A close scrutiny of the orders by District Magistrates invoking the National Security Act shows why the draconian law is so readily invoked. For, the NSA empowers the state to detain a person without a formal charge and without trial.
Under the NSA, a person is taken into custody to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of the public order.”
It is an administrative order passed either by the Divisional Commissioner or the District Magistrate — and not detention ordered by police based on specific allegations or for a specific violation of the law.
Even if a person is in police custody, the DM can slap NSA against him. Or, if a person has been granted bail by a trial court, he can be immediately detained under the NSA. If the person has been acquitted by the court, the same person can be detained under the NSA.
Indeed, an analysis of records shows how the draconian law was invoked in UP to prevent the person from being released from judicial custody even if the accused had got bail.
In 12 detentions under NSA between January 2018 and December 2020, the person remained in jail more than 200 days after the criminal court had already granted bail; in three detentions, the persons remained in jail for more than 300 days — in one case, for 325 days, and in another, for 308 days.
The law also takes away an individual’s constitutional right to be produced before the magistrate within 24 hours as is the case when the accused is in police custody; the detained person also does not have the right to move a bail application before a criminal court.
Also, the DM who passed the detention order is protected under the Act: no prosecution or any legal proceeding can be initiated against the official who carried out the orders.
Therefore, the writ of Habeas Corpus is the only protection guaranteed under the Constitution against the unchecked state power of taking people into custody under the NSA.
The higher judiciary has held that the preventive detention under NSA has to be strictly construed keeping in view the “delicate balance between social security and citizen freedom”. The Supreme Court has held that to prevent “misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed” and “meticulous compliance with the procedural safeguards” has to be ensured.
One crucial procedural safeguard under the NSA is granted under Article 22(5), where all the detained persons have the right to make an effective representation before an independent advisory board, which consists of three members; and the board is chaired by a member who is, or has been, a judge of a High Court. Significantly, in all the 120 cases under scrutiny, the board upheld the detention.