November 13, 2020
Preventive detention practices are a legacy of British colonial rule in India. British had used the preventive detention laws to detain potential saboteurs or insurgents, without trial and with minimum procedural safeguards. During the British India period, there were various preventive detention laws inherent in a couple of legislations and were dominant enough to crush any suspected activity of any individual or group.[1] In 1950, the new democratic India also gave rise to a preventive detention law with facets similar to those of the British era. The history of this legislation shows that the logic used to persecute freedom fighters during the British colonial regime continues today. Thus, Preventive detention laws are indeed the unwelcome gift of the British heritage to the newly independent India.[2] In India, Preventive detention by its nature is defined as an encroachment upon the personal liberty of an individual.[3] The Preventive Detention Act[4] was passed in 1950, shortly after the Indian Constitution came into force. This law authorizes the government to stop free individuals for up to one year. However, the law was renewed repeatedly for nearly two decades, it was finally allowed to expire in 1969. In 1971, two years after the Preventive Detention Act had expired, the Maintenance of The Internal Security Law[5] was approved and most preventive measures were revived powers of detention under the previous Law. These powers were expanded in 1975 when the government declared a state of National Emergency. In 1977 the notorious MISA was repealed. Two years later, the National Security Act[6] was introduced with powers of pre-trial detention similar to those of the Pre-trial Detention Act and the Maintenance of the Internal Security Law. The NSA remains in effect to date.
The
National Security Act, 1980
The National Security
Act, 1980 is an act that empowers the government to arrest a person if the
authorities are convinced that it is a threat to national security or to
prevent it from disrupting public order. In India, it is used as a preventive
measure.
This Act has been amended in the following years -
1)
NATIONAL SECURITY (AMENDMENT)ACT,1984(24 of 1984)
2)
NATIONAL SECURITY (AMENDMENT)ACT,1984(60 of 1984)
3)
NATIONAL SECURITY (AMENDMENT)ACT,1985(23 of 1985)
4) NATIONAL SECURITY (AMENDMENT)ACT, 1987(27 of 1987)
5) NATIONAL SECURITY (AMENDMENT)ACT,1988(43 OF 1988)
The NSA act of 1980
has been amended only 5 times and all the amendments took place in the short
span of 4 years. It is evident that the history of NSA (amendment) is weak and
no change took place from the last 32 years.
The main provisions that make the application of the NSA vague and grant more discretionary powers to the authorities, making possible the misuse of power are:
1) This Act permits the
Central and State governments to detain an individual where this is considered
necessary, to prevent that person “acting in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the
maintenance of public order”.[7]
Here the problem is that the Law does not define "state security" or
"public order", nor what particular actions can be considered
harmful. It also empowers executive officers to issue arrest warrants "if
they are satisfied" concerning anyone that such a warrant is necessary.
2) The concerned authority making the order has the power to keep
the suspect in captivity for 5 days without assigning any reason while in
exceptional circumstances this period can be extended up to 15 days.[8]
After this, the officer needs the permission of the state government for
further detention.
3) No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution, or another legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act.[9] Through this, the Act puts a bar to challenge the detention order, if the officers acted maliciously.
4) Article 22 (1) of the Constitution says that an arrested person cannot be denied the right to consult and be defended by a legal professional of their choice. But such a right is not available to a person detained under the NSA.
The NSA act of 1980
has been amended only 5 times and all the amendments took place in the short
span of 4 years. It is evident that the history of NSA (amendment) is weak and
no change took place from the last 32 years.
The main provisions
that make the application of the NSA vague and grant more discretionary powers
to the authorities, making possible the misuse of power are:
“The rule of law
should remain quintessential for every democracy to sustain and survive”. However,
when the Government, by rule of law, create new and special laws in the form of
enactment, many a time it undermines and seems to avoid the normal routes which
law should take or resort to.[10]
As scrutinized from the past experiences NSA has proved to be a travesty of
constitutional rights and is against the basic foundation of democracy and the
rule of law. Likewise, the National Security Act of 1980 also gives authorities
tremendous power to twist the tool of pretrial detention, however, and whenever
they want. It proposes to undermine the rights of citizens, challenge the
government's will, and shake people's faith in the establishment. Such a law is
anti-democratic and the arch-enemy of the rights of personal liberty.[11]
NSA
as a tool for discretionary power in the hands of the Government
“The phenomenon of
antibiotic resistance is not unknown in India where it is easy to buy them
over-the-counter. The result is that when you need them, they are ineffective.
