A special law of detention: The National Security Act

The Citizenship (Amendment) Act which was introduced last year, triggered protests across several parts of India. On 12th December 2019, Dr. Kafeel Khan addressed a gathering of protesting students at Aligarh Muslim University. In connection to this, a criminal complaint was filed against him for ‘promoting enmity between different groups’.

In February, an order was passed to detain Dr. Khan under the National Security Act, 1980 (NSA). Today, the Allahabad High Court has said that his detention under the NSA is not valid. In its judgement, the High Court ordered that Dr. Khan should be released immediately.

The law on hate speech

Section 153A of the Indian Penal Code punishes any person who promotes enmity or hatred between different groups based on reasons connected with religion, race, place of birth, residence, language, caste, community etc. A person can try to encourage conflict between different communities through his speech, written words etc. The punishment for committing this crime is imprisonment for up to 3 years and/or a fine.

Section 153B of the Penal Code punishes any person who makes statements that are harmful to national unity. Anyone can be punished for declaring that the people of a particular group will be deprived of their rights as Indian citizens because they belong to that particular group/community. This could be with regard to any religious, racial, linguistic, regional community etc. The punishment for making such a statement is imprisonment for up to 3 years and/or a fine.

The National Security Act

The NSA is a law that provides for preventive detention of persons in certain cases. Under Section 3 of the NSA, the government has the power to order the detention of any person. The government will detain a person under the NSA if it thinks that such a detention is necessary to prevent the person from acting in a way that is harmful to the defence of India, our foreign relations, or national security.

Every person for whom a detention order has been made can be detained in a place under certain conditions, including conditions related to discipline and punishment for breaches of discipline, as specified by the government. The person can also be removed from one place of detention and taken to another place of detention.

In its judgement, the High Court said that Dr. Khan’s speech does not disclose any effort to promote hatred or violence. The

speech gives a call for national integrity and unity among citizens. While discussing the NSA, the Court said that preventive detention is an exceptional mode to restrict the liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of our Constitution, the right to personal liberty is a precious fundamental right which must always be protected.