(65 of 1980)
[27th December, 1980]
An Act to provide for preventive detention in certain cases and for matters connected therewith.
Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows: -
Section 1 of National Security Act 1980 - Short title and extent
1. (1) This Act may be called the National Security Act,1980
(2) It extends to the whole of India except the State of Jammu and Kashmir
Section 2 of National Security Act 1980 - Definitions
2. (1) In this Act, unless the context otherwise requires -
(a) "appropriate Government" means, as respects a detention order made by
the Central Government or a person detained under such order, the Central
Government, and as respects a detention order made by a State Government or
by an officer subordinate to a State Government or as respects a person
detained under such order, the State Government;
(b) "detention order" means an order made under section 3;
(c) "foreigner" has the same meaning as the Foreigners Act, 1946; (31 of 1946)
(d) "person" includes a foreigner;
(e) "State Government", in relation to a Union territory, means the administrator thereof.
Section 3 of National Security Act 1980 - Power to make orders detaining certain persons
3. (1) The Central Government or the State Government may -
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, It is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him 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 it is necessary so to do, make an order directing that such person be detained.
Explanation.- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:
Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:
Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
Section 4 of National Security Act 1980 - Execution of detention
4. A detention order may be executed any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).
Section 5 of National Security Act 1980 - Power to regulate place and conditions of detention
5. Every person in respect of whom a detention order has been made shall be liable-
(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and
(b) to be removed from one place of detention to another place of detention, whether within the same State or in another State, by order of the appropriate Government:
Provided that no order shall be made by State Government under clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.
Section 6 of National Security Act 1980 - Detention orders not to be invalid or inoperative on certain grounds.
6. No detention order shall be invalid or inoperative merely by reason-
(a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or
officer making the order, or
(b) that the place of detention of such person is outside the said limits.
Section 7 of National Security Act 1980 - Powers in relation to absconding persons
7. (1) If the Central Government or the State Government or an officer mentioned in sub-section (3) of section 3, as the case may be, has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government or officer may-
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order.
(2) Upon the making of a report against any person under clause (a) of sub-section (1), the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973, (2 of 1974), shall apply in respect of such person and his property as if the detention order made against him were a warrant issued by the Magistrate.
(3) If any person fails to comply with an order issued under clause (b) of sub-section (1), he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under sub-section (3) shall be cognizable.
Section 8 of National Security Act 1980 - Grounds of order of detention
to be disclosed to persons affected by the order
8. (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Section 9 of National Security Act 1980 - Constitution of Advisory Boards
9. (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards forthe purposes of this Act.
(2) Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government.
(3) The appropriate Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned.
Section 10 of National Security Act 1980 - Reference to Advisory Boards
10. Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, 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 an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section.
Section 11 of National Security Act 1980 - Procedure of Advisory Boards
11. (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board;
and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
Section 12 of National Security Act 1980 - Action upon the report of the Advisory Board
12. (1) In any case where the Advisory Board has reported that there is, in
its opinion, sufficient cause for the detention of a person, the appropriate
Government may confirm the detention order and continue the detention of the
person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.
Section 13 of National Security Act 1980 - Maximum period of detention
13. The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention:
Provided that nothing contained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.
Section 14 of National Security Act 1980 - Revocation of detention orders
14. (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified,-
(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer mentioned in sub-section (3) of section 3, as the case may be, is satisfied that such an order should be made.
Section 15 of National Security Act 1980 - Temporary release of persons detained
15. (1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.
(2) In directing the release of any person under sub-section (1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.
(3) Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be.
(4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section (3), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(5) If any person released under sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.
Section 16 of National Security Act 1980 - Protection of action taken in
16. No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act.
Section 17 of National Security Act 1980 - Act not to have effect with
respect to detentions under State laws
17. (1) Nothing in this Act shall apply or have any effect with respect to orders of detention, made under any State law, which are in force immediately before the commencement of the National Security Ordinance, 1980, and accordingly every person in respect of whom an order of detention made under any State law is in force immediately before such commencement, shall be governed with respect to such detention by the provisions of such State law or where the State law under which such order of detention is made is an Ordinance (hereinafter referred to as the State Ordinance) promulgated by the Governor of that State and the State Ordinance has been replaced-
(i) before such commencement, by an enactment passed by the Legislature of that State, by such enactment; or
(ii) after such commencement, by an enactment which is passed by the Legislature of that State and the application of which is confined to orders of detention made before such commencement under the State Ordinance, by such enactment as if this Act had not been enacted.
