Introduction

Amid the ongoing situation in India due to the spread of the SARS-CoV-19 virus, there have been a few instances where medical practitioners were attacked by an unruly mob. To counter extraordinary situations, extraordinary steps need to be taken, in furtherance of which the Uttar Pradesh Government and the Madhya Pradesh government have subsequently invoked the draconian National Security Act,1980. Back in late 2019, this act was used frequently to curb the voice of dissent, in protest against the controversial Citizenship Amendment Bill, with more than 5,538 preventive detentions alone in the state of Uttar Pradesh.

With these and many other recent cases, this 4-decade old piece of legislation has again come under the limelight. Enacted by Indira Gandhi’s government by an ordinance, it has been frequently exploited by the executive for detaining individuals, using the plea of preventing future disturbances of public order. This has resulted in state sanctioned violation of human rights. Although it is necessary to equip the state with this type of power to deal with extraordinary situations such as the one currently prevailing, giving blank cover to act on its subjective satisfaction is problematic.

To understand this piece of legislation in depth, it is necessary to understand its historical background in the pre- as well as the post-independent India. In this article we will also be explaining the nuances of this act as well as the various loopholes prevailing in the act and how it is being misused.

A Step Backward- A Brief History

It is imperative to know the historical background as well as the intent and the motive with which the legislation was first brought in place. Its history goes back to the colonial era. It was first created in the year 1818 and named Bengal Regulation III, with an intent to empower the British government to arrest anyone in the name of defense and public order without any trial. Next in line were the Rowlatt Acts of 1919 which brought with them much hue and cry. These acts resulted in the Jalliawala Bagh massacre followed by the country wide protest as part of the non-cooperation movement.

Coming to post-colonial independent India, our freedom fighters who suffered the most from these acts, didn’t hesitate to give sanctity to the preventive detention laws, and enacted the Preventive Detention Act, 1950. Right after coming into force, it was not used much to maintain public order, rather a political leader of A.K. Goplan’s eminence was detained under the aforesaid act. From its initial actions, it was evident that the act was used to curb political dissent, and that legacy has been and is being followed now. As the act was enacted only for a limited time period, it was set to expire on 31st December 1969. The then-prime minister Ms. Indira Gandhi brought the more contentious act, i.e. MISA (Maintenance of Internal Security Act, 1971), which gave indefinite powers to the government and law enforcement agencies. It became infamous during the emergency imposed by Indira Gandhi’s government. It was later repealed by the Janata Dal government, which came to power in 1977 after defeating the Indira Gandhi-led congress party. But Indira Gandhi came back to power in 1980 and came up with the National Security Act, 1980, which latter popularly came to be known as “no vakil, no appeal, no daleel” (no lawyer, no appeal, no argument).

Law and Its Loopholes

More often than not preventive detention laws are invoked for the sake of public order. But, in order to do so, there’s a small distinction which needs to be kept in mind. Every minute breach of law and order by a given situation cannot be termed as a threat to public order. This distinction was made by the apex court in the case of Ram Manohar Lohia v. State of Bihar, wherein the court stated that,

“One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order, but not public order just as an act may affect public order but not security of the State.”

The government’s over-reliance on preventive detention in ordinary criminal cases appears to misconstrue two fundamental aspects: (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 detainee stood accused of a crime, and by obscuring the flaws in the Indian criminal justice system, they were detained under the NSA. For our better understanding of the law, it is beneficial to know the nuances of the act and how some of them are vaguely termed and are flawed and can lead to misrepresentation.

On disclosure of the grounds for detention: Section 8(1) explicitly states that the person detained should know of the grounds of his detention in not more than 5 days but not later than 10 days. But, section 8(2) states, “Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.”

The Constitution of the advisory board: Section 9(1) of the said act states that, “The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.”

Whereas, Section 9(2) talks of the constituents of the advisory board, which states that, “Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government.”

The advisory board has come under criticism as it is constituted by the government to adjudge upon the order passed by it only. It’s like an executive review on the decision of the executive where the executive can also appoint members who would be willing to work hand-in-hand with the government giving it the unprecedented power to act upon its will.

Another aspect of the law which may jeopardize the review power of the advisory board is that the proceeding and the final report of the board is kept in-camera and is hence not available for public scrutiny under section 11(4). Further, Section 11(4) also states that, “Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.” The detainee, which may be a person not well-educated and has no idea of his legal rights, is not allowed to be represented by any legal practitioner whereas the detaining authority is allowed to be represented by counsel. This further reduces his chance of being set free after making a successful representation in front of the advisory board which can be summarized as quoted by the apex court, “The dice was loaded against the detainee in that whereas he had to go without legal assistance, the State Government had the benefit of an array of lawyers.”

Section 13 defines the maximum period of the detention which may extend up to 12 months. It further empowers the government to revoke or modify the detention. Section 14(2) explicitly states that a fresh order can be brought about irrespective of the revocation of the expiry of the previous order. It can lead to a longer detention if the government sought the same. Even if an individual is detained because of clearly invalid reasons, he will not be released so long as the government authorities manage to put in one of the grounds for detention in the detention order. Hence, it shows the arbitrary nature of the law. Arbitrariness is the very antithesis of Article 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.

Loopholes and Their Repercussions

“Secret violence is confined to isolated and very small parts of India and to a microscopic body of the people. But the passing of the Bills designed to affect the whole of India and its people and arming the government with power out of all proportion to the situation sought to be dealt with, is a greater danger.”

