National Security Act


  • Recently, the Madhya Pradesh government invoked the National Security Act (NSA), 1980, against four persons accused of instigating residents of a locality to pelt stones and chase away health workers.
  • Similarly, an order was passed by the Uttar Pradesh government to detain under any person under the NSA, who are found guilty of attacking police and other officials.

About National Security Act (NSA), 1980

  • The NSA is an act that empowers the government to detain a person if the authorities are satisfied that he/she is a threat to national security or to prevent him/her from disrupting public order.
  • The goal is to prevent the individual from committing a crime.

History

  • The first preventive detention rule was passed by government of Prime Minister Jawaharlal Nehru when it enacted the Preventive Detention Act of 1950.
  • The NSA is a close iteration of the 1950 Act.
  • After the Preventive Detention Act expired on December 31, 1969, the then Prime Minister, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 giving similar powers to the government.
  • Finally, NSA was promulgated on September 23, 1980, during the Indira Gandhi government.

Constitutional Provisions

  • Article 22 (3) (b): It allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
  • Article 22(4): It 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 44th Amendment Act of 1978 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.

Grounds for Preventive Detention of a Person

  • 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 essential to the community it is necessary so to do.

Key Provisions

Time Period for Detention

  • Under the Act, an individual can be detained without a charge for up to 12 months; the state government needs to be intimated that a person has been detained under the NSA.
  • A person detained under the Act can be held for 10 days without being told the charges against them.

Appeal

  • The detained person can appeal before a high court advisory board but they are not allowed a lawyer during the trial.

Criticism of the Act

Denial of Basic Rights

  • In the normal course, if a person is arrested, he or she is guaranteed certain basic rights.
  • Additionally, Article 22(1) of the Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  • But none of these rights are available to a person detained under the NSA.
  • A person could be kept in the dark about the reasons for his arrest for up to five days and in exceptional circumstances not later than 10 days.
  • Even when providing the grounds for arrest, the government can withhold information which it considers to be against 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 for dealing with NSA cases.

No Recorded Figure

  • 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.

Way Forward

  • According to the experts, the governments sometimes use NSA as an extra-judicial power.
  • India’s parliament and judiciary must revisit the NSA to close any loopholes that permit law enforcement to abuse constitutional and statutory rights.

Source : Civil Services Chronicle Online, April, 2020