aws related to Preventive Detention and National Security
Contextualizing the Situation:
Before assessing the laws, acts and provisions pertaining to preventive detention and national
security, it is pertinent to have a look at the major terrorist attacks in India:
12March 1993 - 13serial bomb blasts killing 257 people.
13 December 2001 - Attack on Indian Parliament killing 14 people.
14March 2003 - Train blast in Mulund killing 10 people.
29October 2005 - Delhi Bomb blasts killing 62 people.
5July2005 - Ram Janmabhoomi attacks in Ayodhya.
7March 2007 - Varanasi bomb blasts killing 28 people.
11July2006 - Serial bomb blasts in Mumbai trains killing 209 people.
26 November to 29November 2008 - Coordinate d attacks in Mumbai killing around 170
people.
These numbers clearly indicate that India is a major target for terrorist attacks. It is this
context that the government of India has formulated laws, acts and ordinances to fight the
menace of terrorism.135
1) Preventive Detention Act, 1950:
The Constitution of India passed the first Preventive Detention Act on 26 February 1950
(Jinks2001). The purpose of this act was to stop anti-national elements from undertaking acts
that are hostile to the security and defense of India. After 2 years in practice, the act was
supposed to terminate on 1 April 1951. However, the duration of the act was increased from
time to time and ultimately is was abolished on 31 December 1971 (Rahman 2004).
2) Maintenance of Internal Security Act, MISA, 1971:
MISA was enacted in 1971 in orde r to maintain internal security in India. It was considered
to be a controversial act as it was constantly being used to harass and arrest people who posed
challenge to the Congress leadership such as opposition leaders, jo urnalists and social
workers. They were regularly arrested and put behind the bars in th e name of maintaining
internal security during the National Emergency imposed by government led by Mrs. Indira
Gandhi. The act apparently provided the govern ment with unlimited powers. The police or
the government agencies could arrest anyone pr eventively for longer durations and they were
also given the power to search without any wa rrant. The act also made tapping of telephonic
conversations by the government as legitimate. During the National Emergency of 1975-
1977, several modifications were made in the ac t from time to time. Ultimately the act was
scrapped when the Janata Party came to power in 1977 (Mishra 2018).
3) Foreign Exchange and Prevention of Smuggling Activities Act, COFEPOSA, 1974:
This act provided for preventive detention in certain cases in order to conserve and augment
foreign exchange and to prevent smuggling ac tivities (Ministry of Finance 1974). This act
was like a supporting act for MISA, 1971. Even though MISA was repealed in 1977,
COFESA continued. Earlier the dur ation of detention for traffickers was one year. This was
increased to two years through another ordinance on 13 July 1984 (Ministry of Finance 1974,
1984).
4) Terrorist and Disruptive Activities (Prevention) Act, TADA, 1985:
This act was brought in May 1985 in context of the separatist movement of Khalistan.
Initially, it was brought only for two years. However, in 1987, it was amended and re-
introduced. This act is considered as the most effective and the most draconian of laws made
under preventive detention system (Chopra 2015, PUDR 1993, Singh 2007). The objective of
this law clearly stated that it has been agreed in the basis of experience that in order to stop
and effective tackle terrorist and disruptive activities, it not only necessary to maintain
existing laws but also to make them more powerful. To fulfil this objective, when this
ordinance took the shape of an act in 1987, there were two change s made to it. First, for the
possession of specific arms and ammunition li sted under Arms Rules of 1962, or bombs,
dynamite or other explosive substances, the punishment will be imprisonment at least five
years which may extend to imprisonment for life with fine (PUDR 1993). The second change
was related to the provision that admission of guilt before a S uperintendent of police or an
officer of higher rank would be admissible as evidence (PUDR 1993). The duration of this act136
was increased for every two y ears till 1993. From the end of its duration in 1995 till the
enactment of POTA, there was no law at the cent ral level to deal with terrorism in India
(Hargopal and Jagannatham2009).
5) Prevention of Terrorism Act, POTA, 2002:
The Law Commission of India presented a draf t of an act similar to TADA in its 173 rd report
in April 2001. POTA can virtually be seen as a form of TADA. As an ordinance, POTO
(Prevention of Terrorism Ordinance, 2001) was prepared in the backdrop of terr orist attacks
of 11 September 2001 in USA. The ordinance was promulgated by the National Democratic
Alliance government led by BJP on 24 October 2001. After the Parliament attacks of 13
December 2001, the Parliament was suspended and therefore, in absence of passing it as an
act, another ordinance was passed on 30 Dece mber 2001. Ultimately, the ordinance became
ant act, POTA, on 26 March 2002 after it was passed in an extra-ordinary joint sitting of the
Parliament. With this ended the period of not having a national anti-terror law in India (Singh
2008).
