National Security Act

#GS2 #Governance 


 

A group of former civil servants has demanded that the “illegal and unconstitutional practice” of seriously injuring and killing people in extra-judicial “encounters”, with Muslims, Dalits and OBCs allegedly being the main target, must stop in Uttar Pradesh.

  • There exists misuse of the draconian National Security Act, which is a preventive detention law
  • It had been primarily used against minorities like Muslims and Dalits. 
  • Dissenters are also targeted 
  • Mostly the law is used for offences such as cow slaughter, protests against the Citizenship (Amendment) Act and attacks on the police. 
  • These offences could be dealt by normal penal provisions. But NSA is used to criminalise such offences.

National Security Act

  • The National Security Act is a preventive detention law.
  • Preventive Detention means, the detainment of an individual to prevent him/her from committing future crimes or escaping future prosecution.
  • According to Article 22 (3) (b) of the Constitution, preventive detention and restriction on personal liberty for reasons of state security and public order can be done.
  • According to the provisions laid in Article 22(4), no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
    • An Advisory Board reports proper reason for extension of detention.
      • The 44th Amendment Act of 1978 has decreased the detention period without obtaining the opinion of an advisory board from three to two months. But this provision is not in force.
    • The individual is detained according to any of the provisions of any law made by the Parliament.

Background

  • Preventive detention laws emerged in India back in colonial period
  • During the Bengal Regulation III of 1818, such a law was enacted to enable the govt to detain anyone for defence or maintenance of public order by denying the individual access to any judicial proceedings.
  • The British came up with the Rowlatt Acts in 1919 that enabled detention of a suspect without trial.
  • After Independence, Preventive Detention Act of 1950 (expired in 1969) was enacted. The NSA is a close iteration of the 1950 Act.

Empowers Government 

  • The provisions laid out in National Security Act enables the Centre govt or State government to detain an individual to prevent him/her from:
    • engaging in any action in any manner prejudicial to national security.
    • disrupting public order
    • maintenance of supplies and services essential to the community.
  • Confinement Period: Maximum: 12 months - the term can be extended if the government finds fresh evidence.
  • No Basic Rights to People Detained under the NSA, including:
    • The right to be informed of the reason for the arrest (Section 50 of the Criminal Procedure Code
    • Sections 56 and 76 of the Cr. PC says that a person has to be produced before a court within 24 hours of arrest.
    • Article 22(1) of the Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
      • Under the act, the detained person cannot access the aid of any legal practitioner in any matter connected with the proceedings before an advisory board, which is constituted by the government for dealing with NSA cases.

Criticism Against the NSA Act

  • There exists no Record of Detentions under the NSA: The National Crime Records Bureau (NCRB), which contains all the crime data in the country, does not contain NSA cases since FIRs are not registered. As a result, no data is available for the exact number of detentions under the NSA.
  • Multiple State governments have made use of stringent provisions of the NSA to detain citizens.
  • Certain experts accuses the governments of using the NSA as an extra-judicial power.
  • NSA has been criticised widely  for its misuse by the state.

Way Forward

  • It needs to be noted that the Act is 40 years old. Changes are required to ensure that the Act is not used arbitrarily. Arbitrary use of the Act hampers democracy and basic rights of an individual.
  • Even, the Supreme Court has held that the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, is mandatory and vital.
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