The National Security Act, 1980: An Overview and Analysis with latest case law and FAQ

Introduction

The National Security Act, 1980 (NSA) is a preventive detention law that empowers the Central and State Governments to detain any person without a formal charge and without trial for up to 12 months if they are satisfied that such person is acting or likely to act in a manner prejudicial to the security of the state, the defence of India, the relations of India with foreign powers, the maintenance of public order, or the maintenance of supplies and services essential to the community. The NSA was enacted to deal with the increasing threats of terrorism, communal violence, separatism, and anti-national activities in the country. However, the NSA has also been criticised by human rights activists and civil society groups for being draconian, arbitrary, and prone to misuse and abuse by the authorities.

The objective of this article is to provide an overview and analysis of the NSA, its provisions, its implementation, its judicial review, and its implications for the fundamental rights and civil liberties of the citizens and foreigners in India. The article will also discuss some of the recent judgements of the Supreme Court and various High Courts on the NSA and its application.

Provisions of the NSA

The NSA consists of 18 sections and one schedule. The main provisions of the NSA are as follows:

Section 3 empowers the Central Government or the State Government or any officer of either Government not below the rank of a Joint Secretary specially empowered for this purpose to make an order directing that any person be detained if they are satisfied that such person is acting or likely to act in a manner prejudicial to any of the following:

The defence of India, the relations of India with foreign powers, or the security of India.

The security of the State or the maintenance of public order.

The maintenance of supplies and services essential to the community.

Regulating the continued presence of any foreigner in India or making arrangements for his expulsion from India.

Section 4 provides that no detention order shall remain in force for more than 12 months from the date of detention unless it is revoked or modified earlier. However, this period can be extended by another 12 months by a Review Committee consisting of a Chairman and two other members appointed by the appropriate Government.

Section 5 provides that when a person is detained under a detention order, he shall be liable to be detained in such place and under such conditions as may be specified by the appropriate Government. The appropriate Government may also make regulations for regulating matters relating to detention such as discipline, maintenance, interviews, etc.

Section 6 provides that when a person is detained under a detention order, he shall be communicated with as soon as possible but not later than five days from such detention. The grounds on which such order has been made shall also be communicated to him in a language that he understands. However, this provision does not apply if it is against public interest to do so.

Section 7 provides that when a person is detained under a detention order, he shall have the right to make a representation against such order to the appropriate Government. The appropriate Government shall place such representation before an Advisory Board consisting of three persons who are or have been qualified to be appointed as Judges of a High Court within three weeks from the date of detention. The Advisory Board shall submit its report within 10 weeks from such date. If the Advisory Board reports that there is no sufficient cause for detention, then the appropriate Government shall revoke or modify such order accordingly.

Section 8 provides that when a person is detained under a detention order, he shall not have any right to personal liberty except in accordance with the procedure established by law. He shall also not have any right to move any court for any other purpose except as provided in this Act.

Section 9 provides that no court shall have jurisdiction to entertain any suit or proceeding against any person respecting anything done or intended to be done under this Act.

Section 10 provides that no court shall grant bail or parole to any person detained under this Act unless it is satisfied that there are grounds for believing that he will not act in any manner prejudicial to any of the purposes mentioned in section 3.

Section 11 provides that no court shall release any person detained under this Act on bail or parole on any ground whatsoever unless it is satisfied that there are grounds for believing that he will not act in any manner prejudicial to any of the purposes mentioned in section 3.

Section 12 provides that no court shall make any order for disclosure or production of any document or information relating to anything done or intended to be done under this Act unless it is satisfied that such disclosure or production is necessary for securing justice.

Section 13 provides that no court shall compel any officer who has made an order under this Act or who has acted under such order to disclose any fact or information relating to anything done or intended to be done under this Act unless it is satisfied that such disclosure is necessary for securing justice.

Section 14 provides that no court shall compel any person to give any evidence or produce any document or thing against himself in any proceeding under this Act unless it is satisfied that such evidence or document or thing is necessary for securing justice.

Section 15 provides that no court shall admit in evidence any confession made by any person detained under this Act unless it is satisfied that such confession was made voluntarily and without any inducement, threat, or promise.

Section 16 provides that no court shall admit in evidence any statement made by any person detained under this Act to any officer not below the rank of a Superintendent of Police unless it is satisfied that such statement was made voluntarily and without any inducement, threat, or promise.

Section 17 provides that the Central Government may make rules for carrying out the purposes of this Act. Such rules may provide for the manner and form of making detention orders, the places and conditions of detention, the procedure for review and advisory boards, the powers and duties of officers, etc.

Section 18 provides that the National Security Ordinance, 1980 (11 of 1980), which was promulgated on 23 September 1980, is hereby repealed. However, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under this Act.

