A spate of
recent attacks on and impropriety towards the individuals, who are performing
their duties with all their dedication and by imperiling their lives has brought the National
Security Act (NSA) again at the center
of attention. Some of the state governments have slapped the stringent
provisions of the NSA against such miscreants to curb any further alike
incidents.
Invoking NSA in the current situation can be called a pressing need but it is
not the case always. Every coin has two sides, similarly, the NSA remains in
the news for both good as well as bad reasons.
Let's see how.
What actually the National Security Act is?
National Security Act is an act of
the Indian parliament enacted on 23rd September 1980 during the Indira Gandhi
government with a view to providing for preventive
detention in certain matters
prejudicial to national security and also for the sorry state of affairs
where India faces various security threats like terrorism, Naxalism and various
separatist movements that threaten its unity and integrity.
Article22(3)(b) of the constitution allows for preventive detention and restrictions
on personal liberty for reasons of state security and public order. The act
consists of eighteen sections and extends to the whole of India.
Provisions under the Act
In plain language, the Act licenses the central government and the state
governments to detain a person to prevent him/her from acting in any manner
against the welfare and security of the country, damaging amicable relations
with foreign countries, obstructing the maintenance of supplies and services essential to the
country.
A person can also be detained to prevent him from disrupting public order or the peace and tranquility of India.
The maximum period for which a person may be detained in pursuance of any detention order under the act is twelve months from the date of detention but the term can be extended if any fresh evidence is found. If having regard to the circumstances prevailing or likely to prevail in any area within the local jurisdiction of a District Magistrate or a commissioner of Police, the state government is satisfied that it is necessary to do so, it may, by an order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also exercise this power and arrest individuals under the NSA.
Historical background of the Act
The concept of Preventive Detention is not a new thing for India. The law's
framework dates back to 1818 when the Bengal Regulation III was enacted to
empower the British government to arrest anyone for maintenance of public order
without giving the person recourse to judicial proceedings. Then came in 1919,
the Anarchical and Revolutionary Crimes Act of 1919 popularly known as the
Rowlatt act or black act that allowed confinement of a suspect without trial.
The purpose of the act was to restrict the growing nationalist onrush in the country. It gave enormous powers to the police to arrest any person without any valid reason.
Post-Independence, the first preventive detention rule was brought by the government of Jawahar Lal Nehru in 1950.
After the act expired in the year 1969, the then Prime Minister, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971. After the MISA got repealed in 1977 during the reign of the Janata Party, the National Security Act came into force in the year 1980.
Normal Scenario v. NSA
In the normal course, on arrest, the
person is guaranteed certain basic rights which are:
- Under Section 50 of the Criminal Procedure Code 1973 the person arrested has to be informed of the grounds of arrest, and has the right to bail.
- As per Section 56 of CrPc a police officer making an arrest without warrant shall, without unnecessary delay, take the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
- Section 57 of Cr.PC guarantees the person arrested to be presented before the officers within 24 hours exclusive of the time necessary for the journey.
- Also, article 22(1) of the Constitution allows the detainee to seek legal advice from a legal practitioner of his choice.
However, under the NSA, a suspect cannot avail himself of any of the above-mentioned rights and could be kept uninformed about the reasons for his arrest
for up to five days and in exceptional circumstances not later than ten days.
Even when providing the grounds for arrest, the government can withhold
information which it considers to be against public interest to disclose. The
arrested person is also not entitled to the aid of any legal practitioner in
any matter connected with the proceedings before an advisory board, which is
constituted by the government for dealing with NSA cases.
Concerns
Any law giving such extraordinary
and immense powers in the hands of the executive increases its chance of being
used arbitrarily. Many times this power becomes an attempt to use the state
machinery to silence the voice they don't like trampling the constitutional
rights of the citizens.
NSA has repeatedly come under criticism for the way it is used. Recently when a journalist in Manipur was jailed under the National Security Act for posting an allegedly offensive video criticizing the government, despite being granted bail by the judge when initially arrested under IPC, drew huge criticism by many of the prominent human rights activists. A section argues that several cases like this point to the fact that the government sometimes uses these stringent acts as an extra-judicial power.
Additionally, the National Crimes Record Bureau (NCRB) which collects and analyses crime data in the country doesn't include cases under NSA in its data as no FIRs are registered. Hence, no figures are available for the exact number of detentions under the act which again can make one think upon the potential abuse of the law.
Conclusion
Misuse of
a law doesn't mean it should necessarily be repealed, instead, proper checks and
balances should be brought in place to curb the misuse. Proper training of
law enforcement agencies is needed to guide them about where a particular
section needs to be applied and where it is not necessary. There needs to be a
balance between the security of the state and basic rights of the citizens.
While national security is paramount, the central government must ensure that the harsh
provisions of the National Security Act are not misused to quell democratic
dissent as the vibrancy of our democracy depends on it.
References:
- https://the logical indian.com/tli-explains/nsa
- https://indiacode.nic.in
- https://www.indiatoday.in
Shiksha Negi
B.A.LL.B (Hons)
2019-24
Law Faculty
Banaras Hindu University
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