This article has been written by Harshita Varshney from Faculty of Law, Aligarh Muslim University. The author has tried to analyse the history of National Security Laws in India and their needs. Further, the constitutional validity of these laws applicable to Jammu and Kashmir has been analyzed.
Table of Contents
Introduction
There is no doubt that the national security of one’s state is of supreme concern for the government. It is the most important duty of a state to maintain security and public order and to achieve this purpose exceptional laws can be made but these laws should not be vague. It is essential in order to establish a society governed by law and not by arbitrary laws of men.
Jammu and Kashmir referred to as the ‘paradise on earth’, has always been in news because of its security concerns. Jammu and Kashmir are not only famous for its natural beauty. It has remained a vulnerable part of India due to ever-growing terrorist activities in the area. There are many national security laws which are applied in Jammu and Kashmir and these laws are fully criticised by the people on the basis that they violate many human rights because these laws confer various extraordinary powers on the government.
A brief history of national security legislation in India
The securities laws in India are not limited to any two or three specific laws. They exist in the form of a series of laws which were enacted with an aim to safeguard the national security and interests of its citizens. However, these laws conferred various unregulated and unchecked powers on the government due to which the citizen’s rights are negatively affected.
India’s securities laws are limited to any two or three laws. In India, the securities laws exist in a form of series which were enacted with an aim to safeguard the national security and national interests. However, these laws conferred various unregulated and unchecked powers on the government due to which the citizen’s rights and liberties are negatively affected.
During colonial rule, many security legislation was passed which were against human rights. The Britishers have used many preventive measures to establish their control in India. One such law is the Rowlatt Act which conferred power on the British government to make an order for the preventive detention for up to two years only based on suspicion. The right to be represented by a counsel and right to appeal were not provided. The power under this Act was used during the time of the non-cooperation movement led by Mahatma Gandhi during the early 1920s.
Preventive Detention Act, 1950
After India gained independence, the drafters of the constitution were framing laws to protect the rights of the citizens. At the same time, another powerful law, the Preventive Detention Act, 1950 (hereinafter PDA) was at the stage of preparing which was an end for the citizen’s rights. Due to the partition of India, there was widespread communal violence and internal disturbance in the country. So, to prevent its territory and to secure the rights of its citizens, the PDA was presented by Sardar Vallabhbhai Patel in the parliament and while presenting it he said that “I have spent many sleepless nights thinking about this bill”. This is how the PDA, 1950 was introduced in India and remained enforced until 1969. This law gave power to the government that it can detain individuals without any charge for one year. This law was a temporary law which has a “sunset clause” in it. It was enacted to achieve a specific purpose and when the purpose was achieved it became lapsed in 1969.
Armed Forces (Special Powers) Act, 1958
During 1947-58, a movement called separatist movement was going on in the Eastern State- Nagaland. Due to which, various violent activities were ongoing in the state. The intensity of the violence was so hard that the State Government met with the failure to control such activities in the state. Therefore, to control such violent activities in the north-eastern states, the government of India introduced the Armed Forces (Special Powers) Act, 1958 (hereinafter AFSPA). This Act confers special powers on armed forces, to maintain public order in the disturbed area. This law was different from the previous security law as Section 3 of AFSPA confers power on the Central Government that it can declare any area of the country as a disturbed area and the armed forces are provided with some special powers for maintaining public order in such disturbed areas. Generally, to maintain the public order in an area is a duty of the police. But as soon as an area is declared as a disturbed area under AFSPA the armed forces also start working parallely with the police to maintain public order in such an area. The powers conferred on the armed forces under AFSPA are making the arrest without a warrant, searching the premises of an individual without a warrant and seizing firearms etc.
Initially, the AFSPA was introduced with an aim to solve the problems of Nagaland but in the coming years, it was applied to many north-eastern states, Punjab and Jammu & Kashmir.
Maintenance of Internal Security Act, 1971
Interestingly, the Maintenance of Internal Security Act, 1971 (hereinafter MISA) was introduced just after the two years when PDA lapsed. The majority of powers presented in PDA were placed under the provisions of the MISA. The main aim of the MISA was to put more restrictions on detained persons. The same thing happened during the time of the 1975 emergency, thousands of people were behind the bars without any trial rights and safeguards. During the time of National Emergency, 1975, whosoever was standing against the government, whether they be the opposition or the Civil Society Group, the powers of the MISA were misused on them unrestrictedly. Later, with the fall of Indira Gandhi’s government, the MISA was also repealed.
