INDIA’S NATIONAL SECURITY LAWS

    National security is the safekeeping of the nation as a whole. Its highest order of business is the protection of the nation and its people from attack and other external dangers by maintaining armed forces and guarding state secrets. National Security law and Anti-Terror acts are passed to protect people if anyone tries to destroy the democracy of the country. These security acts include the Prevention of Detention Act, Maintenance of Internal Security Act (MISA), National Security Act (NSA), Armed Forces (Special Powers) Act (AFSPA), and so on. Since all these laws have been made in the interest of the country, the provisions of these laws are very strict. These laws ensure that no offenses are committed that can challenge our country’s sovereignty and that peace and security are maintained within its borders. 

     

    TYPES OF SECURITY LAWS

    The National Securities Acts are structured into various categories 

    Preventive Detention Laws: 

    This law talks about “Detention without charge” or “Detention without trial”. Based upon these provisions, the “Prevention of Detention Act” was passed in 1950. This Act was later expired in 1969. After various amendments, a full-fledged “National Security Act” was passed on 23rd September 1980 during Smt. Indira Gandhi government. This Act empowers the central as well as state government to detain any person if he has done/ try to prevent him from doing any act which is against the interest and welfare of the society or if damaging the friendly relations with the foreign nations or any other circumstances. The suspect can be confined for 5 days without assigning any reason or maybe it can extend to 10-12 days. After this, the concerned police officer has to take permission for further detention. Article 22(1) of the Indian Constitution states that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice ”[2]. This right is however not available to the person who is arrested under the National Security Act and the person detained is limited to any legal aid. But the National Security Act is widely criticized in his work because the National Crime Records Bureau (NCRB) whose function is to collect crime data records across the country, does not include cases that are lodged under the National Security Act. Hence, there are no exact figures about the number of detentions under this Act.

    Anti-terrorism Laws:

    Like preventive detention laws, anti-terrorism laws are drafted to protect the territory of India. The anti-terrorism laws include the Unlawful Activities (Prevention) Act (UAPA) and the National Investigation Agency Act (NIA). The powers of prosecution and the police officials are very wide and rigid as compared to the provision under the Criminal Procedure Code (CrPC). This law criminalizes any person who is involved in any terrorist activities. Under the UAPA, the suspect can be held in pre-trial detention for up to 180 days. Their detention can be tortuous and they are vulnerable to beating.

    Military Powers: 

    After talking about the above laws, a law has also been passed regarding the Military Legislation of our country i.e Armed Forces (Special Powers) Act (AFSPA). This Act was passed in 1958. There are powers given to armed forces. For eg., our armed forces can arrest anyone based on suspicion without any warrant and can destroy any property which makes it different from other legislative acts like CrPC. This Act prohibits a gathering of more than 5 persons and grants broad “shoot-to-kill” powers to the armed forces; this Act helps to maintain “Law and Order” in disturbed and sensitive areas and brings territorial integrity among people.

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    The Terrorist and Disruptive Activities (Prevention) Act 

    It is commonly referred to as the TADA Act. This Act is an anti-terrorism law which is modified in 1987. This Act gives enormous powers to the law agencies and many judicial proceedings can be ignored.[3] There is no compulsion of producing the accused before the judicial magistrate. The accused can be detained for one year. The confessions that are made by the accused in front of the police are treated as admissible evidence and the burden of proof lies on the accused. But even though this Act is very strict, only the statistics of the conviction under this Act are the least.

    The Armed Forces Special Powers Act (AFSPA) 

    This Act was established in 1958 and this Act is granted to the Armed forces to maintain peace and public order in the regions in case any violence or any other occurrence happens, even though many political leaders criticize this Act. 

    The National Investigation Agency Act (NIA) 

    This Act came into force in the year 2008 soon after the terror attack happened in Mumbai. It was established to investigate matters which are related to terrorism. Recently, it has been amended in 2019 by including many other offences under the schedule like human trafficking, cyber terrorism, sale and manufacture of prohibited substances, offences related to counterfeit currency and banknotes, and so on.

    REPEALED LAWS

    Unlike the abovementioned, there were previous Acts that prevailed but now they are no longer a statute : 

    The Maintenance of Internal Security Act (MISA):

    This Act was passed in 1971 during the Indira Gandhi government. This Act was often misused as it gave very broad powers to the Prime Minister. According to the Act, there is a provision of indefinite detention of the person and seizure of personal property. It was a very controversial statute that was passed and used against the political leaders during the emergency. Later on, this Act was repealed in 1977 after the Janata Party came to power. 

    The Prevention of Terrorism Act (POTA):

    This Act was passed in 2002 with the majority in a joint parliamentary session. This Act aimed to stop and take action against terror activities. But later on, unlike MISA this Act was also misused against political parties and opponents, trade unions, and so on. After some time, this Act expired on 24 October 2004 and was substituted by the Prevention of Terrorism (Repeal) Ordinance, 2004 and with the Prevention of Terrorism (Repeal) Act, 2004.

     

    ISSUE OF LEGISLATIVE COMPETENCE

    Part XI of our Constitution of India deals with the relations between Union and States. This provision examines the distribution of laws between the Union and the States. Article 246 of the Constitution talks about the “Subject-matter of laws made by Parliament and by the Legislatures of States.”[4] There is a division of Union List, State List, and Concurrent List.

    • Union List: This list includes Defence, Armed forces, and Preventive detention
    • State List: This list includes “Police” and “Public order”.
    • Concurrent List: This list has the powers to be considered both by the Union and State governments.

    Competence of the legislation of central and state government was challenged in Kartar Singh v. The State Of Punjab[5]. The main argument, in this case, was that this law comes under public order which is in the state list. However, the Court held that the Central government indeed has the competency to enact anti-terrorism laws such as TADA[Terrorist and Disruptive Activities (Prevention) Act]. Later, the Court applied a similar theory in PUCL v. Union of India[6] where it once again upheld the legislative competence of the Union Government to enact the terrorism-related laws.

    CONCLUSION

    Today’s National Security Laws is an improvement from earlier laws that were prevailing during the British government. These security laws have been framed by taking inspiration from them. But it is also true that these laws are being misused a lot and hence, people are detained under the National Security Act. A Few months back, an FIR was filed in Uttar Pradesh against the journalist under the sedition charges i.e sec 124A of the Indian Penal Code, Sec 14 and 17 of unlawful Activities (Prevention) Act {UAPA} and further they were also charged under section 72, section 76 and section 65 of IT act for promoting hatred speeches between groups and hurting religious feelings[6]. This is how the state misuse their powers so that no one can speak against them. It can also be seen in a political way as the government makes sure that they should not be accountable to anyone or else they might get into trouble. This misuse will continue as long as amendments are not done under these laws which is not visible till now. We hope that these laws improve quickly so that no one can misuse these laws in the future.

    REFERENCES

    [1]The Constitution of India, art. 14.

    [2] The Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987).

    [3] The Constitution of India, art. 246.

    [4] AIR 1994 SCC (3) 569

    [5] AIR 1997 SC 568

    [6]Omar Rashid, The Hindu


    BY PRASHANT BHATI | FACULTY OF LAW , DU

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