In some cases it has been found that the National Security Act-1980 (NSA) was invoked to prevent the person from being released from judicial custody even if the accused had got bail. The NSA empowers the state to detain a person without a formal charge and without trial.

Challenges with National Security Act, 1980:

  • About the National Security Act, 1980:
    • The NSA is a preventive detention law.
      • Preventive Detention involves the detainment of a person in order to keep him/her from committing future crimes and/or from escaping future prosecution.
      • Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
      • Further, Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
        • An Advisory Board reports sufficient cause for extended detention.
        • Such a person is detained in accordance with the provisions of any law made by the Parliament.
    • Gives Power to the Government:
      • The NSA empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security.
      • The government can also detain a person to prevent him from disrupting public order or for maintenance of supplies and services essential to the community.
    • Period of Confinement: The maximum period for which one may be detained is 12 months. But the term can be extended if the government finds fresh evidence.
  • Issues with the Act:
    • It is an administrative order passed either by the Divisional Commissioner or the District Magistrate (DM) and not detention ordered by police based on specific allegations or for a specific violation of the law.
    • Conditions when NSA can be evoked:
      • Even if a person is in police custody, the DM can invoke NSA against him.
      • If a person has been granted bail by a trial court, he can be immediately detained under the NSA.
      • If the person has been acquitted by the court, the same person can be detained under the NSA.
    • Against the Constitutional Right: The law also takes away an individual’s constitutional right (Article 22 of Indian Constitution) to be produced before the magistrate within 24 hours as is the case when the accused is in police custody.
      • The detained person also does not have the right to move a bail application before a criminal court.
    • Immunity for Passing and Carrying Out Order: The DM who passed the detention order is protected under the Act, no prosecution or any legal proceeding can be initiated against the official who carried out the orders.
  • Supreme Court Observation:
    • The Court has held that the preventive detention under NSA has to be strictly maintained with the delicate balance between social security and citizen freedom.
    • It also held that to prevent “misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed” and “meticulous compliance with the procedural safeguards” has to be ensured.
  • Safeguard Against the Act:
    • Procedural safeguard under the NSA is granted under Article 22 (5), where all the detained persons have the right to make an effective representation before an independent advisory board.
      • This advisory board consists of three members and the board is chaired by a member who is a judge of a High Court.
    • The writ of Habeas Corpus is also the protection guaranteed under the Constitution against the unchecked state power of taking people into custody under the NSA.

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