National Security Act, 1980

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    A recent analysis of records shows that the National Security Act (NSA) has been invoked in Uttar Pradesh (UP) frequently.

    About National Security Act

    • It empowers the government to detain a person if the authorities are satisfied that the person is a threat to national security or to prevent such people from disrupting public law and order.
    • Historical Context
      • It has its roots in the colonial era. In 1818, 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.
      • In 1919, the Rowlatt Act allowed confinement without a trial. The Jallianwalla Bagh tragedy was a direct result of the protest against these Rowlatt Act.
      • Post-independence, Indira Gandhi introduced the Maintenance of Internal Security Act (MISA) in 1971, which was similar to the Rowlatt Act.
      • It was repealed in 1977, and eventually the NSA 1980 was promulgated in September 1980.
    • Features
      • It allows preventive detention.
        • A person can be detained for up to 12 months without a charge.
        • A person can be held for 10 days without being told the charges against them.
        • The person can appeal before a high court advisory board but will not be allowed a lawyer during the trial.
        • A person in police custody can be detained.
        • A person who has been granted bail by a trial court can be immediately detained under the NSA.
        • A person acquitted by the court can be detained under the NSA.
      • States or Centre can detain a person to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of the public order”.
      • A person can be detained if he/she is a threat to India’s relations with foreign countries.
      • It empowers the government to detain foreigners and regulate their presence or expel them from India.
      • The provisions in the Act are re-notified every quarter.
      • It is an administrative order passed either by the Divisional Commissioner or the District Magistrate and not detention ordered by police based on specific allegations or for a specific violation of the law.
    • Concerns
      • It breaches the Article 22(1) of the Indian Constitution and Section 50 of the Criminal Procedure Code (CrPC).
        • According to Article 22(1) an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
        • According to Section 50 of the CrPC, any person arrested has to be informed of the grounds of arrest and has the right to bail.
      • However, under the NSA, the government holds the right to conceal information which it considers to be against public interest to disclose.
      • Moreover, the National Crime Records Bureau (NCRB), which collects crime data in India, does not include cases under the NSA as no FIRs are registered.
      • NSA has come under wide criticism for its provisions and their frequent misuse by the authorities.
      • The DM who passed the detention order is protected under the Act and no prosecution or any legal proceeding can be initiated against the official who carried out the orders.
    • Safeguards
      • The writ of Habeas Corpus is the only protection guaranteed under the Constitution against the unchecked state power of taking people into custody under the NSA.
        • A writ of habeas corpus is in the nature of an order upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and set him free if there is no legal justification for the imprisonment.
        • It was visualised as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification.
      • Article 22(5) is also a crucial procedural safeguard under the NSA, where all the detained persons have the right to make an effective representation before an independent advisory board.
        • This board consists of three members and the board is chaired by a member who is, or has been, a judge of a High Court.
    • Courts’ Stand and Suggestions
      • The Supreme Court (SC) has held that the preventive detention under NSA has to be strictly construed keeping in view the “delicate balance between social security and citizen freedom”.
      • It has also suggested that to prevent the misuse of this potentially dangerous power, “meticulous compliance with the procedural safeguards” has to be ensured.

    Source: IE