National Security Act, 1980
In 1980, the National Security Act (hereinafter NSA) was introduced which was a reflection of PDA and MISA. This Act provides powers to the Central and State Government to detain individuals for protecting the national security and interests of its citizens. The NSA has prescribed the period of maximum confinement which is twelve months but this period can be extended if the government has received any new or fresh evidence against the detained person. When a person is arrested under the NSA he is not provided with his basic rights like the right to be informed about the grounds of the arrest and the right to get free legal aid. Under the NSA a person can be detained up to 10 days without even prescribing the grounds of the arrest. The NSA is still in existence and the biggest criticism of this law is that there is not any record present which will show the statistics of arrests made under this Act. Even the National Crime Bureau has not any records regarding the number of arrests made under this law.
Terrorist & Disruptive Activities (Prevention) Act, 1985
The Terrorist and Disruptive (Prevention) Act, 1985 (hereinafter TADA) was introduced by the government to control the separatist activities spread across the country and especially the terrorist activities in Punjab. TADA has the most powerful laws due to which this law strongly overrides the provisions of the Code of Criminal Procedure, 1973 (CrPC) and the Constitution of India. Under this law, many new offences were created, the powers of the police were increased and the safeguards of the citizens were reduced. It was also provided under this act that if any person has made confession before the police then this confession of his is admissible as evidence in the Court of law. This has led to an increase in the number of cases related to police brutality and abuse. Many allegations were also raised regarding the misuse of the powers provided under the TADA. due to which this law repealed by the government by using the sunset clause present in it.
Prevention of Terrorism Act, 2001
There were a series of three events which made the government of India think about the situations of security laws of India. On 24th December 1999, there was hijack of IC,814 in Kandahar. Next, in September 2001 there was a terrorist attack on the World Trade Organization and on 13th December 2001, there was a terrorist attack on the Parliament of India. After the occurrence of these events, the government of India realised that there is a need to strengthen their anti-terror laws and for this, the Prevention of Terrorism Act, 2001 (hereinafter POTA) was introduced. Under POTA, any suspect could be detained for 180 days. The problem with the POTA was that the provisions of POTA were as same as that of the TADA. So, the loopholes present in the TADA were also there in the POTA like police brutality due to excessive powers conferred on the police and lesser safeguards for the detained person. Due to these reasons, the POTA was repealed in 2004.
Unlawful Activities (Prevention) Act, 1967
The Unlawful Activities (Prevention) Act (hereinafter UAPA), was introduced by the government after receiving assent from the President on 30th December 1967. At that time there were conflicts among the government and opposition. The opposition party was openly favouring their agenda’s like secession of Tamil Nadu from the Indian Union. Due to these reasons, the UAPA was enacted by the government. The main motive of this law was to punish those people who indulge in the unlawful activities for causing a disturbance in sovereignty and integrity of India. It gave the power to declare certain organisations as unlawful and to put restrictions on some activities on the ground that they were disrupting the sovereignty of the nation and creating disaffection amongst the population. The Act primarily dealt with unlawful activities only. After the POTA was repealed it was felt by the Indian government in 2004 that the UAPA had not covered the ‘terrorist act’ so in relation to it an amendment was made in the same year which included the definition of ‘terrorist act’ along with the ‘unlawful activities’. Again an amendment was made in 2008 after the Mumbai terrorist attack, which incorporated the provisions similar to the POTA. Another amendment was made in 2012 to fulfil the FATF commitments. A recent amendment has been made to the UAPA in 2019, to establish an efficient manner for dealing with the terrorist activities which are increasing day by day.
Do we need these laws
There is no doubt that terrorism is a threat to national security. Therefore, it is the duty of every state to form laws to combat terrorism and to protect the security of the state. The state should take all the necessary steps to protect its citizens and institutions from the acts of terror. Mr K.P.S. Gill, Former Director-General of Police of the State of Punjab in India, has made a statement that “National security legislation is not just a definition of crimes or new patterns of criminal conduct and the prescription of penalties. It relates to the entire system, institutional structures and processes that are required to prevent and [penalize] such crimes, to preserve order, and secure the sphere of governance”.
