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 foreigner.

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.

A preventive 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 practitioner[1].

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.

Moreover, amendment 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 Bihar.

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 picture[2].

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[3].

In the case of A.K. Roy v. Union of India 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.

In case:

1. Khudiram Das v. The State of West Bengal,
2. Haradhan Saha & Anr v. State of West Bengal and
3. 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 Madras 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 to PDA.

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[4].

The question arises, when our CrPC laws are enough then why there is a need to impose NSA?
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[5]. This shows how the State government uses NSA as a shield to avoid judicial scrutiny.

Conclusion
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.

End-Notes:

1. Vivek Narayan Sharma, Know Your Rights Part-1: Rights of an arrested person, The Times of India (July 5, 2019, 9: 10 PM), https://timesofindia.indiatimes.com/blogs/lawtics/know-your-rights-part-1-rights-of-an-arrested-person.
2. 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.
3. Yash Vithlani & Keerthanaa, Analysing Preventive Detention laws and Article 21, 4 The Law Brigade 515, 2018.
4. Kritika A, Democracy and Rule of Law, The Leaflet (Sep. 20,2018), http://theleaflet.in/preventive-detention-laws-like-the-national-security-act-under-which-chadrasekhar-azad-ravan-of-bhim-army-was-jailed-have-no-place-in-a-democracy.
5. 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.