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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.

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.

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.

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 9^th 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.

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.

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

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