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| A Critical View on Use Of National Security Law During The COVID-19 Crisis | |||||||
| Paper Id :
15705 Submission Date :
12/02/2022 Acceptance Date :
19/02/2022 Publication Date :
25/02/2022
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| Abstract | National security issuesrelating to the health, supply of necessaries, food, law enforcements which are not so traditional in nature are severely impacted by the COVID-19 pandemic globally. For India which is the world’s largest democracy and second largest in population people have suffered a lot not only with the spade of nature but also with the whip of the law enforcing agencies. In this context, the current paper will give an idea of the national security law of India, how it works and draw a structure of journey of preventive detention laws in India. It will also be discussed as to the need of imposing this evil law in pandemic times. Few proposals are also made for combating the future challenges. This is a doctrinal paper using secondary data collected from various sources. | ||||||
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| Keywords | National Security, COVID-19, Law and Order, Lockdown, Health Emergency. | ||||||
| Introduction |
The COVID-19 pandemic has had a disastrous impact on the world economy. Much of humanity’s everyday life is now in colossal threat due to the pandemic.India has taken all measures in the three waves since 2020 to control the spread of the growing pandemic of COVID 19 – the Corona Virus. A number of preventive measures have been announced by the government to contain the spread of Corona Virus. The 21-day Nationwide lock down has been imposed from 24 March to 14 April, 2020 to contain the Virus[1]. Measures like Corona night curfews and weekend lockdowns were also deduced for containing the spread of pandemic.
In the amidst of lockdown, millions of migrant labourers suffered and spent sleepless nights without shelter or food. Millions lost their livelihood because of closure of establishments and industries or not upskilling themselves in digital times with ICT resources.Human rights were put at stake as and when the para health workers went for mass RTPCR testing. Cases have been reported wherein Medical Personnel, Social Workers and Police personnel enforcing the lockdown in the country were attacked by people. At several times law and order was disturbed by the mob. In an incident of Indore, the mob was seen attacking two doctors who had gone to track a suspected COVID 19 patient. The two doctors reportedly suffered injuries in the incident.[2] In another incident at Muzaffar Nagar, police patrolling team trying to enforce the ongoing lockdown was attacked by villagers leaving a sub-inspector and a constable seriously injured.[3]
Further, the Uttar Pradesh government followed by Madhya Pradesh government has ordered to invoke National Security Act, 1980 in view of the several incidents of attacks on medical and police personnel serving people amid the global pandemic. |
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| Aim of study | Following objectives are to be reached with the current research paper: 1. To find out the role of National Security law in our nation. 2. To analyse whether there was a real need to implement it in pandemic. 3. To give apt course of action for future challenges. | ||||||
| Review of Literature | In developing countries, the pandemic has severely been affecting not only the health sector but also the overall socio-economic spectrum. It is expected that wage deficits in these economies will reach $220 billion. Approximately 55% of the world’s population will be devoid of access to social services and consequently, the economies will go through huge rises in unemployment, lack of civil rights, restricted access to food security, etc. According to Grizold -The security issue is closely associated with various natural and societal features, processes and activities. National security as a collective or broader phenomenon is defined as: “an intricate interaction between political, economic, military, ideological, legal, social and other internal and external social factors through which individual states attempt to ensure acceptable provisions to maintain their sovereignty, territorial integrity, the physical survival of its population, political independence and possibilities for a balanced and rapid socialdevelopment on an equal footing” . According to AlamM.M. (2021) National security is not only influenced by politics but also by the economy, society and culture, including human rights, welfare of the people and environmental safety.
