The National Security Act (NSA) preventive detention regime has become a convenient tool for concealing flaws in the Indian criminal justice system and depriving individuals of their constitutional and statutory rights 37 years after its enactment. Preventive detention is the extra-judicial confinement of an individual without charge – for up to one year under the NSA – in order to ostensibly prevent a future crime.

It infringes on nearly all due process rights, most notably the presumption of innocence. Proponents in India and around the world have justified the practice as necessary to, for example, prevent terrorist attacks or respond to existential national crises, claiming that the gravity of the threat justifies the limitations on fundamental rights. While most international activists see preventive detention as a last resort in exceptional situations, India employs it on a regular basis to deal with ordinary criminal matters. In a democratic, political government like India's, such use cannot be rationalised.

Historical Development:
It is important to understand the historical context, as well as the intent and motivation for enacting the legislation in the first place. Its origins can be traced back to colonial rule. It was first enacted in 1818 as Bengal Regulation III, with the intention of allowing the British government to arrest anyone in the name of defence and public order without a trial. The Rowlatt Acts of 1919 were the next in line, and they caused quite a stir.

As a result of these acts, the Jalliawala Bagh massacre occurred, which was followed by a nationwide protest as part of the non-cooperation movement. When it came to post-colonial independent India, our freedom fighters, who had suffered the most from these acts, did not hesitate to give preventive detention laws sanctity, enacting the Preventive Detention Act, 1950. It was not used much to maintain public order immediately after it was enacted; rather, a political leader of A.K. Goplan's sagacity was detained under the aforementioned act.

It was clear from the act's early actions that it was intended to suppress political dissent, and that tradition has been and persisted to be followed. Because the act was only in effect for a limited time, it was set to expire on December 31, 1969. Ms Indira Gandhi, the then-prime minister, introduced the more controversial MISA (Maintenance of Internal Security Act, 1971), which granted the government and law enforcement agencies undefined powers. It rose to prominence during Indira Gandhi's government's state of emergency.

It was later repealed by the Janata Dal government, which took power after defeating Indira Gandhi's Congress party in 1977. However, when Indira Gandhi returned to power in 1980, she enacted the National Security Act of 1980. In these cases, ‘no lawyer and no plea or appeal' is considered.

NSA and the Indian Constitution:

A person accused of a crime is entitled to legal counsel, to be informed of charges as soon as possible, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented, and to be believed innocent until proven innocent until proven guilty in a court of law. The NSA, on the other hand, does not apply any of these protections in cases of preventive detention. It allows for the extrajudicial detention of individuals if the government is perceptually "satisfied" that the individual is a threat to foreign relations, national security, India's defence, state security, public order, or the access to essential supplies and services.

A detainee/suspect may be held for up to ten days without being briefed of the reason for his or her detention. Even so, if needed in the public interest, the government may withhold information supporting the detention but not the grounds. Detainees are allowed to make "representations" as to why extra-judicial detention is unreasonable, but they are not allowed to question their perpetrators or the evidence in support of their detention.

They are also not permitted to consult with a lawyer at any point during the process, even while making such representations. Without any review, a detainee may be held for up to three months, and in certain circumstances up to six months. A three-member Advisory Board comprised of high court judges or persons competent to be high court judges determines the validity of any order issued for a period of more than three months. A person may be held extrajudicial for up to 12 months if approved.

In ordinary times and with few safeguards, India's constitution expressly allows for precautionary measures. The Supreme Court has repeatedly ruled that preventive detention measures like those used by the NSA are entirely constitutional. These decisions, however, do not address the trend of abusing preventive detention in order to conceal flaws in the criminal justice system and avoid the constitutional and statutory rights afforded to the criminally accused.

Loopholes of the Act:
Preventive detention laws are frequently used to maintain public order. However, there is a small distinction that must be kept in mind in order to do so. Every minor violation of law enforcement in a given situation cannot be considered a threat to public order. The Supreme court made this distinction in the case of Ram Manohar Lohia v. State of Bihar[1], and the Court stated that:
One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order, but not public order just as an act may affect public order but not security of the State.

In many of the cases examined, the detainee was accused of a crime, and by concealing the flaws in the Indian criminal justice system, they were detained under the NSA. It is beneficial to know the intricacies of the act and how some of them are distinctly termed, problematic, and can lead to false representation for a better understanding of the law.

Some of the concerned sections:

Section 8(1) of the Act states that:

The person detained should know of the grounds of his detention in not more than 5 days but not later than 10 days. However Section 8(2) states, Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

Section 9(1) of the act deals with the formation of the advisory board states that, The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.

