Block 4: Preventive Detention Laws

Unit 2: National Security Act.

Structure

2.1 Introduction

2.2 Objectives

2.3 Detention

2.4 Advisory Boards

2.5 Judicial decisions relating to NSA

2.6 Summary

2.7 Terminal questions

2.8 Answers and Hints

2.9 References and Suggested Readings

2.1 Introduction
The National Security Act, 1980 was enacted by the Parliament following the

realization that the administration, in the absence of powers of preventive

detention, would be greatly handicapped in dealing with sensitive issues

relating to defence, security, public order and services essential to the

community. The National Security Ordinance, 1980 was, therefore,

promulgated by President on September 22, 1980. Subsequently a slightly

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modified National Security Bill was passed by both the Houses of Parliament

and received the assent of the President on 27th December, 1980.

According to the Statement of Objects and Reasons of that Bill, it was

considered necessary that the law and order situation in the county is tackled in

a most determined and effective way in the backdrop of communal disharmony,

social tensions, extremist activities, industrial unrest and increasing tendency on

the part of various interested parties to engineer agitation on different issues. It

further recognized that the anti-social and anti-national elements including

secessionist, communal and pro-caste elements and also other elements who

adversely influence and affect the services essential to the community pose a

grave challenge to the lawful authority and sometimes even hold the society to

ransom.

The National Security Act, 1980 was amended twice in 1984, and subsequently

in 1985,1987 and 1988.

2.2 Objectives

After going through this unit, you should be in a position to

• Understand grounds for detention under the National Security Act,

1980 as well as procedural requirements governing such detention

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• Range of safeguards available to prevent abuse by the Executive of

powers of preventive detention under NSA

• How Constitutional safeguards under Art. 22(4)-(7) were incorporated

in the National Security Act, 1980

• Analyse judicial decisions concerning National Security Act, 1980

2.3 Detention

According to Section 3 (1) of the National Security Act, 1980, the Central

Government or the State Government may,--

(a) if satisfied with respect to any person that with a view to preventing

him from acting in any manner prejudicial to the defence of India, the

relations of India with foreign powers, or the security of India, or

(b) if satisfied with respect to any foreigner that with a view to regulating

his continued presence in India or with a view to making arrangements

for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

Section 3(2) of the National Security Act, 1980 further stipulates that the

Central Government or the State Government may, if satisfied with respect to

any person that with a view to preventing him from acting in any manner

prejudicial to the security of the State or from acting in any manner

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prejudicial to the maintenance of Public order or from acting in any manner

prejudicial to the maintenance of supplies and services essential to the

community it is necessary so to do, make an order directing that such person be

detained. This power could be exercised by a District Magistrate or a

Commissioner of Police within the local limits of their jurisdiction [Section 3(3)

of the NSA] but the period specified in an order made by the State Government

under this sub-section shall not, in the first instance, exceed three months, but

the State Government could extend such period from time to time by any period

not exceeding three months at any one time.

Section 3(4) and 3(5) of the National Security Act, 1980 lay down certain

reporting requirements. When any order is made under this section by an

officer mentioned in sub-section (3), he shall forthwith report the fact to the

State Government to which he is subordinate together with the grounds on

which the order has been made and such other particulars as, in his opinion,

have a bearing on the matter, and no such order shall remain in force for more

than twelve days after the making thereof unless, in the meantime, it has been

approved by the State Government. When any order is made or approved by the

State Government under this section, the State Government shall, within seven

days, report the fact to the Central Government together with the grounds on

which the order has been made and such other particulars as, in the opinion of

the State Government, have a bearing on the necessity for the order.
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Section 5 of the National Security Act, 1980 stipulates that every person in

respect of whom a detention order has been made shall be liable to be detained

in such place and under such conditions, including conditions as to

maintenance, discipline and punishment for breaches of discipline, as the

appropriate Government may, by general or special order, specify.

In A.K. Roy V. Union of India [AIR 1982 SC 710 (740), the Supreme Court

held that it is neither fair nor just that a detenu should have to suffer detention in

`such place’ as the Government may specify. The normal rule has to be that the

detenu will be kept in detention in a place which is within the environs of his or

her ordinary place of residence.

Section 5 A which was inserted by the National Security [Second Amendment]

Act, 1984 stipulates that “where a person has been detained in pursuance of an

order of detention [whether made before or after the commencement of the

National Security [Second Amendment] act, 1984] under section 3 which has

been made on two or more grounds, such order of detention shall be deemed to

have been made separately on each of such grounds and accordingly –

a) Such order shall not be deemed to be invalid or inoperative merely

because one or some of the grounds is or are –

i. Vague,

ii. Non-existent,
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iii. Not relevant,

iv. Not connected or not proximately connected with such person, or

v. Invalid for any other reason whatsoever,

And it is not, therefore, possible to hold that the Government or officer

making such order would have been satisfied as provided in section 3 with

reference to the remaining ground or grounds and made the order of

detention;

b) The Government or officer making the order of detention shall be deemed

to have made the order of detention under the said section after being

satisfied as provided in that section with reference to the remaining

ground or grounds.”