The legal system that came into existence with POTA adopted the provisions of TADA.
System of arrest, investigation and trial, ac ceptance of confession as evidence, etc. were
clearly reflective of the draconi an nature of TADA. The time period from investigation to
granting of bail was reduced from one year to 180 days. However, the conditions for the grant
of bail remained so difficult that it counter-b alanced the reduction in the duration. There was
a new, special provision which related to the interception of mediums of electronic
communication (Hargopal and Jagannatham2009) . While TADA did not contain a provision
for tapping telephonic conversati ons, POTA made these evidences admissible in the courts.
In Mohammed Afzal versus the State case relate d to Parliament attacks, the most important
evidences against the four convicts were collected through inte rception of telephonic
communication (Hargopal and Jagannatham2009).
Under POTA, 23 terrorist organization were banned. While the provisions for declaring
suspect groups as terrorist groups were there in UAPA of 1967 as we ll, POTA made major
changes to these. Under section 18 (3) of POTA, if the central government is assured that any
organization is linked with terrorist activities, it can declare that organization as a terrorist
group. Due to this provision, th ere no requirement or burden of issuing any reason while
declaring and banning any such group and orga nization. Under POTA, there is provision of
punishing those who hide terrorists or conceal information related to terrorists. Police can
arrest anyone on the basis of suspicion. Howeve r, the person cannot be kept under custody
for more than three months without filing charge-sheet. A person arrested under POTA could
appeal in the High Court or th e Supreme Court. However, this could be done only after three
months of arrest. Another important aspect of POTA was that it was created within the
ideological discourse of global Islamic terrorism and National-security State. This act was
repealed through an ordinance on 21 September 2004(Singh 2012).137
6) National Security Act, NSA, 1980
The National Security Act (NSA) is an act to provide the government with greater powers for
the security of the nation. The National Security Ordinance was promulgated in September
1980. It took shape of National Security Ac t and was passed on 27 December 1980. This act
provides the Central and the Stat e government with powers to directly arrest and detain
suspicious people who seek to pose hurdles in security of the country, put the relation of
India with other countries in jeopardy, dist urb the public order or create hurled in
maintenance of supply and services in the soci ety (Jinks 2001). This act can be used by the
District Magistrate and the Commissioner of Police in their limited jurisdiction. The
maximum period of detention is 12 months. However, the law contains the provision for
providing information of and r easons about detention to the State government. No such
decision remains in force for more than 12 days without the approval of the State government
(Jinks 2001).
7) Unlawful Activities (Prevention) Act, UAPA, 1967, 2004, 2008, 2012, 2019
Unlawful Activities (Prevention) Act (UAPA) was first passed in 1967 to declare as unlawful
all such organizations who were seen as supporters of separatism. In the 1990s, in the context
of the demolition of the Babri Mosque and increase in separa tist movements in Kashmir,
several organizations were de clared unlawful unde r this act (Singh 20 12). Jamaat-e-Islami,
Islamic Sevak Sangh, Vishwa Hindu Parishad, Rashtriya Swayamsevak Sangh, Bajrang Dal,
and Jammu Kashmir Liberation Front were some organizations that were declared unlawful
in 1990s. Jamaat was banned for questioning the s overeignty and territorial integrity of India
and for considering the separation of Kashmir from India as inevitable. Islamic Sevak Sangh
was banned for its inflammatory speeches and for causing feeling of disharmony between
different communities on the basis of religi on. Vishwa Hindu Parishad was banned for
demolishing the Babri Mosque and for speeches against Muslims (Singh 2012).
This act was amended in 2004 by the United Progressive Alliance (UPA) government. By
this time, the public opposition towards POTA was increased and the UPA government had
to repeal it as promised during their el ection campaign. The amended UAPA included the
draconian provisions of POTA as it were. It included the definition of ‘acts of terrorism’
and‘terrorist organization’ al ong with a list of organizati ons declared as terrorist
organizations (Singh 2012). This amendment not onl y adopted the definitions as provided in
POTA; it also used vague language to increase its own scope and applicability (Singh 2012).
The act was again amended after the 2008 Mumbai attacks. With this amendment, the
provisions of POTA and TADA such as maximum period for police custody, custody without
warrant and prohibition on bail were added to the UAPA (TNN 2008). These changes made
is possible for the government to keep su spicious individuals under custody for longer
durations without the possibility of getting bail.
