How the national security act, 1980 would affect the individual liberty: critically evaluate

the same

(Project report)

Project submitted to

Dr. Parvesh Kumar Rajput

(Faculty Cr.l. - Socio Economic Offences)

Project submitted by

Neelisha

Sec “A”

Roll no.103

Semester 10

Batch-15

Hidayatullah National Law University

Raipur, Chhattisgarh

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DECLARATION

I , Neelisha , hereby declare that , the project work entitled , ‘How the national security
act, 1980 would affect the individual liberty: critically evaluate the same’ submitted to
H.N.L.U ., Raipur is record of an original work done by me under the able guidance if
Dr.Parvesh Rajput, Faculty Member of Cr.L.– Socio Economic Offences, H.N.L.U., Raipur
and this project has not performed the basis for the award of any Degree or diploma and similar
project if any. This report is the intellectual property of the on the part of student research work,
and the same or any part thereof may not be used in any manner whatsoever in writing.

NEELISHA

ROLL NO. 103

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ACKNOWLEDGEMENT

I would like to take this opportunity to express my deep sense of gratitude towards my
course teacher, Dr. Parvesh Rajput for giving me constant guidance and encouragement
throughout the course of the project.

Special thanks goes out to my seniors who have been relentless in their help and
supporting providing any material whenever required and my colleagues, who always
stood by me, irrespective of the decisions taken by me. Without their support this
project would not have seen the light of the day.

NEELISHA

TENTH SEMESTER

ROLL NO. 103

B.A. L.L.B(HONS.)

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 CONTENTS

DECLARATION............................................................................................................................1
ACKNOWLEDGEMENT..............................................................................................................2
INTRODUCTION..........................................................................................................................4
OBJECTIVES.................................................................................................................................5
RESEARCH METHODOLOGY...................................................................................................5
CHAPTER 1...................................................................................................................................6
CHAPTER 2...................................................................................................................................7
CONCLUSION………………………………………………………………………………..15
REFERENCES………………………………………………………………………………..15

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INTRODUCTION

Amid the ongoing protests in Delhi against the CAA and NRC, Delhi’s Lieutenant Governor
Anil Baijal, on 17th January 2020, vested the power to detain any person under the National
Security Act, 1980 (hereinafter referred to as NSA) for the next three months, in the hands of the
Delhi Police Commissioner. The sub-section (3) of Section 3 of NSA along with clause (c) of
Section 2 of the Act gives power to the Lt. Governor to endow emergency detaining authority
powers to the office of Delhi Police Commissioner. The act allows police to detain any person if
it feels that the said person is a threat to national security. The person detained also need not be
informed of the charges upon which he was detained for 10 days. The Delhi police will get such
detention power with effect from January 19, 2020, to April 18, 2020.

However, the Delhi police has claimed that it is a routine order and is issued quarterly to
maintain law and order in the country.

In August 2019, the Act was extended to the state of Jammu & Kashmir following the repeal of
Article 370 of the Constitution of India, giving powers to armed forces in the area to detain a
person on the ground of threat to national security.

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OBJECTIVES

● To study the concept of National Security Act, 1980.

● To throw light on National Security Act, 1980 and its provisions.
● To discuss how National Security Act, 1980 affect the individual liberty.
.

RESEARCH METHODOLOGY

The research methodology used in this project is analytical and descriptive. It is largely based on
electronic and secondary sources of data. Data has been collected from various articles and web
sources. This project is based upon non-doctrinal method of research. This project has been done
after a through research based upon intrinsic and extrinsic aspects of the project.

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 CHAPTER 1

What is NSA?

The NSA was brought in by the Parliament of India in the year 1980. The Act provides for
preventive detention in certain cases and matters connected therewith. The Act focuses on
maintaining law and order in the country and provides for detention of individuals who try to
impede the law and order situation of a state or country. The Act contains 18 sections and
confers power on states and central government to detain any person in the presence of the
following grounds:

 Acting in any manner prejudicial to the defence of India, the relations of India with
foreign powers, or the security of India.
 Regulating the continued presence of any foreigner in India or with a view to making
arrangements for his expulsion from India.
 Preventing them from acting in any manner prejudicial to the:
o Security of the State;
o Maintenance of the public order; and 
o Maintenance of supplies and services essential to the community it is
necessary to do so.