The debate regarding whether India should have its security laws or not is not a new one. The question regarding the need for security laws has been raised many times. These laws are important for a country to maintain security and public order and due to this reason, these laws are known as “exceptional laws” or “necessary evil”.
It has been argued several times that ordinary criminal laws of the state are not sufficient to combat terrorism and to protect national security. Therefore, the government need to enforce some special laws to deal with terrorism and to protect national security.
Abrogation of Article 370
On 5 August 2019, India witnessed the historic event i.e. the revocation of Article 370 of the Indian Constitution. On 17th October 1949, Article 370 was incorporated in the Constitution of India and from 26th January 1950 the constitution of India was enforced and with this Article 370 was also came into force. It was incorporated in the Indian Constitution because the instrument of accession was signed by Raja Hari Singh to make a special provision for Jammu and Kashmir. Article 370 states about the temporary status of Jammu and Kashmir. It also says that the other laws of India are not applicable in Jammu and Kashmir and special laws will be made for Jammu and Kashmir. But it also provides that it is only a temporary provision. To provide more strength to Article 370 and special status to the Jammu and Kashmir Article 35A was added in the Indian Constitution by the 1st Presidential order passed by the then President of India “Rajendra Prasad” on 14th May 1954. The anime of the specific order was “The Constitution Application to Jammu and Kashmir Order 1954”. This article prohibits other Indian Citizens and tells who can be a permanent resident in Jammu and Kashmir. Article 35A states that all laws which other states of our country follow will not be applicable to Jammu and Kashmir and the President along with the state assembly will decide which laws will be applicable in Jammu and Kashmir.
On 5th August 2019, President Ramnath Kovind used his power under clause 1 of Article 370 issued a presidential order and the name of the order was “The Constitution (Application to Jammu and Kashmir) order 2019”. This order has the power to override or supersede or replace the order of 1954 with the immediate effect. The 1954 order was replaced and came to an end and along with this the Article 35A and the Constitution of Jammu and Kashmir also came to an end. After the order was passed, two resolutions were presented by the Home Minister, Amit Shah. First, some changes must be brought to Article 370 so that it would get inoperative. Second, he proposed the Jammu and Kashmir Reorganisation Bill. Article 370 has prescribed the procedure of its removal that, whenever the President wants, he can issue a public order and can say that from today onwards Article 370 is not applicable. But before doing so, he has to take permission from the constituent assembly of Jammu and Kashmir. But the Constituent Assembly was not in presence as it got dissolved in 1957 which was a deadlock in the process of revoking Article 370. But this deadlock was removed by the Presidential order of 2019.
According to the Jammu and Kashmir Reorganization Bill, 2019 two new union territories were formed. First, Ladakh, comprising the region of Kargil and Leh without any legislature body. Second, Jammu and Kashmir with the legislature body.
The main reason behind the revocation of these provisions is that these provisions act as a hurdle for the development of Jammu and Kashmir. This step was necessary to integrate Jammu and Kashmir with the other states of India.
Security laws applicable to Jammu & Kashmir and their constitutional validity
These are the following security laws which are applicable to the union territory of Jammu and Kashmir:
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
One of such laws is the Armed Forces (Special Powers) Act, 1958 (AFSPA). This law gave power to the government to declare any area of the country as the “disturbed area” and to maintain public order in such areas the armed forces are appointed to control the disturbed areas and are provided with some special powers to maintain public order in such areas. The AFSPA was initially enacted with an aim to control the separatist movement going in the state of Nagaland.
In 1990, the growing insurgency in the state of Jammu and Kashmir led to the enactment of the Armed Forces (Jammu and Kashmir) Special Powers Act. This state-specific law has the same provisions as that of the AFSPA, 1958.
Under AFSPA the government has the power to declare any area as disturbed area and in such disturbed areas, the army is appointed to control the situation in such areas. Due to which various powers are conflicted on the army personnel for maintaining peace and public order in the disturbed area. Some of the unregulated powers of the army are they have power, to arrest anyone without any arrest warrant, to do searches at house without any warrant in order to collect arms or weapons from an individual. The authorised army official has the power to shoot at any individual if he has violated any laws like a gathering of five or more people or if he has carried any weapon or arms with him. But before shooting an individual, the authorised army official has to give that person a warning.
