National Security Act (NSA) 1980 is based on the quote, prevention is
better than cure
and always a topic of interest for its judicial and legislative
incongruity. It empowers Central and State Government to detain a person who
possesses a threat to National security, public orders, inter-country relations
and also has the power to govern the presence and deportation of detained
A modern legislature usually refers to an earlier existing law for
introducing a new law; similarly, a major part of NSA has been taken from the
Preventive Detention Act 1950, enacted by Nehru Government.
detention law sustains in the roots of India since the British period. Way back
to when India was under British Raj; the Bengal Regulation Act III 1818 and
Rowaltt Act 1919 were introduced by the British Government and, the foundation
of these acts was entirely on preventive detention laws. Our descendants were
resented towards the acts as it was totally against humanity and fought hard to
abolish them and even now NSA remains a debatable topic questioning India on
being democratic upholding utmost equality and integrity.
National Security Act: Critical Analysis
Every Indian citizen is provided with protection against injustice or inequality
by our constitution either in the form of Constitutional and statutory rights.
Consequently, arrested persons are also benefitted with certain rights. For
instance, Article 22(1) which is one of our fundamental rights provides rights
to arrested and detain persons stating that no person can be detained in custody
without been informed, continue with a right to consult, and appoint a legal
Apart from this, CrPC (Criminal Procedure Code) 1973 has also
laid down certain rights for the protection of detenu thereby Section 50(1) and
50(2) of CrPC provides right to an arrested person know the grounds of arrest
and be informed if the arrest is based on bailable case1.
made in 2006 in accordance with the judgment given in the cases Joginder Kumar
v. State of U.P
and D.K. Basu v. State of West Bengal
relatives or friends of detenu must be informed about his/ her arrest. Further, Section 56 and 76 of
CrPC makes obligatory to present a detenu before magistrate and court within 24
hours of arrest without any delay according to landmark case Kathri v. State of
Therefore, detenu person is entitled to these aforesaid rights. However,
ironically under NSA such rights are mere joke.
Under NSA a person is detained for a maximum of 12 months or beyond it if
required provided that the authorities must need to aware the person for his
charges within 5 days which may be extended for 10 days in certain cases.
Further, has a right to withhold information if disclosure of such information
could be against the interest of the public in general. Section 16 of the act
provides full liberty to the government or any other person acting in good faith
in the direction of the act.
Withal to this, when a person is confined under NSA
no FIRs (First Information Report) is registered as a result no cases of NSA
have been recorded by NCRB (National Crime Records Bureau) creating a bleak
Moreover, security measures for the arrested person stated in
Article 22(1) and 22(2) of our constitution do not apply in case of preventive
detention according to Article 22(3) but, it is not an absolute power, enclose
with certain limitations.
In the case of A.K. Roy v. Union of
petitioners argued to provide the legal representative�s to the detenu as
NSA bars to appoint legal representatives and even challenged NSA on the grounds
vague, general and broad.
- Khudiram Das v. The State of West Bengal,
Saha & Anr v. State of West Bengal and
- Giani Bakshish Singh vs Govt. Of India & Ors
Judiciary is seen explaining the nature of preventive detention or providing
its interpretation. Even at present nature of preventive detention infringes the
principle of Natural justice and raising doubt to our rights against wrong.
Notwithstanding, all this back to when Preventive Detention Act was in existence
it was challenged for the first time in the case A.K. Gopalan v. State of
because of its inconsistency. The court in this case stated the
difference between procedure established by law
and due process of law
Further in the famous case Maneka Gandhi v. Union of India
judgment was given
that any procedure established by law must be just, fair and reasonable.
Moreover, when PDA was introduced many political leaders were against the act
and ask to reconsider it but, still it prevailed and in fact, NSA is homogenous
Indeed, Section 41 and Section 151 of CrPC allow police officers to arrest a
person preventing him from committing a cognizable offence without a warrant or
any judicial orders. Moreover, Section 107 of CrPC empowers the Executive
Magistrate to apprehend the person for 1 year provided on information that such
person is likely to disrupt public peace.
The question arises, when our CrPC laws are enough then why there is a need to
As a matter of fact, under various circumstances, state often imposes NSA for
their benefits either personally or politically. For instance, in Uttar Pradesh
and Madhya Pradesh charges were imposed under NSA for cow slaughter cases even
in 2018 a person in Manipur was detained for 12 months under NSA for posting
irrelevant post against Chief Minister. In Delhi, during the protest against the
Citizenship Amendment Act (CAA) and The National Register of Citizens (NRC)
respective state government passed an order to detain protested persons for 3
months. This shows how the State government uses NSA as a shield to avoid
First and foremost, in many countries, preventive detention is invoked in
extreme cases like wars. Similarly, enforcement of NSA in India should not take
place frequently and, perhaps cannot be regarded as a regular law. Secondly, the
judiciary should focus on enabling laws in favour of detainees so that they may
able to claim legal remedy.
For instance, Judicial Review can be used to protect
the rights of detainees. Thirdly, powers under NSA shall be vested to
independent authorities rather than state government so that the state cannot
misuse their power for political and religious purpose.
Fourthly, all matter
relating to NSA disputes may forward for arbitration procedure instead of court
proceedings so that there would be no delay in proceedings and detainees can be
easily released. Fifthly, it is high time for Legislature and Judiciary to
review NSA and overcome its loopholes so that it further cannot abuse individual
Fundamental and Statutory rights. Lastly, NSA must fair, just and reasonable and
within the scope of individual rights entitled by our Constitution.
- Vivek Narayan Sharma, Know Your Rights Part-1: Rights of an arrested
person, The Times of India (July 5, 2019, 9: 10
- Karishma, National Security Act (NSA), 1980- Why is it criticised?, IAS
Express ( April 6, 2020), https://www.iasexpress.net/national-security-act-nsa-1980-why-is-it-criticised.
- Yash Vithlani & Keerthanaa, Analysing Preventive Detention laws and
Article 21, 4 The Law Brigade 515, 2018.
- Kritika A, Democracy and Rule of Law, The Leaflet (Sep. 20,2018),
- Debarghya Sil, What Is National Security Act? Here Is All You Need To
Know, TLI Explains (Feb. 21, 2020), https://thelogicalindian.com/tli-explains/nsa-draconian-act-19821?infinitescroll=1.