Tracing the timeline of the Act

India has had preventive detention laws dating back to the start of the colonial era. In the year
1818, Bengal Regulation III was passed which empowered the then government to arrest anyone
in matters relating to defence or maintenance of public order without giving the person option of

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judicial proceedings. Again, after 100 years, the British government passed the Rowlatt Acts of
1919 that provided for the confinement of a suspect without trial.

After India got independence, the first Act that provided for preventive detention rule was
enacted in the year 1950 during Prime Minister Jawaharlal Nehru’s government. The Act was
called the Preventive Detention Act, 1950. The NSA is enacted on similar lines with the 1950
Act. After the expiration of the Preventive Detention Act, 1950 on December 31, 1969, Indira
Gandhi, the then Prime Minister, brought in the contentious MISA, 1971 (Maintenance of
Internal Security Act), giving similar powers to the government. Though the MISA was
abrogated by the Janata Party government in 1977, the successive government, headed by Indira
Gandhi, brought in the NSA, 1980.

Certain provisions of the Act

Disclosure of grounds of detention to the persons affected by the order

Section 8 of the Act states that when a person is detained in pursuance of a detention order made
under the NSA, the authority, making the order shall as soon as may be, but ordinarily not later
than 5 days, and 10 days from the date of detention, in case of exceptional circumstances, for
reasons to be recorded in writing, communicate to him the grounds on which the order of arrest
was made and shall afford him the earliest opportunity of representing himself against the order
to the appropriate government.

However, as per sub section 2 of Section 8, the authority has the right to not disclose the facts
which it deems to be against the public interest to disclose.

Constitution of Advisory Boards

Section 9 of the Act states that:

The Central and State government shall constitute one or more Advisory Boards, whenever
necessary, for the purposes of the Act.

Every such Board shall be composed of three persons who are, or have been or are qualified to
be appointed as Judges of the High Court and such persons shall be designated by the appropriate
government.

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The appropriate government shall choose one of the members of the Advisory Board who is, or
has been, a Judge of a High Court to be appointed as its chairman, and in the case of a Union
Territory, the appointment to the Advisory Board of any person who is a Judge of a High Court
of a State shall be made with the previous sanction of the State government concerned.

 Reference to Advisory Boards

Section 10 of the Act states that, save as otherwise expressly provided in this Act, in every case
where the detention has been made under NSA, the appropriate government shall, within three
weeks from the date on which the person was detained under the order, place before the
Advisory Board commissioned by it under Section 9, the grounds on which the order has been
made and the representation if made, by the person affected by the order and in case where the
order has been made by an officer specified in sub section 3 of Section 3, also the report by such
officer under sub section 4 of that Section.

 Procedure followed by Advisory Boards

Section 11 of the Act emphasises that the Advisory Board shall, after taking into account
materials placed before it and after calling for further information as it may consider necessary
from the appropriate government or from any person called for the purpose through the
appropriate government or from the person concerned, and if, in any specific case, it considers it
essential so to do or if the person concerned wishes to be heard, after hearing him in person,
submit its report to the appropriate government within 7 weeks from the date on which the
person concerned was detained.

It specifies that the report submitted by the Advisory Board to the appropriate government must
separately specify the opinion of the Advisory Board as to whether or not there exists a sufficient
cause for the detention of the person concerned.

It further states that when there is a difference of opinion among the members of the Advisory
board, the majority opinion of such members shall be deemed to be the opinion of the Board.

The Section further reads that nothing in this Section shall entitle any person against whom a
detention order has been made to appear by any legal practitioner in any matter related with the
reference to the Advisory Board; and the proceedings of the Advisory Board and its report,

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excepting that part of the report where the opinion of the Advisory Board is specified, shall be
confidential.

