Misusing NSA: the detention of a Manipur journalist

Misusing NSA: the detention of a Manipur journalist

News:

Manipur journalist booked under the National Security Act (NSA) for making derogatory comments against  chief Minister

Important Facts:

• Journalist was arrested after he made derogatory comment against Prime Minister of India and Chief Minister of state in previous month
• Later District Magistrate granted him bail however he was arrested again a couple of days later and detained under the NSA.
• The detention of a journalist in Manipur under the stringent National Security Act for a social media post is a clear instance of misuse of power and a blatant violation of his rights as a citizen.
• The main argument put forward by critics is that National Security Act is used as an unconstitutional measure to deprive an individual of their constitutional rights violating the basic criminal jurisprudence tenets.

About NSA

• The NSA was introduced by Indira Gandhi after she came to power in 1980.
• The NSA was amended in 1984, 1985 and 1988 to consolidate some of the government’s powers, besides increasing the possible periods of detention in Punjab and Chandigarh.
• With the exception of the state of Jammu and Kashmir, the Act is applicable to the rest of the country. Jammu and Kashmir has a law similar to the NSA – the Jammu & Kashmir Public Safety Act (1978), which too has been grossly misused.
• The NSA can be invoked against
  • Those who imperil the defence of the state,
  • In Relation of the state with foreign powers
  • Security of the state,
  • Public order and Maintenance of essential supplies and services.
• NSA however allows the government to keep such serious offenders in custody without charging them for any of these serious offences. This is convenient for the government and police because it allows them to escape the strictures of the Criminal Procedure Code and the courts of the land.

The National Security Act and The Constitution:

• Under Article 20 of the Indian Constitution provide for a person accused of a crime, a guaranteed the rights to a legal counsel, to be informed of charges, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
• The NSA, however, does not apply any of these rights to preventive detention cases. It permits the extrajudicial detention of individuals if the government is subjectively “satisfied” that an individual is a threat to foreign relations, national security, India’s defence, state security, public order, or the maintenance of essential supplies and services.

Criticism:

• The Indian government has exploited the NSA by regularly detaining individuals, using the plea of preventing future disturbances of public order. But in reality, it is as a punishment for the current alleged crimes.
• It is disturbing that State governments continue to use it when the Law Commission is revisiting Section 124A of the Indian Penal Code there is a demand for its repeal.
• The government argued that the current and past activities show a propensity to commit crimes that can be prevented only through extra-judicial detention which sometime can be misused.
• Based on this assumption, court determined the future threat based on a close examination of the current crime, without examining whether there is any evidence of an intention or plan to commit a future crime. This type of examination suggests that preventive detention under the NSA is a punitive rather than preventive measure.
• Police often rely on the NSA when they are unwilling or unable to make an appropriate criminal case under the strictures of constitutional and statutory law

Conclusion

• India’s parliament and judiciary must revisit the NSA to close any loopholes that permit law enforcement to abuse constitutional and statutory rights.
• Mechanism must be evolved to deprive the police of this convenient tool for punishing alleged criminals without having to uphold accused persons’ fundamental rights.
• It is time for India to catch up with the international community and recognise that preventive detention must not be used as an ordinary and regular law and order measure.