Ishita Yadav and Prajjwal Tyagi, both second year law students of University of Petroleum and Energy Studies, Dehradun reviews the controversial National Security Act,1980 and it’s rampant abuse by the governmental authorities

During the British India period, several laws were dominant enough to suppress any suspected activity by an individual or group. In 1980, the new democratic India also led to a national security law with facets similar to those in the British era. As an ideal democracy, India’s primary aim is to preserve and promote individuals’ dignity and fundamental rights. But the National Security Act,1980, has shown some contrary trends. It has been rampantly abused by the government authorities and has led to politically motivated detentions and human rights violations. It gives the authorities tremendous power to twist the tool of pre-trial detention, however, and whenever they want. It proposes to undermine citizens’ rights, challenge the government’s will, and shake people’s faith in the establishment.

  • What is the National Security Act,1980?

The National Security Act of 1980 is a law of the Indian Parliament that was promulgated on September 23, 1980. It authorizes the Central or a State government to arrest a person to prevent them from acting in any way that affects India’s national security and relations abroad, maintain public order, or maintain supplies and services essential to the community, necessary to do so. The most erroneous part of the law is that the suspect can be kept behind bars for up to twelve months without any charge.

  • Provisions in conflict 

Section 3 is the most ambiguous and vague provision of the NSA Act since it does not define the spectrum of acts that are considered a threat to “public order” and “national security,” nor does it defines different terms such as “defense of India,” “security of the” state “and” maintenance of public order.” As a result, prosecutors have endorsed a comprehensive interpretation of “acts prejudicial to maintenance of peace and security. This enables the Central and the State government to invoke NSA on very flimsy grounds, such as cattle offenses. The irony would be too mild a word to use here, where the death of a policeman on duty is treated as an ordinary crime, while the alleged killing of cows poses a national security threat.[1] Consequently, the judiciary had to intervene, the Supreme Court in A.K Gopalan v. The State of Madras[2] had ruled that “these expressions through constitutional but should be narrowly constructed” so that the primary objective of the Act is fulfilled. Therefore because of these ambiguous definitions, the government can invoke NSA in trivial matters, of which this law will become ineffective in confronting real threats. 

According to Section 16 of the Principal Act, no legal disputes or proceedings against the central government or a state government and its prosecutors can be commenced. This again gives the government much more leeway in which they feel that there is no need to deal with the matter decently. It is at the heart of the argument that, due to this particular provision, prosecutors will not think twice before making an arbitrary arrest.

Adding further, section 3 of the NSA Act also states that any person within the territory of India, including foreigners, can be arrested only on the subjective satisfaction of the prosecuting officer. Above all, the Courts do not investigate the question of adequacy or inadequacy of this personal satisfaction. 

  • The squeeze on Human Rights is on

The National Security Act, 1980, arguably deviates from human rights standards in several aspects. The Indian Constitution and The Code of Criminal Procedure, 1973, establish a convoluted regime of procedural rights in preventive detention cases. Few of these safeguards available to the detained person are that he/she needs to be informed of the grounds of arrest and the right to bail, the person should be presented to the Magistrate within 24 hours of the arrest, he shall not be denied the right to consult and to be defended by a legal practitioner of his choice. In the famous Habeas corpus case[3], the court stated that “The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless. “Courts must, therefore, be vigilant to ensure that the detenu is not deprived of the modicum of rights and safeguardswhich the preventive law itself affords to him.[4]

Irrespective of the Safeguards provided in the Indian statutes and the Judicial Guidelines dispensed by the Supreme Court; The NSA continues to detain persons without providing them with any minimal safeguards. None of those mentioned above rights are available to the person who has been detained under the NSA. There is no recourse available for the detenu, allowing for the ignorance of basic human rights. Thus the NSA Act can be more precisely defined as The No Dalil, No Vakil, No Appeal Act.

  • A tool to stifle nonconformists

 The budding democracy, like India, is often experiencing an onslaught of dissent under the garb of National Security threats. Since its inception, the National Security Act, 1980 has been widely abused by governmental authorities to detain trade union leaders, human rights activists, and political opponents. The prominent leaders like Bhim Army chief Chandrashekar Azad Ravan, Manipur Journalist Kishore Chandra Wangkhem and Kafeel Khan detention under NSA prove that India’s security laws framework is a persistent logic frequently used against minority communities and dissenters critical of the government of the day and its policies. The NSA’s misuse to suppress political dissent is a blot on India’s democratic credentials.

  • Lack of transparency on the part of the government

Another persistent question is, “How many people are slapped under NSA every year ?”. But no one has the answer to it. Using NSA, constant misuse is being done, but no one knows in how many cases as the National Crime Records Bureau (NCRB) does not list the number of people booked under it. So, no figures are available for the exact number of detentions under this Act. This again gives a room for misuse as the government will not have to provide any justification regarding the arrest.

CONCLUSION

As scrutinized above, the NSA has proved to be a travesty of constitutional rights and is against democracy’s basic foundation. It is also evident that in spreading democracy, often, laws like NSA hampers the progress. Already the Act is 32 years old, and the amendment is the need of the hour. Or else, the scary scenario of arbitrary detention for personal goals becomes the norm that does not argue well for the country. These laws do not enjoy success due to the wide room for the law enforcement authorities to use and implement as per their whims and fancies. In the process, the NSA played havoc in the lives of generations of citizens in many parts of the country. It arguably deviates from human rights standards in several respects. If these criticisms are avoided, then to that extent, the world’s largest democracy, despite its citizen’s claim, would merely be a facade for a non-democratic rule. Therefore, to restrict this country from becoming a moribund society and to enable it to grow holistically, amendment in this law is necessary.


Ishita Yadav and Prajjwal Tyagi, both are second year law students from University of Petroleum and Energy Studies, Dehradun


[1]Manoj Joshi, How India’s security Laws are being misused, The Bigger Picture(April 29,2020,10:15 PM),https://www.dailyo.in/politics/security-laws-bjp-narendra-modi-national-security-act/story/1/28936.html.

[2]AIR 1950 SC 27.

[3]Additional District Magistrate of Jabalpur v. Shiv Kant Shukla,(1976)2 SCC 521.

[4]Sk. Salim v. State of West Bengal, AIR 1975 SC 602.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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