National Security is a Draconian!


Introduction

The ‘National Security Act’ leads to the whole of India. The act permits the government to hold a person in custody if the authority believes that he or she is a threat to society and national security.

The law gives the centre and the state government the permit to put a person behind bars or detain them to prevent the public disturbances for if they become a danger to citizens. They also do so to protect the security of the country and to block the prolongation and supply of necessary services to the community. Moreover, the power to detain a person who is prejudicial to national security is vested in section 3(1)(a) of the National Security Act,1980.


History of National Security Act

The National Security Act came into force under India’s 1st lady Prime Minister, Mrs Indira Gandhi. Introduced on the 23rd of September, 1980, its law spine was laid in 1818 during the Bengal Regulation III. Furthermore, the English Government introduced the Rowlett Act in 1919 that authorized the forceful detaining of a suspect without any resort to trial. However, the Preventive Detention Act was carried out after independence under the eye of our Prime Minister, Jawaharlal Nehru, before the act expired in 1969. The NSA is a close iteration of the 1950 Act. After the Preventive Detention Act expired on December 31, 1969, the then Prime Minister, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 which gave similar powers to the government. Though the MISA was repealed in 1977 after the Janata Party came to power, the successive government, led by Mrs Gandhi, brought in the NSA.

Who has the power to detain?

The power to legally arrest or detain a person is delegated to the Police Commissioners (SSP) or District Magistrates as per section 3(3) of NSA, 1980. The maximum time-span to detain a person is 12 months, with the government having the power to stretch this time-span if it feels the need to. Moreover, the person detained under NSA can be carried for 10 days without knowing the charges vested against him or her.

If a person is arrested under this act, he/she will be passed to the advisory board within 3 weeks of detention after which the board will submit its report within 7 weeks. The reports of the advisory board set opinion of whether the grounds for preventive detention is sufficient. If the advisory board finds insufficient grounds then they will release the detainee. The board proceedings and reports are confidential with the person arrested having no right to legally appear either.


Why is the NSA considered draconian?

The NSA is draconian or harsh for if a person is arrested, the person has the birthright being a native Indian, he or she may challenge to represent themselves in court or based on section 50 of CrPC, may even know the charges being bestowed upon him, which is legally binding as well. However, in the case of NSA the person can be arrested and put into custody without knowing the charges summoned upon them.

As per section 56 and 76 of the IPC, a detained person is legally promised to be put before the court within 24 hours. In addition, article 22(1) of the Indian Constitution also guarantees the detained individual the right to enjoy legal advice from his or her legal practitioner. Unfortunately, the NSA doesn’t deliver any such basic rights to the detained person.


Preventive Detention

According to Article 22 of the Constitution, it gives power to preventively arrest a person prior to any commitment of his/her offence. This power is often misused to deter the voice of objection. The ‘NSA’ is applied to various offenders, wrongdoers who assaulted corona warriors ,for example, doctors, police and housekeeping. Likewise, in the state of Uttar Pradesh, the voices of approximately 6500 citizens were curbed and preventively restrained for 17 to 21 days to break the voices of dissent raised against the Citizenship Amendment Act. In a similar case, the Uttar Pradesh Police charged Shubham Chaudhary on the grounds of the NSA for blazing his vehicle at SSP’s office in 2019.

Surprisingly, preventive detention accomplishes in discovering its place in the Indian constitution. There are various examples where the powers of preventive detention are being used for political benefit and to dismantle free speech and expression. Too much use of power without checks and balances and with minimum judicial intrusion may result in the misuse of the power of the NSA. Freshly, NSA was used by the Uttar Pradesh Government to make sure transparent and corruption examples or detainment was made for the disputes from neighbourhood cricket spat in Muzaffarnagar and booked a skinny 68 years old, ‘Chaudhary Shamsher Ahmed’, who was later released based on reports of an advisory board.

Lately, three people were arrested in Uttar Pradesh under the draconian act in connection with an alleged cow slaughter incident in Bulandshahr. In 2018, a Manipur Journalist - Kishore Chandra Wangkhem was kept in jail for 12 months under NSA for posting a status against the state's chief minister. The Bhim Army chief - Chandrasekhar Azad was also detained for 15 months under this act.


NSA concerning protests

The power vested by the National Security Act,1980, should be reconsidered and focused against the grounds of NSA, especially during the protest against CAA, 2019. It can be understood that the protest was turning into a riot by the rule-breakers, but there were people with their silent protest and dissents, seeking an answer from the government.

This rigorous law is to be applied only when a person is or can be a danger to society or if he/she can potentially break the national security of the country. Henceforth, the frequency and simplicity by which preventive detention resorted across time formally awarded the Indian legal system to initiate protection, fair checks and balance before capturing or restraining the liberty of a person.


Criticism Against the NSA Act

No Record of Detentions under the NSA: The National Crime Records Bureau does not include cases under the NSA in its data as no FIRs are registered. Hence, no figures are available for the exact number of detentions under the NSA.

In recent cases, different State governments have invoked the stringent provisions of the NSA to detain citizens for questionable offences. Some experts argue that governments sometimes use the NSA as an extra-judicial power. The NSA has come under wide criticism for its misuse by the authorities. Experts describe the validity of the Act even during peacetime as 'anachronism'.


Conclusion

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 the basic rights of an individual. 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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