National Security Act: Protection of The State

National security refers to a country’s ability to meet its demands for self-preservation, reproduction, and improvement while posing the least amount of harm to its current values. The security of a nation-state, including its inhabitants, economy, and institutions, is viewed as a government responsibility.

The National Security Act gives the government the authority to detain a person if the authorities believe he or she poses a threat to national security or is disrupting public order. In India, on September 23, 1980, the National Security Act 1980 was passed by the Parliament with the goal of “allowing for preventative detention in specific instances and items linked therewith.”

The act authorises the Central Government and State Governments to detain a person to prevent him or her from acting in any way that may jeopardise India’s security, relations with foreign countries, public order, or the provision of supplies and services essential to the community.

WHAT IS NATIONAL SECURITY?

National security is the security and defence of a nation-state, including its citizens, economy, and institutions, and is considered a governmental responsibility.

Originally envisaged as a defence against military attack, national security is commonly recognised to include non-military components such as terrorism prevention, crime reduction, economic security, energy security, environmental security, food security, cyber-security, etc.

HISTORY AND EVOLUTION OF THE NATIONAL SECURITY ACT IN INDIA

Its origins can get traced back to the colonial era. It was first enacted in 1818 as Bengal Regulation III to allow the British government to arrest anyone in the name of defence and public order without a trial.

The Rowlatt Acts of 1919 were the next in line, and they caused quite a stir. As a result of these acts, the Jalliawala Bagh massacre occurred, followed by a nationwide protest as part of the non-cooperation movement.

The Preventive Detention Act of 1950, established by Prime Minister Jawaharlal Nehru’s administration after independence, was India’s first preventive detention rule (expired in 1969). The NSA ACT is a modernised version of the 1950 Act.

In India, the Parliament has repeatedly enacted a series of National Security and anti-terror laws, such as :

PDA- Preventive Detention Act 1950 – 1969

The legislation came into being soon after the constitution went into effect. The Act authorised the imprisonment of persons without charge for up to a year.

Initially, it got enacted to address the nation’s issues of tremendous violence and displacement during division. However, it stayed in effect for two decades before being allowed to expire in 1969.

AFSPA- Armed Forces Special Powers Act, 1958 – till date

The AFSPA got implemented to suppress the Naga separatist movement by giving the additional military power while working with the police. It was designated for deployment in “disturbed areas,” as announced at the time.

Through the act, the soldiers got the authority to use force against people. It was institutional impunity granted to troops that violated human rights against people.

Recently, the legislation has drawn criticism since there is no provision to defend human rights. It grants unrestricted authority to fire on mere suspicion of a crime as simple as disobeying an order. It has no protection against violations of Articles 21 and 22 of the Constitution. As a result, it is invalid in the eyes of the law.

UAPA – Unlawful Activities & Prevention Act, 1967

When it was initially adopted, it only dealt with offences connected to unlawful acts. The government allowed designation of certain groups and unlawful actions, undermining the nation’s sovereignty and generating disaffection among the populace.

Many times the act got modified, the most recently in 2019.

Maintenance of Internal Security Act (1971- 1977)

The Maintenance of Internal Security Act (MISA) was a contentious law approved by the Indian Parliament in 1971, granting the government of Prime Minister Indira Gandhi and Indian law enforcement agencies pervasive powers –

  • Indefinite preventative detention of persons,
  • Search and seizure of property without warrants and
  • resist foreign-inspired sabotage, terrorism, deception.

After Indira Gandhi lost the general election in 1977 and the Janata Party took power, it finally repealed the law.

National Security Act (1980- present date)

It, like the PDA and MISA, was created by the Janata-Party-led administration in 1980.

A preventative detention statute is a near descendant of the 1950 Preventive Detention Act. It gives the federal and state governments the authority to detain anybody who is endangering national security, disrupting public order, or interfering with the provision of critical goods and services to the community. The maximum duration of detention specified is 12 months, which might get extended if new evidence gets presented.

In the current environment, the act’s use has gone well beyond its relevance.

TADA – Terrorist and Disruptive Activities Act, 1987

The Act got enacted when the country’s separatist movement was on the rise, particularly in Punjab. The government classified terrorist-affected regions, which resulted in additional offences, increased police procedural power, and limited defendant protection.

The Act defined “terrorist act” and “disruptive activities,” It limited the issuance of bail, increased the ability to hold suspects, and attached their property.

POTA – Prevention of Terrorist Act, 2002

The Indian Parliament enacted the Prevention of Terrorism Act, 2002 (POTA) 2002 to strengthen anti-terrorism operations. The Act got enacted in response to several terrorist attacks in India, particularly the attack on the Parliament. The United Progressive Alliance coalition repealed the Act in 2004.

SECTIONS UNDER NATIONAL SECURITY ACT

SECTION 1– Short title and extent.

SECTION 2– Definitions.

SECTION 3– Power to make orders detaining certain persons.

SECTION 4– Execution of detention orders.

SECTION 5– Power to regulate place and conditions of detention.

SECTION 5A– Grounds of detention severable.

SECTION 6– Detention orders not to be invalid or inoperative on specific grounds.

