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Any law student can gain insight on how to formulate thier first ever memorial based on the national security act, 1980
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Index of Authorities Case Laws Statutes and Sections 1.1 Maneka Gandhi v. Union of India Article 21 of the Indica Constitution 1.2 N/A Section 8 of the National Security Act (NSA) 1.3 A.K. Gopalan v. State of Madras Section 8 of the NSA (Lack of Transparency)
Pebam Ningol Mikoi Devi v. State of Manipur Section 8 of the NSA (Right to Legal Representation) 1.5 ADM Jabalpur v. Shiv Kant Shukla Section 8 of the NSA (Risk of Arbitrary Detention) 1.6 Sunil Batra v. Delhi Administration N/A 1.7 N/A N/A 2.1 Maneka Gandhi v. Union of India Article 21, Article 19, and Article 14 of the Indica Constitution 2.2 Nand Lal v. State of Punjab Section 11(4) of the NSA
Sambhu Nath Sarkar v. State of West Bengal Section 12(2) of the NSA
Various cases including MISA, TADA, POTA Various preventive detention statutes and their sunset clauses or absence thereof
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The Petitioner herein has invoked the Writ Jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India. Article 32 read as- “32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
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1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards **against arbitrary detention?
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1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? The argument of Petitioners asserts that the NSA lacks transparency and clear procedures regarding detention duration and release criteria, leading to potential arbitrariness. The right to be informed of the grounds for detention is not adequately addressed, and detainees may lack timely and clear reasons for their imprisonment. Access to legal representation is also questioned. The absence of mechanisms for detainees to challenge their detention before an independent authority raises concerns. The argument warns against arbitrary detention and calls for rectification, emphasizing the need for an impartial review mechanism. 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? The petitioner argues that the provisions for preventive detention under the National Security Act (NSA) fail to adequately protect the rights of detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge detention before an independent authority. The petitioner contends that the NSA's lack of clarity and specificity in classifying offenses related to national security leads to potential misuse. The Act's objectives are vague, allowing room for interpretation and misuse by authorities. The petitioner highlights that Section 11(4) of the NSA denies detainees the right to legal representation in front of an independent authority, potentially violating principles of natural justice and fairness. Section 12(2) of the NSA empowers the Advisory Board to determine the release of detainees, raising concerns about impartiality and potential violations of the right to liberty. The absence of a sunset clause in the NSA is noted, with the petitioner arguing that such a clause would ensure accountability, transparency, and a balance between national security and civil liberties.
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Natural justice, or as often referred to as procedural fairness, in day-to-day life, is a fundamental legal principle that seeks to ensure fairness and equity in legal proceedings, including those involving detention or deprivation of rights. The Petitioner wants to highlight in front of this Apex authority the following arguments as to how Section 8 of the above questioned Act questions the ‘principles of natural justice’ and are violative of Article 21 of the Indica Constitution, thus should be declared unconstitutional: 1.1] Lack of Transparency and Fair Procedure: Section 8 of the NSA lacks clarity regarding the duration of detention and the criteria for release, as seen below: “8. Grounds of order of detention to be disclosed to persons affected by the order.— (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 [fifteen days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose .”^3 The council wants to highlight the vagueness in Section 8. As seen above, it stands unclear as to when is ‘as soon as may be, but ordinarily…’ or even ‘earliest opportunity’ , maybe. This lack of transparency means that individuals detained under this provision may not have a clear understanding of when they can expect to be released or under what circumstances. In the case of Maneka Gandhi v. Union of India (1978)^4 , the Supreme Court emphasized that the principles of natural justice require that any law or procedure that affects the rights of an individual must be fair, just, and reasonable. Lack of clarity and transparency in the law can lead to arbitrariness and unfairness, violating these principles. 1.2] Right to be Informed of the Grounds of Detention: (^2) Maneka Gandhi v. Union of India, Indian Kanoon, https://indiankanoon.org/doc/1766147/. (^3) Section 8 of the National Security Act (NSA). (^4) Id. at 1.
11 One of the key principles of natural justice is the right to be informed of the grounds of detention. Individuals must be provided with reasons for their detention to understand why they are being held. Section 8 of the NSA, does not adequately ensure that individuals are informed of the specific reasons for their detention in a timely and clear manner, as seen above. This tenure varies from five days up to fifteen days, in exceptional circumstances, which too remain undefined by the Act. As the phrase “as soon as may be”, was seen in the above argument (1.1), the NSA fails to elaborate upon the reasonable limits of the time, or even the category of crime for which the detainee is detained. The judgment in A.K. Gopalan v. State of Madras^5 was notable for interpreting the phrase "as soon as may be" in a manner that was relatively lenient in favor of the government. The court held that the requirement to inform the detainee of the grounds of detention did not mean immediate communication of the grounds but should be done within a reasonable time. 1.3] Right to Legal Representation: The council would like to highlight that Natural justice also entails the right to legal representation, allowing individuals to have legal counsel during proceedings that affect their rights. Section 8 of the NSA may not provide detained individuals with sufficient access to legal representation, potentially depriving them of a fair opportunity to defend themselves. In Pebam Ningol Mikoi Devi v. State of Manipur^6 , the government of Manipur imprisoned a person under the National Security Act of 1980 on the grounds that he had links to the radical United National Liberation Front (UNLF). He was found in possession of money that the commander of the Extremists had entrusted to him for extraction. The prisoner argued his position. The Manipur governor both denied it and said he had been arrested. The Supreme Court ultimately heard a case challenging his imprisonment. The detention order was revoked as a result of the Supreme Court's ruling that the grounds for custody and the documents relied upon by the detaining authority have no probative value and are unrelated to the scope, purpose, and intent of the National Security Act. This is a case, wherein the Petitioner wants to highlight how preventive detention substantially impairs individual liberty. Even after detaining the detainee for five days, without informing him regarding the grounds under which he was detained, his right to legal representation along with his right to be informed of the grounds of detention were taken away from him. This (^5) A.K. Gopalan v. State of Madras, AIR 1950 SC 27. (^6) Pebam Ningol Mikoi Devi v. State of Manipur, [2010] INSC 782.
