Invoking National Security Act to Combat Corona Crisis By: Sakshi Agarwal and Aniket Sachan

The Author, Sakshi Agarwal and Aniket Sachan are 3^rd Year students at Dr. Ram Manohar Lohiya National Law University, Lucknow.

The idea of a Welfare State is the spirit of our Constitution. The framers have inscribed the well-being of its subjects as paramount and for this reason, Law and order, Education, Health and dignity of the common man stand in priority among the various obligations and functionaries of the state.[1] The Latin maxim Salus Populi Suprema Lex connotes that health, safety and welfare of the public is the supreme law. In the wake the corona pandemic private interest of doctors, paramedical staff and Police is being challenged by the public health interest. Therefore, health, law and order, peace, security and a clean environment are some of the areas of public interest where conflicting private rights have to be relinquished.[2] Notwithstanding this, the state is under a positive obligation to safeguards the interests of those working 24*7 for the welfare of the nation. The COVID-19 health emergency has obtruded another challenge before the Governments i.e. maintaining law of order. With the various incidents of attack on the Police, paramedic staff and doctors, it has become necessary for the States Government to enforce the National Security Act, 1980 to maintain public order during lockdown to detain the miscreants.

The National Security Act, 1980 (NSA) confers extra-judicial power upon the Government to permit the detention of any person if the authorities are convinced that he/she is a danger to national security or to prohibit him/her from interfering with public order. The Centre and State Government can detain a person in any matter that is counterproductive to national security and public order. [3]  The Government can also take the individual into custody to maintain the supply and services of essential items. Under the aforesaid Act, an individual can be held for a maximum duration of 12 months. The detention order is executed in the manner similar to the execution of arrest warrants[4] and need to be approved by the advisory body[5] constituted under the Act[6].

The genesis of the Act lies in the colonial era. The British Government in 1818 enacted the Bengal Regulation III to arrest any person for maintenance of public order without any judicial proceedings. Further, the Rowlatt Act of 1919 allowed the arrest of a suspected person without a trial. Post-independence, Prime Minister Jawaharlal Nehru legislated Preventive Detention Act, 1950 which was a close resemblance of the 1980 Act.  When the 1950 Act elapsed, Prime Minister Indira Gandhi adopted the Maintenance of Internal Security Act (MISA) in 1971 conferring similar powers on the Government. Subsequently, the Janata Party coming to power led to the demise of MISA. Later, Indira Gandhi Government promulgated National Security Ordinance, 1980 which later turned into a statute.

The concept of Preventive Detention is enshrined under Article 22 of the Indian Constitution. It deprives the person, arrested or detained under any detention law, of the constitutional rights prescribed in sub-clauses (1) and (2).[7] Moreover, Entry 3 of List III of Schedule VII empowers the Union and State Government to enact preventive detention laws for reasons connected with “the security of a State, the maintenance of public order or the maintenance of supply and services essential to the community.” Thus, the aforesaid enactment stands constitutionally valid. However, NSA has been criticized for its arbitrary application by the Government to get away with procedures under Cr.P.C. and Judicial Proceedings. It provides a framework to the Government to conveniently obliterate the flaws in the Indian criminal justice system and deprive individuals of their constitutional and statutory rights. The irony is that the grounds on which NSA is invoked by the State such grounds are already established as serious offences in the Indian Penal Code, 1860. Despite these condemnations, the State Governments have invoked this Law to maintain public order during the health emergency.

The objective of preventive detention is preventive and not punitive.[8] The provisions of National Security Act and Article 22(3)(b) of the Constitution depart from the constitutional and legal rights of the arrested person. They allow any person to be detained, without charge or trial, for up to three months and denies the rights to legal representation, right to give evidence, access to the courts or compensation for unlawful detention. The criminal jurisprudence starts with the assumption of innocence while the NSA provisions operate on the presumption of guilt. Ordinarily, the grounds of arrest may be disclosed to the detained in five days or in exceptional circumstances in 10 days[9] but in the public interest, such grounds may not be disclosed.[10] This stands distinct from Section 50 of the Cr.P.C. which mandates that the arrested person has to be informed of the grounds of arrest and the right to bail. Though, the grounds of such detention order need to be mandatorily stated before the Advisory Board.[11] In addition to, Section 56 and 76 guarantee the detained person to be produced before a magistrate within 24 hours. There is no such right granted to detenu under NSA. Further, the detenu may make representations to the Advisory Board as to why grounds of detention are inappropriate[12] but is disentitled to be represented by a legal practitioner.[13] The Apex Court in A.K. Roy v. Union of India[14] had held that detainees do not have the right to legal representation or cross-examination in Advisory Board hearings. Moreover, the judicial review of a detention order can be made only on the ground of non-application of mind. The veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency.[15]

The Section 3(2) of NSA has been invoked to deal with the persons who assaulted the team of medical workers in Indore. The Section provides that, “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 it is necessary so to do, make an order directing that such person be detained.” In Ram Manohar Lohia v. State of Bihar, the Supreme Court established the distinction between the concepts ‘security of the state’, ‘public order,’ and ‘law and order.’[16] The Court laid down the test of determining an act as likely to disrupt public order in Arun Ghosh v. State of West Bengal.[17] It stated that a disturbance of the even tempo of the life of the community taking the country as a whole or even a specified locality would be an act against public order. Thus, the Court specified the meaning of ‘public order’ by describing the nature of acts contravening the ‘public order.’

The Indore administration has invoked the NSA, against numbers of people, to tackle law and justice problem, in reaction to the shameful attack on the team of doctors and Police. A team of five members from the health department, which had gone to quarantine people, was welcomed by stones. Even women doctors were not spared. In UP, an inspector and a constable were critically wounded at Muzaffar Nagar when a mob of villagers assaulted the Police attempting to implement the lockdown. The villagers pelted stones and threatened to strike them with iron roads. Similarly, a mob attacked Police with sticks and- stones in Saharanpur and Kannauj when they asked people not to collectively offer Namaaz at mosque.

Certain members of Tablighi Jamaat after allegations of assault and obscene behaviour on nurses at MMG Hospital in Ghaziabad, Uttar Pradesh were also charged under NSA. As per the complaint of Chief Medical Officer, “They spoke lewdly, roamed naked in isolation, rejected medication and frequently demanded for cigarettes.”These anti-social elements are enemies of humanity who instead of cooperating with Government are adding to problems in tackling the outbreak of Corona Virus. The healthcare officers who are putting their best efforts to prevent this pandemic are also not spared by them. Hence, such acts disrupt public order

Apart from this Police has also booked certain persons under Sections 145, 269, 353 and 336 of the Indian Penal Code. Thus, the ‘public order’ determinations are fact-sensitive and must be made on a case-by-case basis.[18] The stringent NSA provisions will be slapped on people who attack Police officer enforcing the lockdown to prevent the spread of coronavirus. This move is aimed to deter those who are taking lockdown lightly and even attacking Police Officers.

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