QUALIFICATION OF AN ARBITRATOR OR A QUALIFIED ARBITRATOR?
April 30, 2020
AAROGYA SETU: PRECAUTIONARY APP OR DATA SURVEILLANCE GIMMICK?
April 30, 2020

Combatting Pandemic with National Security Act: A Curate’s Egg?

The statutory genesis of the law of preventive detention in India dates back to the colonial code of Bengal Regulation III which primarily served the purpose of curtailing dissent and Indian nationalism.[1] Since then, the tentacles of this law have only camouflaged themselves in various bodies– Article 22 of the Indian Constitution[2], the mandate of which has been challenged a number of times before the Apex Court, the Armed Forces Special Powers Act[3], a focal of various controversies on excesses committed in Kashmir and some of the North-Eastern, Unlawful Activities (Prevention) Act[4] whose Amendment Bill in 2019 generated wide speculations about its arbitrariness and the National Security Act[5] which was recently implemented across the states of Jammu and Kashmir following abrogation of Article 370 and New Delhi following the anti-CAA spur. To utter astonishment, the provisions of this uncommon law were also resorted to maintain adherence towards law and punish the contemnors following the lockdown declared in light of the COVID-19 epidemic[6] in the country.
Imposition of NSA by the two States
Section 3 of the National Security Act, 1980 stipulates varying conditions for the Centre or the State Government to implement the provisions of preventive detention:
  1. Defense of India
  2. Relations with Foreign Powers
  3. Regulating continued presence or expulsion of a foreigner
  4. Security of India
  5. Maintenance of Public Order
  6. Maintenance of essential supplies and services
The probable grounds for imposition of NSA during a pandemic could fall under the latter three heads. However the possibility for imposition of hindmost ground is negated by the explanation proviso to Section 3 of the Act[7]. Moreover, since the Government has issued directions pertaining to commodities and services under the Disaster Management Act, 2005[8], the same will have an overriding force by virtue of Section 72 of that Act. As opposed to this legislative curtailment, the Courts have truncated the usage of public disorder to impose NSA by delineating that a mere violation of law in absentia of profound magnitude of harm will not amount to disruption of public order[9]. This line of reasoning will hold basis in the present case as well. Thus, this leaves only one scrutable ground of national security for imposition of an inscrutable mandate. However, the code is not inclusive of the meaning and confines of the terminology. No legislative instrument in the country defines the ambit and construct of the same. However, the Judiciary has tried to cement the legislative gap by offering an interpretation to this protean term under the aegis of Article 19(2). 
The Ambit of ‘National Security’
The landmark case of Romesh Thappar v. State of Madras[10] dealt with attributing scope to security of state. The bench elucidated that undermining the security of the state would refer to acts which could shake the very foundations of the State by generating public disorder. Clarity on the object of this clause was also sought in the case of Kishori Mohan v. State of West Bengal[11]. The Bench considered three heads of enforcement and protection – law and order, public order and security of state – wherein they formed part of concentric circles. The smallest constituted the security of state whereas law and order represented the outermost one thereby indirectly highlighting that:
  1. An act in contravention of national security would have to amount to grave danger to fabric of the nation;
  2. An act of public disorder or disruption by violation of law(s) doesn’t always amount to breach of state security.
Quite unambiguously these pronouncements operate in the already existent grey area.They only concern themselves with traditional or orthodox conception of security while disregarding evolving components or nature of security.National security which has been duly defined as the capability of a nation to overcome the multi-dimensional threats to the apparent well-being of its people and its survival as a nation-state[12], has not been reflected by the Indian Courts so far.
The Dilemma of Security
Given this vagueness, it is pertinent to reflect upon the scenario wherein this abstruse ground has been used to detain defaulters. The pandemic which is a world health emergency, as reinstated by World Health Organization and multiple countries, surely does demand stringent application of law. But is this epidemic a national security threat? If yes, does this give state the authority to detain violators under a law which has been time and again criticized for being arbitrary and without a sunset provision?[13] Before resolving these dilemmas, it is rather crucial to understand the multifaceted crux of national security which is a crucial, if not central, aspect of this debate.
