The recent application of the National Security Act (NSA), 1980, by the Indore district administration has drawn attention to the use of the preventive detention law. The law was invoked against four individuals who were accused of inciting local residents to harass health workers investigating the contact history of a Covid-19 patient.
Understanding the National Security Act, 1980
The NSA is a legislative tool designed for preventive detention. It provides for detainment of a person with the intention of preventing them from committing future crimes or evading subsequent prosecution. These provisions are safeguarded by Article 22 (3) (b) of the Indian Constitution which allows for preventive detention and restriction on personal liberty for the preservation of state security and public order.
According to Article 22(4), no law should allow for the detention of an individual for longer than three months unless there is sufficient cause for extended detention, as reported by an Advisory Board. The 44th Amendment Act of 1978 reduced this period from three to two months, but this amendment has not been implemented, meaning the original period of three months prevails.
The History of Preventive Detention Laws in India
Preventive detention laws have historical roots dating back to the Bengal Regulation III of 1818 enacted during the colonial era. This law gave the government power to arrest anyone for defense or maintenance of public order without needing judicial proceedings. In 1919, the British government introduced the Rowlatt Acts which allowed for the detention of a suspect without trial.
India introduced its first preventive detention law post-independence, the Preventive Detention Act of 1950, under the government of Prime Minister Jawaharlal Nehru. The NSA closely mirrors this 1950 Act.
The Power Given to the Government by the NSA
Under the NSA, the Centre or State government is empowered to detain persons to prevent activities prejudicial to national security. This can include actions disruptive to public order or essential supplies and services to the community. The maximum confinement period under the NSA is 12 months, but this term can be extended if new evidence emerges.
Restrictions on Basic Rights under the NSA
Individuals detained under the NSA are subject to several curtailments of their rights. For instance, they do not necessarily need to be informed of the reason for their arrest immediately. They can be left uninformed for up to five days, which can extend to ten days in exceptional circumstances. Furthermore, the arrested individual is not entitled to the assistance of a legal practitioner during proceedings before an advisory board handling NSA cases.
Criticisms Against the NSA Act
The NSA has faced criticism for its enforcement procedures. The National Crime Records Bureau (NCRB), responsible for the collection and analysis of crime data, does not record NSA cases as no FIRs are registered. Consequently, there is no data available on the number of NSA detentions. Experts argue that State governments are using the NSA’s stringent provisions to detain citizens for questionable offenses, misusing the NSA as an extra-judicial power.
The Need for Reform
Having been in place for four decades, the NSA requires updates to prevent its arbitrary usage. Arbitrary application undermines democracy and infringes on basic individual rights. The Supreme Court has emphasized that preventive detention laws need strict interpretation and thorough compliance with procedural safeguards is mandatory.