 Period of Detention

Section 13 of the NSA talks about the maximum period for which a person can be detained.

It states that the maximum period for which a person may be detained in pursuance of any
detention order that has been made and confirmed is twelve months from the date of detention.
However, the section contains a proviso which suggests that the appropriate government has the
power to revoke or modify the detention order at any earlier time.

 Revocation of Detention Order

Section 14 talks about the revocation of a detention order. It states that, without prejudice to the
provisions of Section 21 of the General Clauses Act, 1987 (10 of 1987), a detention order may be
revoked or modified at any time:

Notwithstanding that the order has been made by an officer specified in sub section 3 of Section
3 by the State government to which that officer is subordinate or by the Central government; and

Notwithstanding that the order has been made by a State government, by the Central
government.

The expiry of revocation of a detention order (hereinafter referred to as earlier detention order)
shall not [whether such detention order has been made prior to or after the commencement of
NSA (Amendment), 1984] bar the making of another detention order (hereinafter referred to as
subsequent detention order) under Section 3 against the same person.

However, in a case where fresh facts have arisen after the revocation of the earlier detention
order made against the person concerned, the maximum period for which such person may be
detained in pursuance of the subsequent detention order shall, in no case extend beyond the
expiry of a period of 12 months from the date on which such person was detained under earlier
detention order.

 Immunity against an action taken in good faith

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Section 16 states that no suit or legal proceeding shall lie against the Central government or a
State government, and no suit, prosecution or other legal proceedings shall lie against any person
for any action taken in good faith or intended to be done in pursuance of the Act.

Recent use of the Act

There have been many times when the provisions of the Act were used arbitrarily and without
any reasonable cause. In January 2019, the BJP led Uttar Pradesh government arrested 3 persons
under the NSA in connection with an alleged cow slaughter case in Bulandshahr. In December
2018, a journalist from Manipur named Kishore Chandra Wangkhem was detained for a period
of 12 months under the NSA where he has posted an offensive post against the Chief Minister on
Facebook. Experts opine that the governments sometimes use this Act as an extra-judicial power.

Why is the Act contentious?

When a person is arrested normally, he or she has certain basic rights. Such rights include: the
right to be informed of the reason for arrest and the right to bail. These rights are ensured by the
various laws functioning in the country. Section 50 of the Criminal Procedure Code (Cr. PC)
provides that an arrested person has the right to be informed of the grounds of such arrest, and
the right to bail. Likewise, Section 56 and 76 of the Cr. PC also enumerates that an arrested
person shall be produced before a court within 24 hours of arrest. Furthermore, Article 22(1) of
the Constitution of India guarantees that an arrested person cannot be denied the right to consult,
and to be defended by a lawyer of his choice.

However, such basic rights are not available to a person who has been detained under the
provisions of NSA. A person has no right to know about the grounds of his detention for up to 5
days and in certain circumstances, not later than 10 days. While providing the reason for arrest,
the government has the power to reserve information which it thinks would go against the public
interest if disclosed. The arrested person has no right to seek the aid of any lawyer in any matter
concerned with the proceedings before an Advisory Board, which has been constituted by the
government to deal with the NSA cases.

Moreover, the National Crime Records Bureau (NCRB), which collects data related to crime in
India, does not include cases under the NSA as no FIRs are registered in this regard. Thus, it is

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impossible to have an idea about the exact number of detentions that have been made under this
Act.

CHAPTER 2

Individual liberty

Individual liberty means each of us having the freedom to make our own choices and do what we
want – within reason. As long as we respect the other three British values and the rights of
others, then we are free to pursue our ambitions, and follow our own volition.

