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OAS Mains Q&A: National Security Act, 1980

Context

Recently, many state governments invoked National Security Act, 1980 against those offenders who were attacking doctors, nurses, police etc fulfilling their duties in the fight against COVID-19.

Question

Briefly discuss various criticisms of National Security Act 1980

Sample Answer

The National Security Act (NSA) is a preventive detention law which was promulgated on September 23, 1980. It 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. Additionally it can be used for regulating the continued presence of any
foreigner in India or with a view to making arrangements for his expulsion from India.

The maximum period for which one may be detained is 12 months. But the term can be extended if the government finds fresh evidence.

Criticism of the NSA

  • No Right to be Informed of the Reason for the Arrest: In the normal course, 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. But these rights are not available to a person detained under the NSA. A person could be kept in the dark about the reasons for his arrest for up to five days, and in exceptional circumstances not later than 10 days. Even when providing the grounds for arrest, the government can withhold information which it considers to be against public interest to disclose.
  • No Legal Aid: Additionally, in normal cases, Article 22(1) of the Constitution says an arrested person can-not be denied the right to consult, and to be defended by a legal practitioner of his choice. However, under NSA, the arrested person is not entitled to the aid of any legal practitioner in any matter connected with the proceedings before an advisory board, which is constituted by the government for dealing with NSA cases.
  • Lack of Data: The National Crime Records Bureau (NCRB), which collects and analyses crime data in the country, does not include cases under the NSA in its data as no FIRs are registered. Hence, no figures are available for the exact number
    of detentions under the NSA.
  • Misused for Deterrence: Some experts say that governments sometimes use it as an extra-judicial power for deterrence for alleged offences without concrete proof of the crime.

Way Forward

The need of the hour is to create a robust record of preventive detentions in the NCRB database to get a clear picture of its invocation by government. Also, the government must use the law sparingly with utmost caution to prevent its misuse.

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