The Uttar Pradesh (UP) police on June 30 invoked provisions of the National Security Act, 1980 against Samajwadi Party leader Ummed Pahalwan Idrisi who was arrested after he claimed that the attack against an elderly man in Uttar Pradesh by some youths was communal in nature. Idrisi had shot a video with the old man where he made the claim, later disputed by the Uttar Pradesh police.
In September 2020, the Centre informed the Parliament that between 2017-2018, the police had detained at least 1,198 people under the NSA with Madhya Pradesh accounting for at least two-thirds of the total detention. UP recorded 28% of the detentions. NCRB data further suggests that as of December 31, 2019, at least 3223 detenues were lodged in jails across the country.
Paediatrician Dr Kafeel Khan, Manipuri journalist Kishorechandra Wangkhem, Dalit leader and Bhim Army chief Chandrashekhar Azad (charges later revoked) were among many others booked under the NSA. More recently, NSA has been invoked against those critical of the Citizenship Amendment Act (CAA), the NRC and alleged violation of cow slaughter rules.
Currently, four Central laws provide for preventive detention: The Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act 1974, the National Security Act (NSA) 1980, the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities (EC) Act 1980, and the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances (NDPS) Act 1988.
Almost all States have also passed their own preventive detention acts. This means, there are at least five different statutes that allow for preventive detention.
What is the National Security Act, 1980?
According to the provisions of the NSA, a district magistrate or a police commissioner may authorise the extra-judicial detention of any individual if the government is "satisfied" that they are a threat to national security, public order, foreign relations, or the maintenance of essential supplies and services.
The individual may be held for 10 days without informing them of what the charge is; and detained for a period of 12 months without a charge. An individual may appeal against his detention before an advisory board, though they are not entitled to legal representation during the trial; or by filing a habeas corpus petition in the high court or the Supreme Court.
NSA at odds with constitutional laws
The provisions of the NSA are at odds with constitutional laws. Article 22(1) of the Indian Constitution says a person who has been arrested cannot be denied the right to consult and seek legal representation. Section 50 of the Criminal Procedure Code (CrPC), 1973 says a person who has been arrested has to be informed of the grounds of arrest and has the right to bail.
However, Article 22 (3) of the Constitution lays down the exception for preventive detention cases. It says the protection cited above is not available for those who have been arrested under preventive detention laws.
NSA finds roots in colonial-era laws
Prime Minister Indira Gandhi's government enacted the National Security Act in 1980 "to provide for preventive detention in certain cases and for matters connected therewith…". However, this is not a unique law. NSA finds its roots in colonial history.
In 1818, the British had enacted the Bengal Regulation III which empowered the government to arrest any person on the pretext of maintaining public order. The person was not allowed to challenge his detention, or given judicial recourse. Almost 100 years later, the Defence of India Act was enacted in 1915, and the infamous Anarchical and Revolutionary Crimes Act—more popularly the Rowlatt Act—four years after that.
The Rowlatt Act allowed the government to detain individuals without trial. At the time, hundreds of protestors had gathered at Jallianwallah Bagh to protest against the Rowlatt Act.
In independent India, the Preventive Detention Act, 1950 was introduced. It was similar to the provisions of the Rowlatt Act. Though this act was introduced as a temporary measure, it was in force till as late as 1969.
Maintenance of Internal Security Act (MISA), 1971 (similar provisions) and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 was introduced.
Both these acts could be considered to be predecessors of the NSA. While the legislature repealed MISA in 1977, COFEPOSA still remains in force.
"Traces of the Rowlatt Act can be seen in the NSA. At the time, the Britisher used it to persecute freedom fighters, today the government seems to be doing the same. This law was supposed to be sparingly used. Even the degree of persecution under NSA is different and stands at a higher footing than normal prosecution. There has to be an apprehension of breakdown of law and order, but, nowadays, the NSA is slapped after alleged acts are done," advocate Anas Tanwir said.
Delicate balance between social security and citizen freedom: Supreme Court
The use, or rather the misuse of the NSA has come under intense criticism from several sections of society.
On January 29, 2020, the UP police detained paediatrician Dr. Kafeel Khan under provisions of the NSA for allegedly delivering a hate speech against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC). The Allahabad high court ordered his release eight months later.
NSA was invoked against Manipuri journalist Kishorechandra Wangkhem for a 2018 social media post in which he criticised Prime Minister Narendra Modi, the RSS, and state chief minister N. Biren Singh. He too was released months later.
According to an Indian Express report, communal incidents and incidents of cow slaughter accounted for at least half the number of cases in UP where NSA was invoked. Of these, the Allahabad HC struck down orders and directed the release of at least 80% of the cases.
The higher judiciary has ruled that preventive detention under NSA must strictly be construed keeping in view the "delicate balance between social security and citizen freedom". To prevent "misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed" and "meticulous compliance with the procedural safeguards" has to be ensured, the Supreme Court has held.
The Supreme Court in Rekha v State of Tamil Nadu said "prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law." In its verdicts in Alpesh Navinchandra Shah, Bhaurao Punjabrao Gawande, and Rekha, the top court had set aside preventive detention orders observing that the intent of the law was to prevent the detenue from continuing their prejudicial activities and not to punish them for deeds done in the remote past.
"The apex court upheld the constitutional validity of the NSA, so maybe there's a need or use for it. However, it is its rampant misuse that has brought the law in question," Tanwir said speaking to BOOM.