SECTION 7– Powers to absconding persons.

SECTION 8– Grounds of the order of detention to get disclosed to persons affected by the order.

SECTION 9– Constitution of Advisory Boards.

SECTION 10– Reference to Advisory Boards.

SECTION 11– Procedure of Advisory Boards.

SECTION 12– Action upon the report of the Advisory Board.

SECTION 13– Maximum period of detention.

SECTION 14– Revocation of detention orders.

SECTION 14A– Circumstances in which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Boards.

SECTION 15– Temporary release of persons detained.

SECTION 16– Protection of action taken in good faith.

SECTION 17- Act not to affect detentions under State laws.

SECTION 18– Repeal and saving

DIFFERENT TYPES OF SECURITY THREAT

Hostile Governments

Hostile foreign governments pose some national security threats. Direct acts of war and aggression may be among these threats. They can, however, be subtler and more difficult to detect. Espionage and election meddling are two examples.

Terrorism

Countries also get threatened by groups that do not formally represent a foreign government but are sponsored or tolerated by foreign powers. Terrorist groups may use physical violence or, in some cases, cybercrime to cause chaos and disruption.

Proliferation

An enemy state does not need to engage in direct aggressive action to get identified as a potential threat to national security. Proliferation, particularly concerning advanced weaponry, may also be considered.

Even if a hostile state is not known to be stockpiling chemical weapons, developing nuclear capabilities, or otherwise increasing its capacity for destruction, it qualifies as a national security threat.

Cybercrime

Online criminals, including those unaffiliated with hostile governments or terrorist organisations, pose a threat to national security.

Cybercriminals may hack into financial institutions, government websites, or power infrastructures to steal or extort money. They may also engage in cybercrime to further an ideological agenda.

Natural Disasters and Diseases

Not all threats to national security are the result of the malign influence of bad actors.

Natural disasters such as hurricanes, earthquakes, and floods can cause significant damage to a country’s people and physical infrastructure.

Pandemics, such as COVID-19 wreak havoc on healthcare systems and economies.

THE THREE PILLARS OF INFORMATION SECURITY

The primary goal of information security is to protect data, and in the digital age we live in, information helps ensure a company’s competitive advantage. As a result, it is critical to safeguard the information that provides value and credibility to organisations.

Unauthorized access, data loss, intrusions, leaks, and other threats to information security abound, and they can result from hacker attacks or even human error.

As technology advances, risks increase.

Thus, the pillars of information security are the defence base of corporate systems and

infrastructure, which works through policies, passwords, and encryption.

Integrity

The Integrity pillar is in charge of preserving the original characteristics of the data as they got configured at the time of creation. In this manner, without authorization, no changes to data are possible.

If there is an incorrect change in the data, there has been a loss of integrity, so control mechanisms must get implemented to prevent unauthorised information alteration.

Confidentiality

This pillar safeguards information against unauthorised access, ensuring your company’s data privacy and preventing cyberattacks or espionage.

The foundation of this pillar is to control access through password authentication, which can also get accomplished through biometric scan and encryption, which has yielded positive results in this regard.

Availability

The ideal situation in an information system is for data to be available for whatever purpose is required, ensuring continuous user access.

It necessitates system stability and continuous access to system data via rapid maintenance, constant updates, and debugging.

It is critical to remember that systems are vulnerable to blackouts, fires, denial attacks, and various other threat possibilities in this context.

MENTION THE PREVENTIVE DETENTION LAWS IN INDIA

Preventive detention refers to the detention of a person to prevent that person from commenting on any potential crime. In other words, the administration takes preventive detention based on the suspicion that the person in question will commit some wrongdoing detrimental to the state.

Preventive Detention is the most divisive element of the Indian constitutional scheme protecting fundamental rights.

A person arrested or detained under preventive detention laws is not entitled to the protections provided by Articles 22(1) and (2) against arrest and detention, according to Article 22(3).

BRIEF ON NATIONAL SECURITY ADVISOR

The National Security Advisor is the senior person on India’s National Security Council and the Prime Minister’s principal adviser on national security policy and foreign affairs. The current NSA is Ajit Doval, who holds the same position as a Union Cabinet Minister.

Because of the post’s vested powers, the NSA is an evident and powerful office in the Government of India.

Since the post’s inception in 1998, all NSAs have been appointed to the Indian Foreign Service or the Indian Police Service. And have served at the discretion of the Prime Minister of India.

According to the NSA’s mandate, it advises India’s Prime Minister on all internal and external threats and opportunities to India and oversees sensitive strategic issues on his behalf.

The NSA of India also serves as the Prime Minister’s Special Interlocutor with China and the security envoy to Pakistan and Israel.

The National Security Agency (NSA) receives all intelligence reports and coordinates their presentation to the Prime Minister.

The Deputy National Security Advisors assist the NSA. As Deputy National Security Advisors, retired IPS officer Dattatray Padsalgikar, former R&AW chief Rajinder Khanna, and retired IFS officer Pankaj Saran.

COMMON COMPUTER SECURITY THREATS

1. MALWARE

Malware gets defined as malicious software, which includes spyware, ransomware, viruses, and worms.