And in a country with the highest bacterial disease incidence in the world, the
consequences are tragic”.[12]
Similar is happening
with the laws of this country which aims at protecting the security and
integrity of the country. The most ambiguous and vague provision of the NSA Act
is section 3[13]as
it fails to define either the range of acts considered threatening to
"public order" and "national security" and also various
terms such as “defense of India” “security of the State” and “maintenance of
public order”. As a consequence of this, the prosecutors have endorsed a very
broad interpretation of the “acts prejudicial to maintenance of peace and
security” This allows the Central government and the State government to invoke
NSA on very flimsy grounds like in matters of cattle offense. The irony would
be too mild a word to use here, where the death of a policeman on duty is
treated as an ordinary crime, while the alleged killing of cows is a national
security threat.[14]Consequently,
the judiciary had to intervene, the Supreme Court in A.K Gopalan v. The State
of Madras[15]
had ruled that “these expressions through constitutional but should be narrowly
constructed” so that the primary objective of the Act is fulfilled. Therefore
because of these ambiguous definitions, the government can invoke NSA in
trivial matters as well, whereof this law will become ineffective in
confronting real threats. These vague and general definitions in the NSA simply
serve as an excuse to humiliate the activists and hold them to account in the
name of public decency.[16]
Using NSA constant misuse is being done but no one knows in how many cases as
the National Crime Records Bureau (NCRB) does not list the number of people
booked under it. This again gives room for misuse as the government will not
have to give any justification regarding the arrest.
A tool to stifle dissent
When it comes to
democracy, liberty of thought and expression is a cardinal value that is of
paramount significance under our constitutional scheme. India is a democracy
and its citizens have a constitutionally guaranteed fundamental right to
freedom of speech and expression which they can enforce via the Indian court
system. Dissent is also essential in a democracy. “The right to disagree as
well as the right to dissent has been considered as part and parcel of freedom
of speech and expression”. Suppression of dissent has a chilling effect on
democracy. A budding democracy like India is often experiencing an onslaught of
dissent under the garb of National Security threats. Ever since its inception,
the National Security Act, 1980 has been widely abused by governmental
authorities to detain trade union leaders, human rights activists, and
political opponents without the minimal safeguards that the Indian Constitution
provides.
v Chandrashekhar Azad,
the flamboyant Dalit rights activist, was arrested in June 2017, In November 2017 Azad was charged
under the National Security Act. In late January 2018, the government extended the
application of the NSA under Section 12(1) of the said Act.
v In the case of Lok Adhikar
Sangh v. State of Gujarat and Others.- Gujarati civil liberties organization,
filed a writ of habeas corpus on
behalf of the two detenus with the Gujarat High Court, here the court
overturned the detention order and upbraided the authorities, saying that in
modern India, ‘the "state" is not free to act in any manner it likes.
v N. Bishewar v. State
of Manipur and others- Bishewar, an activist for the Meitei tribal peoples. The
party’s activities were non-violent and it was not banned by the state, the
party’s objective was merely to rename Manipur as ‘Kangleipak’, hardly the type
of revolutionary goal that would threaten public order.
It is conspicuous from
the above instances that India’s security laws framework is a persistent logic
frequently used against minority communities and dissenters critical of the
government of the day and its policies. The NSA’s misuse to suppress political
dissent is a blot on India’s democratic credentials. The author
strongly condemns the use of draconian laws like NSA against political and
human rights activists working in the interest of people. The authors strongly
condemn the use of draconian laws such as the NSA against political and human
rights activists who work in the interest of the people.
Challenge to
constitutionality and related provisions
As the Indian
constitution is wedded to Democracy and Rule of Law, the concept of safeguard
Provisions is a constitutional commitment for which the cardinal principle of
Criminal Law revolves around Natural Justice in which even the accused or
guilty person is treated with humane treatment. Safeguarding means protecting
detainees or adults at risk of harm, abuse, and neglect.
The Indian
Constitution as well as the Code of Criminal Procedure, 1973 establishes a
convoluted regime of procedural rights in preventive detention cases. Article 22(1)[17] and
section 50[18]
of CRPC states that the arrested person has to be informed about the grounds on
which they have been arrested and to be defended by a legal practitioner of his
choice. Secondly, Article 22(2)[19]
and section 167[20]
of CRPC, the arrested person has to be produced before the magistrate without
unnecessary delay.
The Hon'ble Supreme
Court, in D.K. Basu v. State of West Bengal[21] has
laid down specific guidelines required to be followed while making arrests.[22]
In the famous Habeas corpus case[23],
the court stated that“The impact upon the individual of the massive and
comprehensive powers of preventive detention with which the administrative
officers are armed has to be cushioned with legal safeguards against arbitrary
deprivation of personal liberty if the premises of the rule of law is not to
lose its content and become meaningless. ”
Irrespective of the
Safeguards provided in the Indian statutes and the Judicial Guidelines dispensed by the Supreme
Court, The NSA continues to detain persons without providing them with any
minimal safeguards. None of the above-mentioned rights are available to the
person who has been detained under the NSA. There is no recourse available for
the detenu, allowing for the ignorance of basic human rights.
It is an ironic
observation that the government has provided a safeguard for the class of
persons who already have more powers[24] i.e.
the police officers and neglecting the persons who are actually in need of
this. In the case of Shri PawanKharetilalArora v Shri Ramrao Wagh[25]
the Bombay High Court said that Even if
The grounds of detention were based on gross nature of mistakes and the
detaining authority committed a serious mistake which ‘shocks the judicial
conscience, even here it would be held that the authority acted in good faith
and granted protection under this section.[26]
There is no restricted
power on the part of the government. It allows the government a much wider
scope, where they can feel that there is no need for looking into the matter.
