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National Security Act, 1980

This research paper is based on the recent law under which Delhi, India might face a lot of violence and violations of law. It is called a draconian law of National Security Act, 1980 based on preventive detention. NSA, 1980 today must be known to the citizens because under this law a person can be barred behind the prison on no charge and that too for any time period, as per discretion of the officials under this provision.

The paper is titled as A Peremptory order, Delhi under NSA here peremptory meaning insisting on immediate attention or obedience, especially in a brusquely imperious way. Research methodology used is doctrinal and source of data is secondary. The content for the research journal is has been derived from various articles and books. Also the zest of it has been extracted newspaper articles, case laws and legal books have been considered. The hypothesis of the researcher is that the scrutiny under the said law will result into chaos and distrust of people in law making authorities. The citation method used is Bluebook 20th edition.

A Peremptory order, Delhi under NSA

Current Situation
Anil Bjaj, Delhi’s Lieutenant Governor, in exercise of the powers conferred by sub-section (3) of section 3, read with clause (c) of Section 2 of the National Security Act, 1980, has directed by passing an order on 18th January 2020, authorizing the city’s police, controlled by the Union home ministry, to place the national capital under the National Security Act (NSA) for three months that is from 19th January 2020 to 16th April 2020.

The Delhi Police Commissioner, Amulya Patnaik, may also exercise the powers of detaining authority under sub-section (2) of the section 3 of the aforesaid Act, the notification stated.

Preventive Detention: Preventive detention is the detention made as a precautionary measure. This kind of detention can be made by the authorities even on a slight apprehension that the person can commit a crime. It is generally made for protecting the society from any future happening. It is not a punishment but a precaution. This detention comes to an end the moment the apprehension of danger ends.[1]

Preventive detention in India during British rule in the early 1800s, and continued with such laws as the Defence of India Act, 1939 and the Preventive Detention Act, 1950. The controversial Maintenance of Internal Security Act was originally enacted by the Indian parliament early during Indira Gandhi's prime leadership in 1971.

However it was amended several times during The Emergency (1975–1977), leading to human rights violations. It was subsequently repealed and the new National Security Act of 1980 embodied in the preventive detention laws in India.[2]

National Security Act 1980 received the assent of Parliament on 27th September 1980 during Indira Gandhi’s government. It extends to whole of India[3] and contains 18 Sections.

The provided law in based on the theme of preventive detention when the National Security is at threat and the grounds for preventive detention of a person include:
  1. acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
  2. regulating the continued presence of any foreigner in India or with a view to making arrangements for his expulsion from India.
  3. 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.[4]

This law can be executed by both state and central government. Section 3(5) states that within 7 days the state must inform about detention to central government. Section 8(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

Section 13, the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention. No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done in intended to be done in pursuance of this Act.[5] Under this Act, an individual can be detained without a charge for up to 12 months; the state government needs to be intimated that a person has been detained under the NSA.

This development comes amid the National Capital being roiled by two major anti-Citizenship Amendment Act protests: one at Shaheen Bagh and another at Jamia Millia Islamia and agitations near Jamia Masjid. The goal is to prevent an individual from committing a crime.[6]

Also this law has been applied amidst, in Delhi, in the pretext of “radical protests” against CAA-NRC. CAA is the Citizenship Amendment Act, 2020 that grants citizenship to all the immigrants whether entered legally or illegally who belongs to specific minorities from Hindu, Sikh, Christianity, Jains, Parsis and Buddhists from three neighboring countries, Pakistan, Afghanistan and Bangladesh. CAA is against Article 15 of the constitution that states that state shall not discriminate on the grounds, only of religion, race, caste, sex race, caste, place of birth or any of them. It is inconsistent with the intention of the legislature that is to grant citizenship to persecuted minorities but what the Act is silent on persecution of Muslim and Baloch persecution and persecution of minorities from more other neighboring countries like Myanmar, China, Sri Lanka. The Act also seems to legalize the terrorists.

History of Usage of the NSA, 1980

  • Bhim Army chief Chandrashekhar Azad, who was released by authorities last night, was previously detained under the NSA from 2 November, 2017 to 14 September, 2018.
     
  • In January 2019, the Bulandshahr district administration invoked the NSA against three people arrested in connection with the alleged cow slaughtering incident in Siyana tehsil in December 2018. Cattle carcasses were found strewn in the fields outside village Mahaw in Siyana on 3 December, 2018, after which a mob went on a rampage, attacking the local Chingrawathi police post. A police inspector was killed in the incident.
     
