National Security Act (NSA) 1980

Context:

A petition was filed in the Supreme Court to invoke the National Security Act (NSA) against hoarding, profiteering, adulteration and black-marketing of COVID-19 essentials, including drugs and equipment.

What is the National Security Act (NSA)?

The National Security Act was passed in 1980. It had been introduced by the Indira Gandhi government through the ordinance route. The NSA is a preventive detention law which means it is used by the authorities to detain a person so that he/she may be prevented from committing a crime and/or escape future prosecution.

Preventive detention is basically the detention of a person without a trial to prevent him/her from committing a crime. Read more on preventive detention in the linked article.

• The forerunner to the preventive detention laws in India can be traced to the British colonial period.
• The first such law was 1818’s Bengal Regulation III which enabled the government to arrest anyone for defence or for maintaining public order without giving the person any legal remedies.
• Then, in 1919, the Rowlatt Acts were passed which drew widespread condemnation from the political activists of the time.
• Later, after independence, the Nehru government enacted the Preventive Detention Act of 1950 which expired in 1969.
• In 1971, Indira Gandhi enacted the MISA (Maintenance of Internal Security Act, 1971), which gave unlimited powers to the government and law enforcement bodies. This was repealed in 1977.
• In 1980, the NSA was enacted.
• Article 22 (3) (b) of the Constitution of India allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
• Further, Article 22(4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
  • An Advisory Board reports sufficient cause for extended detention.
    
    
    • The 44^th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
  • Such a person is detained in accordance with the provisions of any law made by the Parliament.

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.

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.

Conclusion

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.

COPY OF ACT

Source: The Hindu