Need of National Security Act

Introduction

The National Security Act is a preventive detention law. It is enacted for preventing the person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India, or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. A person can be kept under detention for a period of 12 months without any charge under the National Security Act, 1980.

Constitutional perspective:

Article 22(3) of the Indian constitution allows for preventive detention and permits restriction on the personal liberty of the person for the reason of public order and state security.[1]

However detention is subjected to the condition laid down under Article 22(4) of Indian Constitution. It states that No law providing for preventive detention shall authorise the detention of a person for a longer period than three months. If detention needs to be extended then-

An Advisory Board needs to be formed, consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration period of three months that there is in its opinion sufficient cause for such detention. Detention can only be extended when there is a sufficient cause for an extension of detention.[2]

Further under Article 22(7)(a) no person can be detained for a period beyond 3 months. Without obtaining the approval of the advisory board.[3]

From the above it can be inferred that the constitution provides for detention law and National Security is in compliance with it.

Brief overview of the Act

Who can exercise powers under the Act?

Both central, state government and any officer subordinate to state government can exercise their power under the Act.[4]

Powers conferred under the Act

The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner-

  1. The defence of India
  2. The relations of India with foreign powers
  3. The security of India
  4. Maintenance of supplies and services essential to the community.
  5. In respect of foreigners- arrangements for his expulsion from India, if it is necessary to do so.[5]

Grounds of order of detention to be disclosed to persons affected by the order

When a person is arrested in pursuance of a detention order, he could be kept in dark about the reason for his arrest for upto 5 days and in some exceptional cases the period can be extended to 10 days. [6]

Constitution of Advisory Boards

The advisory shall be constituted by Central or State Government, as the case may be. It shall consist of-

Three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government who is, or has been, a Judge of a High Court to be its Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned. [7]

Procedure of Advisory Boards

The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.[8]

Action upon the report of the Advisory Board

In case the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such a period as it thinks fit. However if the advisory boards differ, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.[9]

Maximum period of detention

The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention.[10]

Temporary release of persons detained

The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.[11]

Need of National Security Act, 1980

At this juncture it is worth quoting the dissent opinion of Justice A.P Sen in case of Vijay Narain Singh V. State of Bihar[12] in which the court held-

“The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except in accordance with the procedure established by law.”

It is worth noting that though the bill has received scathing criticism and backlash from  across all the stakeholders but still this bill is necessary for the reasons stated below-

  1. The provisions of this act are invoked in very extraordinary circumstances where the government needs to act swiftly. Like in recent cases in Covid 19, where various health workers were attacked across the country, In these extraordinary circumstances it becomes inevitable for the government to act briskly and take stringent actions against the culprits, failure to act briskly in such situations will lead to chaos in the society and hence though the Act is evil but is required for the extraordinary circumstances.
  2. There are certain people who are always determined in undermining the constitutional values, individual liberty and Security of the state. In such circumstances it becomes imperative to detain them as they are always determined to wreck chaos in the society.  Our constitution also allows for preventive detention and provides various safeguards against it to prevent its abuse by constituting advisory boards, limiting the period of detention and to review detention orders etc.
  3. Ultimately this act is for the welfare of the people, whenever the act is invoked arbitrarily, the government has always received stinging criticism from all those who care about liberty and freedom.
  4. This is convenient for the government and police officials since it doesn’t have to follow the complicated procedure of Code of Criminal Procedure.

Criticism of the National Security Act, 1980

The Act has constantly been criticised since it imperils the liberty of the person and has been widely been misused by the authorities Many allege that the government uses the National Security Act, 1980 as an extra judicial power. This law is very prone to abuse, in cases where the government is unable to make cases against a person under statutory law, detain the Individual under NSA Act. This pattern further promotes laziness in working of police officers since it discharges them from proving a case which further accentuates the weakness of the criminal system. Further law doesn’t mention any procedure for invoking the provisions of the Act, which makes the Act very prone to abuse. Therefore an amendment is the need of the hour.

Conclusion

The National Security Act is a preventive detention law. It is enacted for preventing the person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India, or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Though the constitution has provided various safeguards against malicious detention, is that sufficient to prevent its abuse is a pivotal question. The Act lays down various powers of the authorities, advisory boards, procedure and constitution of advisory board but silent on few crucial areas too. There is no question that this Act is needed in present times. The Act is meant to use stringent of action certain people who are always determined in undermining the constitutional values, individual liberty and Security of the state but the misuse of the power can’t be ruled out. Therefore an amendment currently is the need of the hour so that India can catch up with the International community; otherwise Act will always imperil the liberty of the person and will remain a constant threat against the rule of law.

Questions Covered by the Article

  1. What is National Security Act?
  2. What are the powers conferred under the Act.
  3. To whom are the power conferred under the Act?
  4. A brief overview of the Act.
  5. Why is National Security Act needed?
  6. Why is National Security Act criticised?
  7. Is amendment required in National Security Act?

[1] Article 22(3) of Indian Constitution.

[2] Article 22(4) of Indian Constitution.

[3] Article 22(7)(a) of Indian Constitution.

[4] Section 2(1)(a) of National Security Act, 1980.

[5] Section 3 of National Security Act, 1980.

[6] Section 8 of National Security Act, 1980.

[7] Section 9 of National Security Act, 1980.

[8] Section 11 of National Security Act, 1980.

[9] Section  12 of National Security Act, 1980.

[10] Section 13 of National Security Act, 1980.

[11] Section 15 of National Security Act, 1980.

[12] Vijay Narain Singh V. State of Bihar, 1984 AIR 1334.

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