In the case of Vashisht Narahn Karvaria v. State of Uttar Pradesh [AIR 1990 SC

1272], the Supreme Court held that where detention order was held to be

vitiated due to placing of extraneous materials before detaining authority and

not on ground that one of the grounds of detention order had become invalid,

section 5A would not be applicable.

Section 6 of the National Security Act, 1980 stipulates that no detention order

shall be invalid or inoperative merely by reason—

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(a) that the person to be detained thereunder is outside the limits of the

territorial jurisdiction of the Government or officer making the order, or

(b) that the place of detention of such person is outside the said limits.

Section 7 of the National Security Act, 1980 confers certain powers on the

Government in relation to absconding persons.

Self-Assessment question spend 3 minutes

1. What are the grounds for detaining a person under the National Security

Act, 1980?

Safeguards

Section 8 of the National Security Act has been framed in a manner to comply

with the requirement of Clause (5) of Article 22 of the Constitution [Please see

Unit 1 for details of Art. 22 of the Constitution]. It outlines the grounds of order
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of detention to be disclosed to persons affected by a detention order. According

to Section 8(1), when a person is detained in pursuance of a detention order, the

authority making the order shall, as soon as may be, but ordinarily not later

than five days and in exceptional circumstances and for reasons to be recorded

in writing, not later than ten days from the date of detention, communicate to

him the grounds on which the order has been made and shall afford him the

earliest opportunity of making a representation against the order to the

appropriate Government. However, the authority need not disclose facts which

it considers to be against the public interest to disclose.

The maximum period for which a person may be detained in pursuance of any

detention order which has been upheld by the Advisory Board is twelve months

from the date of detention [section 13]. Section 14 lays down that both the State

Government and Central Government can revoke the order of detention passed

by an officer authorized under sub-section 3 of Section 3. Similarly a detention

order passed by the State Government can be revoked by the Central

Government The Government has the power to revoke or modify the detention

order at any earlier time [Section 14(1) of the Act]. The expiry or revocation of

a detention order shall not bar the making of another detention order under

section 3 of the Act against the same person. In a case where no fresh facts have

arisen after the expiry or revocation of the earlier detention order made against

such person, the maximum period for which such persons may be detained in
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pursuance of the subsequent detention order, shall, in no case, extend beyond

the expiry of a period of twelve months from the date of detention under the

earlier detention order.

2.4 Advisory Boards

Sections 9, 10 and 11 of the Act have been enacted in compliance with the

requirements of Clause (4) of Article 22 of the Constitution. The Central

Government and each State Government shall, whenever necessary, constitute

one or more Advisory Boards for the purposes of this Act. Every such Board

consists of three persons who are, or have been, or are qualified to be appointed

as, Judges of a High Court, and such persons shall be appointed by the

appropriate Government [Section 9 of the Act]. In every case of preventive

detention order under NSA, the appropriate Government shall, within three

weeks from the date of detention of a person under the order, place before the

Advisory Board, the grounds on which the order has been made and the

representation, if any, made by the person affected by the order, and in case

where the order has been made by an officer, also the report by such officer

[Section 10 the Act].

Section 11 of the National Security Act, 1980 outlines the procedure of

Advisory Boards. The Advisory Board shall, after considering the materials

placed before it and, after calling for such further information as it may deem

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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 particular case, it considers it essential so to do or if the person

concerned desires to be heard, after hearing him in person, submit its report to

the appropriate Government within seven weeks from the date of detention of

the person concerned. The report of the Advisory Board is required to specify in

a separate part thereof the opinion of the Advisory Board as to whether or not

there is sufficient cause for the detention of the person concerned. When there is

a difference of opinion among the members forming the Advisory Board, the

opinion of the majority of such members shall be deemed to be the opinion of

the Board. Nothing in section 11 entitles any person against whom a detention

order has been made to appear by any legal practitioner in any matter connected

with the reference to the Advisory Board; and the proceedings of the Advisory

Board and its report, excepting that part of the report in which the opinion of the

Advisory Board is specified, shall be confidential.

According to Section 12 of the National Security Act, 1980, in any case where

the Advisory Board has reported that there is, in its opinion, sufficient cause for

the detention of a person, the appropriate Government may confirm the

detention order and continue the detention of the person concerned for such

period as it thinks fit. On the contrary, in any case where the Advisory Board

has reported that there is, in its opinion, no sufficient cause for the detention of
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a person, the appropriate Government is required to revoke the detention order

and release the person concerned forthwith.

