Decoding the Judicial Interventions in National Security Act, 1980

By Nityesh Dadhich

Introduction

‘Having passed 10 years of my total life in prison dungeons and condemned cells….. I know the tortures which detention without trial means and I can never reconcile with it’ said Shibban Lal Saxena in Constituent Assembly while the assembly was discussing Article 22 of the Indian Constitution. Article 22 of the Indian Constitution, which comes under Part III of the Constitution provides for Fundamental Rights. It explicitly takes away the protection guaranteed to “all citizens” by our constitution. Article 22 of the Constitution allows to preventively detain a person even before he has committed any offence. This power is often used to curb the voice of dissent. In Uttar Pradesh, over 5558 persons were preventively detained (for a period of 17 days from 10^th December to 27^th December) in order to curb the voices raised against Citizenship Amendment Act (‘CAA’).

            Recently, on 13^th December 2019, the Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) marked 45 years of its enactment. Another legislation often used to preventively detain persons is National Security Act (NSA), 1980 which shall be dealt with, in this article. Preventive Detention drastically differs from punitive detention, as the latter is imposed by the court of law after due process, whereas the former is imposed by the Government officials merely on the grounds of anticipation of the commission of a crime. Often, this power needs to be looked into especially at the time when the nation is protesting against the Citizenship (Amendment) Act, 2019.

Legislative and Judicial Inconsistency: The case of National Security Act

Preventive Detention is often justified as the state action to prevent total-warfare, dissent of those indulging in fifth-column activities, et-al. For such justifications, United Kingdom used preventive detention legislation during both of the World-War whereas United States of America used preventive detention powers during World-War II. India, on the contrary, continues to use preventive detention even during peacetime. Entry 9(Union List) and Entry 3 (Concurrent List) empowers both the Centre and State government to enact preventive detention legislation. In India, Preventive Detention Act was passed within one month of being a republic nation i.e. in February 1950. While introducing the Bill, Sardar Patel was aware of the infirmities of such a hurriedly drafted bill and felt the need to re-examine it, still, various provisions of National Security Act, 1980 (NSA) are taken directly from Preventive Detention Act, 1950.

            Section 3(1)(a) of the National Security Act allows detention to prevent him from acting in a manner which is prejudicial to ‘national security, orderless-ness in public, and the protection of essential services’. This power to preventively detain a person can be delegated to Police Commissioner or District Magistrate if the state government is satisfied that it is ‘necessary to do so’. Further, the act provides full immunity to the person acting under ‘good faith’. NSA provides that a person detained has to be informed of the grounds of detention within 5 days of detention which can be extended to 10 days in exceptional circumstances. The maximum permissible period of detention under NSA is 12 months, but the order for preventive detention can be modified or revoked at any time earlier or can be extended indefinitely beyond 12 months.

            Under NSA, if any detention is made then it has to be referred to an Advisory Board within 3 weeks from the date of detention, and the board has to submit its report within 7 weeks from the date of detention. Advisory Board is constituted by the Judges of High Court or persons qualified to be appointed as the judge of High Court. But the person detained does not have the right to be legally represented. Further, the board proceedings are private and reports are confidential.

            Advisory Board makes an opinion as to whether the grounds made out, are sufficient to preventively detain a person. If the Advisory Board finds the grounds sufficient then the appropriate government may confirm the order for detention. However, if the Advisory Board finds no appropriate grounds to permit detention, then the government shall have to release the detenu. In Licil Antony v State of Kerala, the Supreme Court held that there should be ‘proximate and live link’ between detention grounds and the purpose of detention. This test of proximity is not a mechanical or rigid test, but the court has to ensure in each case of a delay that such a link is not broken. If such delay is caused by the detenu to avoid detention, then such a link will not be considered to be broken. Further, the detention should be made on some valid grounds and not on some stale grounds. In Ramesh Yadav v District Magistrate, the Supreme Court held that a person cannot be detained merely on the ground that the detenu, being an under-trial prisoner, was likely to be released on bail.

Constrained Hands of Judiciary in Preventive Detention Cases

A few days back, Allahabad High Court in Prem Narayan v Union of India said that ‘preventive detention is an encroachment upon the personal liberty of an individual and it cannot be encroached in a casual manner’ but despite such cautions, courts have often condoned encroachment of liberty, essentially giving no remedy to the person for his suffering.

            In Khudiram v State of West Bengal, where detention was made under the Maintenance of Internal Security Act, 1971 (MISA), the Supreme Court said that the Court neither has the power to ‘consider the adequacy or propriety of the grounds’ nor is it permitted to ‘substitute its own opinion with that of the detaining authority which is best suited to take such decisions’. In ShibbanLal v State of Uttar Pradesh., Supreme Court said that ‘a court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as the grounds of detention’. In Shri PawanKharetilal Arora v Shri RamraoWagh case, a person was detained for nine months based on twenty-four false cases. Bombay High Court held that although the grounds of detention were based on ‘gross nature of mistakes’ and the detaining authority committed ‘a serious mistake’ which ‘shocks judicial conscience’[1], it accepted the apology by the authority and held that the authority acted in good faith and was granted protection under this section.[2]

In the famous case of A.K Gopalanv. State of Madras, where the constitutionality of the Preventive Detention Act, 1950 was challenged, Justice Das made the following comment, ‘A procedure laid down by the legislature may offend the Court’s sense of justice and fair play and sentence provided by the legislature may outrage the Court’s notion of penology, but that is a wholly irrelevant question. Our protection against legislative tyranny, if any, lies in free and intelligent public opinion which must eventually assert itself.’ In NandLal Bajaj v State of Punjab, the Court while agreeing that preventive detention laws and the lack of legal representation as a system is ‘wholly inconsistent with the basic idea of a parliamentary system of govt.’ concluded that ‘the matter is essentially political and…is the concern of statesman…and not judiciary’. The Supreme Court has time and again warned that the judges must observe judicial restraint and must not ordinarily encroach into the domain of legislature or the executives.

The way forward

It is really surprising to see how preventive detention finds its place in the chapter where other fundamental rights are granted. There have been various instances of misuse of Preventive Detention powers for political benefits or to curb free speech and expression. Recently, National Security Act was used in Uttar Pradesh to ensure ‘transparent and corruption-free examinations’ or arrests were made for the issues emerging from neighborhood cricket spats. Excessive power to detain a person without much checks and balances and minimum judicial interference increases the possibility of possible misuse of power to detain a person.

Supreme Court in Rekha v State of Tamil Nadu said that ‘Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during wartime). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise, we will be impinging upon an individual’s right to liberty guaranteed by Article 21 of the Constitution of India which was won after a long, arduous, historic struggle.

The increased frequency and the ease with which preventive detention has been invoked over time, presents the need before the Indian legal system to develop safeguards to ensure fair procedure before restraining the liberty of persons. In United States v Salerno, U.S. Supreme Court established a few safeguards to prevent misuse of Preventive Detention powers, these included, ‘right to counsel’ as an essential element of proceedings, strict adherence to speedy trial requirements, hearing within a reasonably short time of arrest, and others. While safeguards exist in India but by the time such safeguards come into picture, justice is delayed and denied. Increased use of this power, often to curb dissenting voices, poses a genuine need to increase transparency in government’s power to detain a person. Ensuring transparency would definitely mean re-considering the laws that sfail to protect some basic rights of an individual that cannot be compromised.

[Author is a second-year student at National Law University Delhi.]

[1] 2009 SCC OnLineBom 600 [12]

[2] Ibid [9]