The current ongoing situation in the country due to the spread of Covid-19 virus, it has become a prime need to invoke the national security act. There are many instances that are going viral of health workers and police officers being attacked with stones and weapons as they were carrying out their duty to protect the citizens from spreading of this virus. There is one video of Indore where the health workers were being attacked by the people as they were carrying out their duty of screening the patients. The Indore administration invoked National Security Act against them as this is the threat to the state. There was another incident in UP where the Tablighi Jamaat members were misbehaving with the health staff so the yogi government booked them under NSA and also warned that anyone who attacks the cops will be booked under the NSA.
These are appropriate cases booked under NSA but there are certain occasions when the National Security Act was misused by the authority. Moving further first of all, what do we understand by the National Security Act? The National Security Act, 1980 is an act of a parliament enacted on 23rd September, 1980. It is an act that empowers the central and state 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. It is a law in which anyone can be taken in preventive detention if the authority considers him as a threat to a public order. The maximum period for a detention is 12 months, but there is an exception in this the government can extend the period if they find fresh evidence.
The conditions on which a person is lawfully put in detention are based on these grounds: security of the State, maintenance of public order, maintenance of supplies and essential services and defense and foreign affairs security. If the following requirements are satisfied then only a person can be put in detention without a trial and also the detainee would not enjoy any of the personal liberties under Article 19 and Article 21 of Indian constitution.
The preventive detention law has its history from the colonial era. The legal framework of this act dates back to 1818, almost two centuries ago. In 1818, Bengal Regulation III was enacted with the intention to empower the British government to arrest anyone in the name of defense and public order with any trial. After that, a century later in the year 1919 another act named Rowlatt Acts of 1919 came into force which brought hue and cry in the country as it was enacted by the British government that authorized personnel to put a suspect in confinement without trial.
After post-independence the preventive detention rule was formalized and another act enacted named Preventive Detention Act, 1950. This Act did not come for so long and expired on 31st December, 1969 as this was not used much for maintaining the public order rather than the act was used as a political weapon after the political leader A K Gopalan’s eminence was detained under the act. The then Prime Minister, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 giving similar powers to the government. Though the MISA was repealed in 1977 after the Janata Party came to power, the successive government, led by Mrs. Gandhi, brought in the NSA.
Misuse of the Act
In our country more often no preventive detention laws are invoked for the sake of public order but were invoked when there is no threat to any security of nation. Every minute the breach of law and order cannot be termed as threat to public order. There are instances when the government uses extra power and misuse NSA. There was one case in which 6 men were detained by the Tamil Nadu police under NSA as they are suspected by the police to have resorted to violence during the anti-Sterlite protests in Tuticorin. The protest was against the tuticorin power plant of Vedanta Company as it was polluting the environment so the protestors were come up on the road in order to stop the plant. One must note that preventive detention was a tactic of the colonial order to suppress the activities of nationalists fighting for freedom, and today it is being used by our ‘democratic’ government against the people that fight for their right to live a life free from pollution. Those who deem for fresh air are the threat to national security? If protesting or asking for clean and fresh air is dangerous to society then why are they being charged under NSA.
How it is draconian?
The National Security Act (NSA) has once again come into the spotlight after the Madhya Pradesh government, led by Kamal Nath, invoked the act against the individuals accused of illegal transportation and killing of a cow. This is not the first incident, a similar case happened in Uttar Pradesh. The Uttar Pradesh government also arrested three persons for slaughtering a cow, an incident which took place in Bulandshahr under NSA. In a line on November 27, a journalist in Manipur was arrested under NSA for posting against the government on social media. This act was invoked by central and state governments in several incidents recently. These cases exactly show the abuse of an act as the government is misusing the wrongful cause as in these cases there is no threat to the national security so why these governments invoke the act and wrongly restrained the accused.
Aaccording to Section 8(1) clearly states that the person detained should know of the grounds of his detention in not more than 5 days but not later than 10 days. But, Section 8(2) states that
“Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.”
So without charges a person is being detained. Another Section 11(4) also states that,
“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.”
In this the detainee is not allowed to have a legal practitioner or any help of the court to aid him/her in the case, it means that he will never be set free from the charges put against him.
The maximum period of the detention under NSA act is that it may extend up to 12 months. It empowers the government to modify or revoke the detention. According to Section 14(2) of the act clearly states that a fresh order can be brought about irrespective of the revocation of the expiry of the previous order. It can lead to a longer detention if the government sought the same. Even if an individual is detained because of clearly invalid reasons, he will not be released so long as the government authorities manage to put in one of the grounds for detention in the detention order. Hence, it shows the arbitrary nature of the law.
The stated purpose of the NSA is to prevent individuals from acting in a manner prejudicial to certain state objectives, including national security, public order and the maintenance of supplies and services essential to the community. But the people who are wrongfully charged by the authority under NSA when there is no question of any threat then this wrong, they are deprived of their fundamental rights. The NSA totally contradicts the safeguards provided by the constitution as the people who are charged under this act are deprived from their freedom and fundamental rights. The very purpose of the act gives the state and its agencies unlimited power with impunity to detain individuals for up to a year without charges, a trial or other rights that an accused is usually granted under the rule of law. No wonder then that the act is often referred to as the law of ‘no vakil, no appeal, no daleel (no lawyer, no appeal, no argument)’.
Sometimes after spending some years in a jail their willingness to live a life has almost gone, they usually feel that the society is treating them isolated and prejudicing them as a criminal, though this act is ordinary criminal law. Hence, this Act requires necessary amendments which can fulfill the obligation of the constitution and go hand in hand with it so that people are not deprived of their rights and not wrongfully detained unless there is a threat to the security of the nation.
- What is the National Security Act and how it is a draconian law?
- How has this Act evolved from the colonial era?
- How the government is abusing the law in the name of national security act?
- What are the provisions which legislation needs to alter in the NSA?