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AN INSIGHT INTO NATIONAL SECURITY ACT

About the Author: Ms. Mamta is a 4th Year B.A. LL.B (Hons) Student of Manipal University Jaipur having avid interest in Criminal Law and Human Rights. National Security act again draw the limelight after Madhya Pradesh government lead by Chief Minister Kamal Nath invoked this act against certain individuals accused of illegal transportation and killing of cow. This is not the first incident in where the provision of this stringent act was invoked by state government. Uttar Pradesh government also arrested three persons for cow slaughter incident in Bulandshahar under National Security Act1. Further Earlier on 27th November, a journalist in Manipur was arrested under NSA for posting against the government on social media. This act was invoked by central and state in several incidents recent time raised question regarding the abuse of its inflexible provision. This article intends to give you a deep insight of National Security Act, 1980 and covers all the basic information that you should have reading this stiff legislation. If we look into the colonial era then a similar preventive detention laws were passed during that time by East India Company. In Bengal Presidency, Bengal Regulation III was enacted by east India Company in 1818. This act empowered the administration to arrest any person for maintenance of public order and detain indefinitely, on the basis of suspicion of criminal intent, and without giving recourse of trial. Later the Rowlett Act of 1919 passed in where there was a provision allows certain cases to be tried without jury and interment without trial in the interest of public safety. Certain Rules where framed under Defense of India Act 1939 where Rule 26 allowed the detention of a person if it was “satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial” to the defense and safety of the country . After getting Independence, Under the Nehru government Preventive Detention Act was passed having the similar provisions where having similar provisions. It got challenged before court as well and before getting expired in 1969 it was amended 7 times by the legislators. Later in 1971, Indira Gandhi Government passed the Maintenance of security act (MISA) which was basically a replica of Preventive Detention Act. This act attracted a lot of controversy regarding wide power given to government and later in 1977 Janta Party government stuck down this act and introduced the National Security Act. Government passed National security Act in 1980 which provides for preventive detention in certain cases. This act was made applicable to whole of India except the state of Jammu and Kashmir. The grounds for preventive detention under National Security Act includes

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National Security Act, 1980

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Acting in any manner prejudicial to the defense of India, the relations of India with foreign powers, or the security of India. preventing them from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do.

The principle of Natural Justice and section 59 of Cr.PC2 clearly states that a person arrested must be informed about the grounds of arrest but contrary to this under this act a person can be arrested without getting informed of charges of arrest for 10days. Further a person can be detained without charge for a year the only condition is to intimated state government about the detention. Additionally unlike Cr.pc there is no provision of producing the detained person within 24 hour before the court. Article 22(1) of Indian Constitution clearly provides the right of legal aid to detained person. It is clearly stated in Indian Constitution that a person detained has right to consult, and to be defended by a legal practitioner of his choice. On contrary to this the only remedy provided to detained person under National Security Act state that they can appeal before High court advisory board which is constituted by government for dealing with National Security Act cases but are not entitled to aid by any legal practitioner or lawyer in any manner. Further the government may withhold the information supporting the detention, although not the grounds, if necessary for the public interest. The Cases under National Security Act, 1980 does not register the FIR and even not recorded under the National crime Records Bureau responsible for analysis of criminal data in country. Hence no figure are available of detention under National Security Act The 177th Law Commission Report of 2001 however provides figures for persons arrested under preventive provisions in India excluding Jammu and Kashmir – which stands at a whopping 14, 57,779 (fourteen lakh, fifty seven thousand seven hundred and seventy nine). The major irony is that the recent detentions under National Security Act, 1980 are majorly based on political or ideological differences which derogate the spirit of Indian Constitution. The need of hour is that the Indian parliament and judiciary should recheck the cases under National Security Act in light of the abuse constitutional and statutory rights of detained person. The government should ensure that the preventive detention must not be used and abused ordinarily by the authorities as regular law. Looking down to the recent cases it can clearly be deduced that it’s high time for legislators to reconsider this Act.

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The Code of Criminal Procedure, 1973