Self-assessment question spend 5 minutes

2. How did National Security Act, 1980 give effect to constitutional

safeguards contained in Art. 22(4)-(7)?

Section 14 A which was inserted by the National Security (Amendment) Act,

1987 stipulates circumstances in which persons may be detained for periods

longer than three months without obtaining the opinion of Advisory Boards.

Any person in respect of whom an order of detention has been made at any time

before 8 June 1989 may be detained without obtaining the opinion of the

Advisory Board for a period longer than three months, but not exceeding six

months, from the date of his detention where such persons had been detained

with a view to preventing him, in any disturbed area –

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i. From interfering with the efforts of Government in coping with the

terrorist and disruptive activities, and

ii. From acting in any manner prejudicial to –

a) The defence of India; or

b) The security of India; or

c) The security of the State; or

d) The maintenance of public order; or

e) The maintenance of supplies and services essential to the

community.

Under the above circumstances, time limits mentioned under other sections of

the National Security Act, 1980 have also been revised slightly upwards.

Section 15 of the National Security Act, 1980 refers to temporary release of

persons detained. According to it, the appropriate Government may, at any time,

direct that any person detained in pursuance of a detention order may be

released for any specified period either without conditions or upon such

conditions specified in the direction as that person accepts, and may, at any

time, cancel his release. While directing the release of any person, the

appropriate Government may require him to enter into a bond with or without

sureties for the due observance of the conditions specified in the direction. Any
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such person released shall surrender himself at the time and place, and to the

authority, specified in the order directing his release or cancelling his release, as

the case may be. If any person fails without sufficient cause to surrender

himself, he shall be punishable with imprisonment for a term which may extend

to two years, or with fine, or with both. If any person fails to fulfil any of the

conditions imposed upon him or in the bond entered into by him, the bond shall

be declared to be forfeited and any person bound thereby shall be liable to pay

the penalty thereof.

2.5 Judicial decisions relating to NSA

In Amin Mahammeed Qureshi V. Commissioner of Police, Greater Bombay

[AIR 1994 SC 1333], the Supreme Court held that the detaining authority is not

under obligation to tell the detenu that he can make a representation to it as the

authorities to whom the representation can be made would be the Central

Government or the State Government and not the detaining authority. In

Rajendra Singh v. State of Uttar Pradesh [(1993) 3 Crimes 364 (All) (DB)], the

apex court held that it is for the detaining authority to record his subjective

satisfaction on the relevant grounds. In Kalicharan etc. v. State of Uttar Pradesh

[(1993) 3 Crimes 399 (All) (DB)], the Supreme Court held that the application

of mind in a mechanical manner cannot be permitted to be termed as a

subjective satisfaction of the Detaining Authority. Further, in Madan Gopal

alias Madan Bhaiya v. Union of India [(1993) 3 Crimes 483 (Delhi)], the apex
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court said that it is the duty of the sponsoring authority to collect all the relevant

material and place it before the Detaining Authority.

The three weeks period prescribed under NSA for making a reference to the

Advisory Board has been held to be absolutely mandatory and even a delay of

one day has been held to be fatal.

In Sunil alias Ashiq Ahmad v Jailor, District Jail [(1993) 2 Crimes 1138 (All)

DB], it was held that inordinate delay in disposing of the representation of the

detenu renders the order of detention illegal as well as unconstitutional. In

Paramvir Singh alias Pammu v. Union of India [(1993) 3 Crimes 640 (Delhi)], it

was held that unreasonable and unexplained delay in disposing of the detenu’s

representation vitiates the order of detention.

To affect public order, it must affect the community or the public at large. One

has to imagine three concentric circles, the largest representing “law and order”,

the next representing “public order” and the smallest representing “security of

State”. An act may affect law and order but not public order. Public order is

synonymous with public safety and tranquillity: it is the absence of disorder

involving breaches of local significance in contradistinction to national

upheavals, such as revolution, civil strife, war, affecting the security of the

State.

Dr. Ram Manohar Lohia vs. State of Bihar & Ors (1966 1 SCR 709)

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2.6 Summary

The National Security Act, 1980 was enacted to ensure that law and order
situation in the county is tackled in a most determined and effective way in the
backdrop of communal disharmony, social tensions, extremist activities,
industrial unrest and increasing tendency on the part of various interested
parties to engineer agitation on different issues. It further recognized that the
anti-social and anti-national elements including secessionist, communal and
pro-caste elements and also other elements who adversely influence and affect
the services essential to the community pose a grave challenge to the lawful
authority and sometimes even hold the society to ransom.

Under Section 3 of the National Security Act, 1980, the Central Government or
State Government may detain a person to prevent him or her from acting in a
manner prejudicial to

a) The defence of India; or

b) Relations of India with foreign powers

c) The security of India; or

d) The security of the State; or

e) The maintenance of public order; or

f) The maintenance of supplies and services essential to the

community.

