News: Sonam Wangchuk’s preventive detention under the National Security Act (NSA) has renewed attention on this stringent law that is used against perceived threats to public order and national security.
About National Security Act (NSA), 1980
- It is an act that empowers the government to detain a person if the authorities are satisfied that he/she is a threat to national security or to prevent him/her from disrupting public order.
- Nature of detention: This detention is preventive and not punitive in nature.
- Aim: its aims is to avert anticipated threats.
- Purpose: The Act seeks to address threats to national security, public order, foreign relations, defence, and essential supplies while building in specified procedural safeguards for detainees.
- Constitutional provisions:
- Article 22(3) allows preventive detention and restrictions on personal liberty for reasons of state security and public order.
- Article 22(4) requires an Advisory Board’s opinion for detention beyond three months.
- Key features
- Power of detention: The Central and State Governments hold the power to order preventive detention under the NSA. District Magistrates and Police Commissioners may issue detention orders only when expressly authorized by the respective government, and they act within the scope of that authorization.
- A detention order operates like a warrant; custody conditions may be prescribed and transfer across states is permitted.
- Grounds for detention: Detention may be ordered to prevent acts prejudicial to the defence of India, relations with foreign powers, the security of India, the maintenance of public order, or the maintenance of essential supplies and services.
- Detention period: Preventive detention may extend up to 12 months. It can be revoked earlier, and any extension requires fresh material showing that the threat persists.
- Detainee Rights: Authorities must communicate the grounds of detention within 5 days (extendable to 15 days).
- The detainee has the right to make a representation to the government.
- Advisory Boards: An Advisory Board of High Court judges must review the case within three weeks of detention and order release if there is no sufficient cause.
- Advisory Board consists of three members who are qualified to be High Court judges.
- Central and State Governments may constitute one or more Advisory Boards as needed.
- Limits and procedural restrictions : The detainee has no right to legal representation before the Advisory Board, and the government may withhold facts in public interest.
- Temporary release: The appropriate government may temporarily release a detainee for a specified period with or without conditions, and may cancel such release at any time.
- Protection of good-faith action: No suit, prosecution, or other legal proceeding lies against authorities for anything done or intended to be done in good faith under the Act.
- Power of detention: The Central and State Governments hold the power to order preventive detention under the NSA. District Magistrates and Police Commissioners may issue detention orders only when expressly authorized by the respective government, and they act within the scope of that authorization.
Historical context
- Preventive detention in India traces back to colonial-era measures that permitted detention without trial, including Bengal Regulation III (1818) and the Rowlatt Acts (1919).
- After Independence, Parliament enacted the Preventive Detention Act, 1950, followed by Maintenance of Internal Security Act (MISA), (1971), which was repealed in 1978.
- Two years later, the framework culminated in the National Security Act (NSA).
- The NSA was promulgated on September 23, 1980.