According to Gowd, Kiran Kumar(2021)[6] The COVID‐19 pandemic has led to questions about many aspects in India—the quality of health care, the response of governments and institutions, and issues related to law and order. The constitutional and legislative framework should help in addressing these questions. The Indian Government effectively imposed the lockdown and reduced the number of cases, while at the same time certain lawmakers and legal experts questioned the constitutional legality of the lockdown and the response of the Government. Though the Central Government has implemented the EDA and the DMA, moreover, the provisions of NSA were also resorted to maintain adherence towards law and punish the perpetratorsnot following the lockdown declared in light of the COVID-19 epidemic in the country.[7] In this paper author has tried toelucidate the real meaning of Nation securityunder the domestic law and critically examine the decision of the governments to use this tool to exploit and exert the will of the mightier. A legal framework for addressing any future health emergency is also addressed in the Indian context. |
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| Main Text | History of The
Preventive Detention Laws in India The detention law in India came for the
first time with Bengal Regulation III of 1818 empowered the British government
to arrest anyone for defence or maintenance of law and order. The Britishers
thereafter enacted the Rowlatt Act, 1919 which allowed detention of suspect
without trial.Independent India got its first preventive detention law in 1950
with the enactment of Preventive Detention Act 1950 which had a sunset clause
so it was repealed in 1969. After that the ruling government enacted the
Maintenance of Internal Security Act (MISA) in 1971.[8] The MISA was repealed in 1977 and in
1980 a new preventive detention law was formulated National Security Act which
came into existence on 23 September 1980 during the tenure of Indira Gandhi's
government. This law gave more power to the government to strengthen the
security of the country. This law empowers the central and state government to
detain a suspect. The preventive detention laws are
different from the punitive laws.Usually, when a person is detained, he is
guaranteed certain rights which includes the right to be informed of the
grounds for the arrest. Section 50 of Cr.P.C, 1973 provides for the person
arrested to be informed of the grounds of his arrest and right to bail.Sections
56 and 57 of Cr.P.C, further provides person arrested to be taken before
Magistrate and not to be detained more than twenty-four hours. Section 76 of
Cr.P.C also provide a person arrested to be brought before court without delay
and such delay in any case shall not exceed twenty-four hours. Article 22 of the Indian Constitution
and various provisions of Cr.P.C safeguard the interests of an arrested person.
The person arrested has to be informed of the grounds of arrest. The arrested
person cannot be denied the right to consult and to be defended by a legal practitioner of his choice.
The arrested person should be produced before the nearest magistrate within 24
hours. However, none of these safeguards are available if a person is detained
under a preventive detention law.A person could be kept in the dark about the
reasons for his arrest for up to 10 days. Even when providing the grounds for
arrest, the government can withhold information which it considers to be
against the public interest to disclose. The arrested person is also not
entitled to the aid of any legal practitioner in any matter connected with the
proceedings before an advisory board, which is constituted by the government. Detaining someone without
trial during normal times is hard to justify when it is difficult to prove the
legitimacy of the threat posed by the person. While it is true that
Constitution provides for Article 22 (3) that does not extend safeguards of the
criminal justice system to the detenues of preventive detention, the
justification for persisting with the same provisions even 70 years after
independence needs to be reviewed. Since the NSA allows custody of people
without framing a charge, it has become a convenient tool for the government
and police to circumvent the formalities of the Criminal Procedure Code and the
courts of the land. NATIONAL
SECURITY ACT, 1980 (NSA) It is apparent from the name itself
that it is a law which acts as deterrence to those who pose a threat to the
national security or law and order. Section 3(2) empowers the Centre or State
government to detain a person to prevent him from acting in any manner
prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of publicorder or from acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community[9]. Section 8(1)[10] empowers the authority
making the detention order need not to disclose or communicate the grounds of
order of detention to the individual in exceptional circumstances for 10 days.
