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Recently, the Madhya Pradesh Government invoked the National Security Act (NSA) against three men accused of killing a cow.

About National Security Act, 1980

• The National Security Act was promulgated on September 23, 1980, "to provide for preventive detention in certain cases and for matters connected therewith".

• The grounds for preventive detention of a person include:

o Acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.

o Regulating the continued presence of any foreigner in India or with a view to making arrangements for his expulsion from India

o Acting in any manner 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.

• A detenu may be held for up to three months and in certain circumstances six months, without any review.

• A three person Advisory Board made up of high court judges or persons qualified to be high court judges determines the legitimacy of any order made for longer than three months. If approved, a person may be held extra-judicially for up to 12 months. The term can be extended if the government finds fresh evidence.

• The state government needs to be intimated that a person has been detained under the NSA.

• It extends to the whole of India except the State of Jammu and Kashmir.

Reasons for failure of the Act:

• A striking feature of the Act is that the government can detain a person for as long as it wishes to. This is made possible by the powers of the government to continue to detain a person even after the expiry or revocation of the original detention order on the plea that fresh grounds of detention have arisen. • First, there are the detentions that are based on political or ideological differences. This goes against the basic spirit of the Indian Constitution. Though the courts have generally overturned such detentions but this was not before the political prisoner has spent many months in prison.

• Second, there is the detention of suspected criminals for acts that can properly be dealt with by the ordinary criminal law. Although this type of abuse receives little or no publicity, it has been widespread since the NSA was passed in 1980.

Possible solutions:

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.

In the state of Jammu and Kashmir, the more stringent preventive detention law, the Jammu and Kashmir Public Safety Act, which was passed in 1978, covers while in North East India, the Armed Forces Special Powers Act operates.

• Article 22 grants protection to persons who are arrested or detained under a preventive detention law.

• This protection is available to both citizens as well as aliens and includes the following:

o The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.

o The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.

o The detenu should be afforded an opportunity to make a representation against the detention order.

• Article 22 also authorises the Parliament to prescribe o the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;

o the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and o the procedure to be followed by an advisory board in an inquiry.

• The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India.

Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.

• Pre-independence laws- Bengal Regulation III of 1818, Defence of India Act 1915, Rowlatt Acts of 1919

• Post-independence laws-

o Preventive Detention Act (1950-1969)

o Unlawful Activities (Prevention) Act (1967)

o Maintenance of Internal Security Act (MISA) (1971- 1978)

o Conservation of Foreign exchange and Prevention of Smuggling Activities (COFEPOSA) (1974)

• o National Security Act (1980)- amended in 1984, 1985 and 1988

• the Criminal Law Amendment Act,

• the Official Secrets Act, 1923,

• Chapters 6 and 7 of the Indian Penal Code etc.

• The only period in the Indian “republic without any preventive

detention law was the three year period, beginning with the repeal of MISA in 1977 to the promulgation of the NSA in 1980.