Thursday 24 April 2014

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NSA: Danger to Democracy

 

There is no doubt that the government is facing a though economic problem due to a drastic ban on mining taken by the Supreme Court. Bad economy shall have to be dealt with good economics.


The invoking of the National Security Act by the Goa government almost went unnoticed. Except for a statement by Vijay Sardesai the Fatorda MLA, there is no protest by major civil society groups. The NGOs in particular which have taken up such causes for some time now in the State has also not raised any alarm. Except for the mining affected people’s morcha which was scheduled to be held on 18th December, there were no signs of any protest movement in the state. If at all there are any intelligence reports received by the state government warranting such a drastic step, the same are not known to the society at large. The society deserves to know the circumstances which led to invoking of NSA in complete peace time. The National Security Act is a preventive detention measure whereby a citizen’s right to liberty is curtailed with a view to prevent him from committing acts injurious to the state. He is taken into custody not because he has done a wrong but because he is going to do a wrong! In other democratic countries such laws are only war time measures. We in India have kept preventive detention as a peace time measure probably due to the wounds of the partition being still fresh, that the framers of the constitution who were all for individual liberty decided to keep such draconian provision in the chapter on fundamental rights itself.

Indira Gandhi who is known for her powerful leadership is also known for bringing in some of the most draconian laws in the country. The Maintenance of the Internal Security Act (MISA) and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1971 (COFEPOSA) and the National Security Act 1980 (NSA) are the major draconian laws of the Indira Gandhi times. The maintenance of the National Security Act which was misused to keep hundred of political activists in custody for months altogether came to repealed when Janata Party came to power in 1977 but Mrs. Gandhi came back to power in 1980 the National Security Act found place in our statute books as though to suggest that good administration cannot come without drastic laws.

In any case if in the year 1950 when Preventive Detection Act was deemed to be a temporary measure to deal with the danger posed by the partition riots, the Maintenance of Internal Security Act was justified in the wake of the Naxalite movement in certain parts of the country but the brunt of these laws was faced by the political activists during the emergency. What on earth is the reason for such law in 2012 when peace persuades in this tiny State?

After Mrs. Gandhi passed away, though the National Security Act continued to be on the statue books, it had fallen into disused due the higher judiciary drawing a fine balance between personal liberty and social control. In the seventies and the eighties the court gave a new jurisprudence of preventive detention with the Supreme Court playing a very creative role in that area. Neither the parliament nor the opposition came to the rescue of personal liberty but the harshness of the law was mitigated by the courts. It is this jealous guarding of individual liberty that pushed the preventive detention into disuse.

Goa is known to be peaceful. We have given ourselves a new government with the in the wake of the ex-government facing a charges of misgovernance, corruption and nepotism. There is no doubt that the government is facing a though economic problem due to a drastic ban on mining taken by the Supreme Court.  Bad economy shall have to be dealt with good economics. The invoking of the National Security Act at a time when everything is peaceful appears irrational and suggests suppression of dissent.

The important feature of the National Security Act is that the District Magistrate can pass a order of preventive detention if he is satisfied that it is necessary to do so to prevent a person from acting in a manner prejudicial to maintenance of public order or maintenance of supplies and services essential to the committee and security of the state. There can be no two opinions on draconian nature of law.   

The safeguards for a person who is detained is the approval of the state government within 12 days and after the State government approves a report to be made to the central government within 7 days of such approval. The matter has to be placed to advisory board within 21 days with the board to submit its report within 7 weeks of the date of detention. (The Advisory board members are government appointees).

With all the safeguards it is very clear that unless the high court or the Supreme Court comes to the rescue of the person detained remains in custody for a period between  21 days  to 7 weeks, not because he has done something but because of District Magistrate opines that the detenue shall act prejudicially. This detention can go to 12 months if the advisory board approves the same.

The history of preventive detention is the history of misuse of the discretionary power against political activists. The government armed itself with that power first due to the problem created by the partition riots, than due to the Indo China war and thereafter due to the Naxalite movement. The shining example of the misuse is A.B. Vajpayee, L.K. Advani, Jayprakash Narayan amongst thousands of political activists being taken into custody because they were participants in the movement for restoration of democracy after the imposition of emergency in 1975. 

The Indian Penal Code has enough provisions to deal with the criminals. We have the unlawful Activities Prevention Act which can also taken care of certain criminal activities, but the State of Goa to invoke the National Security Act and justify the same on the pretext of dealing with extortion and anti social elements is ridiculous.  

The BJP which claims its heritage from the Janata party cannot be seen as governing the State with tendencies of Indira Gandhi’!  





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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

 

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