  • In December 2018, Manipur journalist Kishorechandra Wangkhem, a 39-year-old TV news and current affairs anchor, was slapped with the NSA and punished with detention for 12 months.[7]

Difficulty in interpretation of provisions under NSA, 1980

Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562 : (2018) 3 SCC (Cri) 801, 20-07-2018
Facts:The appellant’s husband, Jangkhohao Khongsai, with two others, was arrested by the police on 30 May 2017, and charged with offences under Section 400 of the I.P.C. and Section 25(1-C) of the Arms Act, 1959, allegedly for being a member of the cadre of the KLA organization, and for possession of fire arms. On 12 July 2017, the District Magistrate, Bishnupur, Manipur, passed an order of detention against him, apprehending that the detenu was likely to be released on bail. On 17 July 2017, the District Magistrate served the detenu with the grounds for his detention. On 20 July 2017, the Government of Manipur approved the order of detention.

The appellant filed a writ petition before the Manipur High Court, challenging the order of detention. The appellant’s contention was that the District Magistrate failed to report the detention to the State Government “forthwith,” as provided under Section 3(4) of the Act. The District Magistrate – it was urged - reported the detention after a lapse of five days, which violated Section 3(4).

Section 3(4) of the Act provides that when a detention order is made by a District Magistrate or a Commissioner of Police under Section 3(3) of the Act, the Magistrate/Commissioner shall forthwith report the fact of the detention order to the State Government, along with the grounds on which the order was made, and any other relevant facts. It also states that no detention order shall remain in force for more than twelve days after making the order, unless it has been approved by the State Government. The proviso to Section 3(4) states that, if the grounds for detention under Section 8 are communicated to the detenu after five days, but not later than ten days from the date of detention.

ISSUE: whether the act of the Magistrate, in reporting the order of detention to the State Government, after five days, was contrary to the requirement of reporting it “forthwith” under Section 3(4). The appellant submitted before the High Court that “forthwith” means immediately. It was further submitted that the delay of five days by the Magistrate, in reporting the detention to the State Government, vitiates the detention.

Held: The High Court dismissed the writ petition, holding that the scope of Section 3(4) has to be understood according to the scheme of the Act, and not in isolation. The High Court juxtaposed Section 3(4) with Section 8. It noted that under Section 3(4), the report of the detention has to be submitted along with the grounds for the detention. Comparing Sections 3(4) and 8, the High Court reasoned that the purpose of sending the report (with grounds) to the State Government under Section 3(4), is to enable the State Government to decide whether or not to approve the order of detention.

If the State government does not approve the order of detention within twelve (or fifteen) days, it will lapse anyway. On the other hand, the purpose of Section 8 is more sacrosanct, as it is to make the detenu aware of the reasons for his detention and make a representation to the authorities for release.

The requirement under Section 8 was held to stand on a higher pedestal than the one under Section 3(4). If Section 3(4) was interpreted in isolation, it would mean that, while the authority can furnish the grounds of detention to the detenu within five days (or in exceptional circumstances, ten days), it must furnish the report with grounds to the State Government immediately, or instantaneously. According to the High Court, such an anomaly was not contemplated under the law.[8]

NSA, 1980 and Constitution: Part III, Fundamental Rights, Article 21, Right to life and personal liberty is curtailed of a long time without proven the guilt of the suspect. Human rights may get violated as this law is very draconian, just on the grounds of suspicion and orders by advisory board on can be behind the bars. There is very high probability of destruction of peoples’ life and family getting affected by the harsh rules under the Act. The law is also has arbitrary nature as the whole machinery can be hostile by the ruling government, governor or president. But in no way it violates the Article 22[9] of the Indian Constitution that is Protection against arrest and detention in certain cases.

NSA, 1980 and CrPC, 1973: Section 50 of the Criminal Procedure Code (CrPC) mandates that the person arrested has to be informed of the grounds of arrest, and has the right to bail. Sections 56 and 76 of the CrPC also provide that a person has to be produced before a court within 24 hours of arrest. Under Article 22 (2) every arrested person must be produced before a magistrate within 24 hours after arrest. However, Article 22 (3) (b) excepts preventive detention detainees from Clause (2) and, as a consequence, it should be repealed in the interest of human rights.

