By- Snigdha Dubey.
When we talk about National Security Laws, it is not confined in two -three laws. Rather there is a series of laws that were brought up, keeping national security and to safeguard national interest. But majority of such acts had many unregulated and unchecked powers witch negatively hampered the rights of people, leading most of these laws to be inefficient and unregulatory after a period of time. There is no question about the fact that weather India should have national security laws or not, as it is essential for any nation to maintain its security and public order.
BACKGROUND OF NATIONAL ACT’1980
At the time just after independence, the constitution of India was being drafted with the principle of democracy, liberty etc. In contrast to such principles, was parallelly standing the powerful laws related to national security, which gave the government to power to the government to detain a person without justifications if the person concerned was doubted to be threat to the nation’s security.
ORIGIN AND EVOLUTION OF NATIONAL SECURITY LAWS
Preventive Detention Act (PDA)-1950-1969
Before independence, the Britishers applied and used the principles of this act to establish and maintain their strong control on India and its people. Thus, the National securitact,1980 has its root in the colonial era.
After the independence of the country was facing humongous problems as, due to partition there was large scale communal violence, displacement and internal disturbance. And therefore, to secure the constitution and the rights of the people of the country, this law was enacted, which authorized government to detain an individual for a year without any charges.
Maintenance of Internal Security Act (MISA) -1971-1977
Majority of the provisions of PDA was brought in this act with more restrictions on people who were detained. During the 19month national emergency huge amount of people were detained without safeguards under this act. MISA was misused in widespread manner against whosoever came face to face or against the government during this period. With the end of emergency, this act to ended.
Armed Forces Special Power Act (AFSPA) – 1958-Present
In the year around 1957-58, because of separatist movement there was widespread violence in Nagaland and the situation was going out of the hands of the state government. To control the situation in the north eastern states of India the act was brought, which gave the Armed Forces special powers to maintain the public order in disturber areas. And gives government the power to declare any part of the country as disturbed area.
NATIONAL SECURITY ACT (NSA)- 1980-Present
This act came into existence on 23rd September 1980 and was the reflectional of PDA and MISA and eventually NSA was promulgated. NSA is also popularly known as ‘Rasuka’ and also as ‘no vakil, no appeal, no daleel’. The act gives power to the central and state government to detain any individual for the interest of national security and public order. The person concerned ids detained so that he/she does not commit any future crimes and can not escape from the prosecution.
Article 22 (3) (b) of the Constitution of India gives permission for detaining and restrict such on their personal liberty. The right to be informed about the reason of arrest is provided under Section 50 of the Criminal Procedure Code (Cr.PC).The person arrested under NSA are not provided with many basic rights like right to be informed, the person can be kept in prison for 5days and this time period can be increased up to 10 days in special circumstances without being informed the reason for his/her arrest.
Sections 56 and 76 of the Cr. PC says that any individual has to be produced before a court within 24 hours of arrest also under Article 22(1) of the Constitution says that the person cannot be denied the right to consult. But under this act the right to legal aid is also not given to the person and that person is not provided with the help of any legal practitioner.
The maximum period of confinement under NSA is 12 months, but if a new piece of evidence is received then this period can also be increased.
ASPECTS OF THE NATIONAL SECURITY ACT,1980
If any individual does not lay his/her belief in the rule of law and tries to harm India’s international relations or in any manner the act is prejudicial to the defence of the country, creates any chaos in the maintenance of government or public services or attacks any police on duty that person can be arrested under this act for creating threat to the nation’s security by the government.
Here the word maintenance contains the value of services essential to the community, if someone tries to create hurdle in the path of well-being of community and disturbs the ongoing services then the act is applied as in the case of Tablighi Jamat matter.
Recently in Uttar Pradesh in the month of May,2020, few members of Tablighi Jamat misbehaved with doctors and nurses in the hospital, following this, the UP’s state government decided of file cases under this act against them, as they risked national security with their ignorance to stop the spread of corona virus.
This decision is backed by the argument that at this dire time of need and desperation, this is one on the biggest hurdles that people can create, that is disrupting the essential service of hospital.
Under this law the central government can also arrest or expel any foreign individual so that his/her activities creating threat can be controlled.
To be arrested under this act District Magistrate or the Police Commissioner can also issue orders, for the area which is under their jurisdiction.
The 44th Amendment Act of 1978 aimed at reducing the period of detention without the permission an advice of the advisory board from period of three months to two months. But as this provision has not been brought into force, thus, the period still remains three months. According to the section 12 of NSA, 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.
The grounds for detention in Section 8(1) explicitly states that the person detained should know of the grounds of his detention in not more than 5 days but not later than 10 days. But, section 8(2) states, “Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.”
Preventive detention of this act is formulated to stop more future crimes from rooting and the act is not used in ordinary situations and violations. In many of the cases that was viewed, the person detained, that is the detainee who was accused of a crime, and by obscuring the flaws in the Indian criminal justice system, they were detained under the NSA.
DR. Kafeel Khan was detained under the NSA by the state government of Uttar Pradesh after he was giving anti-CAA speech in Aligarh Muslim University. He was also charged with section 153A and 295A of the IPC, which made it a clear case of vendetta after an inquiry absolved him from the BRD medical death case.
In January, the state government in Uttar Pradesh arrested 3 individuals under the NSA as there was allegation on them to slaughter cow in Bulandshahr. In December,2019, a journalist of Manipur who had posted an offensive Facebook post on the Chief Minister of the state, was detained for 12 months under the NSA.
The biggest criticism of this act is that there is no available data of the number of people arrested under this act. Even the National Crime Records Bureau (NCRB) of India has no data about this.
There is widespread criticism of this act for the misuse by authorities.
It has been compared to Rowlatt act of 1919 which allowed the Britishers the confinement of the anyone, which was generally meant for Indians without trail or any judicial proceeding. The act’s name in its real form is ‘The Anarchical and Revolutionary Crimes Act of 1919’.
Experts also describe the presences and applicably of this act as ‘anachronism’ in a democratic country like India.
It can be very clearly seen that the act is almost 40 years old and needs some changes to alter the arbitrariness of the many aspects of the law. Tough the acts in my opinion is essential for regulating the peace and ongoing security of the country, its many principles need reforms to maintain the act’s balance in accordance with the democratic principles of the country.
The unregulated and arbitrary use of the act will hamper the basic features of the constitution of India provided by the preamble and also will hamper individual’s basic rights and application of liberty and democracy. Also, the act has been criticized internationally on the bases of it violating basic human rights.
In this concern, the supreme court of India has said that the act needs to be structured in detail and precision for controlling its misuse. Also, there needs to be a procedural safeguard to maintain its reliability, so that the people of the country can put their faith in the law.
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