National security, concerns about which emulsified in 20th century[14], has been held to be inclusive of social and ecological wealth.[15] Touted to be inclusive of food security, health security, political security, economic security, and environmental security[16], it governs the protection and fulfilment of vital freedoms and the development of capabilities to create satisfying lives.[17] On similar lines, an erstwhile National Security Advisor of India defined national security to be comprehensive of energy, food, technology security and social cohesion.[18]
Therefore as elucidated above, the ambit of the term is wide enough to include a threat posed by COVID-19 as a threat to the security of individuals and hence the nation. It can be categorized as a threat for it is devoid of any directed cure and the nature of its transmission is quite intractable. The medical research treasury concerning the same is also in its elementary phase. Moreover, the number of people affected by the same is drastic[19]. All of this coupled with inadequate, rudimentary health and safety infrastructure not in congruence with the numbers which could be affected makes this pandemic a global health emergency endangering security.
Is NSA the Legal Vaccine?
Considering this scheme, it is an inevitable need of the hour to put in place stringent regulations and laws catering to diverse sectors. The UK has implemented an all-inclusive Coronavirus Act, 2020 and Australia has sought aid of the National Health Security Act, 2007. However, India has not only relied upon the provisions of Disaster Management and Epidemic Diseases Act coupled with the Indian Penal Code[20] but states like Uttar Pradesh and Madhya Pradesh have also witnessed a resort to preventive detention under NSA, a constitutionally debatable move not resorted by any other democratic nation.
As upheld in AK Roy v. Union of India[21], NSA has to be restrictively applied in situations for the terminology applied in the Act is prone to vagueness and uncertainty which can turn it into a tool to exploit and exert the will of the mightier.As evidenced by SAHRDC internal findings[22], such an all-encompassing enactment is resorted to in cases where either the action cannot be acted against under strictures of criminal and constitutional law or there is a desire to bypass the evidentiary mandate. If nothing else, the loopholes of vagueness and unrestrained authority will only be exploited in this emergency scenario as is evidenced by its application in isolated incidents which didn’t shake the fabric of this nation.
Moreover, given the lockdown mandate of restrictive operation, the Courts will not be able to function in a fair manner to review such orders. This aside, the Advisory Boards constituted under Section 9 of the Act are nothing but extended punitive arms of Government[23]. Unrestrained and whimsical deployment of this act will not only abuse the mandate of universal human rights[24] but as per a WHO Report, will also populate the over-crowded Indian prisons only to increase the risk of amplification of the disease.[25]
One of the strangest ventures of this law was to prevent cow slaughter in Uttar Pradesh[26] and it won’t be unusual if such stark abuses of this venerable law gain momentum during this epidemic.
Calling a spade, a spade
Quite manifestly, the resort to this Act is an unjustifiable[27]and arbitrary application[28] of the law. The alleged acts for which the same was used as a penal tool can very well be penalized under Section 188, 269 and 270 of IPC, Disaster Management Act (Chapter X) and Epidemic Diseases Act (Section 3). Moreover, instead of relying upon an inept piece of legislation which only whirlpools unchecked subjugation, the Government could formulate and issue unambiguous regulations under either Section 76, Disaster Management Act or under Section 2, Epidemic Diseases Act. Furthermore, ordinance making power of the Governors under Article 213 could be utilized as an effective tool to make way for protection of the covid-19 warriors. However, it is necessary to ensure that resort to detention is restricted to rarest of cases due to contagious nature of virus and greater reliance be placed upon fines, confiscation etc.
Thus, while assuring protection and controlling the contagion it is necessary to assure that rule of law isn’t compromised by imposing NSA for it a curate’s egg which will only amplify magnitude of this pandemic and abuses of law.