The constitutional validity of the AFSPA was upheld by the Supreme Court in the case of the Naga People’s Movement of Human Rights v. Union of India (1997). However, the court issued some guidelines in the form of do’s and don’ts, regarding the application of the provisions of the AFSPA, like an individual should not be detained for more period as required by law, he should be handed over to the nearest police station, no force should be inflicted on any person except in the case if he tried to escape from the custody.
There is no doubt that various unchecked powers are conferred on the army but in the absence of these powers, it wouldn’t have been possible for our nation to control the insurgent side in the state of Jammu and Kashmir.
Unlawful Activities (Prevention) Act, 1967
The main motive of the Unlawful Activities (Prevention) Act, 1967 was to punish those people who indulge in the unlawful activities for causing a disturbance in sovereignty and integrity of India. It gave the power to declare certain organisations as unlawful and to put restrictions on some activities on the ground that they were disrupting the sovereignty of the nation and creating disaffection amongst the population. The act primarily dealt with unlawful activities only. Initially, the terrorist activities were covered under the provisions of TADA and POTA only. But after the POTA was repealed in 2004 its provisions were incorporated in the UAPA by way of amendments. The provisions of the UAPA have been challenged many times but the court has upheld the validity of such laws. However, the court has not restricted itself from scrutinizing some specific provisions of the act. In the case of Sri Indra Das vs State Of Assam (2011), Section 10 of the act was challenged before the court as it criminalizes the mere association with a banned organisation. The court held that the literal interpretation of this provision will be violative of Article 19 and Article 21 of the constitution. The court also held that ‘mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’.
Jammu and Kashmir Public Safety Act, 1978
The Jammu and Kashmir Public Safety Act, 1978 (hereinafter PSA) is a defensive detention law which was enacted with an aim to prevent the smuggling of timber and keep the smugglers “out of circulation”. It is a kind of preventive detention law which confers power on the state government to detain an individual for preventing him or her from acting in any manner which is prejudicial to “the security of the state or the maintenance of the public order” up to two years without any trial. Like other security laws, the detained person has not any rights under PSA. When a detention order is passed by the government then after four days of such order passed, the case has to be presented before the advisory board. A detained person can take advantage of the rights if it can be established before the advisory board that the arrest made was illegal.
The detention order passed under the PSA can be challenged before the High Court by filing Habeas Corpus petition under Article 226 of the Indian Constitution and there are many cases where such detention orders are challenged before the High Court. In the case of Mohammad Rafiq Sofi & Ors. vs State Of J&K (2018), the preventive detention order was quashed by the high court because the district magistrate copied the whole report of the police. It is necessary for the district magistrate to tell his opinion why the detention of an individual is necessary. The court quashed the order on the basis of the non-application of mind.
This law was introduced by Sheikh Abdullah then Chief Minister of Jammu and Kashmir in 1978 and ironically his son Farooq Abdullah was detained under PSA after the abrogation of Article 370.
Security laws after the revocation of Article 370 and their constitutional validity
The revocation of Article 370 and bifurcation of the state into two Union Territories has brought many changes to the people of Jammu and Kashmir. One of the most important changes brought through revocation of Article 370 is that now all laws will be applicable to Jammu and Kashmir without any limits. Now, they will be able to enjoy all the benefits just like any other citizen of the country. Soon after the revocation of Article 370, 37 central laws from the concurrent list were applied to Jammu and Kashmir. An official statement was released that the cabinet has approved the order for an adaptation of Central Acts in the Union Territory under Section 96 of the Jammu and Kashmir Reorganisation Act, 2019.
Later it was announced that now 108 central laws will be implemented in the union territory of Jammu and Kashmir and Ladhak. These 108 laws include two security laws, the National Security Act, 1980 and the Disturbed Areas (Special Courts), 1976.
National Security Act,1980
The main objective behind the enactment of NSA was to prevent individuals from acting against the interests of the nation, which includes acts threatening the ‘security of India’ or the ‘security of the state government’ or are ‘prejudicial to the maintenance of the public order’. But these terms are not defined anywhere neither in the NSA nor in any other law. However, the Supreme Court in the case of Dr Ram Manohar Lohia vs State Of Bihar And Others (1966) has tried to make clear the three terms, ‘security of the state’, ‘public order’ and ‘law & order’.
This law aims to maintain public order in the country and for this, it has conferred power on the government to make preventive detention in certain cases.
