The National Security Act, 1980 (Act No. 65 of 1980) dated 27th December, 1980 was enacted with object to make provisions for preventive detention in respect of the matters provided under it. The Act assented by President of India on 27th December, 1980 and as such it was published in official gazette of Indian Government. Article 22 of the Constitution of India laid down the Scheme as to enactment of Preventive detention law as such at the early period, The Preventive Detention Act 1950 was enacted and it was continued till The Maintenance of Internal Security Act (MISA) was enacted in the year 1971. However, The MISA was repealed in the year 1977. And after three years thereof this Act of 1980 was came to be enacted. Immediately before this Act came into effect i.e. on 23rd September, 1980 there was an ordinance namely, The National Security Ordinance, 1980 (11 of 1980). The Act under its first section explains about its extension over whole India but not over the State of Jammu and Kashmir.
The terms used under the various provisions of the Act are defined under Section 2 of the Act including the terms like ‘Appropriate Government’, ‘Detention Order’, ‘Foreigner’, etc.
Section 3 of the Act is significant provision relating to orders of either State Governments or Central Government, as the case may be, for detaining such persons acting prejudicially to the defence of India or otherwise as provided under clause (a) of the Section. Similarly, as per clause (b) of the Section such Governments may order detention of such persons being foreigner is with view to regulate his continued presence in India or to make arrangement for his expulsion from India. Under these situations the Central Government or State Governments, as the case may be, on their being satisfied with aforementioned situations can order detention of those persons. The Section under its third sub section makes provisions as to delegation of powers of State Government under this provisions to any District Magistrate or Commissioner of Police for the specified period exceeding 3 months or any extended period which State Government may specify however, such period should not exceed three months for any one time. But, on such order made under by any of these delegated authority, a report is required to be submitted with State Government concerned stating these facts, grounds, etc. by such authority. However, such orders by any of these authority should not survive for more than 12 days, subject to its approval in meantime by concerned State Government.
Further, Section 4 makes provisions as to execution of detention order which can be executed in the manner prescribed for execution of warrants of arrest as per Code of Criminal Procedure, 1973. Similarly, the concerned Government making order of detention, provides for conditions as to maintenance, discipline and punishment for breaches of discipline, under which conditions the person can be detained. Further, the State Government should also provide for removal of such person detained from one place to another as explained under clause (b) of Section 5 of the Act.
Section 6 of the Act says that no order of detention of any such person should be treated invalid or inoperative due to location of such person is outside the jurisdiction of concerned Government.
Section 7 of the Act is related to issuance of direction of appearance of person to be detained, in case of his absconding. Further it is provided that, in such situation a written report stating this fact to Magistrate either Metropolitan or Judicial should be made by the detaining authority and upon such report the provisions of Sections 82 to 85 of the Code of Criminal Procedure, 1973 should be made applicable to such person and his property. Similarly, such detaining authority should also direct the said person to appear before such officer, at such place and within such period as prescribed in the Official Gazette notifying such directions.
Further, Section 8 of the Act clarifies the concern of this Act with the principles of natural justice by making provisions as to disclosure of grounds of detention to the person who is to be detained under the provisions of this Act. Such information should be immediately explained to such persons, however, in any ordinary circumstances such disclosure should not be delayed to more than ten days from the day of detention.
Besides all these significant provisions the other provisions are also there, relating to constitution of Advisory board and other relevant matters. The provision for constitution of Advisory Board provided under Section 9 of the Act, wherein the Central Government and every State Governments are required to constitute Advisory Boards for carrying out the purpose of this Act. Such board should consist of 3 persons from the persons equal to the rank of Judges of a High Court. Such boards are constituted to deal with the matters which are referred to them by concerned Government for their report upon the matter as per Section 11 of the Act. The time prescribed for such reference is 3 weeks from day of detention.
As per section 12 of the Act, if on report by Advisory Board there was existed sufficient cause for detention as found by Advisory Board then concerned Government can confirm the detention order and continue the detention of such person concerned. However, if Advisory board found no sufficient ground or cause for detention of person detained, then concerned Government should revoke detention order and order person concerned to be released immediately.
Further, Section 13 of the Act dealt with maximum period of detention, which is 12 months period. Moreover, Section 15 specks of the temporary release of such persons detained under this Act either upon certain conditions or even without any condition by concerned Government. Further, the concerned Government can also require such persons to execute bond either with or without sureties as to observance of such conditions. The person is also required to surrender himself at the time and place so mentioned under the order of his release and if he fails to do so, then he should be punished either with imprisonment or with fine or even with both.
The Section 17 makes provisions in case of detention made as per provisions of any State law done before commencement of National Security Ordinance, 1980. In all cases of such detention the provisions of this Act should not derogate the effect of those laws under which such detention is made. Moreover, the last provision dealing with repeal of the National Security Ordinance on this Act came into effect and any action taken under the provisions of such Ordinance should not be taken off but should be taken as it would had been done under the corresponding provisions of this Act.
Besides this Act, there are some other enactments dealing with prevention of terrorist activities in India including Unlawful Activities (Prevention) Act, 1967, Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA), Prevention of Terrorism Act, 2002(POTA) and some other state laws are also there. However, it is observed by Hon’ble Supreme Court of India in case of Kartar Singh vs. State Of Punjab, (1994), the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. As such, the legislations to have check terrorists activities in India are always subjected to controversies which results in increasing terrorism in the country. The Hon’ble Chief Justice of India has recently said that, if India chose to enact though measures to deal with the terror, then the International community could not fault any more India for terrorism.
by Faim Khalilkhan Pathan