On clicking a malicious link or attachment, malware gets activated, causing dangerous software to get installed.

2. MAN IN THE MIDDLE

When hackers inject themselves into a two-party transaction, this is known as a man-in-the-middle attack.

MITM attacks are common when a visitor connects to an unsecured public Wi-Fi network. Attackers spot themselves between the visitor and the network, then use malware to install software and steal data. According to Cisco, after disrupting traffic, they can filter and take data.

3. PASSWORD ATTACK

A cyber attacker can gain access to a variety of information with the appropriate password.

Data Insider defines social engineering as:

tactic cyber attackers utilise that depends primarily on human interaction and frequently entails luring people into breaching basic security practices.

Accessing a password database or guessing a password are two further sorts of password attacks.

CASE STUDY INVOLVING NATIONAL SECURITY ACT

HOW THE NSA GOT MISUSED

The National Security Act – a statute that enables preventative detention on defence, security, and public order — was used against 139 persons in Uttar Pradesh until August 2020. In 76 of these incidents, individuals got charged with cow slaughter.

In July of last year, a complaint was filed against three brothers from the Imaliya hamlet in the Sitapur region of Uttar Pradesh. Parvez (33) and Irfan (21) were detained on 12 July 2020 when police reportedly found them with 60 kg of cow flesh and cattle butchering gear, while Rahmatullah (40) got nabbed the next day.

They were charged under the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986, and the National Security Act, 1980, while in judicial custody a month later.

They had been imprisoned for almost a year when the Allahabad High Court overturned the NSA custody on August 5, this year, in response to a plea brought by them. However, their appeal was rendered ineffective since the HC ruling came after they already spent almost a year in custody (the most prolonged duration a person may get held for under the NSA).

In October of last year, the Uttar Pradesh Advisory Board and the UP government affirmed their imprisonment.

Following that, the incarceration got prolonged regularly. A person can be held for a maximum of 12 months under the NSA, and an extension must get requested every three months after the custody begins.

According to the lawyers for the brothers, Ateeq Khan, their incarceration got prolonged on a regular basis, and they spent a total of 12 months in prison.

Loopholes identified by the court

While detained by the NSA, the three men were granted bail in the cow slaughter legislation FIR on August 27, 2020, and in the Gangsters Act FIR on November 11, 2020.

The August judgment, issued by a different district and sessions judge in Sitapur, highlighted a few flaws in the prosecution case, including the lack of independent public witnesses.

The court also noted that the veterinary officer identified the meat as beef by looking, but it lacked forensic reports to support it.

The FIR further said that the veterinary officer examined the sack and confirmed that the confiscated meat was cow meat and that “the recovered beef was buried the same day after digging a trench in the ground.”

Political Malice

On August 24, last year, the brothers also filed a representation against the NSA order before the DM. The letter, which ThePrint obtained a copy of, stated that all claims and weapons reportedly confiscated from them were “false and fraudulent.” They also charged the cops with inventing the entire narrative.

He further claimed that the entire case got fabricated, stating that when the cops arrived at their home that night, Rahmatullah was not even in the house and was instead at his in-laws.

Parvez is now seeking compensation after being imprisoned for a whole year, although the High Court later overturned the imprisonment. He also accuses the state administration of “targeting Muslims.”

“We were imprisoned for a year; we should be compensated for our loss; our wife and children were bereaved,” he stated.

A year later, they were released.

On January 5, this year, the three brothers filed habeas corpus petitions with the Allahabad High Court’s Lucknow bench. Exactly eight months later, on 5 August, the top court issued a 26-page decision rescinding their NSA custody.

CONCLUSION

Despite being passed to maintain national security, the act has a lot of room for abuse by the government, which has already happened numerous times. It gives the government extraordinary powers, which it must exercise with care.

Several parts of the National Security Act are arbitrary and infringe on fundamental rights guaranteed by the Indian constitution. There is no reasonableness in this act because it ignores basic rights that are available to everyone.

There is, therefore, a requirement to amend this legislation, perhaps not now or in the near future, so that the executive does not exploit its currently existing loopholes. And it fulfills its constitutional obligation to stand for what Abraham Lincoln once coined as “government of the people, by the people, for the people.”

FAQs

What is NSA act punishment?

The maximum detention period is 12 months. The order can also get issued by a District Magistrate or a Commissioner of Police in their respective jurisdictions. Still, the detention must get reported to the State Government along with the grounds for the order.

Is the POTA Act still valid?

POTA got accused of being used arbitrarily to target political opponents. The Act was repealed on September 21, 2004, one month before its expiration, by the Prevention of Terrorism (Repeal) Ordinance, 2004, later replaced with the Prevention of Terrorism (Repeal) Act, 2004. (assented to on 21 December 2004).

What are the examples of national security?

There are several types of “national securities” available today. Economic security, energy security, environmental security, and even health, women’s, and food security are among them.

What is Article 22?

In certain circumstances, individuals have the right to be free from arrest and detention. No person arrested shall be detained in custody without:

  • being informed of the grounds for his arrest as soon as possible,
  • nor shall he be denied the right to consult and
  • Nor be defended by a legal practitioner of his choice.

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