From UPSC perspective, the following things are important :
Prelims level : National Security Act (NSA)
Mains level : NSA and its situational implementation, Issue of misuse
- The Indore district administration invoked the National Security Act (NSA), 1980,against four persons accused of instigating residents of a locality to pelt stones and chase away health workers.
- Health workers were in the locality to trace the contact history of a Covid-19 patient.
What is the National Security Act, 1980?
- The National Security Act of 1980 is a law that aims to provide for preventive detention in certain cases that can pose a threat to the security of the country.
- This Act, consisting of 18 sections, applies to the whole of India.
- It empowers the Central Government and state governments to detain an individual to prevent him/her from acting in any manner that may hurt India’s security, its relations with foreign countries, for the maintenance of public order, or the maintenance of supplies and services essential to the community.
- The law also gives power to the governments to detain foreign nationals to regulate his/her presence or expel from the country.
How did the National Security Act come to be?
- The National Security Act is not the first law of its kind to be enacted in India.
- 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 the judicial proceedings.
- A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial.
- The Rowlatt Acts empowered the state to detain citizens without giving detainees any right to move to the court and even get the assistance of lawyers.
- The Jallianwalla Bagh tragedy was a direct result of the protest against these Rowlatt Bills.
- The Government of India Act, 1935 empowered the state to undertake preventive detention for reasons related to defence, external affairs or discharge of functions of the Crown in its relations with the Indian States.
- After the enactment of the Indian Constitution, Article 21 guaranteed every individual the right to life and liberty, which could not be denied to him/her without honouring the due procedure established by law.
- In K. Gopalan’s case, the Supreme Court distinguished “the procedure established by law” from the “due process of law”, saying that any procedure duly enacted would be a “procedure established by law”.
- However, this view currently stands reversed after Maneka Gandhi’s case where the top court held that the “procedure established by law” must also be just, fair and reasonable.
- Article 22 of the Indian constitution laid down procedures under which a preventive detention law could be enacted.
- After independence, India got its first preventive detention rule when the Nehru Government enacted the Preventive Detention Act of 1950, which expired on 31st December 1969.
- In the year 1971, Prime Minister Indira Gandhi had brought in the controversial Maintenance of Internal Security Act (MISA), giving similar powers to the government.
- Later, the MISA was repealed in 1977 and was replaced by the National Security Act (NSA).
What are the provisions of NSA?
- The power to preventively detain an individual under the National Security Act is given to the Police Commissioner or District Magistrate if the state government is satisfied that it is “necessary to do so”.
- The Act provides that a detained individual have to be informed of the grounds of detention within 5 days of detention, which may extend up to 10 days in exceptional circumstances.
- At the same time, the Act also states that the authority has the right to not disclose the facts, which it deems to be against the public interest to disclose.
- The maximum permissible period of detention under the NSA is 12 months.
- However, the order for preventive detention can be modified or revoked any time earlier or can be extended indefinitely beyond 12 months.
ii.Grounds of Detention:
- An individual can be detained under the NSA in the presence of the following grounds:
- Acting in a manner prejudicial to India’s defence, foreign relations or security
- Regulating the continued presence of any foreigner in India or to make arrangements for his expulsion from India
- To maintain public order
- To maintain supplies and services that are essential to the community
iii.Constitution of Advisory Board:
- Under the NSA, if any detention is made, then it has to be referred to an Advisory Board within three weeks from the date of detention.
- This Advisory Board has to submit its report within 7 weeks from the date of detention.
- The Central or State government shall constitute one or more Advisory Boards.
- An Advisory Board consists of 3 persons who are qualified to be appointed as judges for the High Courts
- Here, the detained person does not have the right to be legally represented.
- Also, the board proceedings are not brought to the public and the reports are confidential.
- The Advisory Board analyses whether or not the grounds of detention is sufficient or not.
- If the Advisory Board finds that the grounds are sufficient, then the appropriate government may confirm the order for detention.
- However, if the Advisory Board finds no appropriate grounds to permit detention, the government should release the detenu.
iv.No legal proceedings against governments:
- Section 16 states that no suit or other legal proceedings can be taken against Central or State governments, or any other person, for anything that is being done in good faith or intended to be done in pursuance of this Act.
Why is NSA criticised?
- Under the normal circumstances, if an individual is arrested, he/she is guaranteed certain fundamental rights.
- These include the right to be informed of the reasons behind the arrest.
- Section 50 of the Criminal Procedure (CrPC) mandates that the arrested individual should be informed of the grounds of arrest and the rights to bail.
- Sections 56 and 76 of the CrPC also provide that an individual has been produced before a court within 24 hours of arrest.