REFERENCES

[1]M.B. Hooker(July 1969), The East India Company and the Crown 1773-1858, M.L.R. (Vol. 11 No. 1) pg. 29 Accessed 10 Apr 2020

www.jstor.org/stable/24863503

[2]The Constitution of India, 1950

[3]The Armed Forces Special Powers Act, 1958

[4]The Unlawful Activities (Prevention) Act, 1967

[5]The National Security Act, 1980

[6]Press Trust of India, Covid-19: UP to slap NSA against people who attack cops enforcing lockdown, Business Standard, April 3, 2020, Accessed Apr 4 2020

https://www.business-standard.com/article/current-affairs/covid-19-up-to-slap-nsa-against-people-who-attack-cops-enforcing-lockdown-120040300496_1.html

[7]It gives the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 an overriding impact.

[8]Ministry of Home Affairs, Government of India, ORDER No.40-3/2020-DM-I(A), April 15 2020

[9]Arun Ghosh v. West Bengal AIR 1970 SC 1228; Ajay Dixit, N.S.A. v. State of UP and Others 1985 AIR 18

[10]AIR 1950 SC 124

[11]AIR 1973 SC 1749

[12]PaleriPrabhakaran (2008), National Security: Imperatives And Challenges,Tata McGraw-Hill,

(p. 521) ISBN 978-0-07-065686-4

[13]AK Roy v. Union of India AIR 1982 SC 710s

[14]Ernest R. May(1992), Rethinking America’s Security: Beyond Cold War To New World Order, W. W. Norton & Co Inc; 1st edition

[15]Ammerdown Group, Rethinking Security: A discussion paper”, 2016, Accessed 5 Apr 2020

rethinkingsecurity.org.uk

[16]Ogwezzy Michael C. and Others, Legal Challengers Arising from Environmental Insecurity within the Broad Context of Human Rights and National Security, 8 GJLDP (April) 63 2018

[17]UNESCO (2008), Human Security: Approaches and Challenges, UNESCO Publishing

[18]PIB, Ministry of Finance, Government of India, P Chidambaram’s Address at K Subrahmanyam Memorial Lecture, Feb 2013, Accessed 7 Apr 2020

https://pib.gov.in/newsite/PrintRelease.aspx?relid=92059

[19]The number of people which have died across the globe are more than 1 lakh and around 23 Lakh people were diagnosed with the disease till 20th April 2020. (https://covid19.who.int/)

[20]Sections 188, 269 and 270

[21]AIR 1982 SC 710

[22]Ravi Nair, National Security Act: Obscuring the flaws in India’s Criminal Justice System, The Wire, March 5 2018, Accessed April 21, 2020

https://thewire.in/caste/national-security-act-obscuring-flaws-indias-criminal-justice-system

[23]The members of the Board are appointed by the Government itself.

[24]Universal Declaration of Human Rights, 1948; International Covenant on Civil and Political Rights, 1966

[25]World Health Organization (March 2020), Preparedness, Prevention and Control of COVID-19 in prisons and other places of detention, WHO Regional Office for Europe

[26]Press Trust of India, Cow Slaughter now an issue of national security; UP DGP’s order says NSA to be invoked, The Indian Expressed, June 6, 2017, Accessed 20 Apr 2020

https://www.newindianexpress.com/nation/2017/jun/06/cow-slaughter-now-an-issue-of-national-security-up-dgps-order-says-nsa-to-be-invoked-1613502–1.html

[27]PTI, Coronavirus: 4 Men slapped with NSA for attacking health workers in MP’s Indore’, Outlook, Apr 10, 2020, Accessed 11 Apr 2020

https://www.outlookindia.com/website/story/india-news-coronavirus-4-men-slapped-with-nsa-for-attacking-health-workers-in-madhya-pradeshs-indore/349994

[28]Press Trust of India, Covid-19: UP to slap NSA against people who attack cops enforcing lockdown, Business Standard, April 3, 2020, Accessed Apr 4 2020

https://www.business-standard.com/article/current-affairs/covid-19-up-to-slap-nsa-against-people-who-attack-cops-enforcing-lockdown-120040300496_1.html

ABOUT THE AUTHOR

 

 

Nimrat Kaur is a final year student pursuing BA LLB (Hons) from Symbiosis Law School, Pune. She is keenly interested in understanding diverse facets of Constitution, Human Rights, Humanitarian Law and Policy formulation. 

 

 

 

 

In Content Picture Credits: deccanherald

Leave a Reply

Your email address will not be published. Required fields are marked *