National Security Act (NSA): An Overview

By | June 13, 2022
National Security Act (NSA): An Overview

Last Updated on by Admin LB

The Article National Security Act (NSA): An Overview is an extensive analysis of the various provisions of the National Security Act and also the necessity which became the major factor for its enactment. Basically, the idea of the enactment of the aforesaid Act was to protect the security and peace of the nation, as such if the necessity arises law provides provision for the arrest of the culprit.

The Article covers the historical background and specifies about Bengal Regulation Act, Rowlatt Act, Maintenance of Internal Security Act, and finally, in the year 1980, the National Security Act came up. The Author enunciated that National Security Act is way more different from the regular courses of law and laid emphasis on the right to know the reason for arrest as a significant point. Even Relevant case laws covering various aspects of national security have been explained in order to make the readers well-versed with the topic.

A Brief Introduction: National Security Act

The name implies that the law is intended to stop those who pose a threat to law and order or national security. Section 3(2) stipulates that the federal or state government may detain a person to prevent them from engaging in conduct that endangers the security of the state, public order, or essential products and services for the general public.

In circumstances of extreme gravity, Section 8(1) allows the person granting the custody order to conceal the reasons for the order for ten days. In addition, Subclause 2 states that the authority cannot disclose material that it deems to be detrimental to the public interest.

Section 13 stipulates that a person may be held without charge for up to a year, but the authorities may modify or revoke this provision at any moment.

Article 370 of the Constitution was repealed on August 9, 2019, and the Jammu and Kashmir Reorganisation Act entered into force on the same day.

On September 23, 1980, the Indian parliament passed the National Security Act, which addresses preventative detention. The National Security Act (NSA) authorizes the federal or state government to detain a person to prevent them from engaging in activities that could compromise national security. The authorities may decide to lock up the man to keep the peace. The most severe punishment is one year in jail. If the government has additional evidence against the individual, the extension will be granted.

Article 22 (3) of the Indian Constitution stipulates that, for the sake of national security and public order, individuals may be arrested in advance and their freedom may be restricted. Article 22(4) states that a person cannot be incarcerated for more than three months while the advisory board gathers the necessary evidence. There are superior court judges on the board of advisors.

The 44th Amendment Act of 1978 reduced from three to two months the amount of time a person might be kept without a decision from an advisory board. A three-month grace period remains, and the rule has not yet been implemented. [1]

The Provisions of the National Security Act

The following are some provisions provided by NSA:

  • The individual cannot be charged while being detained.
  • The government has the authority to hold accountable anyone who disrupts public order or prevents individuals from obtaining necessary goods and services.
  • If evidence indicates who is being detained, the time period can be extended beyond 12 months.

Justification For The NSA’s Detention

When individuals have a predisposition against India’s defence, foreign affairs, or national security, they are detained.

In Section 3 of the Act, the reasons for which a District Magistrate or Commissioner of Police may issue a detention order are specified:

  1. Intentionally endangering India’s defence, international relations, or security, or
  2. Making arrangements for a foreigner’s departure from India or ensuring that they can remain in the nation.
  3. Behaving in a manner that endangers the security or public order of the state, or that endangers the essential supplies and services of the community, is illegal.

The legislation stipulates that the initial punishment must be for three months, but the state government has the authority to extend the sentence by up to three months at a time.

The Central Government must receive detention orders seven days after the state government approves them, along with an explanation of why they were authorized to allow such orders.

The History behind the enactment of the National Security Act

The law of preventative detention in India dates back to its colonial past. The Bengal Regulation III was enacted by the East India Company in 1818 when Bengal was the head of state. The provision permits police to detain anyone they believe has an intention to commit a crime. The British government passed the Rowlatt Acts in 1919, which allowed suspects to be detained without trial.

People view the National Security Act as a direct continuation of the Act of 1950. Indira Gandhi signed the contentious Maintenance of Internal Security Act (MISA) on December 31, 1969, which superseded the Prevention Detention Act of 1950.

The MISA provided law enforcement with the same authority as the Preventative Detention Act. In 1977, the Janata Party eliminated the MISA. But, when Indira Gandhi returned to power in 1980, she enacted the National Security Act of 1980.

Objections against the National Security Act

People have asserted that the government is abusing the NSA, and the government has been accused of utilizing it illegally on various occasions.

What distinguishes the NSA from the regular course of law?

Those who are incarcerated typically have rights, including the right to know why they are being detained. Section 50 of the Criminal Procedure Code of 1973 states that an arrested individual has the right to know the reason for his or her arrest and to also apply for bail.

In contrast, sections 56 and 57 of the Criminal Procedure Code stipulate that everyone arrested must appear before a judge within 24 hours.

Section 76 stipulates that everyone in custody shall be brought to court as quickly as practicable, but no later than 24 hours following arrest.

In addition, Article 22 of the Indian Constitution states that a police officer cannot arrest someone without explaining why they are being detained and allowing them to appoint their own attorney.