- Furthermore, Article 22(1) of the Constitution states that an arrested person cannot be denied the right to consult and to be defended by a legal practitioner of his/her choice.
- However, none of these aforementioned rights is allowed under the NSA.
- Article 22(3) of the Constitution does not extend the safeguards of the criminal system to preventive detention.
- NSA provides major loopholes for the government and the police to circumvent the formalities of the Criminal Procedure Code and the justice system.
- This Act provides neither transparency nor accountability of the government.
- Furthermore, the National Crime Records Bureau (NCRB), which collects data pertaining to crime in India, doesn’t list out the cases under the NSA as no FIRs are registered in this regard. This makes it impossible to know the exact number of detentions that have been made under this Act.
- These limitations allow the government to use the law arbitrarily and without any reasonable cause.
Some of the instances of government misusing this NSA include:
- Uttar Pradesh government, in January 2019, arrested three individuals under the NSA in connection with alleged cow slaughter.
- In December 2018, a journalist from Manipur was detained for 12 months under the NSA, where he has posted an offensive post against the Chief Minister on Facebook
- Though this Act provides for maintenance of law and order within the country, it lacks reasonableness.
- Currently, there is no recourse available against these provisions, allowing for the ignorance of basic human rights for the detained persons.
- It needs to be noted that the Act is 40 years old. Changes are required to ensure that the Act is not used arbitrarily.
- Arbitrary use of the Act hampers democracy and basic rights of an individual.
- Even, the Supreme Court has held that the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, is mandatory and vital.
- Given that India occasionally staggers through spasmodic bouts of violence and disorder, it is possible that very narrowly tailored preventive detention laws with stringent judicial controls could be appropriate to counter such threats, at least in times of particular unrest.
- Increasing the accountability of the governmental authorities,
- Tailoring the law more narrowly to the truly serious threats to India’s security, and
- Refining the language of the NSA so as to make it less vague and, therefore, less susceptible to abuses and creative interpretations from executive authorities, are fundamental if abuses are to be checked.
From UPSC perspective, the following things are important :
Prelims level : NIA Act
Mains level : Policing Issues with NIA
The Chhattisgarh state govt. moved the Supreme Court against the 2008 National Investigative Agency (NIA) Act, stating it is violative of the Constitution. In its civil suit, the government told the apex court the NIA should have no power over state policing matters.
What is the NIA Act, 2008?
- The NIA Act, 2008 governs the functioning of India’s premier counter-terror agency.
- It was introduced by then home minister P Chidambaram in the wake of the 26/11 Mumbai terrorist attacks and was passed in Parliament with very little opposition.
- The Act makes the NIA the only truly federal agency in the country, along the lines of the FBI in the United States, more powerful than the CBI.
- It gives the NIA powers to take suo motu cognizance of terror activities in any part of India and register a case, to enter any state without permission from the state government, and to investigate and arrest people.
Objections made by CG
- In its petition, the Chhattisgarh govt. said the Act is “ultra vires the Constitution” and “beyond the legislative competence of the Parliament”.
- According to the state, the 2008 Act allows the Centre to create an agency for investigation, which is a function of the state police.
- ‘Police’ is an entry in the State List of the Constitution’s 7th Schedule.
- The petition says the 2008 Act takes away the state’s power of conducting an investigation through the police, while conferring unfettered, discretionary and arbitrary powers” on the Centre.
- The provisions of the Act leave no room of coordination and pre-condition of consent, in any form whatsoever, by the Centre from the State govt. which clearly repudiates the idea of state sovereignty as envisaged under the Constitution.
Changes made to the NIA’s powers last year
- The 2019 NIA Amendment Act expanded the type of offences that the investigative body could investigate and prosecute.
- The agency can now investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.
- The amendment also enables the central government to designate sessions courts as special courts for NIA trials.
- The Unlawful Activities (Prevention) Amendment (UAPA), also passed in 2019, allows an NIA officer to conduct raids, and seize properties that are suspected to be linked to terrorist activities without taking prior permission of the DG of Police of a state.
- The investigating officer only requires sanction from the Director General of NIA.
From UPSC perspective, the following things are important :
Prelims level : Nothing much
Mains level : Human Rights violations by security forces
The Indian government claims that it is winning the war against Maoist guerillas in India’s forested regions.
- It has dismissed accusations of human rights violations as propaganda by Maoists or their supporters.
- It has jailed human rights activists and lawyers working in these areas.
- A recent report by a government-appointed inquiry commission shows that these accusations are credible and need to be addressed.
- Seven-and-a-half years ago, 17 unarmed villagers, including six minors, were killed by security forces at Sarkeguda village in Chhattisgarh.
- The commission established that the CRPF and police version of events was false.
- It said that 15 of the villagers were killed at close quarters while fleeing in a ‘totally disproportionate and unwarranted use of force.”