It is the heart of our argument that because of this particular provision the
prosecutors will not think twice before making an arbitrary arrest.
Conclusion and Suggestions
In spreading democracy
often laws such as NSA hamper the progress. Already, the Act is 32 years old and
reconsidering it is the need of the hour. Or else, the scary scenario of
arbitrary detention for personal goals becomes the norm which does not augur
well for the country. As a last resort to suggest amelioration in the National
Security Act, 1980, the authors propose a few amendments in the Draft
Legislation which could be apt for the Nation like India wherein the previous
past, such laws do not enjoy success due to the wide room given for the law
enforcement authorities to use and implement as per their whims and fancies. As
a result, these laws were grossly misused and were wrongly interpreted and
implemented which contributed to their ultimate failure.
v Establish a
commission, to review and recommend reforms to central and state preventive
detention laws and the constitutional provisions governing preventive detention
to ensure compliance with international human rights standards.
v Part of these efforts may require the central
government to develop mechanisms that provide for greater administrative and
judicial oversight of investigative and prosecutorial decision-making, and
transparency in that decision-making, to ensure nationwide uniformity and
adherence to fundamental rights. Mechanisms for citizens to seek redress and
hold government officials accountable for abuses should be improved.
v Safeguards should be
provided for arbitrary, politicized, and discriminatory Police decision making.
Efforts may require the Central Government to develop mechanisms that provide
for greater administrative and judicial oversight of investigative and
prosecutorial decision making and transparency in decision making to ensure
enforcement of fundamental rights.
v Compensation and
Rehabilitation- A comprehensive rehabilitation package, including assistance in
education and occupation, should be devised and announced for those wrongfully
incarcerated on false charges. The Government should provide for compensation
to be paid to the victims of false prosecution in a case.
v Improve the investigative capacity of the
police, including training to improve the collection and analysis of physical
evidence and examining the situation more effectively.
The author urges the Indian government to take several steps to cooperate more fully with international institutions responsible for monitoring and implementing compliance with human rights standards.
[1] Regulation of Bengal, 1818 & the Indian Council Act,
1961 & The Government of India Act, 1919 &
The Government of India Act, 1935 &The Defense of India
Act, 1935 &The Defense of India Act, 1939, The Anarchical and Revolutionary
Crimes Act, 1919 etc.
[2] Derek P Jinks, The Anatomy of an emergency: Preventive
Detention and Personal Liberty in India
22 MICH. J. INT’L LAW 311. (2001).
[3] Premnarayan v. Union of India, (1979) 4 SCC 370.
[4] The Preventive
Detention Act, No. 4 of 1950.
[5] Maintenance of Internal Security Act, No. 26 of 1971.
[6] National Security Act,
No. 65 of 1980, INDIA CODE(1993).
[7] National Security Act,
No. 65 of 1980, INDIA CODE(1993),§ 16.
[8] National Security Act,
No. 65 of 1980, INDIA CODE(1993),§ 8.
[9] Supra Note 7.
[10] AmanRameshwarMishra,Revamping the National Security laws
of India: Need of the hour,R.N.S.L.India 2(2017).
[11] Supreme Court of India on law of Preventive Detention 1950
Till date,(May 5,2020, 12:20), https://shodhganga.inflibnet.ac.in/bitstream/10603/61884/2/02_abstract.pdf.
[12] ManojJoshi,How India’s security Laws are being misused,(April
29,2020,10:15 PM),https://www.dailyo.in/politics/security-laws-bjp-narendra-modi-national-security-act/story/1/28936.html.
[13] National Security Act,
No. 65 of 1980, INDIA CODE(1993),§ 3.
[14] Joshi,supra.
[15] AIR 1950 SC 27.AIR 1950
SC 27.
[16] Harsh Sethi, Civil and Local Sensitivities,35 C.R.L.S
(2000).
[18] Code of Criminal Procedure, No. 2 of 1974 ,INDIA CODE(1993),§ 50.
[19] INDIAN CONST. art.22, cl 2.
[20] Code of Criminal Procedure, No. 2 of 1974 ,INDIA CODE(1993),§ 167.
[21] ( 1997) 1 SCC 416.
[22] Id.
[23] Additional District
Magistrate of Jabalpur v. Shiv Kant Shukla, A.I.R 1976 S.C 1207.
[24] National Security Act,
No. 65 of 1980, INDIA CODE(1993),§ 16.
[25] Criminal Writ Petition No. 545 Of 2009.
[26] Nitesh Daldhich, Decoding the Judicial Interventions in
National Security Act, 1980, The Criminal Law Blog (May5,2020,1;48PM), https://criminallawstudiesnluj.wordpress.com/2020/01/14/decoding-the-judicial-interventions-in-national-security-act-1980/#_ftn1.
(Ishita Yadav is a 3rd year law student from University of Petroleum and Energy Studies, Dehradun)
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