Advisory Board under the National Security Act: an explainer

As the Union Ministry of Home Affairs constitutes a three-member Advisory Board under the National Security Act, 1980, The Leaflet takes a fresh look at its powers, and its record in recent years.

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ON March 15, the Union Ministry of Home Affairs [MHA] issued a notification constituting a three-member Advisory Board under the National Security Act [NSA], 1980 for the National Capital Territory (NCT) of Delhi. It comprises three judges of the Delhi High Court, namely, Justices Yogesh Khanna, Chandra Dhari Singh and Rajnish Bhatnagar. Justice Khanna has been made chairperson of the Advisory Board. The notification by the MHA was issued in exercise of the power conferred by Section 9 of the NSA. The earlier board was constituted on August 12, 2016, comprising Justices Sanjiv Khanna, Jyanth Nath and Sangita Dhingra Sehgal. Justice Khanna was elevated to the Supreme Court on January 18, 2019, while Justice Nath retired from the High Court in November last year and Justice Sehgal resigned in May 2020.

In response to a Parliamentary question, the MHA on September 21, 2020, informed the Rajya Sabha that during the last five years no case under the NSA had been registered in Delhi.

The NSA is a preventive detention law. It confers power upon the Union Government and the state governments to pass orders with respect to any person with a view to preventing them from 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 power can also be exercised to prevent a person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India. With respect to any foreigner, the power can be exercised to regulate their continued presence in India, or with a view to making arrangements for his expulsion from India.

Preventive detention laws such as the NSA lead to the detention of a person without trial and hence, the constitution of the advisory board is a constitutional safeguard in view of Article 22(4) of the Constitution. The other safeguards include communication of grounds of detention to the person so detained, and providing them the earliest opportunity of making a representation against the order. All this flows from Article 22 of the Constitution.

Since preventive detention laws strike at the very heart of personal liberty, it is expected of the government to resort to these laws with utmost regard to constitutional safeguards.

Also read: Preventive detention laws like the National Security Act, under which Chadrasekhar Azad of Bhim Army was jailed, have no place in a democracy

Functions of Advisory Board

The advisory board constituted under the NSA has been conferred with the crucial function of oversight mechanisms to examine the grounds on which detention order is made and the material offered by the government to justify the detention order. Under Section 10 of the NSA, the government is required to place before the Advisory board within three weeks from the detention order, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by District Magistrate or the Commissioner of Police, their report is required to be sent to the Advisory Board.

The Board has been conferred with power under Section 11 of the NSA to call for any information from the government or any person. If the person concerned desires to be heard, it is required to offer them the hearing in person. Lawyers are not allowed to participate in the proceedings. The proceedings of the Advisory Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, is treated confidentially. The Board is required to submit its report to the government within seven weeks from the date of detention of the person concerned.

What is crucial to note from the reading of Section 12(1) is that even if the Advisory Board finds a sufficient cause for the detention of a person, the government "may" approve an order of detention and continue the detention. It would mean that the government is not bound by the opinion of the Advisory Board even if it finds good reasons to continue with the detention. But if the Advisory board has opined no sufficient cause exists for the detention of the person, the government has no choice but to revoke the detention since the word employed in Section 12(2) is "shall" revoke.

Also read: Why our criminal justice system urgently needs a law for compensation for those under illegal detention

Section 13 provides that a person can be detained for a maximum of a year from the date of detention.

Though on paper, Advisory Board has been tasked with ensuring that a person is not detained illegally and without a sufficient cause, recent examples show otherwise. In the case of physician and lecturer Dr Kafeel Khan, and Manipuri activist Erendro Leichombam, the Advisory boards constituted by the Uttar Pradesh Government and the Manipur Government respectively had recommended the continuation of their detention under the NSA.

Also read: Detained under NSA for months, Manipur activist freed after Supreme Court order

The Allahabad High Court, while quashing the detention of Khan in September 2020, had held that a complete reading of the speech given by him at the Aligarh Muslim University[AMU] on which the detention was based prima facie did not disclose any effort to promote hatred or violence.

The Supreme Court, while ordering the immediate release of Leichombam in July last year, said his continued detention would amount to a violation of the right to life and personal liberty under Article 21 of the Constitution. Leichombam, along with journalist Kishorechandra Wangkhem, were arrested for posting a comment over the death of Saikhom Tikendra Singh, the then state Bharatiya Janta Party [BJP] President from Covid-19. Manipur BJP Vice-President Usham Deban and General Secretary P. Premananda Meetei had filed a complaint against them, saying their posts were offensive.