Thirty-seven years after its enactment, the National Security Act’s (NSA) preventive detention regime has become a convenient tool to obscure the flaws in the Indian criminal justice system and deprive individuals of their constitutional and statutory rights. Preventive detention is the extra-judicial confinement of an individual without charge – for up to one year under the NSA – purportedly to prevent a potential future crime. It violates nearly all due process rights, including most notably the presumption of innocence. Proponents in India and internationally have justified the practice as necessary to, for instance, prevent terrorist attacks or respond to existential national crises because the seriousness of the threat supposedly excuses the limitations on fundamental rights. While most proponents internationally do not conceive of the use of preventive detention other than as an extraordinary measure in exceptional circumstances, India regularly uses preventive detention to respond to ordinary criminal matters. Such use cannot be justified in a democratic, constitutional order such as exists in India.
The NSA was introduced by Indira Gandhi after she came to power in 1980. The Act replaced the National Security Ordinance which too had been promulgated by the Indira Gandhi government three months earlier. The NSA was amended in 1984, 1985 and 1988 to consolidate some of the government’s powers, besides increasing the possible periods of detention in Punjab and Chandigarh. With the exception of the state of Jammu and Kashmir, the Act is applicable to the rest of the country. Jammu and Kashmir has a law similar to the NSA – the Jammu & Kashmir Public Safety Act (1978), which too has been grossly misused.
No separate figures are currently available for detentions under NSA. The 177th Law Commission Report of 2001 however provides figures for persons arrested under preventive provisions in India – which stands at a whopping 14,57,779 (fourteen lakh, fifty seven thousand seven hundred and seventy nine). This excludes Jammu and Kashmir.
The imposition of the NSA by the Uttar Pradesh government allows the authorities to keep Chandrashekhar of the Bhim Army, a Dalit mass organisation under preventive detention. Chandrashekhar’s sole offence is to reclaim democratic rights against a casteist, ultra right wing governmental machinery.
The irony is that NSA can be invoked against those who imperil the defence of the state, relation of the state with foreign powers, security of the state, public order; and maintenance of essential supplies and services. These are serious offences and several sections of the Indian Penal Code can be leveraged against such offenders. The NSA however allows the government to keep such serious offenders in custody without charging them for any of these serious offences. This is convenient for the government and police because it allows them to escape the strictures of the Criminal Procedure Code and the courts of the land.
The National Security Act and the constitution
In the normal course of the criminal law, a person accused of a crime is guaranteed the rights to a legal counsel, to be informed of charges as soon as possible, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. The NSA, however, does not apply any of these rights to preventive detention cases. It permits the extra-judicial detention of individuals if the government is subjectively “satisfied” that an individual is a threat to foreign relations, national security, India’s defence, state security, public order, or the maintenance of essential supplies and services.
A detenu may be held for up to ten days without being informed as to the reasons for the detention. Even then, the government may withhold the information supporting the detention, although not the grounds, if necessary for the public interest. Detenus are permitted to make “representations” as to why extra-judicial detention is inappropriate, but not to question their accusers or necessarily the evidence in support of detention. Nor are they permitted a lawyer at any point in the process, even while making such representations. A detenu may be held for up to three months and in certain circumstances six months, without any review. A three person Advisory Board made up of high court judges or persons qualified to be high court judges determines the legitimacy of any order made for longer than three months. If approved, a person may be held extra-judicially for up to 12 months.
India’s constitution expressly permits preventive measures in ordinary times and with few safeguards. The Supreme Court has consistently ruled that preventive detention measures such as those in the NSA are wholly constitutional. These rulings however, do not respond to the trend of abusing preventive detention to hide the flaws in the criminal justice system and to avoid the constitutional and statutory rights afforded to the criminally accused.
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Abusing the system
The Indian government has exploited the NSA by regularly detaining individuals, using the plea of preventing future disturbances of public order. But in reality, it is as a punishment for the current alleged crimes. A South Asian Human Rights Documentation (SAHRDC) internal review of habeas corpus petitions showed that the police often rely on the NSA when they are unwilling or unable to make an appropriate criminal case under the strictures of constitutional and statutory law. It found that there is a regular pattern of using preventive detention, for instance, to address the current activities of recidivists and organised crime; to bypass a trial when witnesses were unwilling to testify; and to prevent release on bail. Essentially, the police appear to regularly use preventive detention in more difficult criminal law cases when inefficiency or ineptitude might make law enforcement difficult.
The government’s overreliance on preventive detention in ordinary criminal cases appears to misconstrue two fundamental aspects of the intended regime: (1) preventive detention is intended to stop future crimes; and (2) it is not meant to respond to ordinary law and order violations. In many of the cases reviewed, the detenu stood accused of a crime, for which they were criminally charged, that then justified immediate preventive detention.
The government characterised the current crime as evidence of a willingness to commit a future crime and supported this claim with any known past criminal activities. Accordingly, the government argued that the current and past activities show a propensity to commit crimes that can be prevented only through extra-judicial detention. The courts then determined the future threat based on a close examination of the current crime, without examining whether there is any evidence of an intention or plan to commit a future crime. This type of examination suggests that preventive detention under the NSA is a punitive rather than preventive measure.
Additionally, the courts never questioned and the government never explained why criminal prosecution alone was an insufficient response to the current crime. If the accused is considered to be a serious threat to public order to justify preventive detention, then there seems little reason why the government cannot successfully oppose bail.
Further, it is the government’s responsibility to protect witnesses to ensure their testimony. Relying on preventive detention to deal with these common criminal legal offences relieves the criminal justice system of its burden to prove guilt beyond a reasonable doubt and denies the detenu the presumption of innocence. It allows for the incarceration of a criminally accused without judicial oversight, a right to legal counsel or a right to challenge evidence against him/her.
This pattern suggests and promotes prosecutorial or police laziness as it insures detention without the need to prove a case as charged. Ultimately, such inappropriate use of preventive detention highlights the fundamental weakness of the criminal justice system when dealing with repeat offenders, organised crime, accused who threaten witnesses and prosecutorial failure when opposing bail.
The second apparent misconception of the government is that preventive detention is an appropriate response to most crimes. The decisions noted above indicate that the government continually uses the vague language of the NSA, which permits detention when public order is threatened, to respond to straightforward matters of law and order.
A test laid out by the Supreme Court for whether a future criminal act is likely to disrupt public order is whether it will “lead to a disturbance of the even tempo of the life of the community so as to amount to a disturbance of the public order, or . . . affect merely an individual without affecting the tranquillity [sic] of society.”
The government appears to believe that nearly any crime disrupts public order, including mugging, counterfeiting, sexual assault, murder and other crimes not directed at the public. It supports detention if the threatened act could cause a commotion or obstruct traffic, or if anyone other than the immediate victim suffered from fear, even if it arises from reading media reports of a criminal incident.
Courts often determine whether a threat to public order exists by analysing whether a current or past crime disrupted public order, again purportedly looking for propensity. This type of analysis underscores that preventive detention is being used as a punitive, rather than preventive, measure.
India’s parliament and judiciary must revisit the NSA to close any loopholes that permit law enforcement to abuse constitutional and statutory rights. They must deprive the police of this convenient tool for punishing alleged criminals without having to uphold accused persons’ fundamental rights. They also must force the criminal justice system to directly and appropriately address its weaknesses. It is time for India to catch up with the international community and recognise that preventive detention must not be used as an ordinary and regular law and order measure.
Ravi Nair is with the South Asia Human Rights Documentation Centre.