The National Security Act (NSA) has once again come into the spotlight after the Madhya Pradesh government, led by Kamal Nath, invoked this act against certain individuals accused of illegal transportation and killing of a cow. This is not the first incident of its kind. The Uttar Pradesh government also arrested three persons for a cow slaughter incident in Bulanshahr under NSA. Further, earlier on November 27, a journalist in Manipur was arrested under NSA for posting against the government on social media. This act was invoked by central and state governments in several incidents recently.
It raises questions regarding the abuse of an inflexible provision. Here’s what you should know regarding this stiff legislation. If we look into our colonial past, then similar preventive detention laws were passed during that time by the East India Company. In the Bengal Presidency, the Bengal Regulation III was enacted by East India Company in 1818. This act empowered the administration to arrest any person (to maintain public order) and detain them indefinitely, on the basis of suspicion of criminal intent, and without giving recourse to fair trial.
Later, the Rowlatt Act of 1919 was passed with a provision allowing certain cases to be tried without jury, as well as internment without trial in the interest of public safety. Certain rules where framed under the 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 Independence, under the Nehru government, the Preventive Detention Act (PDA) was passed with similar provisions. It was challenged before the court as well, and it expired in 1969. Later in 1971, the Indira Gandhi government passed the Maintenance of Security Act (MISA) which was basically a replica of PDA. This act attracted a lot of controversy regarding the wide powers given to the government. Six years later, the Janta Party government struck down this act, and the National Security Act was introduced in 1980. It provided for preventive detention in certain cases, and was applicable to the whole of India, except the state of Jammu and Kashmir. The grounds for preventive detention under the National Security act include:
- 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 the Code of Criminal Procedure (CrPC) clearly states that the person arrested must be informed about the grounds of his or her arrest, but contrary to this, under NSA, a person can be arrested without being informed of the charges for 10 days. Further, under this act, a person can be detained without charge for a year. The only condition is to intimate state government about the detention.
Additionally, unlike the CrPC, there is no provision for producing the detained person within 24 hours before the court. Article 22 (1) of the Indian Constitution clearly provides the right of legal aid to a detained person. It is clearly stated in the Constitution that a person detained has the right to consult, and to be defended by, a legal practitioner of his/her choice. Contrary to this, the only remedy provided to the detained person under the NSA is appeal before a High Court advisory board constituted by the government specifically NSA cases.
The arrested person is 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 the NSA do not require an FIR and are not recorded under the National Crime Records Bureau, which is responsible for analysis of criminal data in the country. Hence, no figures are available on detentions under this Act.
The 177th Law Commission Report of 2001, however, provides figures for persons arrested under preventive provisions in India, excluding Jammu and Kashmir–it stands at a whopping 14, 57,779. The major irony is that the recent detentions under the NSA are majorly based on political or ideological differences which derogate the spirit of the Indian Constitution. The need of the hour is for the Indian parliament and judiciary to recheck the cases under the NSA in light of the abuse of constitutional and statutory rights of the detained person. The government should ensure that preventive detention is not used and abused ordinarily by the authorities as a regular law. Looking into recent cases, it can clearly be deduced that it’s high time for legislators to reconsider this Act.