National Security Act (NSA) is a preventive detention act that was passed in 1980.
Preventive Detention involves detainment of any individual in order to keep him/her away from committing future crimes or escaping future prosecution. Article 22(3)b of our constitution allows for preventive detention and restriction to personal liberty for reason of state security and public order. Article 22(4) states that the authorization for the detention can’t exceed 3 months unless an Advisory Board reports sufficient cause for extended detention.
History
The history dates back to our colonial past when Bengal Regulation (III), 1818 was enacted to empower government to arrest anyone for maintenance of public order or defense without giving the individual right to judicial remedies. Then after a century Rowlett Act, 1919 was enacted to arrest anyone without trial.
Since India mostly followed British governance model in its political setup, we got our first Preventive Detention Act in 1950 which expired in 1969. Then came the Maintenance of Internal Security Act (MISA) in 1971 which also dealt with preventive detention but was heavily misused during the emergency and was repealed in 1977. Finally came the National security Act in 1980 which is again based on its long ancestry of preventive detention and is closest to its predecessor MISA.
Powers under the Act
a) The act empowers the government (Central or State) to detain any individual if it is satisfied that he/she is a threat to the national security, defense of India, relations of India with foreign countries.
b) It empowers government to regulate the continued presence of any foreigner in the country or to make arrangement for his expulsion from the country.
c) The government can (if satisfied) arrest any individual to prevent him from acting against the security of State or disrupting public order or hampering the maintenance of supplies and services (Police, Doctors, Nurses etc.) essential to the community.
No Basic Right given
a) The right to be informed for the arrest (under section 50 of CrPC) is denied for 5 days and in exceptional conditions up to 10 days. Even if providing the ground for detention, the government can withhold information which it considers against public order.
b) Sec 56 and 76 of the CrPC that states that the person arrested has to be produced in the court within 24 hours of arrest is also denied. Even Article 22(1) that states that person can’t be denied the right to consult and to be defended by a legal practitioner of his choice is not provided.
c) The detention can take at any place even if it is outside the territorial jurisdiction of the government or the officer making the order.
Period of Detention and Advisory Board
The maximum period for detention is 12 months. But, the term can be extended if government finds fresh evidence.
The Advisory body is constituted within 3 weeks from the date of arrest. It is appointed by the appropriate government and consists of 3 members who are or have been or are qualified to be appointed as judge of High Court.
Role : It considers all the evidence placed before it and after thorough investigation from other sources and person (detained) if necessary, submits the report to government within 7 weeks from date of detention. No legal practitioner is provided for the person arrested in matters related to the advisory board.
If the report mention that the grounds for detention are valid, then the government can detain the person concerned for a period as it thinks fit. If the board rules against the detention, the government shall revoke the detention and release the individual.
Criticism of The Act
a) No record of detention under the act. The National Crime Records Bureau (NCRB) which collects and analyze crime data in the country, doesn’t include cases under NSA in its data as no FIR is registered. hence, no figure is available for exact number of detention under NSA.
b) Some experts call it “draconian law” citing the misuse of the MISA and argue that the NSA is used as extra judicial power by the government.
c) There has been wider misuse of the act across country. The use of act even during the peace time is heavily criticized.
d) No suit or legal proceeding or prosecution against the government or any person for anything done in pursuance of this act. This means that the authorities have free hand to apply any means to get someone under custody only because it is supposed to be done in good faith.
Way Forward
It is absolutely true that nothing is above India and its sovereignty, security, integrity, unity and public peace. But, we have to move forward with time. This act being 40 years old must be modified and should me made relevant to the present scenarios.
There should be strict scrutiny against arbitrary use of the act and the authorities must be held accountable for misuse, as it is against the Democracy and the basic Human Rights.
There must be mandatory procedural safeguards and transparency in the conduct and execution of the act.
Thankyou.
JAI HIND
Sources :
- MHA website
- Official NSA Act
- YouTube
- Drishti IAS