Introduction
Recent cases of extreme vandalism against medical practitioners during Covid-19 and instances of vocalization of dissent on online and offline mediums have again resurfaced the draconian National Security Act, 1980. With the governments of eminent states such as Uttar Pradesh and Madhya Pradesh rampantly invoking this act to censor free speech and regulate freedom of expression, the discussion around the swingeing act has intensified. The sheer strictness and severeness often lead the public to perceive this act as an iniquitous agent of constitutional tyranny.
National Security Act, 1980
This four-decade-old legislation basically empowers the executive authorities to exercise preventive detention of individuals if they are satisfied that the said individual is a threat to National security or law and order. Enacted by Indira Gandhi’s government through an ordinance with the chief aim to maintain law and order in the state, the very legislation is now being used by the executive authorities to glide over peaceful protestors and dissenters like a hot knife through butter.
Promulgated on September 23, 1980, The National Security Act prescribes that an individual can be detained without the charge for up to 12 months, which can be extended at the discretion of the government. The act further envisages that the individual detained can be held for 10 days without being intimated of the charge he/she is detained under. Moreover, though the individual has a right to appeal before the high court advisory board, he/she is not allowed a lawyer or extended legal assistance during the trial.
The act has been heavily criticized and received huge flak for its brutal and stringent nature which strongly goes against the principles of natural justice and the Rule of Law. Curtailment of individualistic freedoms by giving unfettered powers to the government is a gross violation of justice and equity.
A brief history of the act
The history of this act can be traced back to the colonial era. The Bengal Regulation Bill III which was enacted in the year 1818, can be marked as the seed of the contemporary preventive detention laws. The preambular aim of the bill was to empower the British rulers to arrest anyone in the wake of preventive measures without any trial. Moreover, the Rowlatt Acts of 1919 can also be seen as the extended legacy of the current NSA as it also empowered the British governments to arrest and detain any person on suspicion without trial, who they thought to be of plotting against the British. This act, naturally, was not appreciated by the Indians and was widely protested against. The protests were eventually shunned down at the Jallianwala Bagh incident which then gave rise to the ever-celebrated Non-Cooperation Movement.
As ironical as it seems, the freedom fighters who were the most aggrieved of such ‘black’ laws, were themselves the first to draw up the Preventive Detention Act, 1950 post-colonial freedom. The initial exercise was however not relegated to the maintenance of law and order but to suppress dissent as such was observed when the political leader, A.K. Gopalan was arrested. The initial actions clearly depicted that the act was used to curb political dissent and the legacy of British rulers was, therefore, restored. Following the expiry of the Prevention Detention Act, Indira Gandhi’s government then enacted a more contentious and controversial MISA (Maintenance of Internal Security Act, 1971) act, which gave indefinite, unquantifiable and inexhaustible powers to the government. The Consequence of MISA was explicitly evident at the time of the Emergency which led to the fall of Indira Gandhi’s government and the said act was effectively appealed by the new Janta Dal Government. However, Indira Gandhi rose back to power in 1980 and came up with the National Security Act 1980, which was loosely translated as ‘no vakeel, no appeal, no daleel’, solidifying the draconian nature of the law.
Legal Loopholes
Over-reliance of governments on such preventive detaining statutes in common criminal cases violates the fundamental aspect of law and order itself. It is imperative to understand that preventive detention as the name suggests, must be intended to stop future crimes and must not be exercised in response to ordinary laws and their subsequent violations.
Moreover, the National Security Act’s language is as vague as a shadow. For instance, Sec 8(1) of the act states that the detained individual must be intimated of the grounds of his detention within 10 days. But the following clause, i.e., Sec 8(2) categorically states that it is at the discretion of the concerned authority to disclose the facts to the individual as disclosing such facts may go against the interest of the public. It can be clearly observed that both these sections of the statute are contradicting each other. While the former envisages to intimate the detainee of his grounds of detention, the latter gives powers and discretion to the authority to decide whether intimation or news of any sort of, should be given to the detainee.
Similarly, Sec 9(1) instructs the central and state governments to constitute an advisory board to preside over the purposes of the Act. But again, in the following section, Sec 9(2) stipulates the constituents of the advisory board which includes three Judges of the High Court, to be appointed by the State Government itself. This besmirches the sanctity of free trial as the members of the advisory board are the appointees of the same government which has detained the individual in the first place. Naturally, the members of the board would certainly be inclined towards their appointers, i.e, the Government.
Conclusion
The act, made and brought up for the betterment of society and maintenance of law and order, has been used contrary to it. Almost 5,538 preventive detentions were made under the purview of the NSA in Uttar Pradesh. Unchecked, uncontrolled, and unfettered powers in the hands of government eventually kill the basic spirit of democracy, and therefore suitable and effective amendments must be made to the statute so as to stop the executive organ to exploit the legislating body on its codes.
About the author: Hamza Jamal is presently reading law and writes for The Wonk on polity and world affairs.