The arrest made under the NSA is very different from the normal arrest. When a person is arrested for any offence committed under IPC or CrPC, the grounds of his arrest are informed to him by the authorities and he has to be presented before the magistrate within the 24 hours of his arrest. However, if any person is arrested under the NSA then he can be detained for 5 days without informing the grounds. A person arrested under NSA doesn’t have the right to get bail. The constitutionality of the National Security Act, 1980 was challenged in the case of A.K. Roy & Ors. v. Union of India & Ors. (1982). The court upheld the constitutionality of the NSA. However, the court also ruled that these extraordinary powers related to preventive detention could be narrowly constructed by the government.
Disturbed Areas (Special Courts) Act, 1976
The Disturbed Areas (Special Courts) Act, 1976 was enacted on 15th August 1976 with an aim to provide speedy trial of certain offences in disturbed areas. Under Section 3 of the act, the state government has the power to declare any area of the state as the disturbed area on the basis if there is a disturbance of the public peace and tranquillity caused by the reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities. If the state government hasn’t specified the period for existence of such declaration then it can be extended up to three months. However, the government can amend it from time to time by issuing notifications. Section 4 of the Act confers power on the state government to constitute as many special courts as needed in the disturbed area for the speedy trial of scheduled offences committed in the disturbed area by issuing a notification in the Official Gazette.
What are the issues with these laws
All of these security laws discussed above have some problems. These laws are AFSPA, UAPA, NSA which are currently operational and MISA, TADA, POTA which have been repealed. The main aim of these security laws is to protect the national security, public order and peace in the country. But by confining the aim of these laws the state has failed to limit the scope of such laws. For example, the main objective behind the enactment of NSA was to prevent individuals from acting against the interests of the nation, which includes acts threatening the ‘security of India’ or the ‘security of the state government’ or are ‘prejudicial to the maintenance of the public order’. But these terms are not defined anywhere neither in the NSA nor in any other law. So, now it became difficult to put which kind of acts under these heads.
The army officials are provided with the unlimited and unchecked powers for maintaining public order and peace in the disturbed area. Due to which many cases of abuses and tortures have been witnessed. These security laws have overridden the provisions of CrPC as these give powers to the state to make search anywhere without any warrant and to detain anyone without a warrant which means these laws have diminished the procedural rights of an accused prescribed under CrPC. Many people have claimed that these laws have not only neglected the fundamental rights of its citizens but also contradicted them.
The application of these laws in Jammu and Kashmir have helped India in securing it as a part of India. These strict and rigid laws were the need of an hour for Jammu and Kashmir cause the security of it was degrading day by day since we have gained independence. In 2020, when the residents of Jammu and Kashmir are booked under the strict laws like UAPA, there has been a decline in the number of the incidents of stone-pelting and violence in the valley, the number came down to 389 in 2019 and 102 in 2020. However, the abuse of the powers provided under these laws cannot be avoided.
National security is no doubt is of supreme concern for any state but it must strike out a fine balance between competing interests of citizens freedom and national security. The state should not let any of these two objectives fail. Otherwise, it will result in a failed state.
Conclusion
The most important duty of a state to maintain security and public order and to achieve this purpose exceptional laws can be made but these laws should not be vague. It is essential in order to establish a society governed by law and not by arbitrary laws of men. There are many security laws like AFSPA, PSA, UAPA and NSA which are applied in Jammu and Kashmir and these laws are fully criticised by the people on the basis that they violate many human rights because these laws confer various extraordinary powers on the government. But these strict and rigid laws were the need of an hour for Jammu and Kashmir cause the security of it was degrading day by day since we have gained independence. According to data issued by the Ministry of Home Affairs (MHA), 2,268 people were arrested for stone-pelting in 2018, which went down to 1,127 in 2019 and 1,152 in 2020. To maintain peace and integrity in the state is the most important duty of the government but for fulfilling this purpose the interests of its citizens should not be suffered. A perfect balance should be made between the two otherwise the state will suffer.
References
- https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security-laws
- https://www.researchgate.net/profile/Surabhi_Chopra2/publication/278157994_National_Security_Laws_in_India_The_Unraveling_of_Constitutional_Constraints/links/557c8fa808aeb61eae2363cd/National-Security-Laws-in-India-The-Unraveling-of-Constitutional-Constraints.pdf?origin=publication_detail
- https://www.questia.com/library/journal/1G1-133409801/human-rights-implications-of-national-security-laws
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