India’s National Security Laws

4 Aug 2020  Read 3052 Views

In India, the Parliament has time and again enacted a series of National Security and anti-terror Laws such as Preventive Detention Act, Maintenance of Internal Security Act, National Security Act, Armed Forces (Special Powers) Act, Terrorist and Disruptive Activities Act, Prevention of Terrorism Act, etc. all in the attempt to uphold the Sovereignty, Security and Integrity of the nation. The latest in the series is the Unlawful Activities (Prevention) Amendment Act of 2019.

But did you know that even after facing all sorts of Terrorist activities; in India, there is no specific exhaustive definition for it! The issue was first addressed in the case of Mohd. Iqbal M. Shaikh v. State of Maharashtra wherein it was held that it is majorly not possible to give an exact definition and lay down its constituents. 

One by one, let us analyze India`s National Security Laws:

  • PDA- Preventive Detention Act 1950 - 1969

The law was brought into existence soon after the constitution was brought into force. The Act validated the detention of individuals up to a year without charge. Initially, it was passed temporarily to counter challenges of extreme violence and displacement faced by the nation during partition. However, it remained into existence for two decades and was finally allowed to expire in 1969. 

  • AFSPA- Armed Forces Special Powers Act, 1958 – till date 

It was enacted to control the separatist movement started in Nagaland by providing more power to the military while acting alongside police. It was designated to deploy in “disturbed areas” as declared then. It provided power to soldiers to use force against civilians. It was an institutional immunity provided to forces to commit human rights violation against civilians.

Therefore the validity of the act was challenged in the Naga People’s Movement of Human Rights vs. Union of India wherein the constitution bench of apex court upheld its validity. 

Then, under Sec 3 of the act gives the power to the governor to declare an area as a disturbed area and impose military rule. Further in next sec that is sec 4 army have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.

If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.

Lately act has attracted lot of criticisms due to no provision to protect human rights, gives unfettered power to shoot on mere suspicion of an offense as basic as a violating an order. It has no safeguard from the violation of Art 21 and 22 of the constitution. Therefore it doesn’t hold good in the eyes of the law. 

  • Maintenance of Internal Security Act (1971- 1977)

Established immediately after the removal of PDA in 1969.

The same draconian powers given under PDA were now built with new name of MISA. The Act was majorly misused by the Indira Gandhi government during emergency. It was excessively used against the political opponents, trade unions, and civil societies that acted against the government.

Later with the fall of the Indira Gandhi government, MISA was repealed in 1977.

  • TADA – Terrorist and Disruptive Activities Act, 1987

The Act was brought in when the separatist movement in the country was in the upsurge, especially in Punjab. Government designated terrorist affected areas created new offences, provided enhanced procedural power to police, and reduced protection for defendants.

The Act defined “terrorist act” and “disruptive activities”, and had put restrictions on the grant of bail, gave enhanced power to detain suspects, and attach their properties.

Confession before a police officer was made admissible as evidence. It was a drawback, as in general practice confession made before the court of law is only admissible. The Act was finally repealed in 1995 due to a lot of misuse and drawbacks.

  • POTA – Prevention of Terrorist Activities Act, 2002

Soon after IC-814 plane hijack incident in 1999 flying from Kathmandu to New Delhi, the terrorist attack on the World Trade Centre in America on Sep 11, 2001and Parliament attack in 2001, the leaders were of the view that there was an utter urgent requirement to bring strict anti-terror laws and so Prevention of Terrorist Activities Act, 2002

Incorporated the provisions of TADA like police powers, defence limits, admissibility of confessions, and setting up of courts. The law provided for Detention of suspect up to 180 days by a special court, the inclusion of a separate chapter with names of a terrorist organization which brought political malignity in excessive play. Several allegations were made around Political parties misusing this Act for their agenda. 

The constitutional validity of the Act was discussed in People’s Union for Civil Liberties v. UOI. However, due to the extreme misuse of the Act, it was finally repealed in 2004.

  • UAPA – Unlawful Activities & Prevention Act, 1967

Finally, the government gave the thought that only one Act should be strengthened than making any other law. When first enacted exclusively dealt with offences related to unlawful activities wherein government was empowered to declare certain associations as unlawful and certain activities as same which were disrupting the sovereignty of the nation and creating disaffection amongst the population.

The Act was amended several times like firstly in 2004, then in 2008, 2012, and the latest in 2019.

Latest Amendment for 2019: The Act altered Sec 35, 36, and provided power to the government to declare the individual as a terrorist under Schedule IV of the Act. It also provided power to DG of NIA for the seizure of property in sec 25 and investigation by the rank of an inspector under sec 43.

  • National Security Act (1980- present date)

Akin to PDA and MISA, it was formulated by Janta-Party led government in 1980. 

A preventive detention law is a close iteration of the Preventive Detention Act of 1950. It empowers the Central and state government to detain a person acting prejudicially to national security, disturbing public order, and maintenance of supplies and services essential to the community. The maximum period of detention mentioned is 12 months which can also be extended if provided fresh evidence. 

A recent incident in Indore where four persons were arrested on the instigation of local people for pelting stones and chasing away health workers were arrested under this act. Therefore, in the present context, the usage of the act has widely increased beyond its applicability.

  • National Investigation Agency Act (2008 & 2019 Amendment)

NIA bill was passed in 2008 soon after the Mumbai terror attack for creating a central agency probing into the matters of terror attack in the country.

A central agency created to prosecute offences disturbing the sovereignty, integrity and security of state also against atomic and nuclear facilities, then if found dealing in high-quality counterfeit Indian currency. It was created under National Investigation Agency Act, 2008. 

Jurisdiction of NIA: The officers of the central agency shall have the same power as that of police officers. The officers shall also have the power to investigate same offence even outside India in the same manner as that would have been done in India.  

 Recent Amendment: There has been addition of some offences into the schedule. Those are:-

  • Human trafficking

  • Offences related to counterfeit currency or banknotes

  • Manufacture or sale of prohibited arms

  • Cyber-terrorism, and

  • Offenses under the Explosive Substances Act, 1908

Conclusion

Lastly, after discussing all the security laws of India, much of the debate lies between striking a balance between state power to combat terrorism that is security and liberty. The lawyers, scholars, and judges should focus on having a balanced approach, but the task is difficult as the elements are civil liberties, human rights, and national security. And there lies no precise definition for each.

About the Author: Abhilasha Jha | 9 Post(s)

Graduated from Nluo in 2020. Bears core interest in constitutional law. She is also very much interested in teaching law. Worked as a legal content writer for several other platforms before joining finology legal.

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