National Security Act, 1980 is the legislative action which provides for preventive detention to maintain public order and security in the state. The government has been vested with the power to detain any individual to prevent him from disrupting law and order or for maintenance of supplies and essential services to the community. The Act came into headlines lately amid the anti CAA and NRC protests and the ongoing Pandemic (COVID-19). Under the said Act, a person can be detained for 12 months. This is the most important and crucial provision of this Act. However, the government can expand the period, if it feels so. Under the NSA, a person can remain in detention without being informed the grounds for arrest.
National Security Act, 1980 is a draconian legislation which gives power to the government to detain any person merely on the sole basis of an apprehension that he/she may disrupt the law and public order of the state. The government has been vested with an unregulated outright authority which has been mishandled by the government from time to time. The abuse of this legislation by the government since its very outset has made it one of the most contentious law passed till date. Through this article, the author would try to trace the history of the said Act followed by a thorough deliberation on its provisions which are violative of the fundamental rights of the detainees.
A Brief History of the Act
Across the world, there are very few countries who provide the provision for preventive detention during ordinary times. India is among those countries. Article 22 of the Indian Constitution corroborates with legislations operating in the country. It is crucial to know the historical background, motive and intent behind enacting this legislation. The seeds of the NSA Act can be traced back to the colonial era.
In India, we have preventive detention laws since the year 1818, in the year 1818 when the Bengal Regulation III was enacted to empower the government to detain anyone to maintain public order or for defence and without providing the person recourse of judicial trial. Later on, during the 19th century, the British government enacted the Rowlatt Act of 1919 which led to hues and cries among the masses. The key feature of the Act was it provides for the arrest of the individuals merely based on suspicion and without providing him with the recourse of judicial trial.
On 15th August 1947, India got her independence and adopted her constitution on 26th January 1950. It is remarkable that the framers of the Indian Constitution, who endured a lot because of Preventive Detention Laws, did not restrain themselves to give sanctity to Preventive Detention Laws and that too in Part III (Fundamental Rights) of the Indian Constitution. In 1950 itself, Sardar Patel piloted a Preventive Detention Act. According to him, he had several “sleepless nights” before he could decide whether or not it was to become imperative to table a bill. On 26th February 1950, the Parliament of India enacted the first Preventive Detention Act.
The Act remained in force till 1969 and after its expiration, the Indira Gandhi government in the year 1971 brought into effect the contentious Maintenance of Internal Security Act (MISA). This Act lasted throughout the emergency period and became the pivot of criticism. This led to the repeal of this controversial legislation by the successive government in the year 1977. However, when the Indira Gandhi government came back into power again, it brought in force the National Security Act, 1980 with the same provisions as that of its predecessors. Thus it is quite evident that the NSA Act has been in the headlines from time to time.
Provisions making the Act Contentious
National Security Act, 1980 endows both the central and the state governments the power to detain any person to prevent such person from acting in any such manner detrimental to national security. The government is also vested with the power to order the detention of such individual who is likely to disrupt law and public order or for maintenance of supplies and services essential to the community. Despite giving the government such vast powers, the Act does not what prompts to disruption of public order and what supplies and services are necessary to the community. This confers the government a vast discretionary power leading to the mishandling of the said Act in the matter of national security.
In the landmark case A.K. Roy v Union of India, the Hon’ble Supreme Court of India observed that the particular clause in Sub-section 2 of Section 3 of the National Security Act, which provides that the government can order the detention of any person for maintenance of supplies and services essential to the community is capable of wanton abuse as the detaining authority can detain any person for possession of any commodity on the basis that such authority believes that maintenance of supply of that commodity is essential to the community. The court also observed that this provision is not only vague and uncertain but is also capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community. However, in the same case, Hon’ble Supreme Court relying on its judgment in Haradhan Sahaon the constitutionality of MISA has held, the NSA cannot be said to be unconstitutional on the ground that by its very nature infringes Article 14, 19 & 21 of the Indian constitution.
According to Article 20(1) of the Indian Constitution and Section 50 of the Code of Criminal procedure, the authority arresting without a warrant has to immediately inform the individual so arrested of the grounds on which he has been arrested. However, according to Section 8 of the NSA, when a person is detained in pursuance of the detention order made under the said Act, the authority ordering such detention shall ordinarily within five days and in any exceptional circumstances within ten days from the date of the arrest, communicate to the person so detained the grounds on which such order was made. Even when the government decides to inform the detainee about the grounds of arrest, it may withhold such information with themselves which it considers to be against the public interest to disclose.
Furthermore, according to Article 22(2) Indian Constitution and Section 76 of the Code of Criminal Procedure, every person must be produced before the nearest magistrate within twenty-four hours of his arrest. However, a detainee under the NSA has no such right. He can be produced only before the advisory board constituted by the authority making such detention order. Section 9 of the NSA empowers both the central and state government to form an advisory board whenever it considers doing so imperative.
