Context- A close scrutiny of the orders by district magistrates invoking the National Security Act shows why the draconian law is so readily invoked. The NSA empowers the state to detain a person without a formal charge and without trial.
- An analysis of records shows that the draconian law was invoked in Uttar Pradesh to prevent the person from being released from judicial custody even if the accused had got bail.
- In 12 detentions under the NSA between January 2018 and December 2020, the person remained in jail for more than 200 days after the Criminal Court had granted bail.
- In 3 detentions, the persons remained in jail for more than 300 days and in one case for 325 days and in another for 308 days.
National Security Act, 1980
About NSA (1980)
- The National Security Act is a preventive detention law in India. It empowers the state to detain a person without the formal charge and without trial.
- Preventive detention refers to the detainment (containment) of a person in order to keep him or her from committing future crimes and/or from escaping future prosecution.
- Article 22(3) of the Constitution of India provides for preventive detention and restriction on Personal Liberty for reasons of state security and public order.
- Further, article 22 (4) provides that no law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless:
- an Advisory Board reports sufficient cause for extended detention.
- The 44th Constitutional Amendment Act, 1978 tried to reduce 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 and therefore 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.
Origin of the law
- The preventive detention laws in India date back to the early days of the colonial British era when the Bengal regulation III of 1818 was enacted with the purpose of empowering the government to arrest anyone for defence or maintenance of law and order without giving the person recourse to judicial proceedings.
- Later in 1919, the British government enacted the Rowlatt Act which allowed the confinement of a suspect without trial.
- In the post independence era, India got its first preventive detention rule under the government of Prime Minister Jawaharlal Nehru when he enacted the preventive detention Act of 1950 that expired in 1969.
- The National Security Act, 1980 is a close iteration of the 1950 Act.
Powers given to the Government under the Act
- The NSA gives the power to the central or the state government to detain a person and prevent him from Acting in any manner prejudicial to national security.
- The government can also detain a person to prevent him from disrupting public order all for maintenance of supplies and services that are essential to the community.
Period of confinement under the Act
- The maximum period for which a person can be detained under the NSA is 12 months. However, the term can be extended if the government finds fresh evidence against the person.
Why is the law debated?
- The law is often termed as a draconian one as no basic rights are given to the people who are detained under it. This includes:
- The right to be informed of the reason for the arrest (section 50 of the criminal procedure code- CrPC)- A person who is detained under the NSA, can be kept in the dark about the reasons for his or her arrest for up to five days, and in exceptional circumstances up to 10 days.
- Even if the grounds of arrest are provided to the detained person, the government has the right to withhold the information that it considers to be against public interest to disclose.
- Section 56 and 76 of the Criminal Procedure Code also provides that a person has to be produced before a court within 24 hours of his or her arrest. No such facility is given to the persons detained under the NSA.
- As per Article 22(1) of the Constitution of India an arrested person cannot be denied the right to consult and to be defended by a legal practitioner of his or her choice.
- However, a person who is detained under the NSA is 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 for dealing with the NSA cases.
- The detained person also does not have the right to move a bail application before a Criminal Court.
Safeguards under the Act
- A crucial procedural safeguard that has been provided under the NSA is granted under article 22(5).
- It provides for all the detained persons with the right to make an effective representation before an independent Advisory Board, which consists of three members, and the board is chaired by a member who is, or has been a judge of the High Court.
- As provided in this Act, in every case where a detention order has been made under this Act, the appropriate government shall, within three weeks from the date of detention of the person under the order, place before the Advisory Board constituted by it, the grounds on which the detention has been made under representation if any made by the person affected by the order and in case where the order has been made by an officer.
Criticisms of the Act
- The National Crime Records Bureau (NCRB) is the agency that collects and analyzes the crime data in the country. However, there is no provision to include the cases under the NSA in its data as no FIRs are registered in such cases. Hence, it becomes impossible to trace the exact number of detentions made under the Act.
- Even if a person is in police custody, the District Magistrate can slap NSA against him; and if a person has been granted bail by a trial court, he can be immediately detained under the NSA.
- Moreover, even when a person is acquitted by the court, then also he can be detained under the Act.
- The District Magistrate, who passes the order of detention is protected under the Act as no prosecution or any legal proceeding can be initiated against the official who carries out such orders
Judicial Views on the Act
- The higher judiciary has held that the preventive detention under the NSA has to be strictly construed keeping in view through “delicate balance between Social Security and citizen freedom”.
- The Supreme Court has held that to prevent the misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards has to be ensured.
- Since the Act is more than 40 years old, changes are required to ensure that it is not used arbitrarily as this hampers the democracy and basic rights of an individual.
- The views of the Supreme Court in this regard must be held as a guideline and the law must be strictly construed and meticulously complied with procedural safeguards.
Source- Indian Expres