The 2012 amendment of the UAPA added pr oduction and circulation of high-quality
counterfeit currency, and financi ng organizations that have been declared unlawful under the138
definition of ‘terrorist activities’ as examples of such acts that pose a threat to the economic
security of the country.
The latest amendment to the UAPA in 2019provi des the NIA with the power to designate
even individuals, besides organizations, as ‘ter rorists’ on the basis of suspicion of having
links with acts of terrorism (PTI2019b). Each amendment has led to an increase in the scope
of UAPA.
8) National Investigating Agency Act, 2008 and National Investigation Agency, NIA
With the background of Mumbai attacks of November 2008, the National Investigation
Agency (NIA) was established in December 2008 under the National Investigating Agency
Act of 2008 (Ministry of Home Affairs 2008). It was passe d alongside the Unlawful
Activities (Prevention) Act of 2008(Ministry of Home Affairs 2008). NIA is empowered to
investigate the cases related to terrorism all over the country on the directions of the Central
government. This act specifically investigates such cases that pose a challenge to the
sovereignty, unity and integrity of India. NIA has special powers to investigate cases related
to terrorism in a fast-tracked manner. Al so, the onus of proving innocence falls on the
convicted individual (Ministry of Home Affairs 2008). Under the NIA, an officer above the
rank of sub-inspector is provided with special powers of investigation (Ministry of Home
Affairs 2008). Additionally, NIA is to have its own special lawyers and courts for the hearing
of cases relation to terrorism (Ministry of Home Affairs 2008).
The National Investigation Agency (Amendment) Act, 2019 was passed in the Indian
Parliament on 17 June2019 (PTI2019c). This act provided for even greater powers of
investigation to the NIA. After this amendment, the NIA got powers to investigate such
attacks that targeted Indians and their intere sts abroad (PTI2019c). This amendment further
strengthens the NIA for invest igation against human traffi cking, counterfeit currency,
manufacture or sale of prohi bited arms, cyber-terrorism and offenses under the Explosive
Substances Act of 1908 (PTI2019c).
9) Armed Forces (Assam and Manipur) Special Powers Act, AFSPA, 1958
The Armed Forces Special Powers Act (AFSPA) was adopted in order to prevent the armed
rebellions that were rising in the states of the North-East India to claim autonomy. Under the
provisions of this act, the armed forces in the disturbed areas of the State of Assam and the
Union Territory Manipur were granted certain special powers (Hargopal and
Jagannatham2009). The main objective of the act was to defend the country against
separatism, violence and foreign attacks. Unde r this act, if the Governor of Assam or the
Chief Commissioner of Manipur is of the opini on that the given area e xhibits disturbed or
dangerous conditions, he may declare the en tire area or a part of it as disturbed by
notification of the official Gazette (Hargopal and Jagannatham2009).
The act empowers any commissioned officer, warrant officer, non-co mmissioned officer or
any other person of equivalent rank in the army to use force, or even open fire, on any person
who is acting against the law (Hargopal and Ja gannatham2009). In such situations, it is the139
opinion of the officer on the basis of which he might decide that he can fire on a suspect if it
is important to maintain public order. In such cases, use of force or firearm can even cause
death. Additionally, an individual can be arrested without warrant if enough suspicion exists.
This act also provides for search without wa rrant on the basis of suspicion. In these
situations, the presence of ‘reasonable suspicion’ becomes a sufficient condition to take such
actions by the authorized personnel (Hargopal and Jagannatham2009, Singh 2007).
In 1972, after some amendments, this act was a pplied on entire North-East India including
Assam, Manipur, Tripura, Meghalaya, Arunach al Pradesh, Mizoram and Nagaland. It was
applied in Tripura on 16 February 1997 as a reaction to extremist violence and was removed
after 18 years, in May 2015, when the si tuation improved. In 1983, the government brought
the AFSPA (Punjab and Chandigarh) Ordinance in order to fight the increasing violent
separatist movements. This ordinance took th e shape of a law on 6 October 1983. This act
was applied to the entire State of Punjab as well as Union Territory of Chandigarh by 15
October 1983. It was removed in 1997 after being operational fo r around 14 years. On 5 July
1990, the AFSPA (Jammu and Kashmir) was appl ied on the entire state of Jammu and
Kashmir to tackle the violent separatism in the state. The act is still continued there (Hargopal
and Jagannatham2009, Chopra 2015). This act added some new provisions as well. Now such
acts also came under the purview of AFSPA (1990) that question the sovereignty of India and
that shows disrespect towards the national flag, national anthem or the Constitution of India
(Hargopal and Jagannatham2009)
