Sections 7, 8 and 9 of the National Security Act, 1980
Powers concerning absconding persons, communication of grounds of preventive detention, the right to make a representation, and constitution of Advisory Boards.
The National Security Act, 1980 (Act 65 of 1980) provides for preventive detention in specified cases. Sections 7 to 9 address three important stages of the statutory scheme: action where a person subject to a detention order absconds or conceals himself, disclosure of the grounds of detention and opportunity to make a representation, and constitution of the Advisory Board that reviews detention matters under the Act.
Section 7 - Powers in relation to absconding persons
Meaning: Section 7 provides measures that may be taken when the Central Government, State Government, or an authorised officer under Section 3(3) has reason to believe that a person against whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed.
Section 7. Powers in relation to absconding persons.
(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.
Effect of Section 7
Section 7 creates both procedural and penal consequences. A report may trigger the statutory process applicable to an absconding person and property, while failure to comply with a Gazette-notified appearance direction may constitute a cognizable offence punishable with imprisonment up to one year, fine, or both, subject to the defence expressly stated in sub-section (3).
Section 8 - Grounds of detention to be disclosed to persons affected by the order
Meaning: Section 8 imposes a statutory duty on the detaining authority to communicate the grounds of detention within the prescribed period and to provide the detained person the earliest opportunity to make a representation against the detention order to the appropriate Government.
Section 8. Grounds of order of detention to be disclosed to persons affected by the order.
(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 fifteen 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.
Five-day rule and exceptional fifteen-day limit
The ordinary statutory requirement is communication of the grounds not later than five days after detention. Only in exceptional circumstances may communication extend beyond that ordinary period, and the authority must record reasons in writing. Even then, Section 8(1) fixes the outer statutory period at fifteen days from the date of detention.
Opportunity to make a representation
Communication of grounds is linked to the detained person's opportunity to challenge the detention through a representation to the appropriate Government. The section requires that the earliest opportunity for making such a representation be afforded.
Public-interest exception
Section 8(2) does not require disclosure of facts that the authority considers contrary to the public interest to disclose. This statutory exception operates within the constitutional framework governing preventive detention, including Article 22 of the Constitution of India.
Section 9 - Constitution of Advisory Boards
Meaning: Section 9 requires the Central Government and each State Government to constitute one or more Advisory Boards whenever necessary for purposes of the National Security Act. The provision also prescribes the composition and chairmanship of each Board.
Section 9. Constitution of Advisory Boards.
(1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the 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.
Composition of the Advisory Board
An Advisory Board consists of three persons possessing the judicial status or qualification specified in Section 9(2). The Chairman must be a member who is, or has been, a Judge of a High Court. Sections 10 and 11 of the Act deal further with reference to the Advisory Board and its procedure.
Official statutory sources
The National Security Act, 1980 is administered by the Ministry of Home Affairs. The official Ministry of Home Affairs Acts page provides the Act, including a version described as containing the latest amendments. India Code also provides the Central Act text. These official sources should be consulted for authoritative statutory wording, amendment notes and legislative details.
This article provides general legal information. Preventive detention is subject to the Constitution, the statutory scheme and applicable judicial decisions.