New Delhi: On 26 September, climate activist Sonam Wangchuk was detained under the provisions of the National Security Act (NSA), 1980, and taken from Leh to the Jodhpur Central Jail.
Although the copy of the detention order, under the National Security Act (NSA), 1980, has not been made public or shared with Sonam’s family, ThePrint looks at when someone can be detained under the 1980 law, how courts have dealt with it in the past, how a detention can be challenged, and how the law came to be established in the aftermath of the Preventive Detention Act, 1950, or the Maintenance of Internal Security Act, 1971.
Wangchuk’s detention came in the aftermath of the recent protests in Leh, which resulted in the death of four people, and the BJP’s Leh office being set on fire. These protests were related to demands for statehood and the extension of protection under the Constitution’s Sixth Schedule to Ladakh.
According to ANI, the Centre accused Wangchuk of making “provocative statements” that “instigated” the mob. It was also alleged that Wangchuk had Pakistani links.
Significantly, the Supreme Court has previously held that preventive detention orders under the NSA are amenable to judicial review. Courts are entitled to scrutinise material relied upon by an authority in coming to the conclusion that there exists an objective basis for the order, which is otherwise based on the detaining authority’s subjective satisfaction, the top court had said in its 2010 ruling in Manipuri newspaper editor Pemam Ningol Mikoi Devi’s case.
Although the grounds on which a detention order is passed are a matter of “subjective satisfaction” of the concerned authority, a non-existent, misconceived or irrelevant ground or reason is enough to invalidate a detention order, the court said in the 2010 ruling.
Courts have also stepped in to fill the lacunae in the 1980 law by defining the meaning of “public order” in the 1972 ruling in Kanu Biswas vs State of West Bengal. Besides this, the 2012 ruling of the Supreme Court in Yumman Ongbi Lembi Leima vs State of Manipur, said that the detaining authority’s satisfaction, required to detain a person under Section 3 of the Act, should be based on the proper appreciation of facts about the likelihood of the detenu’s release and the necessity of detention to prevent him from indulging in prejudicial activities.
Detention orders under NSA
Introduced in 1980, the National Security Act, 1980, is a preventive detention law, that allows the Centre and the state governments to pass detaining orders to prevent anyone from acting in a way which is prejudicial to India’s defence, security, or its relations with other countries.
The law also allows governments to expel foreigners whose presence needs to be “regulated”. Due to the presence of inbuilt safeguards under this provision, however, Section 3 of the Act says that it is necessary to pass detention orders in writing.
“The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from 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… make an order directing that such person be detained,” the provision under Section 3(2) adds.
If, in light of the circumstances prevailing or likely to prevail within the local limits of the District Magistrate or Police Commissioner’s jurisdiction, the state government is “satisfied that it is necessary so to do”, it may, by order in writing, direct that during the period specified in the order, a person may be detained.
Besides the need for such an order to be in writing, there is another safeguard in this provision, which says that detention, in the first instance, cannot exceed three months unless the state government later extends it, from time to time. However, each extension cannot be more than three months at a time, subject to approval from the advisory board, which is constituted by judges of the HCs, either incumbent or retired.
Although the Act allows the DM and police commissioners to make detentions, subject to the state government’s approval, they have to make clear the grounds on which the detention order has been passed. However, such orders cannot remain in force longer than twelve days, unless approved by the state government.
When any order is made or approved by the state government, it is to be reported to the Centre within seven days, along with the reasons or grounds for its passing.
Although a detention order under the 1980 Act carries the same weight as an arrest warrant under the Criminal Procedure Code, the maximum period for which one can be detained under this law is 12 months from the date of detention. However, three weeks after the detention, the government has to present before the board the grounds of detention. This can also be done earlier, if a representation is made by the affected party.
After proper verification of facts, the board must send a report to the Centre, within seven weeks of the person being detained. However, only if the Centre agrees with the board will the arrest subsist. Otherwise, it can be revoked by the government, leading to the person’s release.
Genesis of preventive detention laws in India
Essentially, preventive detention laws allow for the detention of a person without their trial or conviction, with the objective of preventing them from committing offences in the future.
Primarily, such laws allow for arresting or detaining a person on grounds like national security, maintenance of public order, and in the interests of foreign relations.
Most of these preventive detention laws derive their validity from Article 22(3) of the Constitution. Although broadly, Article 22 contains safeguards from arbitrary detentions, such as informing the person being detained of the grounds or the right to consult their lawyer, Article 22(3) exempts the application of these safeguards for anyone who is an “enemy alien” or who has been arrested or detained “under any law providing for preventive detention”.
However, the NSA, 1980, is just one of the many preventive detention laws that India has. Some other notable ones include the Unlawful Activities (Prevention) Act and the Armed Forces Special Powers Act.
Prior to the NSA, India also had the Preventive Detention Act, 1950, which was one of the first preventive detention laws in the country. Brought into force shortly after the Constitution came into effect, the Act was later extended till 1969, and allowed detaining persons on grounds of defence, foreign affairs or security of India. The constitutional validity of this Act was also challenged in the landmark A.K. Gopalan case, where the Supreme Court upheld it.
However, after the 1950 Act failed to gather the favour of the then Indira Gandhi-led government, it was abolished in 1969, and later replaced with the Maintenance of Internal Security Act, 1971, which was routinely used to preemptively arrest persons during the National Emergency. This law had a six-year life only, as it was repealed once the Janta government came to power in 1977.
Nearly three years later, the NSA was passed, which still continues to remain in existence. However, this law has also been complemented with other preventive detention statutes like the anti-terrorism laws passed in 1967 (UAPA) or Terrorist and Disruptive Activities (Prevention) (TADA) Act 1985 and the Prevention of Terrorism Act (POTA) 2002.
How SC has dealt with NSA
In the 1969 ruling in Arun Ghosh vs State of West Bengal, the court said the degree of disturbance caused by an Act in society decides whether it is detrimental to public interest or not.
More recently, in 2021, however, the SC ruled in Sarabjeet Singh Mokha vs District Magistrate, Jabalpur, that, “The state government cannot expect this court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”
(Edited by Viny Mishra)
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