National Security Act 1980: Complete Analysis

National Security Act, 1980

History [1]

Preventive detention laws in India date back to early days of the colonial era when the Bengal Regulation III of 1818 was enacted to empower the government to arrest anyone for defence or maintenance of public order without giving the person recourse to judicial proceedings.
A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial.
Post-independence, India got its first preventive detention rule when the government of Prime Minister Jawaharlal Nehru enacted the Preventive Detention Act of 1950 (expired in 1969). The NSA is a close iteration of the 1950 Act.

Key Features of NSA, 1980:

Total Sections 18.
The act extends to whole of India.
No Right to be Informed of the reason for the arrest.
Even when providing the grounds for arrest, the government can withhold information which it considers to be against public interest to disclose. The arrested person is not entitled to the aid of any legal practitioner before Advisory board. (Section 12)
No hearing before the Court, hearing before advisory board only. (Section 9 to 12)
No Right to bail.
However, Section 50 of the Criminal Procedure Code (Cr.PC) mandates that the person arrested has to be informed of the grounds of arrest, and the right to bail. Sections 56 and 76 of the Cr. PC also provides that a person has to be produced before a court within 24 hours of arrest. Additionally, Article 22(1) of the Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice

Simple Explanation Section-wise:

Section 1 NSA 1980 extends to the whole of India. The word “except the State of Jammu and Kashmir” omitted by Act 34 of 2019.

Section 2 (a) talks about “Appropriate Government” means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government.

Section 3 of the NSA, 1980 gives Power to the Central Government or State Government to make an arrest on the following grounds:-

a) if they are satisfied that any person:

Is acting in any manner prejudicial to the defence of India,
The relations of India with foreign powers, or
The security of India.
Prejudicial to the security of the State or
From acting in any manner 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.

Section 3(1)(b) says that if Central Government or State Government are satisfied with respect to any foreigner that with a view to regulating his continued presence in India it is necessary so to do, make an order directing that such person be detained.

Also, the state government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also may give power to them to make arrest on the above grounds. [Section 3(3)]. The report made by such officer of such officer shall to be send to the state government for approval in not more then 12 days.

Further, the State Government shall not, in the first instance, exceed three months, but the State Government may, if satisfied that it is necessary so to do, amend such order to extend but not exceeding three months at any one time.

Further more, 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 of such detention. [Section 3(5)]

Section 4. Execution: At any place in India according to arrest warrants of Criminal Procedure Code, 1983.

Section 7 Powers in relation to absconding persons.—If the Central Government or the State Government or an officer mentioned, as the case may be, has reason to believe that a person is absconded or is concealing himself so that the order cannot be executed, that Government or officer may:

Make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides.
By order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order. And if he does not appear then he is liable to punished for one year imprisonment or fine or both (if not able to show why he does not appear).

Section 8 Grounds of order of detention to be disclosed to persons affected by the order: Grounds to be disclosed to person detained not later than 5 days but in exceptional cases 15 days from the date of detention. Section 8 (1) also gives powers to the authorities not to disclose the facts which it considers to be against the public interest to disclose. Which means person can be detained without informing him about his ground of arrest.

Section 9 to 12 of National Security Act 1980 “ADVISORY BOARD”

Advisory board to be constituted by the Central or State Governments. (Section 9)
Board consist of three members. (Section 9)
Qualification of the member: Who is or have been or qualified to be Judge of High Court.
Out off three, one is appointed as Chairman of the board. (Section 9)

Person Detained under section 3 of this act shall be produced before the advisory board within three weeks from the date of detention of a person under the order. (Section 10)
The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government 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. (Section 11)
The report of the Advisory Board shall specify the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. (Section 11)
When there is a difference of opinion among the members: Majority Decision is followed.
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 connected with the reference to the Advisory Board.
If Advisory Board finds sufficient reason: Continue Detention. [Section 12(1)]
If Advisory Board does not finds sufficient reason: Revoke Detention & release forthwith. [Section 12(2)]

Section 13 Maximum Detention is 12 months. However, Appropriate government may revoke or modify the order.

Section 14 Revocation of detention order : (1) Revocation order can be revoked or modified anytime:

a. By state government or central government in case order was made by any officer who is subordinate to state government.

b. By Central government in case order was made by the state government.

Section 14 (2) says that the expiry or revocation of a detention order shall not bar the making of another detention order under section 3 against the same person but detention cannot be beyond 12 months.

However, 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 person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of two years from the date of detention under the earlier detention order

Section 14A. Circumstances in which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Boards.—

Any person 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 person had been detained with a view to preventing him, in any disturbed area—

(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.

Section 15. Temporary release of persons detained— Any Person detained under this act can be released temporarily on the conditions with or without sureties. Any violation of conditions shall amount to punishment or forfeiture of bonds.

Section 16. Protection of action taken in good faith.—No suit or other legal proceeding shall lie against the Central Government or a State Government or any person means DM or CP (who acted in good faith done or intended to be done in pursuance of this Act)

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