissioner of Police with the power to detain under NSA for a period of three months. The order was issued in pursuance of unrest in Delhi due to protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC)9.
National Security Act in light of the powers as mentioned above has a wide variety of applications that violate the Fundamental Right of the Citizens in India. The abuse of such powers are not just in theory but there are instances where the people were detained for mere expression of their opinion as observed by the recent judgement of the Apex Court. Thus, the presence of such statute actually dents the claim of independence of judiciary in India.
1. Section 2 of the National Security Act, 1980
2. Section 3 of the National Security Act, 1980
3. as per Section 12 of the National Security Act, 1980
4. Section 13 of the National Security Act, 1980
5. Article 22(1) of the Constitution of India
6. https://www.thehindu.com/news/national/manipur-journalist-kishorechandra-wangkhemcha-jailed-for-12-months-under-nsa-for-criticising-bjp-government/article61672331.ece accessed on 31st January, 2023
7. https://theprint.in/judiciary/how-3-up-brothers-arrested-for-cow-slaughter-were-slapped-with-nsa-for-annoying-hindus/723307/, accessed on 31st January, 2023
8. L. Raghumani Singh v/s District Magistrate, Imphal West District, Manipur & Anr. Writ Petition (Criminal) No.266/2021
9. https://www.ndtv.com/india-news/delhi-police-chief-given-more-power-under-national-security-act-2165866, accessed on 31st January, 2023
Dhruvil Singh Rathore, Intern at S.S. Rana & Co. has assisted in the research of this Article.
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