Context: Recently, a close scrutiny of the orders by District Magistrates invoking the National Security Act shows why the draconian law is so readily invoked.

• In some cases it has been found that the NSA act was invoked to prevent the person from being released from judicial custody even if the accused had got bail.

About the Act
The former Prime Minister Indira Gandhi brought the National Security Act in 1980.
The maximum period of detention under National Security Act is:

• A person can be detained for up to 12 months without a charge.
• A person can be held for 10 days without being told the charges against them.
• The person can appeal before a high court advisory board but will not be allowed a lawyer during the trial.

Rights against preventive detention

Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.

• Normally, if a person is arrested, he or she is guaranteed certain basic rights.These include the right to be informed of the reason for the arrest.
• However,under NSA person could not be informed about the reasons for his arrest for up to five days and in exceptional circumstances not later than 10 days.
• The arrested person is also not entitled to the aid of any legal practitioner in any matter connected with the proceedings before an advisory board which is constituted by the government for dealing with NSA cases.

Provisions under National Security Act (NSA)

• 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.
• It is not a detention ordered by police based on specific allegations or for a specific violation of the law.
• The DM can slap NSA against a person even if he is in police custody or if a person has been granted bail by a trial court.
• If the person has been acquitted by the court, the same person can be detained under the NSA.

Implications of National Security Act (NSA) on the accused

• The law 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 does not have the right to move a bail application before a criminal court.
• The DM who passed the detention order is protected under the Act as no prosecution or any legal proceeding can be initiated against the official who carried out the orders.

Rights of accused under National Security Act (NSA)

• 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.
• Under Article 22(5), all the detained persons have the right to make an effective representation before an independent advisory board.
• The board consists of three members and is chaired by a member who is, or has been, a judge of a High Court.