Implementation of the NSA

The NSA has been invoked by various Central and State Governments over the years for detaining persons suspected of involvement in various offences or activities such as terrorism, communal violence, separatism, anti-national activities, smuggling, black-marketing, drug trafficking, etc. According to a report by the National Crime Records Bureau (NCRB), a total of 1,948 persons were detained under the NSA in India during 2017-2019. The highest number of detentions were reported from Uttar Pradesh (1,128), followed by Madhya Pradesh (229), Manipur (189), Tamil Nadu (125), and Rajasthan (111).

However, the NSA has also been alleged to have been misused and abused by the authorities for suppressing dissent, curbing protests, targeting political opponents, harassing minorities, and violating human rights. Some of the prominent cases of alleged misuse and abuse of the NSA are:

In January 2020, Dr Kafeel Khan, a paediatrician who had earlier been accused of negligence in the death of children at a hospital in Gorakhpur in 2017, was detained under the NSA for allegedly making inflammatory speeches at an anti-Citizenship Amendment Act (CAA) protest at Aligarh Muslim University. He was released on bail by the Allahabad High Court in September 2020 after it quashed his detention order as illegal.

In February 2020, Chandrashekhar Azad Ravan, the chief of Bhim Army, a Dalit rights organisation, was detained under the NSA for allegedly inciting violence during an anti-CAA protest in Delhi. He was released on bail by a Delhi court in April 2020 after it found no prima facie evidence against him.

In March 2020, Akhil Gogoi, a peasant leader and activist from Assam who had been arrested by the National Investigation Agency (NIA) for his alleged role in violent protests against the CAA in December 2019, was booked under the NSA by the Assam Government. He was granted bail by a special NIA court in July 2020 but remained in jail as he was also booked under other cases.

In April 2020, Safoora Zargar, a student activist and research scholar at Jamia Millia Islamia University who had been arrested for her alleged involvement in the Delhi riots in February 2020, was booked under the NSA by the Delhi Police. She was granted bail by a Delhi court in June 2020 on humanitarian grounds as she was pregnant at that time.

In May 2020, Varavara Rao, a poet and activist who had been arrested for his alleged links with Maoists and involvement in the Bhima Koregaon violence case in 2018, was booked under the NSA by the Maharashtra Government. He was granted bail by the Bombay High Court on medical grounds in February 2021 after he contracted COVID-19 and suffered from various ailments while in jail.

In June 2020, Siddique Kappan, a journalist who had gone to cover the Hathras gangrape case in Uttar Pradesh, was arrested along with three others for allegedly having links with Popular Front of India (PFI), an organisation accused of funding anti-CAA protests. He was booked under the NSA by the Uttar Pradesh Government.

FAQs with answers on writing an article on the National Security Act, 1980:

Q: What is the National Security Act, 1980?

A: The National Security Act, 1980 (NSA) is a law that empowers the Central and State Governments to detain any person without a formal charge and without trial for up to 12 months if they are satisfied that such person is acting or likely to act in a manner prejudicial to the security of the state, the defence of India, the relations of India with foreign powers, the maintenance of public order, or the maintenance of supplies and services essential to the community.

Q: What are the grounds for detention under the NSA?

A: The grounds for detention under the NSA are:

Acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.

Regulating the continued presence of any foreigner in India or making arrangements for his expulsion from India.

Preventing them from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

Q: What are the safeguards against arbitrary and illegal detention under the NSA?

A: The safeguards against arbitrary and illegal detention under the NSA are:

The detaining authority must communicate the grounds of detention to the detainee as soon as possible and in a language that he understands.

The detaining authority must furnish all the materials relied upon for making the detention order to the detainee, unless it is against public interest to do so.

The detaining authority must submit the detention report to the State Government as early as possible and without any undue delay.

The detaining authority must consider the representation made by the detainee against the detention order and forward it to the Advisory Board along with its comments.

The detaining authority must not make a fresh detention order on the same grounds after revoking or quashing an earlier detention order.

The detaining authority must not make a detention order on vague, irrelevant, or non-existent grounds or on mere suspicion or apprehension.

The detaining authority must not make a detention order on grounds that are already covered by other laws or that do not fall within the scope of the NSA.

Q: What are the criticisms of the NSA?

A: The criticisms of the NSA are:

It violates the fundamental rights and civil liberties of the citizens and foreigners in India.

It gives excessive and unchecked powers to the executive authorities to detain anyone without due process of law.

It is prone to misuse and abuse by the authorities for political vendetta, suppression of dissent, and curbing of legitimate protests.

It lacks transparency and accountability as there is no judicial review or parliamentary oversight over its implementation.