Whereas, Section 9(2) deals with the constituents of the advisory board, which states that Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court and such persons shall be appointed by the appropriate Government.

The advisory board has been mocked because it is only appointed by the government to rule on orders issued by it. It's similar to an executive assessment of the executive's course of action, except that the executive can also appoint members who are willing to work for hand in hand with the government, giving it unrivalled power to act on its conscience.

Another dimension of the law that may undermine the advisory board's review power is that the proceedings and final report of the board are kept in-camera and thus not publicly available scrutiny under Section 11(4) which states that:
Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.

The detainee, who may be uninformed and unaware of his legal rights, is not permitted to be represented by counsel, whereas the detaining authority is permitted to be represented by counsel. This decreases his chances of being released after a successful representation in front of the advisory board, which can be summarised as quoted by the Supreme Court, The dice were loaded against the detainee in that whereas he had to go without legal assistance, the State Government had the benefit of an array of lawyers., in case of Nand Lal Bajaj v. State of Punjab and Another.[2]

Section 13 establishes the maximum period of detention, which may be up to 12 months. It also gives the government the authority to abrogate or alter the detention. Section 14(2) states that a fresh order can be brought about irrespective of the revocation of the expiry of the previous order. If the government seeks the same, it may result in longer detention.

When an individual is detained for clearly invalid reasons, he will not be released as long as government officials manage to include one of the bases for detention in the detention order. As a result, it indicates the arbitrary nature of the law. Arbitrariness is contrary in toto to Article 14. The principle of rationality is a necessary component of equality, and the procedure suggested by Article 21 should therefore pass the reasonableness test in order to be in accordance with Article 14.

Repercussions and Abuse of System in recent trends:

Preventive detentions can only be enforced in the most extraordinary situations in any democratic country. It must be used with extreme caution and only for as long as absolutely necessary. Nonetheless, in a democratic society like India, it has been used arbitrarily at the decision of the government and law state agencies.

The 177th Law Commission Report of 2001[3], on the other hand provides figures for persons arrested in India under preventive provisions – a whopping 14,57,779. This does not include Jammu and Kashmir. Obviously, this number has increased now. As a result, in order to comprehend this moral dilemma, it is essential to analyse a few recent cases from the plethora of cases in which the NSA was invoked and what the justification was for doing so.

The Uttar Pradesh government detained DR. Kafeel Khan under the NSA after he delivered an anti-CAA speech at Aligarh Muslim University, and he was also charged under sections 153A and 295A of the IPC. After an investigation exonerated him in the BRD medical death case, it was clear that he had a grudge against him.

The Allahabad High Court ruled that Khan's speech at an anti-CAA protest made no attempt to smear law and order or to undermine public order. Keep in mind that Khan was arrested two months after his speech, which undermines the NSA's preventive detention policy. Other than this the arrest of Bhim Army Supremo Chandrashekhar under the NSA was making headlines all over the media.

Recently, the Allahabad High Court has overturned the UP government's orders to impose the National Security Act (NSA) in 94 cases. The 120 cases were heard in the Allahabad High Court, and in addition to the 94 cases, the court quashed 32 cases issued by the District Magistrate and ordered the detainees' release.[4]

Other states have also misused the NSA, out of which recent one is the incident where Kamal Nath government in Madhya Pradesh used it in a cow slaughter case and the Manipur government detained a journalist under the law for uncharitable comments on the chief minister, though he was granted bail for the offence by the magistrate.

Although the act has been criticised by many elites in the country, it has also been criticised by the world organizations. Many organisations working in the field of human rights and public policy have been critical of the act and its implementation since its inception.

Conclusion:
The Indian parliament and judiciary must reconsider the NSA in order to close any discrepancies that allow law enforcement to violate constitutional and statutory rights. They must restrict the police of this convenient tool for punishing alleged criminals without having to maintain the basic rights of the accused. They must also compel the criminal justice system to address its flaws directly and appropriately. It is past time for India to catch up with the rest of the world and recognise that preventive detention should not be used as a routine law and order measure.

In case of Vijay Narain Singh V. State of Bihar and others,[5] Justice A.P Sen has well quoted that:
The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except in accordance with the procedure established by law.

End-Notes:

1. Ram Manohar Lohia v. State of Bihar (1966)1 SCR 709
2. Nand Lal Bajaj v. Stae of Punjab and Another. 1981, AIR 2041
3. Available at: https://lawcommissionofindia.nic.in/reports/177rptp1.pdf
4. Available at: https://www.indiatoday.in/india/story/allahabad-hc-cancels 94-nsa-cases-lodged-by-up-govt-1787764-2021-04-06
5. Vijay Narain Singh V. State of Bihar and others (1984) 3 SCC-14