National Security Act, 1980, is preventive detention law in India. It was replaced by ‘National security ordinance, 1980’. For preventive detention in India, the provisions of NSA are applied. It was challenged before the Supreme court in the case of ‘A.K. Roy v. Union of India, (1981)’.
In the first part, we have discussed the challenge to the Section 3 which provides the ground for preventive detention. In the second part, we are discussing the validity of Procedure prescribed for execution of preventive detention.
Procedure of Preventive Detention
We will now proceed to the consideration of a very important topic, namely, the reasonableness of the procedure prescribed by the Act. The arguments advanced on this question fall under three sub-heads:
(1) the reasonableness of the procedure which is generally prescribed by the Act;
(2) the fairness and reasonableness of the substantive provisions in regard to the constitution of Advisory Boards; and
(3) the justness and reasonableness of the procedure in the proceedings before the Advisory Boards.
Counsel’s Contentions on the issue
NSA violated Articles 14, 19, and 21
Petitioner’s counsel attacked the constitutionality of the very National Security Act itself on the ground that it is a draconian piece of legislation which deprives people of their personal liberty excessively and unreasonably, confers vast and arbitrary powers of detention upon the executive and sanctions the use of those powers by following a procedure which is unfair and unjust.
The Act, according to the counsel, thereby violates Articles 14, 19 and 21 and is therefore wholly unconstitutional.
In answer of this contention, the court said that the question whether a law of preventive detention is unconstitutional for the reason that it violates the freedoms conferred by Articles 14, 19, 21 and 22 of the Constitution is also concluded by the decision in Haradhan Saha[1]. In that case the validity of the Maintenance of Internal Security Act, 1971 was challenged on the ground that it violates these articles since its provisions were discriminatory, they constituted an unreasonable infringement of the rights conferred by Article 19, they infringed the guarantee of fair procedure and they did not provide for an impartial machinery for the consideration of the representation made by the detenu to the Government. The Constitution Bench which heard the case considered these contentions and rejected them by holding that the MISA did not suffer from any constitutional infirmity.
The MISA was once again challenged in Khudiram[2], but the Court refused to entertain that challenge on the ground that the question was concluded by the decision in Haradhan Saha and that it was not open to the petitioner to challenge that Act on the ground that some argument directed against the constitutional validity of the Act under Article 19 was not advanced or considered in Haradhan Saha. The Court took the view that the decision in Haradhan Saha must be regarded as having finally decided all questions as to the constitutional validity of MISA on the ground of challenge under Article 19.
Therefore, in the present case, the court said that they find it impossible to accept the argument that the National Security Act, which was in pari materia with the Maintenance of Internal Security Act, 1971, is unconstitutional on the ground that, by its very nature, it is generally violative of Articles 14, 19, 21 and 22.
Validity of Section 5
By section 5, every person in respect of whom a detention order has been made is liable-
(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify, and
(b) to be removed from one place of detention to another place of detention, whether in the same State, or in another State, by order of the appropriate Government.
The court accepted that the objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance. Laws of preventive detention cannot, by the back- door, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in “such place” as the Government may specify.
The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi to keep him in detention in a far of place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food.
The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule. Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be sent to any far off place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled. Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention.
The court directed that In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time.
Validity of Section 8
The objection of the petitioners against the provision contained in section 8(1) was that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenu as late as five days and in exceptional cases 10 days after the date of detention.
But the court said that this argument overlooks that the primary requirement of section 8(1) is that the authority making the order of detention shall communicate the grounds of detention to the detenu “as soon as may be”. The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily, and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by section 8(1) to record its reasons in writing.
Validity of Sexton 13
It was contended that section 13 provides for a uniform period of detention of 12 months in all cases, regard less of the nature and seriousness of the grounds on the basis of which the order of detention is passed.
On this, the court said that there is no substance in this grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence. The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. The detaining authority can always exercise its discretion regarding the length of the period of detention.
It must also be mentioned that, under the proviso to section 13, the appropriate Government has the power to revoke or modify the order of detention at any earlier point of time.
The validity to the constitution of the advisory board
Sections 9, 10 and 11 deal respectively with the constitution of Advisory Boards, reference to Advisory Boards and procedure of Advisory Boards.
Three section of the National Security Act are relevant in this context, namely, section 9, 10 and 11. It may he recalled that section 3 of the 44th Constitution Amendment Act, 1978 made an important amendment to Article 22(4) of the Constitution by providing that-
(i) No law of preventive detention shall authorise the detention of any person for more than two months unless an Advisory Board has reported before the expiry of that period that there is in its opinion sufficient cause for such detention;
(ii) the Advisory Board must be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court; and
(iii) the Advisory Board must consist of a Chairman and not less than two other members, the Chairman being a serving Judge of the appropriate High Court and the other members being serving or retired judges of any High Court.
