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The Gaurdian Of Public Order And National Security: The National Security Act 1980

This article aims to understand the act as well as analyses and examine the objectives and the significance of the act. It has a key focus on the preventive detention laws in India when compared to those in other countries. The article outlines a brief summary and explanation on the acts Structure, functions and modern-day implication.

Both the Union list and the concurrent list empower and give authority to the state and central governments to frame laws that are concerned primarily with preventive detention. The act was passed in the year 1980 with the pure purpose of maintaining law and order within the country, this shows that the constitution deemed this necessary to expressly provide these powers to frame preventive detention.

In this context, it also authorises the preventive detention to any individual. Section 151 of the code of criminal procedure provides for preventive detention and empowers police officers limited power to arrest individuals without any warrants or magistrates' orders if they can ascertain that a criminal act will be committed if arrest or preventive action is not taken.

The origin of the law can be traced back to the days of the east Indian company which allowed for individuals who were acting in any prejudiced manner towards the British company and possessions to be detained.

It has been justified as being a necessity due to extraordinary cases for example the two world wars. After the independence of the country was maintained, the act went through another change in the sense that only the government could detain an individual for the purpose of preventing any breakage of law, order or public decorum.

What Is The Act?
The act is a preventive detention law that was enacted in 1980 to ensure and maintain public order and national security. It involves the detainment or containment of any individual or individuals that may commit any crime or escape future prosecution for committing any such crime that may disturb civil rest or national security and cause any form of panic or civil distress.

Article 22(3)(B) Of the constitution allows for preventive detention or restriction on personal liberty for reasons of state and public order. Article 22(4) states that no law providing for preventive detention shall allow for or authorize the detention of an individual for longer than a three-month period, however the maximum period of confinement is 12 months.

The act also provides for the constitution of a national security council which advises the Prime Minister on matters relating to national security. It is a three-tiered organisation that deals with political, economic, energy and security issues of strategic concern chaired by the prime minister. It was formed in 1998 and has several functions such as analysing security threats, coordinating various agency activities and regular reviews of the country's security.

Why Is It Relevant?
The act is relevant because it allows the state to arrest anyone who does not follow or respect the legal principles, laws or preservation of public order in the nation. Any and all individuals who interrupt the delivery of governmental services whether they bare residents of the nation or of other nations they are liable and are viewed as posing a threat to national security.

In more recent times Firs have been filed under this statue in various states such as Uttar Pradesh and Madhya Pradesh (for targeting anti-social groups). The act is also relevant because it can be the grounds for expelling or detaining or exiling an immigrant as well as regulate immigrant activities. The act, if misused, could violate political and social political rights of individuals as authorities could detain, expel or detain members of target political groups or dissent groups. The act is also significant due to its regular appearances in court cases such as the following:
  • Abhayraj Gupta V Superintendent, Central Jail (2021):
    In this case the petitioner was apprehended in a murder case and caused the death pf an individual. When the police attempted to arrest the individual, the petitioner tried to or threatened to fire at the police personal which led to them being taken to custody subsequently. The district mag passed the order in accordance to section 3 of the act and the petitioner approached the high court under article 226 and prayed for a writ of habeaus corpus.

What Are The Functions?
The most recent use of the act can be seen in the case of the covid 19 outbreak. The act was enforced or invoked to prevent the hoarding of medicines and oxygen cylinders. In addition to this it was invoked against those who were engaging in violent acts the medical practitioners such as doctors, nurses and cleaning staff. During this period, it was also invoked against those who would act against police officers.

What Are The Criticisms?
The act has been criticized on the grounds that the government has arbitrary power that can and is misused by those in the position to do so. In the case of AK Roy, the apex court noted that the act leaves scope for arbitrariness on the part of the executive even if the scope is necessary in order for full justice to be maintained. The next critique is the ability to be detained for three months without any review of the decision.

This leaves scope for the violation of constitutional rights for the detained person as they may be subjected to unlawful torture or abuse. Lastly there is the concept of the international convention agreements that India is a part of. These conventions provide that all individuals have a right to liberty and no person can be arbitrarily arrested or detained. There is lack of transparency in the detention process which makes it difficult to defend as that is a blatant violation of human rights, constitutional rights and fundamental rights that are provided.

Solutions/Suggestions For The Way Forward
In order to ensure the act successfully and practically enforces its objectives the following ought to be instilled:
  • Insurance of transparency- the government should inform those detained of the grounds of their detention and making the orders public in order to prevent abuse from authorities
  • Strict implementation- this will ensure that the law is not misused to target political opponents or to suppress any dissent or socio-political rights of individuals.
  • Judicial Oversight- the strengthening of this will ensure that any and all orders are within constitutional provisions and that the orders are not arbitrary in and of themselves.

In conclusion the act is a necessity that benefits not only the people of the nation but the state and its security however a balance must be struck in order to maintain and protect the human rights and constitutional rights provided in the constitution.Written By: Tadiwanashe Leilani Choto, School Of Law, First Year - Lovely Professional University

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