Further Sub-Clause 2 requires the authority not to disclose facts which it
considers to be against the public interest to disclose. Section 13 provide for preventive
detention of an individual without a charge for up to 12 months which can be
revoked or modified by the appropriate government at any earlier time.[11] It was appliedin Jammu and
Kashmir following the abrogation of Article 370 of the Constitution and
implementation of The Jammu and Kashmir Reorganisation Act, 2019 on 9th August,
2019. Section 3 of the Act enumerates the
following grounds on which detention order can be passed by District Magistrate
or Commissioner of Police against a person: 1.
acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers, or the security
of India, or 2.
regulating the continued presence of a
foreigner in India or with a view to making arrangements for his expulsion from
India, or 3.
acting in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the
maintenance of Public order or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community. The law provides that the initial
period of detention shall not exceed three months, but the state government may
amend such order to extend such period from time to time by any period not
exceeding three months at any one time. Further the Act makes it mandatory for
the state government on the approval of the detention order to report the fact
to the Central Government, within 7 days, together with the grounds on which
such order has been made. The Constitutional Bench of the Hon’ble
Supreme Court in the case of HaradhanSaha & Anr vs. The State of West
Bengal &Ors[12]appreciated
the nature of Order of Preventive Detention in the following para’s: “The power of
preventive detention is qualitatively different from punitive detention. The
power of preventive detention is a precautionary power exercised in reasonable
anticipation. It may or may not relate to an offence. It is not a parallel
proceeding. It does not overlap with prosecution even if it relies on certain
facts for which prosecution may be launched or may have been launched. An order
of preventive detention, may be made before or during prosecution. An order of
preventive detention may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency of prosecution
is no bar to an order of preventive detention. An order of preventive detention
is also not a bar to prosecution. The order of
detention is a precautionary measure. It is based on a reasonable prognosis of
the future behaviour of a person based on his past conduct in the light of the
surrounding circumstances.” Further the Supreme Court in another
case of GianiBakshish Singh vs Govt. Of India &Ors[13]
interpreted the nature of Preventive Detention as: “It is now settled law that
preventive detention is not a punishment for the past activities of a person
but is intended to prevent the person detained from indulging in future in
activities.” The Hon’ble Division Bench of
Madras High Court in N. Ajimeer Khan Vs. District Collector and the
District Magistrate, Ramanathapuram and Anr.[14] categorically
observed the nature of order of preventive detention as: “Those
who are responsible for the national security or for the maintenance of public
order must be the sole Judges of what the national security or public order
requires. Preventive detention is devised to afford protection to society. The
object is not to punish a man for having done something but to intercept before
he does it and to prevent him from doing it justification for such detention is
suspicion or reasonable probability and not criminal conviction which can only
be warranted by legal evidence. It follows that any preventive measures, even
if they involve some restraint or hardship upon individuals, do not partake in
any way of the nature of punishment, but are taken by way of precaution to
prevent mischief to the State.” Imposition
of National Security Act in Pandemic The
probable grounds for imposition of NSA during a pandemic could fall under the
three heads -Security of India,Maintenance of Public Order and Maintenance of
essential supplies and services. However, the
possibility for imposition of final ground is negated by the explanation
proviso to Section 3 of the Act. Moreover,
since the Government has issued directions pertaining to commodities and
services under the Disaster Management Act, 2005, the same will have an
overriding force by virtue of Section 72 of that Act. As opposed to this
legislative curtailment, the Courts have curtailed the usage of public disorder
to impose NSA by delineating that a mere violation of law in absentia of
profound magnitude of harm will not amount to disruption of public order. This
line of reasoning will hold basis in the present case as well. Thus, this
leaves only one reasonable ground of national security for imposition of an
impenetrable mandate The meaning of the word Public
Order has been determined by the Hon’ble Supreme Court in Kanu Biswas
v. State of West Bengal.[15] as: “Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order,or does it affect merely an individual leaving the tranquillity of the society undisturbed?” Further the Hon’ble Apex Court in KishoriMohan
Beravs The State of West Bengal [16] explained
the concept of maintenance of public order as: “The true test is not
the kind, but the potentiality of the act in question. One act may affect only
individuals while the other, though of a similar kind, may have such an impact
that it would disturb the even tempo of the life of the community.” However, the
Judiciary has tried to cement the legislative gap by offering an interpretation
to this ‘National security’ term under the aegis of Article 19(2). The landmark case of Romesh Thappar v. State
of Madras [17] dealt
with attributing scope to security of state. The bench elucidated that
underminingthe security of the state would refer to acts which could shake the
very foundations of the State by generating public disorder. Clarity on the
object of this clause was also sought in the case of Kishori Mohan v.