Mahatma Gandhi wrote this in a letter to the press expressing his dissatisfaction towards the Rowlatt Acts of 1919. Preventive detentions can only be tolerated in any democratic society in the most extreme circumstances. It must be used with utmost restraint and retained as long as it is strictly necessary. Yet, in a democratic society like India, it has been invoked recklessly on the sole discretion of the government and the law enforcement agencies.

Hence, to understand this dilemma, it’s necessary to look upon a few recent cases from the plethora of cases wherein the NSA was invoked and what the rationale was behind doing so. (disclaimer: some of the quoted facts and figures might be a bit inaccurate as the NCRB [National Crime Record Bureau] as the name suggests, maintains the repository of the crimes and the criminals and does not take into account the FIR’s registered under NSA. Hence, there is no exact figure for the same. But according to a rough figure, NSA was being misused or abused by the executive authorities in 72.5% of all cases.)

DR. Kafeel Khan was detained under the NSA by the Uttar Pradesh government after he gave an anti-CAA speech in Aligarh Muslim University and was also charged with section 153A and 295A of the IPC. It was a clear case of vendetta after an inquiry absolved him from the BRD medical death case.

“As regards Dr Khan’s speech on December 12, first, I do not see how it attracts Sections 153A or 295A of the IPC. Second, even if it does, surely those provisions are sufficient to deal with the situation. The preventive detention order under the NSA is, therefore, clearly illegal, and should be struck down by the court,”

says Markandey Katju, retired judge, Supreme Court of India and an eminent jurist.

The NSA was imposed against 3 in a small village of Purbaliyan near Muzaffarnagar, Uttar Pradesh after a minor quarrel broke out between kids of the town over a cricket match because there were no specified boundaries to determine whether it’s a six or a four which later took a communal color.

The NSA was imposed against 3 men in Bulandshahr district because they were accused of cow slaughter. It was followed by mob violence leading to the death of a police constable. Rather than imposing on people who were involved in the mob violence which resulted in the death of a police constable, the NSA was imposed against the 3 men which was a blatant misuse of the NSA.

A Manipur journalist, Kishorechandra Wangkhem, was detained for criticizing the head of the state of Manipur, N. Biren Singh and his parent party, Bharatiya Janta Party (BJP). But when he was produced before the court, it termed the detention as illegal and he was set free. Within 24 hours, he was again arrested under the NSA for posting allegedly inflammatory statements. In no time, the advisory board set up under the act approved his detention for 12 months.

International Criticism

Although the act has drawn criticism from many intellectuals within the country, subsequently, it has drawn equal criticism from the international community as well. Many organizations working in the field of human rights as well as policy making have been, from the time of its inception, were critical of the act as well as of its usage. Some of them are listed for better understanding. The South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC, recommended deleting those provisions of the Constitution of India that explicitly permit preventive detention, amid the concern over the violation of Human Rights. Amnesty International in a public statement against the preventive detention of a human rights defender in Manipur stated that, “Amnesty International calls upon the Government of India to repeal the NSA, a legislation that has long been abused to arbitrarily detain a number of persons without trial on a range of criminal charges.” The Commonwealth Human Rights Initiative(CHRI), in its report on human rights violations in India, gave a report on various draconian pieces of legislation in India, which included the NSA too, and concluded:

“Rather than attempting to resolve security challenges politically where possible, or addressing the socio-economic roots of internal struggles, the knee-jerk response of the state has been to enact repressive legislation. Some of these laws plainly violate fundamental rights. While others, through imprecise and loosely worded provisions, have created an environment favourable to human rights abuses. Violation of rights in the name of security is all the more widespread as perpetrators are covered by de jure or de facto immunity.”

Conclusion- the way ahead

Quoting in the words of Justice A.P Sen, who wrote in his dissent in the case of Vijay Narain Singh V. State of Bihar,

“The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except in accordance with the procedure established by law.”

During the Constitutional Assembly debate, when the question of law on preventive detention came up, Alladi krishnaswany Ayyar, a distinguished jurist, described preventive detention as a necessary evil because, in his view, there were people determined to undermine the sanctity of the Constitution, Security of the state and even individual liberty. But what the members tried to do was not to prohibit preventive detention but to incorporate safeguards against its abuse in the constitution by limiting the period, by giving effective powers to the advisory board to review detention orders, etc.

Yet, the act, brought about for the welfare of the people, has been used contrary to it. Politically motivated abuses of the National Security Act draw immediate disapproval from all those who care about freedom and liberty. However, the use of the NSA as a substitute for the ordinary criminal law is equally dangerous to the fundamental rights of Indian citizens and is probably a more prevalent type of abuse. Hence, there’s a need to make amendments to this legislation maybe not now, but in the near future, so that its currently prevailing loopholes are not exploited by the executive and it fulfills its constitutional obligation to stand for what was once coined by Abraham Lincoln as, “government of the people, by the people, for the people.”

Kartikay Agarwal is a student at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

Arjun Sharma is a student at the Institute of Law, Nirma University, Ahmedabad,India.

Suggested citation: Kartikay Agarwal and Arjun Sharma, National Security Act, 1980 – Iniquitous Act and Constitutional Tyranny or a Justified Piece of Legislation?, JURIST – Student Commentary, May 1, 2020, https://www.jurist.org/commentary/2020/05/agarwal-sharma-national-security-act-1980/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org