How national security act,1980 will affect the individual liberty

Law is a nutshell to justify any action of the person whether it is wrong or right. It also gives
power to the authority to classify the wrong action. During emergency and sometimes even
during ordinary times every country is subject to laws and regulations providing for detention of
citizens without trial on the subjective satisfaction of the executive authority. The idea behind
such detention is to safeguard peace, security, and territorial sovereignty of the Nation. During
the British period, the statutory power for such detention was vested in the Governor General-in
Council. These regulations designed in the wake of war, insurgency, revolt and rebellion with a
view to intimidating the subject people to submission to colonial rule, survived till the adoption
of the Constitution. It is rather unfortunate that the provision of preventive detention was
provided in the Chapter of fundamental rights. In the Constituent Assembly, Ambedkar said,

"it has to be recognized that in the present circumstances of the country it may be
necessary for the executive to detain a person who is tempering either with public order or
with the Defense Service of the Country. In such case I do not think that the exigencies of
the liberty of the individual shall be placed above the interest of State."

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 The Preventive Detention (PD) is the negation of the right to personal liberty. It envisages
detention without trial, which is against the basic canons of criminal jurisprudence. At a time
when the liberty of the individuals crosses the limits and threatens the very existence of the state
and at that point of time it fails to control the enjoyment of individual's liberty, then the state can
resort to preventive detention. However, there was a difference in the exercise of the said power;
some countries tried to handle this measure carefully and cautiously. They adopted it casually
and only in grave situation affecting the very existence of the state. In other countries it became a
part of the life of the country, like India.

Now coming to the Indian experience, before independence, the British regime in order to
establish a strong foothold in India resorted to such preventive detention laws for an indefinite
period by the Defense of India Act 1915 and 1939, the Government of India Act 1919, the
Rowlett Act 1919 and the Bengal Criminal Law (amendment) Act 1925. Under some of these
detention Acts a person can be detained for six months without informing him of the ground of
detention. Only if the detention period was to be extended beyond six months would the detenu
be informed of the grounds of his detention and the case be referred to a tribunal. This was the
serious violation of human rights but at that time there were no consensus about the human
rights. When India got independence and the new Constitution came into force, several
provincial Acts and Ordinances providing preventive detention became void because the
Constitution of India duly recognize the concept of human rights in its preamble and these laws
were inconsistent with the Part III of the Constitution of India, which guaranteed fundamental
rights and liberties to the citizens. Freedom from arbitrary arrest is a basic human right which is

usually secured by the provision that any one who is arrested must be immediately produced
before a judicial magistrate/body which can then pronounced on the legality of the arrest, and, in
appropriate cases, authorize for continued detention. Article 22(1) and (2) of the Indian
constitution does confer such protection. But unfortunately Article 22, which guarantees
protection against arrest and detention, laid down the scheme under which preventive detention
law could be enacted even in normal times, Which is violative of the human rights standards set
forth in the Universal Declaration of Human Right and the two Covenants. This raises the issue
whether the concept of human rights enshrined in the Indian Constitution has any meaning. An
ansory glance at the use and misuse of Article reveals beyond any doubt that human rights are

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often violated with impunity and even eroded by the political power in the name of national
security and unity."

It is strange that in these days, the governing agency is suppressing the concept of human rights
by encroaching upon the civil liberties of the people. During the operation of internal emergency
Government use the preventive detention measures on wide scale. Laws like the Defense of India
Act, the Unlawful Activities Act, the National Security Act, the Maintenance of Internal Security
Act, the Terrorist And Disruptive Activities Act (TADA), and various other acts and provisions
of Indian Penal Code have presented a sordid picture of human rights and a dismal mosaic of
democratic life in the country.