State of West Bengal[18]. The
Bench considered three heads of enforcement and protection – law and order,
public order and security of state – wherein they formed part of concentric
circles. The smallest constituted the security of state whereas law and order
represented the outermost one thereby indirectly highlighting that an act in
contravention of national security would have to amount to grave danger to
fabric of the nation. these pronouncementsonly concern themselves with
traditional or orthodox conception of security while disregarding the evolving
nature of security of state. National security which has been duly defined as
the capability of a nation to overcome the multi-dimensional threats to the
apparent well-being of its people and its survival as a nation-state, has
not been reflected by the Indian Courts so far. The pandemic which is a world health emergency, as
reinstated by World Health Organization and multiple countries, surely does
demand stringent application of law. National security is inclusive of
food security, health security, political security, economic security,
and environmental security, it governs the protection and fulfilment
of vital freedoms and the development of capabilities to create satisfying
lives. On similar lines, an erstwhile National Security Advisor of India
defined national security to be comprehensive of energy, food, technology
security and social unity. The ambit of the term is wide
enough to include a threat posed by COVID-19 as a threat to the security of
individuals and hence the nation. It can be categorized as a threat for it is without
any directed cure and the nature of its transmission is quite intractable.
Amidst the global pandemic many died due to lack of access to life-saving
materials. A petition was filed in the Supreme Court to invoke the National
Security Act in cases of hoarding, profiteering, adulteration and
blackmarketing of essentials, including COVID drugs and equipment. However, India has not only relied upon the
provisions of Disaster Management Act and Epidemic Diseases Act coupled with
the Indian Penal Code but states like Uttar Pradesh and Madhya Pradesh
have also witnessed a resort to preventive detention under NSA, a
constitutionally debatable move not resorted by any other democratic nation The video of health workers being attacked with
stones in Indore as they were carrying out their duties of screening patients
went viral. The Indore administration invoked the National Security Act against
four alleged attackers. While six members of Tablighi Jamaat have been
booked under NSA for misbehaving with the health staff of the government in
Uttar Pradesh has warned that anyone who attacks the cops will be booked under
the NSA.Human
rights groups criticised the action of the government to curb the free speech
of the people by charging under thedraconian National Security Act against anyone, including healthcare workers,
spreading “rumours” on social media to “spoil the atmosphere”
regarding shortage of health essentials like oxygen. |
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| Conclusion | It was an inevitable need of the hour to put in place stringent regulations and laws catering to diverse sectors. Various countries tackled the situation with some or the other piece of legislation -The UK has implemented an all-inclusive Coronavirus Act, 2020 and Australia has sought aid of the National Health Security Act, 2007. India also relied upon National Disaster management Act 2005 and Epidemic Diseases Act 1897 for containing the spread. Few states invoked National Security Act in the situations in which the frontline workers were harmed by the raged public and violations of strict lockdowns were involved, but the resort to this Act is an unjustifiable and arbitrary application of the law. The alleged acts for which the same was used as a penal tool can very well be penalized under Section 188, 269 and 270 of IPC, Disaster Management Act and Epidemic Diseases Act. However, The Epidemic Diseases (Amendment) Act, 2020, is passed to make incidents of violence on health workers treating COVID-19 patients a non-bailable offence, with provisions of a penalty and a jail term of up to seven years. Furthermore, ordinance