But the question for consideration was whether, section 9 of the National Security Act is bad for the reason that its provisions do not accord with the requirements of section 3 of the 44th Amendment Act.
But the court said that they cannot compel the Central Government by a writ of mandamus to bring the provisions of section 3 into force.
Section 3 of 44th Amendment substitute a new Article 22(4) for the old Article 22(4). The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 22(4) as it stands now and not according to the amended Article 22(4). According to that Article as it stands now, an Advisory Board may consist of persons, inter alia, who are qualified to be appointed as Judges of a High Court. Section 9 of the National Security Act provides for the constitution of the Advisory Boards in conformity with that provision.
The court said that they find it impossible to hold, that the provision of a statute, which conforms strictly with the existing provisions of the Constitution, can be declared bad either on the ground that it does not accord with the provisions of a constitutional amendment which has not yet come into force, or on the ground that the provision of the section is harsh or unjust. The standard which the Constitution, as originally enacted, has itself laid down for constituting Advisory Boards, cannot be characterised as harsh or unjust. The argument, therefore, that section 9 of the National Security Act is bad for either of these reasons must fail.
The validity to the procedure of the advisory board
Now, as to the procedure of Advisory Boards. The counsel laid great stress on this aspect of the matter. The court also admitted that consideration by the Advisory Board of the matters and material used against the detenu is the only opportunity available to him for a fair and objective appraisal of his case.
The counsel argued that the Advisory Boards must therefore adopt a procedure which is akin to the procedure which is generally adopted by judicial and quasi-judicial tribunals for resolving the issues which arise before them. He assailed the procedure prescribed by sections 10 and 11 of the National Security Act on the ground that it is not in consonance with the principles of natural justice, that it does not provide the detenu with an effective means of establishing that what is alleged against him is not true and that it militates against the requirements of Article 2l.
Counsel enumerated twelve requirements of natural justice which, according to him, must be observed by the Advisory Boards. Those requirements may be summed up, by saying that,
(i) the detenu must have the right to be represented by a lawyer of his choice;
(ii) he must have the right to cross-examine persons on whose statements the order of detention is founded; and
(iii) he must have the right to present evidence in rebuttal of the allegations made against him.
Counsel also submitted that the Advisory Board must give reasons in support of its opinion which must be furnished to the detenu, that the entire material which is available to the Advisory Board must be disclosed to the detenu and that the proceedings of the Advisory Board must be open to the public. The loss in preventive detention is of the precious right of personal liberty and therefore, it is urged, all such procedural facilities must be afforded to the detenu as will enable him to meet the accusations made against him and to disprove them.
In response of this contention, the court first considered whether and to what extent the detenu is entitled to exercise the trinity of rights before the Advisory Board:
(i) the right of legal representation;
(ii) the right of cross examination and
(iii) the right to present his evidence in rebuttal.
These rights undoubtedly constitute the core of just process because without them, it would be difficult for any person to disprove the allegations made against him and to establish the truth. But there are two considerations of primary importance which must be borne in mind in this regard. There is no prescribed standard of reasonableness and therefore, what kind of processual rights should be made available to a person in any proceeding depends upon the nature of the proceeding in relation to which the rights are claimed.
In the instant case, the question as to what kind of rights are available to the detenu in the proceeding before the Advisory Board has to be decided in the light of the provisions of the Constitution, and on the basis of the provisions of the National Security Act to the extent to which they do not of lend against the Constitution.
Right of legal representation
Turning first to the right of legal representation which is claimed by the petitioners, the relevant article of the Constitution to consider is Article 22 which bears the marginal note “protection against arrest and detention in certain cases.” That article provides by clause (l) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Clause (2) requires that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest and that no person shall be detained in custody beyond the said period without the authority of a magistrate.
Clause (3) provides that nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
On a combined reading of clauses (1) and (3) (b) of Article 22, it is clear that the right to consult and to be defended by a legal practitioner of one’s choice, which is conferred by clause (1), is denied by clause 3(b) to a person who is detained under any law providing for preventive detention.
Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him.
Cross examination and rebuttal
The court also denied that the detenu has any right to cross-examine either the persons on the basis of whose statement the order of detention is made or the detaining authority.
The last of the three rights was the right of the detenu to lead evidence in rebuttal before the Advisory Board. The court did not see any objection to this right being granted to the detenu. Neither the Constitution nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him. The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him.
Thus, the court upheld the validity of NSA, 1980.
Reference
A.K. Roy v. Union of India, 1981
[1] Haradhan Saha & Another vs The State Of West Bengal & Ors: 1974 AIR 2154, 1975 SCR (1) 778
[2] Khudiram Das vs The State Of West Bengal & Ors: 1975 AIR 550, 1975 SCR (2) 832