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Author - Yashasvita Apte

INTRODUCTION TO NATIONAL SECURITY ACT

The history of the National Security Act 1980, (“NSA/Act”) finds its beginnings in the Preventive detention laws of India, which can be traced back to the early colonial era when the Bengal Regulation III of 1818, was enacted which empowered the government to arrest and detain anyone in order to maintain public order. The said Regulation gave authority to the government to arrest an individual without giving said individual any recourse to judicial proceedings. Following on the premise laid by the Bengal Regulation III of 1818.

The British government later in the years enacted the Rowlatt Acts of 1919, that allowed confinement of a suspect without trial or recourse to judicial proceedings.

India has seen similar type of acts such as the Defense of India Act, 1939 pre-independence and the Preventive Detention Act, 1950 post-independence which were enacted for the national security of the country. The Defense of India Act was enacted on 29 September 1939, it was deemed to come into force from 3 September 1939, the day when the Second World War began. The act expired six months after the war concluded and was ultimately repealed by the Repealing and Amending Act, and the Preventive Detention Act, 1950, was introduced post-independence under the government of Prime Minister Jawaharlal Nehru. The same was in effect till 31st December 1969.

Post that the Maintenance of Internal Security Act was enacted early during Indira Gandhi's prime leadership in 1971, which was considered to be highly controversial as it gave wide powers to the government to detain individuals for an indefinite period. The legislation gained a lot of criticism for the introduction of the said Act as it contravened the fundamental rights which are guaranteed under the constitution. Thousands of people by relying upon the said Act were illegally detained and were arbitrarily arrested in some cases during the emergency period. The said Act was ultimately repealed in the year 1977, and in its stead the National Security Act 1980, which received the Parliament’s assent on 27thSeptember 1980, was accordingly introduced.

ANALYSIS OF NATIONAL SECURITY ACT OF 1980

The National Security Act, 1980 comprises of 18 sections in entirety.

Section 2 of the said Act specifically defines the term “appropriate government”, which means and includes both the state as well as the central government; therefore, leading to the conclusion that the said Act and its provisions may be invoked by either state or central government of its own discretion for offences that it deems fit to be applicable. The basic principle and essence of this law in based on preventive detention of any person when the National Security of India is at threat.

Following are the grounds of detention under the said Act of an individual by either the state or the Central Government:-

1. If a person is acting in any manner prejudicial to the defense of India, the relations of India with foreign powers, or the security of India.
2. If a person is acting in any manner prejudicial to the maintenance of public order, or the maintenance of supplies and services essential to the community.

The National Security act empowers the government to detain foreigners and regulate his/her presence or expel him/her from India. The National Security act also empowers to detain a person for months.

I. APPLICABILITY OF THE ACT

As stated above, this law can be executed by both state and central government at its own discretion.

Section 3(5) of the Act states that within 7 days the state must inform about detention to central government. However, the manner and mode of information regarding detention of person(s) which is required to be shared by the State Government with the Central Government remains silent under the said Act.

Section 8(1) of the Act states that when a person is detained in pursuance of a detention order, the authorities making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 10 days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate government.

II. MAXIMUM PERIOD OF DETENTION UNDER NATIONAL SECURITY ACT

Under Section 13 of the Act, the maximum period for which any person may be detained in pursuance of any detention order shall be twelve months (12) from the date of detention.

A person detained under the NSA can be held for ten days without being told the charges against him/her. A person detained under this act does not have a right to be represented by a lawyer during the trial.

i. Execution of Detention Order

A detention order under the Act may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1898.

ii. Advisory board and its functions

Section 9, 10 and 11 of the Act talks about the constitution of the advisory board, reference to the advisory board and the procedure followed by the advisory board.

1. The appropriate Government shall, within three (3) weeks from the date of detention, place before the Advisory Board, the grounds on which the order has been made.
2. The Advisory Board shall, after considering the materials placed after calling for such further information as it may deem necessary from the appropriate Government after hearing the person detained submit its report to the appropriate Government within seven (7) weeks from the date of detention of the person concerned.
3. The report of the Advisory Board shall specify opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. In case there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
4. Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting

iii. Protection against an action taken in good faith

Section 16 of the act states that no suit or legal proceeding shall lie against the Central government or a State government, and no suit, prosecution or other legal proceedings shall lie against any person for any action taken in good faith or intended to be done in pursuance of the Act.Thus leading to the opinion that no person may be allowed to challenge and/or seek compensation for his/her detention under the said Act.

III. RECENT APPLICATION OF THE NATIONAL SECURITY ACT

1. On January 17, 2020, the Lieutenant Governor of Delhi passed a order conferring the Commissioner of Police with the power to detain under NSA for a period of three months — between 19 January and 18 April. The order came at a time when the national capital was witnessing protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC)
2. In January 2019, the BJP-led Uttar Pradesh arrested three persons under NSA in connection with an alleged cow-slaughter case.
3. In November 2018, Manipur journalist Kishore Chandra Wangkhem was detained for 12 months under the NSA for a Facebook post against the chief minister.
4. Admit the current pandemic of COVID-19, Six members of Tablighi Jamaat have been booked under the National Security Act after the acts of mis-behavior with nurses and hospital staff by the members of the Tablighi Jamaat at a hospital in Ghaziabad.

IV. WHY IS THE ACT CRITICIZED?

The said Act is criticized often as its provisions are found to be in direct contract to the Constitution of India, which provides Fundamental Rights to citizens of India; however, the said Act curbs the Fundamental Rights of Indian Citizens by way of detention orders passed by State and/or Central Government at its own discretion. Furthermore, there are certain rights which are guaranteed under the Constitution of India, such as under Article 22(1) of the Constitution of India a person cannot be denied the right to consult, and to be defended by a lawyer of his choice.

Typically, when a person is arrested, he or she has certain basic rights such as the right to be informed of the reason for arrest and the right to bail. These rights are ensured under Section 50 of the Criminal Procedure Code (Cr. PC) which provides that an arrested person has the right to be informed of the grounds of such arrest, and the right to bail. Similarly under Section 56 and 76 of the Cr. PC an arrested person has be produced before a court within 24 hours of arrest.

However, such basic rights are not available to a person who has been detained under the provisions of NSA. A person has no right to know about the grounds of his detention for up to 5 days and in certain circumstances, not later than 10 days. While providing the reason for arrest, the government has the power to reserve information which it thinks would go against the public interest if disclosed.

The arrested person has no right to seek the aid of any lawyer in any matter concerned with the proceedings before an Advisory Board, which has been constituted by the government to deal with the NSA cases.

Section 16 of the National Security Act states that no suit or any other legal proceedings can be instituted against the Central or the State Government, or against any other person, for anything that is being done in good faith or intended to be done in pursuance of this act. Therefore this does not provide either transparency or accountability of the government.

Moreover, the National Crime Records Bureau (NCRB), which collects data related to crime in India, does not include cases under the NSA as no FIRs are registered in this regard. Thus, it is impossible to have an idea about the exact number of detentions that have been made under this Act.

CONCLUSION

The Act although enacted with the intention of maintaining the national security has a great amount of potential to be misused by the government which has happened on many occasions. This act provides the government with extra ordinary powers which should be applied and used cautiously. Certain provisions of the act are arbitrary and are violative of the basic fundamental rights which are enshrined by the constitution of India. This act ignores the basic rights which are made available to an individual and therefore lacks reasonableness. 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.