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Section 8 of the National Security Act has been enacted in order to comply with

the requirement of Clause (5) of Article 22 of the Constitution. It mandates that

the authority making the order of detention shall, as soon as may be, but

ordinarily not later than 5 days and in exceptional circumstances and for reasons

to be recorded in writing, not later than 10 days from the date of detention,

communicate to the person concerned the grounds on which the order has been

made and shall afford him the earliest opportunity of making a representation

against the order to the appropriate govt.

Sections 9, 10 and 11 of the Act have been enacted in compliance with the

requirements of Clause (4) of Article 22 of the Constitution. Section 9

mandates that the State Govt. shall constitute one advisory board consisting of

three persons who are or have been, or are qualified to be appointed as judges of

a High Court. The Chairman of the board will be a person who is or has been a

judge of the High Court. Section 10 mandates that the Government shall within

3 weeks from the date of detention of a person place before the Advisory Board

the grounds on which the detention order has been made and the representation

if any made by the persons affected by the order.

Section 11 enjoins the Advisory Board to submit its report to the Government

within 7 weeks from the date of detention. The report has to specify whether or

not there is sufficient cause for the detention of the person concerned. Section

12 lays down that where the Advisory Board reports that there is no sufficient
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cause for detention of a person, the Government shall revoke the order of

detention and cause the person concerned to be released forthwith. If in the

opinion of the Board, there is sufficient cause for detention, the Government

may confirm the detention order. The Supreme Court has interpreted the

provisions of the National Security Act, 1980 in a number of cases.

2.7 Terminal questions

1. Briefly describe the provisions for preventive detention, procedural

requirements and other safeguards under the National Security Act, 1980
and evaluate them.

2. Critically assess and evaluate provisions of the National Security Act,

1980 with the help of decided cases.

2.8 Answers and Hints

1. Under Section 3 of the National Security Act, 1980, the Central Government
or State Government may detain a person to prevent him or her from acting in a
manner prejudicial to

g) The defence of India; or

h) Relations of India with foreign powers

i) The security of India; or

j) The security of the State; or

k) The maintenance of public order; or

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l) The maintenance of supplies and services essential to the

community.

2. Section 8 of the National Security Act has been enacted in order to comply

with the requirement of Clause (5) of Article 22 of the Constitution. It

mandates that the authority making the order of detention shall, as soon as may

be, but ordinarily not later than 5 days and in exceptional circumstances and for

reasons to be recorded in writing, not later than 10 days from the date of

detention, communicate to the person concerned the grounds on which the order

has been made and shall afford him the earliest opportunity of making a

representation against the order to the appropriate govt.

Sections 9, 10 and 11 of the Act have been enacted in compliance with the

requirements of Clause (4) of Article 22 of the Constitution. Section 9

mandates that the State Govt. shall constitute one advisory board consisting of

three persons who are or have been, or are qualified to be appointed as judges of

a High Court. The Chairman of the board will be a person who is or has been a

judge of the High Court. Section 10 mandates that the Government shall within

3 weeks from the date of detention of a person place before the Advisory Board

the grounds on which the detention order has been made and the representation

if any made by the persons affected by the order.

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Section 11 enjoins the Advisory Board to submit its report to the Government

within 7 weeks from the date of detention. The report has to specify whether or

not there is sufficient cause for the detention of the person concerned. Section

12 lays down that where the Advisory Board reports that there is no sufficient

cause for detention of a person, the Government shall revoke the order of

detention and cause the person concerned to be released forthwith. If in the

opinion of the Board, there is sufficient cause for detention, the Government

may confirm the detention order.

2.9 References and Suggested Readings

1. Durga Das Basu, Introduction to the Constitution of India, LexisNexis

Butterworths Wadhwa, Chapter 8, pp.114-118

2. V.N. Shukla’s Constitution of India, 11th Edition by M.P. Singh, Eastern

Book Company, 2008, pp. 217-233

3. Atul M. Setelvad, Preventive Detention in India, in the book Democracy,

Human Rights and the Rule of Law Essays in honour of Nani Palkhivala, Edited

by Venkat Iyer, Butterworths, 2000, pp.33-47

4. Ram Jethmalani, Detention without Trial, in the book Supreme but not

infallible Essays in honour of the Supreme Court of India, edited by B.N.

Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan, Raju

Ramachandran, Oxford University Press, 2008, pp. 321-333.

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5. Proceedings of the Workshop on Detention, National Human Rights

Commission [2008]. See Justice G.P. Mathur, Opening Remarks of the Chair at

the Session on Preventive Detention, pp.63-74

6. The National Security Act, 1980 Bare Act with Short Notes, Universal [2010]

7. Preventive Detention Laws Bare Act with Short Notes, Universal [2009]

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