The National Security Act (NSA) dates back to the colonial era where, in 1818, Bengal Regulation III was enacted to empower the British government to arrest anyone for maintenance of public order without giving the person recourse to judicial proceedings. Further, in 1919, the Rowlett Act came into picture which allowed the confinement without trial.

Post-Independence, Indira Gandhi introduced the controversial Maintenance of Internal Security Act (MISA) in 1971, which was similar to that of the Rowlett Act. However, it was repealed in 1977 and subsequently, the National Security Act was promulgated on 23 September 1980 by the Indira Gandhi government. The main objective of the Act is “to provide for preventive detention in certain cases and matters connected therewith.”

What is NSA?

The National Security Act of 1980 is one of the contentious acts drafted by the Indian legislature for the preservation of national security of the country. It is known to provide the police with unprecedented powers over the citizens. The Act allows the police to be able to detain a person for months (maximum 12 months) if it feels that he/she may be a threat to national security. An individual who is arrested through the NIA i.e., National Investigation Agency does not also necessarily have to be informed about the charges that have been imposed against them for a minimum of ten days.

The Union Home Ministry has downplayed the situation and it is being told by the government that this is only a routine affair and is being renewed from time to time.

This Act allows a person to be detained without a charge for up to twelve months (period of detention). The goal here is to prevent the individual from committing a crime. However, the individual also need not be informed about the charges against him or her for until ten days. The individual who is detained can appeal before a High Court Advisory Board but is not allowed to hire a lawyer during his trial.

If authorities are satisfied, the detained person can be put under preventive detention for months. This only requires the authorities to be convinced that the individual can be a threat to national security and integrity. The state government concerned needs to be intimated that the individual has been detained under the NSA.

Furthermore, there are certain grounds under which the NSA is invoked that is:

• When a person is acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
• When regulating the continued presence of any foreigner in India or to make arrangements for his expulsion from India.
• While preventing an individual or group of individuals 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.

Issues Pertaining:

It was in August 2019, that the National Security Act was extended to the erstwhile state of Jammu and Kashmir, in the days following the abrogation of Article 370 of the Constitution of Indian and the bifurcation of the erstwhile state into two union territories, giving the armed forces in the valley the right to detain a person on grounds of threat to national security.

Some of the other recent incidents related to the said Act that took place in the country viz.:

1. In January 2019, the BJP lead government in the State of Uttar Pradesh had arrested three people under the National Security Act concerning an alleged cow slaughter incident that had taken place in the city of Bulandshahr.
2. Another occasion when an arrest was made under the Act is that of Manipuri journalist, Kishore Chandra Wangkhem who had posted an allegedly offensive Facebook post about the then Chief Minister for which he faced detention under the NSA for one year.
3. The State of Delhi was put under the NSA, 1980 due to the ongoing protest against the CAA and NRC, where Delhi's Lieutenant Governor Anil Baijal gave thumbs up to the Delhi Police Commissioner to have the power to detain people under the National Security Act, from 19 January 2020 to 18 April 2020.

Criticism:
The reason, why the National Security Act, 1980 is being critiqued, is that in the normal course when a person is arrested, he/she is not deprived of certain basic rights. Such rights include being informed about the grounds on which he/she has been arrested.

According to Article 22 (1) of the Indian Constitution, "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 be denied the right to consult and to be defended by, a legal practitioner of his choice”. Moreover, Section 50 of the Code of Criminal Procedure indicates and mandates that the arrested person has to be informed about the grounds on which they have been arrested and have to be given the Right to Bail.[1]

Also, the other important right of the person arrested under usual circumstances assures that “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 person shall be detained in custody beyond the said period without the authority of a magistrate”.[2]

On the contrary, the National Security Act of 1980 does not confer any of these rights to the person detained under the Act. The person in custody is kept in the dark about the reason for his/her arrest which may even extend up to ten days. Even when the government reveals to the incarcerated person the reason for their detention, it can withhold information which it considers to be against the public interest.

The person under arrest is also not entitled to the aid of any lawyer in any matter connected with the proceedings before an advisory board which is again constituted by the government for dealing with NSA cases. The National Crime Records Bureau (NCRB) is known to be a body that is responsible for collecting and analysing data related to crime in the nation. This data although does not include information on cases under the NSA as no FIRs are registered in this regard.

Thus, people can't have access to the exact number of detentions made under the Act. As per the Law Commission report from 2001, more than 14 lakh people were held under preventive laws in India.[3]

The analysis of the National Security Act of 1980 has repeatedly warned us that the Act is against the dignity and rights of detained persons and if unshed may lead to the subjugation of the voices of innocent individuals. It further comes under the wide criticism for its misuse by the authorities where the governments use the said Act as extrajudicial power.
As we find ourselves amid ongoing citizen-led protest, ergo it is time to rethink the meaning and implications of the NSA, 1980.

End-Notes:

1. S. 50 of CRPC, 1973.
2. Article 22 (2) of the Indian Constitution.
3. Data: 14,57,779; https://lawcommissionofindia.nic.in/reports/177rptp1.pdf.
   
   Award Winning Article Is Written By: Ms.Shreya Saxena
   
   

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