Misuse of this law
The Indian government has exploited the NSA by regularly detaining individuals, using the plea of preventing future disturbances of public order. But in reality, it is as a punishment for the current alleged crimes. The government’s overreliance on preventive detention in ordinary criminal cases appears to misconstrue two fundamental aspects of the intended regime: (1) preventive detention is intended to stop future crimes; and (2) it is not meant to respond to ordinary law and order violations. In many of the cases reviewed, the detenu stood accused of a crime, for which they were criminally charged, that then justified immediate preventive detention.[10]

The government authorities under this Act detain the suspect on the current crime and support it by any previous crime committed by that person or body. But it fails to establish the basic essence of the Act that is to prove the probability of future commission of the offence.

Hence in those cases it is more of punitive detention[11] rather than preventive detention. Indian criminal justice system is based on its ‘burden to prove guilt beyond a reasonable doubt and denies the detenu[12] the presumption of innocence’. It debars the detenu to the basic right to say or express his/her statement and defend herself. It ultimately gives the full power in the hands of police authorities and encourage their laziness as they don’t have to prove anything, because under NSA the suspected detenu is not detained under any charge as such.

The other major misconception of the constitutional machinery is that that the preventive detention would create the fear in the minds of criminals and help to control the existing disturbances but current situation in India where majority of states such as Karnataka, Kerela, Assam, Wet Bengal, Delhi, Telangana, Andhra Pradesh, etc. are heavily expressing their disagreements on the citizenship laws and the lockdown of internet in Jammu and Kashmir, North Eastern States and In U.P. it is evident to witness even more protest for curtailing human rights by application of Preventive detention rule through NSA, 1980.

It is similar to the Rawlatt Act of March 1919 where the British government decided to arm itself with more far-reaching powers, which went against the accepted principles of rule of law, to be able to suppress those nationalists who would refuse to be satisfied with the official reforms. This Act authorized the government to imprison any person without trial and conviction in a court of law. The Act would thus also enable the government to suspend the right of Habeas Corpus which had been the foundation of civil liberties in Britain.[13]

Our Constitution or legislature or judiciary lacks at defining the subjective test satisfaction of the detaining authority test - to govern the implementation of preventive detention laws. If preventive detention is to remain in the Constitution, constitutional provisions must include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised - and these standards must be designed to allow meaningful judicial review of the official's actions.

NSA violates the International Treaties

  • The absence of judicial involvement violates detainees' right to appear before an independent and impartial tribunal, in direct contravention of international human rights law including the ICCPR (Article 14 (1)[14] and the Universal Declaration of Human Rights (Article 10)[15]. The Constitution must be amended to include clear criteria for officials to follow, and subject compliance with those standards to judicial review.
     
  • Article 9 (2) of the ICCPR [16]provides that [a] anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Detainees must be guaranteed a minimum period in which the grounds are promptly communicated to them, and be given information sufficient to permit the detainee to challenge the legality of his or her detention. Article 9 (5) of the ICCPR[17]provides the right to compensation for unlawful detention, except during public emergencies. The present scenario where population is rising like hyper-inflation and corruption is at its peak it seems too remote for the authorities to compensate the detention of innocents.
     
  • A South Asian Human Rights Documentation (SAHRDC) internal review of habeas corpus petitions showed that the police often rely on the NSA when they are unwilling or unable to make an appropriate criminal case under the strictures of constitutional and statutory law. It found that there is a regular pattern of using preventive detention, for instance, to address the current activities of recidivists and organised crime; to bypass a trial when witnesses were unwilling to testify; and to prevent release on bail. Essentially, the police appear to regularly use preventive detention in more difficult criminal law cases when inefficiency or ineptitude might make law enforcement difficult.[18]

Conclusion:
Here, the current Government at New Delhi and at Center applying the same illogic to cover their incapability to execute the Criminal System properly. The situation where there are series of laws and actions or government such as Demonetization and Re-monetization, GST, Abrogation of Article 370 and 35A of COI, Ayodhya judgment, CAA-NRC and obviously the for electorate, the leading propaganda of communal conflict has become intolerable by the common people.

And large section of the people are of the view that these rules are arbitrary in nature and diverted the minds of common man from real issues such as poverty, hunger deaths, fall down of economy and GDP, unemployment, poor education, women safety and rising inflation.

The legislature and judiciary must revisit the NSA, 1980 to save the Criminal Justice System and its purpose to stop the crime and not to increase by applying arbitrariness. The situation in becoming even more sensitive as this period of three months may destroy many lives overnight. It is time for India to catch up with the international community and recognize that preventive detention must not be used as an ordinary and regular law and order measure.

