National Security Act Advisory Board: An Explainer

TO March 15, the Union Home Office [MHA] issued a notification component a three-member advisory board under the leadership National Security Act [NSA]1980 for the National Capital Territory (NCT) of Delhi. It comprises three judges from the Delhi High Court, namely Justices Yogesh Khanna, Chandra Dhari Singh and Rajnish Bhatnagar. Justice Khanna was appointed Chairman of the Advisory Council. The notification by the MHA was issued in exercise of authority conferred by Section 9 of the NSA. The old council was constituted on August 12, 2016, composed of Judges Sanjiv Khanna, Jyanth Nath and Sangita Dhingra Sehgal. Justice Khanna was elevated to the Supreme Court on January 18, 2019, while Justice Nath retired from the High Court in November last year and Justice Sehgal resigned in May 2020.

In response to a parliamentary question, the MHA of September 21, 2020, informed the Rajya Sabha that in the past five years, no NSA cases had been recorded in Delhi.

The NSA is a preventive detention law. It empowers the Union Government and the State Governments to make injunctions against any person for restraining him from acting in a manner prejudicial to the security of the State or act in a manner detrimental to the maintenance of public order. order, or act in a manner detrimental to the maintenance of essential supplies and services to the community. The power can also be exercised to restrain a person from acting in a manner detrimental to India’s defense, India’s relations with foreign powers or India’s security. In respect of any foreigner, the power may be exercised to regulate his continued presence in India, or to arrange for his expulsion from India.

Preventive detention laws such as the NSA lead to the detention of a person without trial.

Preventive detention laws such as the NSA lead to the detention of a person without trial and therefore the constitution of the advisory board is a constitutional safeguard given Rule 22(4) of the Constitution. Other safeguards include disclosure of the reasons for the detention to the person so detained and the possibility of giving him the earliest possible opportunity to lodge a complaint against the order. All this stems from article 22 of the Constitution.

Since preventive detention laws go to the very heart of individual liberty, the government is expected to use these laws with the utmost respect for constitutional guarantees.

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Advisory Board Functions

The advisory board constituted under the NSA has been given the crucial function of oversight mechanisms to review the grounds on which the detention order is issued and the evidence provided by the government to justify the detention order. Under Section 10 of the NSA, the government is required to present to the advisory board, within three weeks of the detention order, the grounds upon which the order was made and the representation, if any, made by the person affected by the order, and where the order was made by the District Magistrate or Commissioner of Police, their report shall be sent to the Advisory Board.

The advisory board constituted under the NSA has been given the crucial function of oversight mechanisms to review the grounds on which the detention order is issued and the evidence provided by the government to justify the detention order.

The Council has been vested with the power under Section 11 of the NSA to demand any information from the government or any person. If the person concerned wishes to be heard, he is obliged to offer the hearing in person. Lawyers are not allowed to participate in the proceedings. The deliberations of the Advisory Council and its report, with the exception of the part of the report in which the opinion of the Advisory Council is mentioned, are treated confidentially. The Commission is required to submit its report to the government within seven weeks from the date of detention of the person concerned.

What is crucial to note when reading Article 12(1) is that even if the Advisory Council finds sufficient cause for the detention of a person, the government “may” approve a detention order and maintain detention. This would mean that the government is not bound by the Advisory Council’s opinion even if it finds good reasons to continue the detention. But if the advisory board has determined that there is no sufficient cause for the person’s detention, the government has no choice but to revoke the detention since the word used in Article 12(2) is “shall” revoke.

Read also : Why our criminal justice system urgently needs compensation legislation for those in unlawful detention

Section 13 provides that a person may be detained for a maximum of one year from the date of detention.

Although on paper the Advisory Council has been tasked with ensuring that a person is not unlawfully detained without sufficient cause, recent examples show otherwise. In the case of physician and lecturer Dr Kafeel Khan and Manipuri activist Erendro Leichombam, the advisory boards set up by the government of Uttar Pradesh and the government of Manipur, respectively, had recommended their continued detention under the NSA.

Although on paper the Advisory Council has been tasked with ensuring that a person is not unlawfully detained without sufficient cause, recent examples show otherwise.

Read also : Held under NSA for months, Manipur activist released after Supreme Court order

The Allahabad High Court, while cancelation Khan’s detention in September 2020, had retained only a full reading of the speech delivered by him at the Aligarh Muslim University[AMU] on which the detention was based At first glance did not disclose any attempt to promote hatred or violence.

The Supreme Court, while ordered the immediate release of Leichombam in July last year, said his continued detention would violate the right to life and personal liberty under Rule 21 of the Constitution. Leichombam, along with journalist Kishorechandra Wangkhem, were stopped for posting a comment on the death of Saikhom Tikendra Singh, the then state Bharatiya Janta Party [BJP] President since Covid-19. Manipur BJP Vice President Usham Deban and General Secretary P. Premananda Meetei had filed a complaint against them, saying their posts were offensive.

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