making power of the Governors under Article 213 could be utilized as an effective tool to make way for protection of the covid-19 warriors. However, it is necessary to ensure that resort to detention is restricted to rarest of cases due to contagious nature of virus and greater reliance be placed upon fines, confiscation etc. Under the International Covenant on Economic, Social and Cultural Rights, which India has ratified, everyone has the right to “the highest attainable standard of physical and mental health.” The right to health provides that governments must take effective steps to ensure that health facilities, goods, and services are available in sufficient quantity, accessible to everyone without discrimination, and affordable for all, including marginalized groups, for this the government should legislate a National Public Health Law which should provide a secure and justifiable approach to health rights and address the future pandemics effectively. As said by the eminent American Jurist Schaefer that the quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law. Thus, while assuring protection and controlling the contagion it is necessary to assure that rule of law isn’t compromised by imposing any law which will only intensifyextent of this pandemic and abuses fundamental and human rights. | ||||||
| References | 1. Paleri Prabhakaran (2008), National Security: Imperatives and Challenges,Tata McGraw-Hill, (p. 521) ISBN 978-0-07-065686-4
2. Surendra Malik and Sudeep Malik (2013)Supreme Court on Preventive Detention Laws (1950-2019) (In 2 Volumes) EBC publications
3. Dr.Aushutosh (2014) Law of Preventive Detention, Universal Law Publishing - An imprint of LexisNexis; 1St Edition ISBN-10: 9350354691
4. M.B. Hooker(July 1969), The East IndiaCompany and the Crown 1773-1858, M.L.R. (Vol. 11 No. 1) accessed through www.jstor.org/stable/24863503
5. Ministry of Home Affairs, Government of India, ORDER No.40-3/2020-DM-I(A), April 15 2020
6. Alam, M.M., Fawzi, A.M., Islam, M.M. et al. Impacts of COVID-19 pandemic on national security issues: Indonesia as a case study. Secur J (2021). https://doi.org/10.1057/s41284-021-00314-1
7. Gowd, Kiran Kumar et al. “COVID-19 and the legislative response in India: The need for a comprehensive health care law.” Journal of public affairs, e2669. 21 Mar. 2021, doi:10.1002/pa.2669
8. economictimes.indiatimes.com/news/politics-and-nation/indian-parliament-passes-bill-to-punish-those-attacking-healthcareworkers/articleshow/78246915.
9. https://ijlpp.com/combatting-pandemic-with-national-security-act-a-curates-egg/#_ftn11
Statues
1. The Constitution of India 1950
2. National Security Act 1980
3. Preventive Detention Act 1950
4. National Disaster Management Act 2005
5. Epidemic Diseases Act 1897 |
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| Endnote | 10/article31156691.ece 2. https://www.timesnownews.com/india/article/stones-pelted-on-doctors-in-indore-while-tracking-man-who-came-in-contact-with-covid-19-patient-watch/572691 3. https://economictimes.indiatimes.com/news/politics-and-nation/nsa-to-be-slapped-against-persons-who-attack-policemen-enforcing-coronavirus-lockdown-in-up/articleshow/74962374.cms?from=mdr 4. Alam, M.M., Fawzi, A.M., Islam, M.M. et al. Impacts of COVID-19 pandemic on national security issues: Indonesia as a case study. Secur J (2021). https://doi.org/10.1057/s41284-021-00314-1 5. Grizold, A. 1994. The Concept of National Security in the Contemporary World. International Journal of World Peace 11 (3): 37–53. 6. Gowd, Kiran Kumar et al. “COVID-19 and the legislative response in India: The need for a comprehensive health care law.” Journal of public affairs, e2669. 21 Mar. 2021, doi:10.1002/pa.2669 7. Press Trust of India, Covid-19: UP to slap NSA against people who attack cops enforcing lockdown, Business Standard, April 3, 2020 8. The Preventive Detention (Extension of Duration) Order, 1950, is hereby repealed. 9. National security act, 1980 10. Ibid. 11. Preventive Detention act, 1950 12. AIR (1975) 3 SCC 198 13. AIR (1973) 2 SCC 688 14. AIR1994 CriLJ 2670 15. AIR [1972] 3 SSC 831 16. AIR (1972) 3 SCC 845 17. AIR 1950 SC 124 18. AIR 1973 SCC 1749 |
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