After the critical analysis and research the hypothesis seems to be the conclusion. According to the data collected and information inferred it is evident that during the time of already existing chaos and outcry of common people over CAA-NRC, the implementation of an absurd and draconian law which is very much likely to be misused, may be followed by multiple protests and more outcry. As the democracy is at challenge if the justice will turn into injustices that too legally that is by applying a valid law, here people will lose their faith in the law making machinery, and ultimately the civilized society might face a difficult time.


End-Notes:
  1. Sana Murtuza, Punitive and preventive detention(August 20, 2011), http://sanamurtaza.blogspot.com/2011/08/punitive-and-preventive-detention.html
  2. A. Faizur Rahman, Preventive detention an anachronism, The Hindu, 7 September 2004. https://www.thehindu.com/todays-paper/tp-features/tp-openpage/preventive-detention-an-anachronism/article28505358.ece
  3. National Security Act 1980, PUBLISHED BY AUTHORITY
    No. 76 NEW DELHI, SATURDAY, DECEMBER-27, 1980/PUSA 6, 1902 MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS (Legislative Departmenthttps://mha.gov.in/sites/default/files/National_Security_Act1980.pdf
  4. What is the National Security Act: All you need to know, February 6, 2019UPDATED: February 6, 2019 15:05 IST), https://www.indiatoday.in/fyi/story/what-is-national-security-act-india-1449395-2019-02-06
  5. National Security Act 1980, PUBLISHED BY AUTHORITY No. 76 NEW DELHI, SATURDAY, DECEMBER-27, 1980/PUSA 6, 1902 MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS (Legislative Department) https://mha.gov.in/sites/default/files/National_Security_Act1980.pdf
  6. F P Staff, Amid anti-CAA protests, Delhi L-G extends police's detention powers under NSA; law allows cops to hold a person for 12 months sans trial(Jan 17, 2020 22:43:56 IST), https://www.firstpost.com/india/amid-anti-caa-protests-delhi-l-g-extends-polices-detention-powers-under-nsa-law-allows-cops-to-hold-a-person-for-12-months-sans-trial-7922051.html
  7. F P Staff, Amid anti-CAA protests, Delhi L-G extends police's detention powers under NSA; law allows cops to hold a person for 12 months sans trial(Jan 17, 2020 22:43:56 IST), https://www.firstpost.com/india/amid-anti-caa-protests-delhi-l-g-extends-polices-detention-powers-under-nsa-law-allows-cops-to-hold-a-person-for-12-months-sans-trial-7922051.html
  8. x
  9. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
    (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
    (3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention
    (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
    (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
    (6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
    (7) Parliament may by law prescribe
    (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
    (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
    (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation, https://www.india.gov.in/sites/upload_files/npi./files/coi_part_full.pdf
    [10]Ravi Nair, National Security Act: Obscuring the Flaws in India’s Criminal Justice System(March 5, 2018), https://thewire.in/caste/national-security-act-obscuring-flaws-indias-criminal-justice-system
  10. Punitive detention is the detention as a punishment for the crime committed by an individual. It takes place after the actual commission of an offence or at least after an attempt has been made. The time taken from actual offence to detention can vary in length. It is a punishment imparted to the wrongdoer and involves strict measures. The duration of such a detention depends on what the law stipulates for the particular offence.
    Sana Murtuza, Punitive and preventive detention(August 20, 2011), http://sanamurtaza.blogspot.com/2011/08/punitive-and-preventive-detention.html
  11. One who is arrested or detained under a law in force.
  12. Monica Roy, The Struggle for Swaraj (1919-27) | Indian History, The Rowlatt Act, http://www.historydiscussion.net/history-of-india/swaraj/the-struggle-for-swaraj-1919-27-indian-history/6311
  13. Article 14
    1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
    International Covenant on Civil and Political Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  14. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
    The Universal Declaration of Human Rights, (Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948) https://www.un.org/en/universal-declaration-human-rights/
  15. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
    International Covenant on Civil and Political Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49),https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  16. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
    International Covenant on Civil and Political Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  17. Ravi Nair, National Security Act: Obscuring the Flaws in India’s Criminal Justice System(March 5, 2018), https://thewire.in/caste/national-security-act-obscuring-flaws-indias-criminal-justice-system

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