On the other hand, these rights do not apply to individuals detained by the NSA. In exceptional circumstances, a person can be held in jail for up to ten days without being informed of the reason. Additionally, the government has the ability to conceal information that it deems detrimental to the public interest. The Act does not grant detainees the opportunity to be represented by an attorney in any situation involving the Advisory Board, which was established to handle NSA cases.

Period of Confinement

  1. The maximum term of detention is one year. If there is fresh evidence against the defendant, he may be required to serve a longer sentence.
  2. A person might be detained for up to ten days before they are informed of the situation.
  3. During this period, the individual may appeal to the high court advisory board, but they will not be permitted to have an attorney present at their trial.

Case Laws

1. On Nature of Order of Preventive Detention

The Constitutional Bench of the Honorable Supreme Court, in Haradhan Saha & Anr v. State of West Bengal & Ors. [2], praised the nature of the Order of Preventive Detention in the following paragraphs:

“Power-wise, preventive detention and punitive confinement are distinct. Detention can be utilized as a form of preventative measure for the appropriate length of time. There could be or there could not be a criminal. This doesn’t happen just once. Even though it is based on information that may or may not be included in the prosecution, it does not overlap with the prosecution.

Orders for preventative detention may be issued prior to or during a criminal investigation. Preventive detention orders may be issued before, during, or after a person is acquitted or released from prison. Even if a criminal investigation is now underway, the order for preventative detention remains valid. A preventive detention order does not prohibit the conduct of a criminal investigation.”

This detention order merely serves as a precautionary measure. When a person’s prior acts and current circumstances are considered, it is feasible to anticipate his or her future behaviour.”[3]

The Supreme Court stated the following about the nature of preventative detention in Giani Bakshish Singh v. Govt. of India & Ors [4]

“The purpose of preventive detention is not to punish a person for their past actions. Instead, it is  intended to prevent individuals from engaging in such conduct in the future “asserts the legislation.

The Honorable Division Bench of the Madras High Court explicitly stated the concept of preventative detention in N. Ajimeer Khan v. District Collector and the District Magistrate, Ramanathapuram and Others.[5]

“Those whose job it is to keep the public safe and orderly should be the only ones who can determine what is important. The purpose of preventive detention is to ensure public safety. Instead of exacting vengeance, the objective is to prevent an individual from committing a crime in the first place. This is accomplished by acting before the individual can. If a person is detained on the basis of reasonable suspicion rather than a criminal conviction, they must present legal evidence. Therefore, even if individuals must endure discomfort or constraints, it is not to punish them, but to safeguard the state from potential harm.”

2. On Maintenance of “Public Order”

According to Section 3 of the National Security Act, the government may employ preventative detention to disrupt public order by instilling fear among the populace based on a person’s past conduct and the circumstances surrounding those actions.

The Supreme Court of India clarified the term “public order” in Kanu Biswas v. State of West Bengal [6], as:

“Order publique, which translates to “public order” in French, encompasses more than only law enforcement. When determining whether an act impacts law and order or public order, the following factors must be considered: Is the regular flow of life in the society altered, and if so, does it merely affect a single individual?”

In Kishori Mohan Bera v. State of West Bengal [7], the court stated the following on the maintenance of public order: Supreme Court of the United States.

It matters less what type of behaviour is being discussed and more how probable it is to occur. There is a distinction between something that has an effect on people and something that has such a significant impact on the community that it disrupts the normal order of things.”

Conclusion

The National Security Agency is frequently referred to as a “draconian law” when individuals disagree over how it should be utilized. The COVID-19 virus, commonly known as the Corona Virus, has spread globally and destroyed both wealthy and impoverished nations. Assaulting corona fighters and other individuals who disobey lockdown and public order with violence may be interpreted as a revolt against society and an assault on civilization.

Schaefer, a well-known American jurist, asserts that a country’s level of civilization may be determined by how it enforces its laws. In Kartar Singh v. State of Punjab 1994 SCC (3) 569, Justice S. Ratnavel Pandian stated,

“Law is made not to be violated, but to be obeyed, and respect for the law is maintained not by demonstrating strength, but by a deeper understanding of the reasons.”

Enhanced comprehension of what implicit compliance is and how it operates. He argues, “Law has done tremendous things in the past, it must be protected now, and it has enormous potential for the future.”

Due to the potential for global coronavirus outbreaks and other catastrophic events, a person must give up their freedom and independence.


References:

[1] The National Security Act, 1980, Available Here

[2] Writ Petition (Civil) 1999 of 1973

[3] Haradhan Saha & Anr v. the State Of West Bengal & Ors [1974] INSC 152

[4] (1973) 2 SCC 688

[5] 1994 CriLJ 2670

[6] 1972 AIR 1656, 1973 SCR (1) 546

[7] AIR 1972 SC 1749, (1972) 3 SCC 845, 1973 (5) UJ 98 SC


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Author: Vartika Kulshrestha

Content Writer and Research Intern

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