Is Sonam Wangchuk’s National Security Act Invocation constitutional Amid Ladakh Protest?

The Spectre of Preventive Detention

The National Security Act of 1980 is a preventive detention legislation. It implies that the government will not arrest someone because he or she has already committed a crime, it is to ensure that he or she does not commit any crime in the future.

The above is the purpose of the Act, which is to secure India, relations between India and foreign powers, the preservation of order among the people, or the preservation of supplies and services which are necessary to the community. Nonetheless, due to the wide and usually imprecise wording of these reasons to detain, there have always been concerns that it has been abused.

The concept of preventive detention as such is deviation of the common principles of criminal justice, which demands that an individual must be proven guilty before being denied his liberty. The executive arm of government is given broad powers by the NSA to detain persons over prolonged periods without being charged or subjected to trial. This brings up basic issues of how far should the state and its security be balanced against the individual freedom.

A Challenge to Personal Liberty

Article 21 of the Indian Constitution assures the basic right to life and personal liberty. This right has been described as one of the most sacrosanct principles of the Constitution and can be limited only by a procedure that is lawful and that is both fair, just, and reasonable.

This principle is however challenged by the NSA. The Act allows a person to be held after not more than 12 months without a formal charge filed against him or her. Reasons behind detention are rarely revealed to the detainee as a whole based on so-called reasons of public interest.

This non-transparency and the lack of a rapid review procedure by the courts can be regarded as a direct insult to the principle of natural justice and due process, which are also elements of Article 21. In some of its rulings, the Supreme Court of India has made it clear that any legislation that limits individual freedom should be interpreted literally and that the process of limitation should be followed with extreme care. The wide latitude that the executive is granted under the NSA, and which is subjected to little judicial check, is arguably not up to this high constitutional standard.

The Erosion of Fundamental Freedoms

In addition to the right to personal liberty, there is also a chilling effect of the NSA application to other fundamental rights, especially the right to freedom of speech and expression and the right to assemble peaceably, both of which are guaranteed in Article 19 of the Constitution. Dissent and protest are essential in a democratic society in order to make the government answerable.

The possibility of being held under the NSA on the basis of voicing opinions that are not in favor of the government or those that are based on protests can act as a deterrent to healthy political and social discussions.

The situation in which the state can imprison persons at its own discretion under the subjective decision of an executive branch that their activities could be harmful to the welfare of the order, provides a culture of fear. This may discourage citizens to exercise their democratic rights hence compromising the very principles of a free and open society. The application of such a law on activists and protesters, in whatever context, sends the message that dissent cannot be entertained, which is the opposite of the Indian Constitution.

Deficiency in Procedure and inadequate Protection.

The major criticisms that have been raised against the National Security Act are that it has procedural flaws and that it does not provide sufficient protection to the detainee.

A detained person under the NSA does not have the right to have any representation during the hearing by the advisory board that examines the detention order, unlike in the usual criminal law. There is also no right to have the detainee brought before a magistrate within 24 hours of arrest which is a very important provision to guard against police abuse.

Although the procedure of detention can be examined by an advisory board, the work of which is not subject to public examination, its recommendations are not in all instances obligatory to the government. This secrecy and deprivation of the basic rights of procedure given to an accused in an ordinary criminal case renders the process of a person actually challenging his arrest exceedingly hard with the assistance of NSA. These procedural weaknesses, opponents state, makes the Act arbitrary and unjust to the ideals of fairness and justice.