(2) Nothing in this section shall be deemed to bar the making under section 3, of a detention order against any person referred to in sub-section (1) after the detention order in force in respect of him as aforesaid immediately before the commencement of the National Security Ordinance, 1980 ceases to have effect for any reason whatsoever.
Explanation.- For the purposes of this section, "State law" means any law providing for preventive detention on all or any of the grounds on which an order of detention may be made sub-section (2) of section 3 and in force in any State immediately before the commencement of the said Ordinance.
Section 18 of National Security Act 1980 - Repeal and saving
18. (1) The National Security Ordinance, 1980, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act, as if this Act had come into force on the 23rd day of September, 1980, and, in particular, any reference made under section 10 of the said Ordinance and pending before any Advisory Board immediately before the date on which this Act receives the assent of the President may continue to be dealt with by that Board after that date as if such Board had been constituted under section 9 of this Act.
Hetchin Haokip v. State of Manipur,2018 SCC Online SC 713, dated 20-07-2018
Akash Yadav vs The State Of Madhya Pradesh on 12 April, 2019
HIGH COURT OF MADHYA PRADESH : JABALPUR.
DB : Hon'ble Shri Justice J.K. Maheshwari &
Hon'ble Shri Justice Rajendra Kumar Srivastava
As per the spirit of Article 22 (4) and (7) of the Constitution, the law
regarding preventive detention as specified under Section 3 of the NSA Act
spell out the distinction in class or classes of the cases. Thus, to pass
the order of preventive detention, the procedural boundations to make such
order valid are described as under :-
(i) If the order is passed in exercise of the power under sub-section (1)(a)(b) and sub-section (2) of Section 3 of the NSA Act, the specification of the period of detention in the order is not necessary.
(ii) If the order is passed under sub-section (3) by the State Government looking to the circumstances prevailing in any area within the local limits of jurisdiction of a District, the period for which the detention is directed, must be specified in the order and the period shall not longer than three months at first blush.
(iii) If the power has been exercised by the District Magistrate or the Police Commissioner, as the case may be, looking to the circumstances prevailing within the local limits of jurisdiction, the said order shall remain in operation for a period of 12 days or 15 days, as the case may be, subject to affirmation/approval by the State Government in the meantime and in the order of approval passed by the State Government it shall specify the period of detention i.e. three months.
(iv) The order passed by the State Government for initial period of three months may further be extended for the reasons to be recorded for any one time.
(v) On passing the order either under sub-section (1)(a)(b) and sub-section (2) or sub-section (3) of Section 3 of the NSA Act, the procedure as prescribed under Sections 8, 9, 10, 11, 12 of the NSA Act, must be necessarily followed to pass an order of confirmation and to detain a person for a maximum period of one year
(vi) The Parliament by bringing the National Security Act, 1980 has specified the class and classes enumerated in sub-section (1)(a)(b) and (2) of Section 3 of the NSA Act, therefore, if the power is exercised for the said class or classes by the authority, non specification of time of three months would not vitiate the order on the said pretext.
(vii) Law & order and Public Order are two different domain, therefore, registration of a singular case against any individual may come within the purview of Law & Order until his activities cumulatively affects the public at large to bring it within the purview of Public Order.
(viii) Personal liberty of a citizen is his fundamental right and to hamper the said personal liberty is an exception for which the procedure prescribed in the law should be strictly followed and it cannot be diluted looking to the nature of the activity of detenue.
(ix) It is the duty of the prosecution to inform about the rights of detenue to submit the representation to the State Government and to afford him an opportunity of hearing before the Board otherwise it would vitiate the order.
(x) Compliance of sub-section (5) of Section 3 and Section 8 are mandatory. Non compliance would vitiate the order.
(xi) The scope of jurisdiction under Article 226 of the Constitution of India is open even at pre decisional or post decisional, both stages.
The aforesaid procedural aspects are illustrative and not exhaustive, which is required to be observed by the Central Government, State Government or the authority competent to pass the order under the NSA Act.