India is taking all measures to control the spread of the growing pandemic of COVID 19 – the Corona Virus. A number of preventive measures have been announced by the government to contain the spread of Corona Virus. The 21-day Nationwide lock down has been imposed from 24 March to 14 April, 2020 to contain the Virus.
In the amidst of lockdown, cases have been reported wherein Medical Personnel, Social Workers and Police personnel enforcing the lockdown in the country were attacked by people. In a recent incident of Indore, the mob was seen attacking two doctors who had gone to track a suspected COVID 19 patient. The two doctors reportedly suffered injuries on their legs in the incident.
In another incident at Muzaffar Nagar, a police patrolling team trying to enforce the ongoing lockdown was attacked by villagers leaving a sub-inspector and a constable seriously injured.
Further, the Uttar Pradesh government followed by Madhya Pradesh government has ordered to invoke National Security Act, 1980 in view of the several incidents of attacks on medical and police personnel serving people amid the global pandemic.
What is National Security Act, 1980 (NSA)?
It is apparent from the name itself that it is a law which acts as deterrence to those who pose a threat to the national security or law and order. Section 3(2) empowers the Centre or State government to detain a person to prevent 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.
Section 8(1) empowers the authority making the detention order need not to disclose or communicate the grounds of order of detention to the individual in exceptional circumstances for 10 days. Further Sub-Clause 2 requires the authority not to disclose facts which it considers to be against the public interest to disclose.
Section 13 provide for preventive detention of an individual without a charge for up to 12 months which can be revoked or modified by the appropriate government at any earlier time.
It is applicable to Jammu and Kashmir following the abrogation of Article 370 of the Constitution and implementation of The Jammu and Kashmir Reorganisation Act, 2019 on 9th August, 2019.
History of the Act and the Grounds for Detention.
The detention law in India came for the first time with Bengal Regulation III of 1818 empowered the British government to arrest anyone for defense or maintenance of law and order. The Britishers thereafter enacted the Rowlatt Act, 1919 which allowed detention of suspect without trial.
Independent India got its first preventive detention law in 1950 with the enactment of Preventive Detention Act which was later repealed by the Maintenance of Internal Security Act (MISA) in 1971
The MISA was repealed by the NSA i.e. National Security Act which came into existence on 23 September 1980 during the tenure of Indira Gandhi's government. This law gave more power to the government to strengthen the security of the country. This law empowers the central and state government to detain a suspect.
Section 3 of the Act enumerates the following grounds on which detention order can be passed by District Magistrate or Commissioner of Police against a person:
- acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or
- regulating the continued presence of a foreigner in India or with a view to making arrangements for his expulsion from India, or
- 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.
The law provides that the initial period of detention shall not exceed three months, but the state government may amend such order to extend such period from time to time by any period not exceeding three months at any one time.
Further the Act makes it mandatory for the state government on the approval of the detention order to report the fact to the Central Government, within 7 day, together with the grounds on which such order has been made.
How is the NSA different from the regular course of law?
Usually, when a person is detained, he is guaranteed certain rights which includes the right to be informed of the grounds for the arrest. Section 50 of Cr.P.C, 1973 provides for the person arrested to be informed of the grounds of his arrest and right to bail.
Sections 56 and 57 of Cr.P.C further provides person arrested to be taken before Magistrate and not to be detained more than twenty-four hours.
Section 76 of Cr.P.C also provide a person arrested to be brought before court without delay and such delay in any case shall not exceed twenty-four hours.
Moreover, the Article 22 of the Constitution stipulates that no police official can arrest any individual without informing the accused the ground of his arrest and the right to choose and elect his own lawyer to defend him in the court of law.
Contrarily, these remedies are not available to a person detained under the NSA. A person can be kept in detention for up to five days and in exceptional circumstances not exceeding ten days without disclosing grounds of his arrest. Further, the government can withhold the information which it considers to be against the public interest to disclose. The Act does not entitle a detained person to appear by any legal practitioner in any matter connected with the Advisory Board constituted for dealing with NSA cases.
Nature of Order of Preventive Detention.
The Constitutional Bench of the Hon’ble Supreme Court in the case of Haradhan Saha & Anr vs. The State Of West Bengal & Ors (1975) 3 SCC 198 appreciated the nature of Order of Preventive Detention in the following paras:
“The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
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The order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.”
Further the Supreme Court in another case of Giani Bakshish Singh vs Govt. Of India & Ors (1973) 2 SCC 688 interpreted the nature of Preventive Detention as:
“It is now settled law that preventive detention is not a punishment for the past activities of a person but is intended to prevent the person detained from indulging in future in activities.”
The Hon’ble Division Bench of Madras High Court in N. Ajimeer Khan Vs. District Collector and the District Magistrate, Ramanathapuram and Anr 1994 CriLJ 2670 categorically observed the nature of order of preventive detention as:
“14. Those who are responsible for the national security or for the maintenance of public order must be the sole Judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing it justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.”
Maintenance of “Public Order”
Section 3 of NSA provides the government to take recourse to power of preventive detention in anticipation of past behaviour of an individual and in the light of surrounding circumstances and its potentiality to disturb public tranquillity by creating panic and terror in the society.
The meaning of the word Public order has been determined by the Hon’ble Supreme Court in Kanu Biswas v. State of West Bengal. [1972] 3 SSC 831 as
“Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order ,or does it affect merely an individual leaving the tranquillity of the society undisturbed ?”
Further the Hon’ble Apex Court in Kishori Mohan Bera vs The State of West Bengal (1972) 3 SCC 845 explained the concept of maintenance of public order as:
“The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community.”
Conclusion
The NSA is often termed as draconian law for its application. COVID-19 the Corona Virus has become a global pandemic confronted by both developed and developing countries and the effects have been frightful and widespread. Incidents of violence against corona fighters and violators of lockdown and public order can be termed as revolt against society and attack on civilization. As said by the eminent American Jurist Schaefer that the quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law. Observation of the Justice S. Ratnavel Pandian in Kartar Singh vs. State of Punjab 1994 SCC (3) 569 seem so wise and practical in today’s context that “Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons. Better understanding of its reality and implicit obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense.”
Thus, in view of the global corona virus cases and above unfortunate incidents freedom and liberty of an individual must take second place to the security of the state.
The Author, Rituparn Uniyal is a practicing Advocate at High Court of Delhi.
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