National Security Act, 1980: Features and Criticism

What is National Security Act (NSA)?

National Security Act is a preventive detention law in India that empowers the government at the center and the states to detain any person who many pose risk to any of the following:

1. National security or security of the States
2. Defense of India
3. India’s relations with foreign nations
4. Maintenance of law and order
5. Maintenance of essential supplies and services to the community

This Act prevents all such persons from acting in any manner that would be prejudicial to the above mentioned conditions. The objective of National Security Act is to prevent an individual from committing a crime.

The Act also empowers the government to regulate the continued presence of any foreigner in India or make arrangements for his/her expulsion from India.

Key Features of the National Security Act (NSA)

1. Grounds of order of detention

Reasons of the detention must be recorded in writing by the Authority making the detention order within 5 days under ordinary circumstances and with 15 days under exceptional circumstances. The time period has to be calculated from the date of detention. The person detained has to be communicated about the grounds on which the detention order has been issued. He shall be given the earliest opportunity of making a representation to the appropriate Government against such a detention order. However, the authority is not required to disclose any information if the disclosure of such information/facts is against the public interest.

2. Maximum Period of detention

Section 12 of the National Security Act says that the maximum duration for which any person may be detained is 12 months from the date of detention. However, the appropriate Government has been conferred with the power to revoke or modify the detention order at any time earlier.

3. No legal aid before advisory board

The detained person is not entitled to the aid of any legal practitioner in any matter connected with the proceedings before an advisory board constituted under Section 9 of the National Security Act.

4. Protection to Government against legal proceedings

No legal action can be taken against the Central or the State Government for any act done in good faith (bona fide) or intended to be done in pursuance of the National Security Act.

Background of Preventive Detention Law

The nature of preventive detention law is such that it should ideally be invoked in extreme situations. However, India, has a long history of using the preventive detention law even during peacetime. The history of preventive detention in India dates back to the British colonial era wherein legislation like Bengal Regulation III of 1818 and Rowlatt Acts of 1919 were passed. The Bengal Regulation was enacted to empower the British Government to arrest a person for defense or maintenance of public order without providing any legal recourse to judicial proceedings. The Rowlatt Act empowered the State to confine any suspect without trial.

Post-independence, India passed its very first Preventive Detention Act in February 1950. The 1950 Act expired in the year 1969. The current National Security Act was enacted in 1980 during the Indira Gandhi regime. The provisions of the current legislation is an iteration of the Preventive Detention Act of 1950.

Provision related to Preventive Detention in Indian Constitution

The Constitution of India itself authorizes the Legislature to make laws providing for preventive detention.

• Under Entry 9 (Union List) and Entry 3 (Concurrent List) of the Seventh Schedule, the Center and State governments are empowered to enact preventive detention legislation for reasons connected with the security of state, the maintenance of public order, or maintenance of supplies and services essential to the community, or for reasons connected with Defense, Foreign Affairs or the Security of India.
• Preventive detention and restriction on personal liberty are allowed under Article 22 (3) (b) of the Indian Constitution for reasons of state security and public order.
• Article 22(4) of the Constitution states that no preventive detention shall be authorized under any law for a period exceeding three months unless an Advisory Board reports sufficient cause for the extension of such detention. It is pertinent to mention here that the 44^th Constitutional Amendment of 1978 reduced the detention period prior to advisory board’s opinion from three months to two months. However, the amended provision had not been brought to force ever and thus the original duration of three months is still applicable.

Criticism of the National Security Act (NSA), 1980

The National Security Act has been under scrutiny of the critics since its enforcement. The very nature of the Act is one of the prime reasons of its criticism. Most of the developed nations of the world have been hesitant in using preventive detention laws for circumstances other than war and external disturbances. India, on the other hand, has been invoking the provisions of its National Security Act time and again even during the peacetime.

As per the provisions of the Criminal Procedure Code, any person who has been arrested without a warrant will not be detained in custody for more than 24 hours. A detained person has the right to be produced before the magistrate within 24 hours of such arrest. This is also a fundamental right under Article 22(2). Article 22(2) likewise states that a detained person has the right to be informed about the grounds of detention. However, in case of NSA, a person can be detained for a period up to 15 days without even being informed any reason. These provisions are susceptible to possible abuse.

Cases under the National Security Act are not recorded under the National Crime Records Bureau as no First Information Report (FIR) is registered for such cases. The data black hole that exists with respect to preventive detention cases has been one of the prime concern.

A person detained under National Security Act cannot seek legal advice from a legal practitioner. This is contrary to the legal provision under Article 22 (1) which states that a detainee has the right to legal aid.