Article 22(1) of the Indian Constitution states that every accused person has the right to defend access to a legal practitioner of his/her choice. However, under Section 11(4) of NSA, the detainee has been denied the fundamental right of legal representation as well.
Furthermore, according to Article 22(3) (b) of the Indian Constitution, it states nothing in clause 1 & 2 of the said article would apply to any person detained under preventive detention laws. This provision legitimizes all the provisions mentioned above of the NSA, which infringes Article 22 clause 1 & 2. However, the right to legal representations and other rights provided under Article 22, clause 1 & 2 rollouts of Articles 19 & 21. Therefore, nothing contained in the following provisions shall in any way affect these rights. Depriving a detainee under the NSA is violative of their Fundamental rights provided under Article 19 (freedom of speech & expression) and Article 21 (right to life & liberty). These are the very basic rights which all the individuals must possess to sustain, and negation of these rights has no justification under any law.
Under Section 3 clause 3 of NSA, the state government is vested with the power to pass an order for application under the said Act, initially for three months. However, if the state government is satisfied that the situation urges the said order to prevail, then in such cases the government is at discretion to extend the period from time to time until it is satisfied that there is no need for such order to continue. This means that the government can sine die the application of NSA, although at once, the government can only extend it for three months. This provision provides the state government with enough opportunity to mishandle the legislation and perform their political interests as there is no option of judicial review of an order made by the government.
As it is already discussed above Section 9 of the NSA empowers the appropriate government to form advisory boards. Each board shall comprise of three members, and any person who is qualified to be a judge of the High Court can be a member of these boards, except the chairman of the advisory boards, he/she must either be a serving or a retired High Court Judge. Courts play no role in the constitution of these boards, and also the provision clearly states that excluding the chairman no member needs not to be a judge. Therefore, the provision infers that the government has absolute control over the process under which its detention order can be reviewed. After considering the following provisions, it is nearly impossible to construe that the adjudication done by the advisory boards would be impartial and unfair.
Under the National Security Act, 1980, it is totally upon the appropriate government to decide the time for which any individual can be detained. However, according to Section 13 of the said Act in no case, such detention shall exceed twelve months as it is the maximum time for arrest under the said Act. Twelve months is a long period and detaining any person for so long solely based on apprehension, without providing him/her the fundamental rights of an arrested person is violative of his/her right to life and liberty enshrined under Article 21 of the Constitution of India as it is evident from most of the cases in which the detainee is set free only upon the completion of twelve months.
There have been various instances that happened in the past where the detainee, despite not committing a grave offence, detained for twelve months under the said Act. One such instance is of a journalist named Kishore Chandra Wangkhem from Manipur. He was arrested under the NSA in December 2018 for twelve months. The reason for his arrest as he had been making derogatory statements against the Chief Minister of the state, Prime Minister Narendra Modi via his social posts. However, he was liberated within four months of arrest as the Manipur High Court quashed the arbitrary detention order. This was a striking example of the misuse of NSA by the government to perform its political interest and blatant violation of the rights of the detained person. However, this is only one case, and there have been numerous such cases till now. The National Crime Records Bureau (NCRB), which collects and maintain the data related to crimes in India, do not have any data related to arrests made under the NSA Act as no FIR’s are registered for detaining a person under the NSA Act.
As rightly stated by Lord Acton, “power tends to corrupt, and absolute power corrupts absolutely” which means one who acquires extreme powers will abuse and mishandle it. Similar is the government’s case under the NSA Act as it provides the government extensive discretionary which it uses to perform its political interest. Though the very motive of the said Act is to maintain law and public order in the country, it lacks reasonableness. Several provisions of the NSA Act are arbitrary, and there is no way out against such provisions. So it’s about time that the Supreme Court of India reviews the legislation so that the government is not able to violate the rights of the detained person blatantly.
Soibam Rockey Singh, What is National Security Act, (May. 24, 2020, 10:46 AM), https://www.thehindu.com/news/national/what-is-national-security-act/article26292232.ece.
 A.K Roy v Union of India, A.I.R. 1982 S.C. 710
 Haradhan Saha & Another v The State of West Bengal & Ors, 1974, A.I.R. 2154.
 INDIA CONST. art. 20, cl. 1.
 National Security Act, 1980, sec. 8.
 INDIA CONST. art. 22, cl. 2.
 Code of Criminal Procedure, 1973, sec. 76.
 National Security Act, 1980, sec. 9.
 INDIA CONST. art. 22, cl. 1.
 National Security Act, 1980, sec. 11, cl. 4.
 INDIA CONST. art. 22, cl. 3.
 National Security Act, 1980, sec. 3, cl. 3.
 Bikash Singh, Manipur HC orders release of a journalist arrested under NSA, The Economic Times, (Apr. 08, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/manipur-hc-orders-release-of-journalist-arrested-under-nsa/articleshow/68781676.cms.