The National Security Act, 1980

What it does

The Act provides for preventive detention. A detaining authority may order a person held, without a trial and without a finding of guilt, if it is satisfied that detention is necessary to prevent the person from acting in a manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India. The State Government and certain officers may make the order for the security of the State or the maintenance of public order, or the maintenance of supplies and services essential to the community.

The Act is built on the constitutional scheme in Article 22 of the Constitution, which allows preventive detention but surrounds it with safeguards. The order must be reported to the State Government, and the person must be told the grounds of detention, ordinarily within five days and in exceptional cases within ten, so that a representation can be made. The case must go to an Advisory Board of persons qualified to be High Court judges, which reports on whether there is sufficient cause for the detention. The person has no right to be represented by a lawyer before the Advisory Board. The maximum period of detention under the Act is twelve months, though the Government may revoke an order earlier.

Who it binds

Any person within the reach of the Government who is detained under it. The Act applies throughout India, subject to what it says about the jurisdiction of State Governments. It is an executive power, and the courts do not try the person. They review whether the order was lawfully made.

What has changed, and when

The Act dates from 1980. It has been amended since, but the structure above, the grounds, the Advisory Board and the twelve month limit, is the one that applies. This page states the settled outline and says nothing on the case law of particular detentions.

What turns on it in practice

The firm's note on criminal and sensitive litigation names the Act when it explains why bail is different for a person held under it. Bail under the special statutes depends on the test the statute sets. The National Security Act is a preventive detention law, so bail does not arise under it at all. A detention order is tested by the Advisory Board and, more usually in a High Court, in a petition for a writ of habeas corpus.

The grounds that count are the ones the detaining authority gave. A petition challenges delay in considering a representation, failure to supply the documents on which the grounds rest, vagueness of the grounds, and the absence of a live link between the alleged acts and the need to detain. The Supreme Court has consistently held that preventive detention is not a substitute for ordinary criminal procedure, and that a person who can be tried and granted bail under the criminal law should not be detained under this Act to get around it.

Those are the points a lawyer for a detained person looks at first, together with the dates on which each step of the Act's timetable was met.