NSA Invoked Against Amritpal and Company

Constitutional Protection on Arrests and Exceptions – Article 22

• Article 22(1) states that every person who is arrested shall be informed about the grounds of arrest and shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.
• Article 22(2) states that Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest. 
• Article 22(3) states that the above mentioned provisions provided under Article 22(1) and Article 22(2) shall not be available to any person:

1. who for the time being is an enemy alien or 
2. who is arrested or detained under any law providing for preventive detention. 

• Thus, police can arrest such persons under preventive detention laws such as National Security Act without formal charge and need not present the accused before the magistrate within 24 hours. 
• Article 22(4) further states that – No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— An Advisory Board (constituted under the Preventive Detention Law) suggests otherwise.   
• Article 22(5) states that grounds of arrest shall be disclosed to the person arrested under preventive detention law and also provide the person the earliest opportunity of making a representation against the order.   
• Article 22(6) states that authority making arrest under preventive detention law can withhold disclosure of certain facts regarding grounds of arrest if the authority considers to be against public interest. 
• Article 22(7) states that Parliament may by law prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. 
• Parliament may also prescribe the maximum period for which any person may be detained under such preventive detention law.

Thus, Article 22 has provided elaborate details and contours for invoking preventive detention laws against persons and accordingly the Parliament has enacted the National Security Act, 1980. 

Grounds on which National Security Act can be invoked  

• The Central or State Government can issue detaining order under Section 3 of NSA if is satisfied that: 
  • It is necessary to prevent any person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India
  • With respect to any foreigner, it is necessary to regulate his/her continued presence in India or with a view to making arrangements for his/her expulsion from India.
• If according to the Central or State Government, it is necessary to prevent a person from acting in any manner prejudicial to the: 
  • security of the State
  • maintenance of Public order or
  • maintenance of supplies and services essential to the community
  • then central or state government can issue detention orders under NSA. 
• The District Magistrate or Commissioner of Police can issue arrest warrant under NSA if they are satisfied that situation exists which may affect national security, public order or disrupt essential supplies.

Constitution of Advisory Board under NSA

• The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. 
• Each Advisory Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government. 
• Among the three members, one of them shall be appointed as the Chairman by the government. 

Procedure to be Adopted by the Advisory Board 

• The Advisory Board shall consider the materials placed before it but can also ask for other information from the government which it thinks necessary. 
• The Board shall hear the accused in person but without any legal representation. 
• The Board shall submit its report to the appropriate government and in a separate part specify whether or not further detention is needed.
• When there is a difference of opinion among the members, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
• The proceedings of the Advisory Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.  

 Maximum Period of Detention – NSA

• The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed shall be twelve months from the date of detention.
• However, the central or state government may revoke or modify the detention order at any earlier time.  

Concerns – Application of Preventive Detention Laws like NSA

• Under preventive detention laws, there is no need to inform the accused immediately of grounds of arrest. 
• The authorities may withhold disclosure of grounds of arrests
• Arrested person need not be produced before Court within 24 hours as per normal norms. 
• For cases referred to  Advisory Boards under NSA
  • there is no public hearing involved and no guaranteed oral hearing for the person detained. 
  • The accused cannot be represented through a lawyer of their choice
• Preventive Detention laws can be used to suppress freedom of expression of journalists, political opponents, RTI activists etc. especially voicing concerns against policies or legislations of the government. 
• At times, preventive detention laws are used to cover normal crimes as this largely reduces the legal assistance of detainees.      

Way Forward 

If any person is arrested under NSA, then the only recourse available lies in filing writ petitions in High Court or Supreme Court for release of such person.

Thus, procedural fairness should be incorporated under NSA and other preventive detention laws because under the present system, the balance always tilts in favour of the government in such cases.