Underlying Principles And Concepts In National Security Legislations: Need For Uniformity And Clarity
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This Blog is written by Sakshi Sahoo from KIIT School of Law, Odisha. Edited by Ritika Sharma & Prakriti Dadsena.
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INTRODUCTION
The national security of a nation refers to a nation that is free from any kind of dictatorship of another nation. Previously just like when the definition of state got widened that is from a police state to a welfare state similarly the scope of national security is also wide compared to what it was back then. Initially, national security was only limited to the military but now with the growing world, national security is also about economic security, political security, security from terrorism, etc. This topic of national security has a wide ambit in itself and globally and hence cannot be limited to just a single nation or concept. Different countries derived their concept of national security from some or the other source feasible to them. As for India, it developed legislation of detention in early 1800s from the Bengal Regulation III and then a refined form of it was formed and enacted by the British government known as the Rowlatt’s Act of 1919 where any person can be arrested without having a trial and then after independence the Nehru government formed a Preventive Detention Act but it soon expired and this National Security Act is a repetition or iteration of that act. And as far as our nation India is concerned, we have a National Security Council which was formed on 10.11.1998 with an objective to protect the country from the unseen shortcomings and to strengthen the defense system of our country.
SIGNIFICANCE OF NATIONAL SECURITY LEGISLATION
The main objective of this legislation is to maintain law and order and to prevent a person or a foreigner to commit any crime further and disturb the peace and tranquillity of our country that is also termed as preventive detention. The power to do so lies in both the governments that are centre and state.
LEGAL PROVISIONS
Since in India the statutes are coded all the aforementioned things are coded in an act named as National Security Act of 1980. It was enacted on 23.09.1980. And it extends to the whole of India.
It has 18 sections. In other countries like USA preventive detention is only acted upon during war or in case of an emergency but in the Indian context, it is acted upon anytime any government finds its feasible to use. Some of the sections of this act are directly borrowed from the Preventive Detention Act. Since no trials are conducted while detaining the individual an advisory board is appointed in order to prepare a report for the individual detained within 7 weeks of detention and submit it to the advisory board which is made up by the high court judges and the judges to be appointed for the high court but all the discussion is done privately and is highly confidential. If according to the advisory board the person fits in to be detained will be done so or will be set free accordingly.
CASE LAWS
Licil Antony v State of Kerala
The Supreme Court held that there should be ‘proximate and live link’ between detention grounds and the purpose of detention. This test of proximity is not a mechanical or rigid test, but the court has to ensure in each case of a delay that such a link is not broken. If such a delay is caused by the detenu to avoid detention, then such a link will not be considered to be broken. Further, the detention should be made on some valid grounds and not on some stale grounds.
Ramesh Yadav v District Magistrate
The Supreme Court held that a person cannot be detained merely on the ground that the detenu, being an under-trial prisoner, was likely to be released on bail.
Shibban Lal v State of Uttar Pradesh
The Supreme Court said that ‘a court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as the grounds of detention’.
Shri Pawan Kharetilal Arora v Shri RamraoWagh
In this case, a person was detained for nine months based on twenty-four false cases. Bombay High Court held that although the grounds of detention were based on ‘gross nature of mistakes’ and the detaining authority committed ‘a serious mistake’ which ‘shocks judicial conscience’, it accepted the apology by the authority and held that the authority acted in good faith and was granted protection under this section.
A.K Gopalan v. State of Madras
The constitutionality of the Preventive Detention Act, 1950 was challenged, Justice Das made the following comment, ‘A procedure laid down by the legislature may offend the Court’s sense of justice and fair play and sentence provided by the legislature may outrage the Court’s notion of penology, but that is a wholly irrelevant question. Our protection against legislative tyranny, if any, lies in free and intelligent public opinion which must eventually assert itself.’
NandLal Bajaj v State of Punjab
The Court while agreeing that preventive detention laws and the lack of legal representation as a system is ‘wholly inconsistent with the basic idea of a parliamentary system of govt.’ concluded that ‘the matter is essentially political and…is the concern of statesman…and not judiciary’. The Supreme Court has time and again warned that the judges must observe judicial restraint and must not ordinarily encroach into the domain of legislature or the executives.
ANALYSIS
After explaining everything about The National Security Act, I think Indian government still needs to work on its legal provisions regarding detention since maintaining transparency between the citizens and the government has always been an objective of the government and if any provision of law fails to restore that objective should be looked upon and the necessary amendments should be done accordingly. There should be a fair procedure for the person to be detained or his right to liberty will get infringed and if there is any glitch in it, it will lead to delayed justice which shakes the essence of the judiciary itself. And since the legislation is being followed now is 40 years old and we have grown so much above it and hence it does not fit in today’s world and needs to have new provisions for terrorism, economy, etc. Since there is no legislation to check upon this act there is a high probability that the authorities might misuse the given power. Hence to remove or alter such ambiguity the legislation should be revised once again.