The National Security Act of 1980 (NSA) has been making headlines recently due to its application in certain cases. There have been instances where it was invoked to prevent the release of individuals from judicial custody, even when they were granted bail. The NSA gives power to the state to detain a person without formally charging them or taking them to trial. This article will delve deeper into the key aspects of the NSA, discuss the potential issues associated with it and also look at safeguards against its possible misuse.
About the National Security Act, 1980
The NSA is a law that facilitates preventive detention. Preventive detention involves confining a person with the aim of thwarting future crimes and/or preventing them from evading possible prosecution. Articles 22 (3) (b) and 22 (4) of the Constitution provide for preventive detention and restriction of personal liberty, respectively, citing reasons related to state security or public order.
Powers Granted to the Government
The NSA vests powers in the Centre or a State government permitting it to detain an individual to prevent actions that could be detrimental to national security. It also allows for the detention of people if there are fears that they might disrupt public order or impede the maintenance of supplies and services essential to the community.
Period of Confinement
The maximum detention period under NSA is 12 months. However, this term can be extended if the government uncovers fresh evidence that could justify the extended detention.
Issues with the Act
Detention under NSA is based on an administrative order passed by the Divisional Commissioner or District Magistrate (DM), not by the police based on specific allegations or violations of law. A DM can invoke the NSA even when a person is already in police custody, been granted bail by a court, or even acquitted. The Act also overrides an individual’s constitutional right (Article 22 of Indian Constitution) to be presented before a magistrate within 24 hours.
Immunity for Issuing and Implementing Orders
Interestingly, the Act offers protection to the DM who orders the detention – no prosecution or legal proceeding can be initiated against the official for carrying out these orders.
Observations by the Supreme Court
The Supreme Court has emphasized that preventive detention under NSA has to strike a delicate balance between public safety and individual freedom. To avoid misuse of power, they insist on a strict interpretation of the law and meticulous adherence to procedural safeguards.
Safeguards Against the Act
In terms of safeguards, Article 22(5) provides a procedural one under the NSA. It states that all detained persons have the right to make an effective representation to an independent advisory board, consisting of three members chaired by a High Court judge. Additionally, the writ of Habeas Corpus, a legal action challenging the basis of a person’s detention, is another protective measure provided by the Constitution against potential misuse of the NSA.