Why in news?

Climate activist Sonam Wangchuk, leading the movement for Ladakh’s statehood and Sixth Schedule protections, was detained under the National Security Act (NSA) and shifted to Jodhpur jail.

The Centre blamed him for allegedly instigating violent protests in Leh, where four people were killed in police firing and 50 injured.

The case has drawn attention to the NSA, one of India’s toughest preventive detention laws, used in the past against separatists, gangsters, and radical preachers. The law allows governments to pre-emptively detain individuals deemed a threat to public order or national security.

What’s in Today’s Article?

• About Preventive Detention
• Preventive Detention and the NSA
• What the NSA Provides
• Wangchuk’s Legal Remedies
• Past Use and Misuse of the NSA

About Preventive Detention

• Preventive detention is the practice of detaining a person not for a crime already committed, but to prevent them from acting in a manner that could threaten public order, security, or essential supplies.
• It aims to stop potential harm before it occurs.
• Difference from Punitive Detention
  • Preventive detention: Detains individuals to prevent a future act considered harmful. It is anticipatory in nature.
  • Punitive detention: Imposed as punishment after conviction for an offence already committed, based on due process of law.
• Constitutional Provision
  • The Indian Constitution permits preventive detention under Article 22.
    • Article 22 has two parts—the first part deals with cases of ordinary law, which includes situations where an individual is detained as part of a criminal investigation.
    • The second part deals with cases of preventive detention law, which pertains to the detention of individuals without a trial or conviction.
  • A person can be detained up to 3 months without Advisory Board approval; beyond that, detention requires approval by an Advisory Board of judges.
  • Grounds of detention must be communicated, but certain facts may be withheld in public interest.

Preventive Detention and the NSA

• Preventive detention in India traces back to colonial times and was institutionalised post-Independence through the Preventive Detention Act, 1950.
• It was followed by the controversial Maintenance of Internal Security Act (MISA), 1971, repealed after the Emergency.
• In 1980, the National Security Act (NSA) was enacted, empowering the Centre, states, District Magistrates, and Police Commissioners (when authorised) to detain individuals pre-emptively.
• Unlike punitive arrests under criminal law, NSA detention is preventive, aimed at stopping individuals from acting in ways “prejudicial to India’s defence, foreign relations, national security, public order, or essential supplies.”
• The Act gives governments wide-ranging powers to address threats, while incorporating certain procedural safeguards to check misuse.

What the NSA Provides?

• Under NSA, detention orders function like warrants of arrest, allowing authorities to hold individuals in designated places, transfer them across states, and impose conditions.
• Grounds of detention must be communicated within 5 to 15 days, and detainees can submit a representation to the government.
• An Advisory Board of High Court judges must review the case within 3 weeks and order release if there is “no sufficient cause.”
• Detention can last up to 12 months, though it may be revoked earlier.
• However, safeguards are limited:
  • detainees cannot have legal representation before the Advisory Board, and
  • the government may withhold facts citing public interest, leaving significant powers in official hands.

Wangchuk’s Legal Remedies

• Sonam Wangchuk can challenge his detention under the NSA by filing a representation to the government or await the Advisory Board’s review within three weeks, which must order release if no sufficient cause is found.
• He may also approach the High Court or Supreme Court under Articles 226 or 32 to contest the legality of detention.
• Additionally, the government itself may revoke the order at any stage.
• Until these processes conclude, the NSA permits detention without formal charges or open-court evidence, giving authorities wide leeway in holding him.

Past Use and Misuse of the NSA

• The NSA has been invoked in several high-profile cases.
• In 2023, radical Sikh preacher Amritpal Singh was detained under NSA and moved to Dibrugarh jail.
• Earlier, Bhim Army chief Chandrashekhar Azad was booked in 2017, though the order was later revoked by the Supreme Court.
• During the anti-CAA protests (2020), multiple protesters in Uttar Pradesh were detained under the Act.
• The law has also targeted individuals such as Dr Kafeel Khan, whose 2020 detention was struck down by the Allahabad High Court.
• States like Uttar Pradesh and Madhya Pradesh have applied NSA in “Love Jihad” cases, communal violence, cow slaughter, and habitual crime, often stretching its definition of national security.
• Courts have intervened in cases of misuse: in 2012, the Supreme Court struck down the detention of a man accused of kerosene black-marketing as unjustified.
• These instances show a pattern where governments justify NSA as vital for security, while critics denounce it as a blunt instrument prone to abuse.