- One man was killed in his home the next morning, while one succumbed to his injuries in hospital.
- The judge relied only on circumstantial evidence. The CRPF/police version was dismissed because the lawyers for the villagers picked holes in their claims.
- The defence charge on delay is completely unwarranted because the villagers spoke to the press.
- They did not file an FIR with the police. It shows their complete and justified lack of faith in the system.
- The police was involved in the firing and the government’s own affidavits in the Supreme Court in the ongoing Salwa Judum case have established that the police have never acted on complaints from villagers.
- The only point where the judge differs from the villagers is in arguing that the meeting that the villagers were attending was not an innocuous one to prepare for a seed-sowing festival because it was held at night and some people with ‘criminal antecedents’ were present.
- In an area where anyone can be arbitrarily accused and jailed, people with criminal antecedents are a dime a dozen.
- For the security forces, everybody is “hostile”.
Holes in the judgement
- Even after exposing the violations by security forces, the judge rewarded the perpetrators.
- He did not recommend any prosecutions, or compensation; only better training, better gadgets and better intelligence for the forces.
- There are issues such as the 2012 Sarkeguda massacre and the Tadmetla arson, murder and rape a year earlier, as well as the accompanying attack on Swami Agnivesh and Art of Living representatives.
Human rights violations
- High-level committees were appointed to look into releasing adivasi prisoners as well as examine the cases of journalists.
- There has been no progress on addressing the widespread human rights violations, deaths, rapes and arson caused by Salwa Judum and Operation Green Hunt, despite severe indictments by the National Human Rights Commission in 2008 as well as by the Supreme Court in 2011.
- In an internal closure report on Tadmetla, the CBI pointed to the larger systemic issues of deliberate obfuscation by the security forces to ensure impunity.
- These include not keeping records of personnel on particular operations or details of ammunition used, deliberately fudging evidence etc.,
- There have been several more cases of fake encounters, the most recent being of two villagers in the Munga jungle on November 5.
- The Supreme Court’s 2011 ban on the use of surrendered Naxalites in frontline counterinsurgency has also been ignored by governments.
- The Court has let this contempt pass without hearing for the last seven years.
- A ‘final hearing’ of the Salwa Judum case began in 2018, but one year on, there have been no dates for hearing.
- The Sarkeguda inquiry raised the callous killing of 17 innocent villagers.
- Announce a Truth and Reconciliation Commission, which would catalogue and compensate for all deaths, and prosecute those responsible.
- Action against security personnel in Sarkeguda must be the start, but must not be allowed to become the end.
From UPSC perspective, the following things are important :
Prelims level : Nothing Much
Mains level : Police reforms are the key stone for internal security.
In the wake of the 26/11 terrorist attack in 2008, a slew of measures were taken to strengthen the police forces, reinforce coastal security and decentralise the deployment of National Security Guard. However, after that, a complacency of sorts seems to have set in, mainly because there has been no major terrorist attack since then. Whatever upgradation of police has happened during the intervening period has essentially been of a cosmetic nature.
Challenges ahead for Police Forces
- The ISIS, which is committed to spreading “volcanoes of jihad” everywhere, recently perpetrated a horrific attack in Sri Lanka.
- The organisation has made significant inroads in Tamil Nadu and Kerala and has sympathisers in other areas of the country.
- It recently announced a separate branch, Wilayah-e-Hind, to focus on the Subcontinent.
- In the neighborhood, the ISIS has support bases in Bangladesh and Maldives. The government has been playing down the ISIS’s threat.
- It has been arguing that considering the huge Muslim population of the country, a very small percentage has been drawn to or got involved in the ISIS’s activities.
- That may be true, but a small percentage of a huge population works out to a significant number and it would be naïve to ignore the threat.
Pakistan and militancy –
- Pakistan has taken some half-hearted measures against terrorist formations in the country, which are euphemistically called non-state actors — largely due to pressure from the Financial Action Task Force (FATF.)
- These measures are more for show than substance.
- Besides, the ISI has been, for years, making well-orchestrated attempts to revive militancy in Punjab and trying to disrupt our economy by flooding the country with counterfeit currency.
- It is necessary, therefore, that the country’s internal security is beefed up.
- The first responders to a terrorist attack or a law and order problem is the police and, unfortunately, it is in a shambles.
- Police infrastructure — its manpower, transport, communications and forensic resources — require substantial augmentation.
- The directions given by the Supreme Court in 2006 appear to have created a fierce reaction in the establishment and led to a consolidation of, to use Marxist jargon, counterrevolutionary forces.
- The government must appreciate that any effort to strengthen national security without reforming, reorganising or restructuring the police would be an exercise in futility.