The constitution of India in Part III makes provision for safeguards against Preventive Detention.
Article 22(4) to (7) deals with these safe guards. It provides for an Advisory Board to consider
the cases of detention for more than three months. Article 22(4)(a)' deals with constitution of an
Advisory Board. It says that an Advisory Board shall consists of persons who are, or have been,
or are qualified to be appointed as, judges of a High court. The words 'or are qualified to be
appointed as' may provide the opportunity to the Government to appoint their own party men or
Member of Parliament as the member of Advisory board. The lacunae was, however, removed
by the Forty fourth Amendment Act 1978 and made it mandatory for the board to consist of
sitting or retired High Court Judges selected by the Chief Justice of the appropriate High Court,
with a view to guarding against the board being packed with government henchmen, but this
statutory amendment, enacted in 1978, has not yet been brought into force. The detainee has no
right to be represented by a lawyer before the Board, but if the detaining authority is legally
represented, the detainee cannot be denied a lawyer. The hearing cannot possibly be compared
with that in an ordinary criminal court, as the detainee has no right to legal representation or to
cross-examine the parties on whose complaints or statements the order of detention was based."
He need not always be given an oral hearing, and the Advisory Board is not required to pass a
speaking order. Though the Constitution of India provides for important safeguards under Article
22(4), against these extraordinary measures yet the continuous emergency in India had resulted
in the deprivation of the protection against Preventive detention measures. The continuation of
emergency became a part of the Indian life and the protections of article 22(4) and (5) suffered a
great set back. The last and most sever attack on the provisions of article 22 came on June 27
1975, when the President of India imposed a blanket ban on its enforcement. The Supreme Court
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in its majority judgment in the Habeas Corpus Case validated these measures, where the Court
gave its micro fine approach in protecting the safeguards available to a detenu. On the one hand,
recourse of judicial protection was completely shut and on the other, the executive and the
legislative authorities were given clean chit to deal with Preventive detention cases. And it was
this state of affairs that was mainly responsible for the 'nineteen months' suffering to the persons
detained under the extraordinary measures who were denied not only the basic human rights but
also basic requirements '. And, therefore, unless the emergency provisions are amended in this
connection the safeguards in the article 22 (4) and (5) will always remain ineffective.

A brief survey of the working of the Preventive detention laws is necessarily a limited one since
information about the role of Advisory Boards under Preventive detention laws is legislatively
declared to be confidential'^ and is not revealed and most of the detention operation are hush
hush. These Preventive detention laws are of a quasi-criminal nature and the violation of the
Human Rights norms. Chief Justice Gjendragodkar in the case G. Sdanandan v. State of Kerala
Justice Hedge in the case Moti Lai V. Sate of Bihar , warned that " the continuous exercise of
such a power would make the conscience of the authority exercising those powers blunt to the
basic rights of the citizens and would ultimately pose a serious threat to the basic values on
which the democratic way of life in India was founded."

Conclusion

The Act, though, provides for maintaining law and order in the country, lacks reasonableness.
Certain provisions of the Act are arbitrary and there is no recourse available against such
provisions. The Act also ignores the basic rights of the arrested persons that are available to them
if they are arrested normally. Through publically agreed laws that correspond to a common set of
public restrictions, the ‘people as a sovereign body’ serves to protect against violations of
individual liberty and despotic power. Where no such common body exists, individuals are
deprived of this protection. In such cases, individuals must obey without liberty, while those in
power command under a state of license. To the contrary, it creates conditions in which free
individuals become servile and political inequality becomes entrenched, where citizens are
divided into those who obey and those who command.

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References

 Constituent Assembly Debate, Vol. IX, p. 1998.

 The Constitution of India, Article 22(1) provides, No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult and defended by, a legal practitioner of
his choice. Article 22(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of
Magistrate and so such person shall be detained in custody beyond the said period
without the authority of a Magistrate.

 Total numbers of detention were 6851, The Hindustan Times, New Delhi, 24 Nov. 1977

 The Constitution of India, Article 22(4)(a) provides, An Advisory Board consisting of

persons who are, or have been, or are qualified to be appointed as. Judges of a High Court
has reported before the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention. Provided that nothing in this sub-clause
shallauthorize the detention of any person beyond the maximum period prescribed by any
law made by the Parliament under sub-clause (b) of clause (7)

 Setalvad, M. Atul, "Preventive Detention in India", (edited), Iyer, Venket, Democracy,

Human Right and Rule of Law, Butterworths India, New Delhi, 2000, p. 41

 https://blog.ipleaders.in/national-security-act/

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