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The recent invocation of National Security Act, 1980
THE RECENT INVOCATION OF NATIONAL SECURITY ACT, 1980
The National Security Act, 1980 [1]was recently invoked by the different state governments when several incidents of misbehaving, abuse and assault against doctors, paramedical staff and police personnel were reported in some parts of the country.
The NSA is a preventive detention law enacted in 1980 by the Indira Gandhi government. This act can be labelled as the iteration of the Preventive Detention Act, 1950 that came into existence during the Nehru government. The legislative intent behind the enactment was to prevent individuals from acting against the interests of the state, including acts that threaten the security of the country and the states, or are detrimental to order and security of the country
NSA empowers the central and state governments to detain any individual, to deter him from initiating future crimes and/or from avoiding future prosecution. The government may also detain an individual to prevent him from disturbing public order or for undisrupted maintenance of the community's vital supplies and services.
Under the purview of NSA, the rights of the detenue are highly constricted. The reason of detention can be disclosed only after 5 days of arrest, extendable to 10 days under exceptional circumstances. On disclosure of information regarding detention, the government can suppress details, that it considers are inimical to public interest, if disclosed.
A special advisory board constituted by the government handles the NSA cases. The detainee is deprived of any legal aid and cannot access any practitioner for matters regarding the proceedings undertaken by the advisory board. [2]The detainee can be confined for a maximum time-period of 12 months, which can further be extended.
The NSA has faced an onslaught of criticisms on constitutional and human-rights aspect for its exploitation by the authority.
- It is branded as an anachronistic law, as utility of a preventive detention law is questionable in peacetimes.
- Usage of the NSA as an extra-judicial authority by the ruling government, as it bypasses several articles of the constitution (constitutional leeway) and if used for political motives, can cause a grave violation of human rights.
- Article 22(4) of the constitution [3]states, that no law providing for preventive detainment, shall authorize detention for more than 3 months. But the NSA satisfying the exceptions provide therein, can authorize a maximum detention period of 12 months, further extendable if provided with pertinent evidence.[4]
- The constitutionality of the National Security Act was challenged in the case of Roy vs Union of India[5] but the Supreme Court held that the law is not in contravention with the Constitution.
- Even the apex court in its judgement of Fayaz Ahmed Kumar vs State[6], ruled that the preventive detention laws must be strictly and narrowly interpreted and that the procedural protections must be complied with, carefully.
The recent invocation of this law, may have its pros and cons, but is justified for the present time-frame. As organized assaults on medical teams and police, evasion of quarantine and obscene behavior with the nurses and paramedics can be construed as a direct threat to maintenance of supplies and essential services.
The country is facing an unforeseen situation, and it will cost the government huge efforts, time and money to contain the spread of coronavirus and treat the infected. And it is through the medical and police personnel, the quarantining and lockdowns are effectively organized. Any attempt to thwart their efforts, that can further aggravate the situation, should be curbed with stringent justifiable action, and the present invocation serves the needful.
[1] The National Security Act, 1980, no. 65 (India), available at https://mha.gov.in/sites/default/files/National_Security_Act1980.pdf (last visited April 8, 2020).
[2] Section 11(4), National Security Act, 1980.
[3] Article 22(4), The Constitution of India.
[4] Section 12, National Security Act, 1980.
[5] Roy vs Union of India, 1982 SCR (2) 272.
[6] Fayaz Ahmed Kumar vs State, 2018 SCC OnLine J&K 688.
- National Security Act, 1980
- Public Order
- Maintenance of essential services