13 The court emphasized that the members of the Advisory Board should not merely act as a "rubber stamp" for the government's decisions but should independently assess the merits of the case, as it played a critical role in determining the legality and justification of preventive detention. 1.5] Risk of Arbitrary Detention: As seen in the infamous ADM Jabalpur v. Shiv Kant Shukla (1976)^9 serves as a stark reminder of the perils of unchecked executive authority. The Supreme Court, in this case, held that during the Emergency, the right to life and personal liberty could be suspended. However, this decision has been widely criticized, and it serves as a cautionary tale against excessive executive power. Section 8 of the NSA grants the 'appropriate government' broad authority to detain individuals without trial. This unchecked power, without clear criteria for detention or a specified duration, raises concerns about the potential for arbitrary and unchecked executive action, akin to the circumstances in ADM Jabalpur. The lessons from history, as exemplified by the ADM Jabalpur case, emphasize the importance of restraining unchecked executive authority, particularly in matters of personal liberty. It becomes evident that Section 8 of the NSA, with its ambiguous provisions and lack of safeguards, poses a significant risk of abuse of power. The absence of clear criteria for detention and judicial oversight creates an environment where individuals' rights may be disregarded in the name of national security. Additionally, the lack of clarity in Section 8 regarding the criteria for release and the duration of detention can result in arbitrary and prolonged detention. This goes against the fundamental principles of natural justice, which seek to prevent arbitrary and unfair treatment of individuals. This unchecked power leaves individuals in a state of indefinite detention, where they are deprived of their liberty without adequate safeguards, thereby violating the principles of due process, reasonableness, and fairness as enunciated in Maneka Gandhi. The absence of a clear and fair legal process under Section 8 runs counter to the evolved understanding of Article 21 as safeguarding against arbitrary deprivation of personal liberty. In the landmark judgment of Sunil Batra v. Delhi Administration (1978)^10 , it was highlighted that there was a need to strike a balance between the rights of detainees and the security and discipline necessary within a prison or detention environment. It acknowledged that absolute rights might need to be tempered with practical considerations, as long as such restrictions are (^9) ADM Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207. (^10) Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
14 reasonable and proportionate. If the rationale behind the detention is not in proportion with the degree of crime committed by the detainee, it is arbitrary and unjust in nature. The NSA's provisions appear to fall short of these essential safeguards, as the detainees under the NSA are not adequately informed of the grounds of their detention, are denied the right to legal representation, and are unable to challenge their detention before an independent authority. These omissions seriously compromise the principles of justice and fairness. In light of the principles elucidated in Maneka Gandhi and the evolving interpretation of Article 21, it becomes evident that Section 8 of the NSA, which permits prolonged detention without trial, is in violation of the sacrosanct right to life and personal liberty guaranteed under Article
16 locus of the commission of offense is of less magnitude but the degree of disruption to public order was of grave importance in deciding this case. Nevertheless, it can be comprehended from the above case that the offenses under the act are exhaustive and not explicitly mentioned. The object sought by the act is: “To provide for preventive detention in certain cases and for matters connected therewith” For the differentiation to have Rationale Nexus with the objective of the act, which in itself is ambiguous, devises issues which are left open to interpretation concerning certain cases and matters connected therewith retaining scope of misuse by authorities. 2.2] Right to legal representation in front of an independent authority violated under Section 11(4) of the NSA Although the NSA, approves and can make one or more than one Advisory Boards as required by an ‘appropriate government’, under Section 11 given as below: “11. Procedure of Advisory Boards.— (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.”^14 The Petitioner wishes to put forth this argument that although the Advisory Board consists of impartial and reputed judges of the High Courts, it cannot be denied that there would exist a bit of executive bias in the minds of the same judges. To top this, the basic right of legal representation in front of an independent authority is denied to the individual detained, as under Section 11(4) of the NSA. In Nand Lal v. State of Punjab^15 , an order of detention made under Section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1982, was held (^14) National Security Act, 1980, § 11(1). (^15) Nand Lal v. State of Punjab, 1981 AIR 2041, 1982 SCR (1) 718.
17 to be violative of Article 21 on the ground that procedure adopted by Advisory Board in allowing legal assistance to the State but denying such assistance to the detenue, was both arbitrary and unreasonable and thus violative of Art. 21 read with Art. 14 of the Constitution. Although under the National Security Act, the detainee had no right to legal assistance, as given under Section 11(4), in the proceedings before the Advisory Board yet it did not preclude the Board to allow such assistance to the detainee when it allowed the same to the State. In Ranveer Raman v. State of Madhya Pradesh, the petitioner had been detained under the act in question on the basis that four cases of criminal nature were registered against him. The petitioner argued that he was not convicted in any of the above cases. The detention was made on account that the detainee was involved in criminal activity and was a prejudice to public order. The court observed that the offenses charged upon the petitioner were bailable and the petitioner had been detained merely on the basis of conjecture. “Section 11(4)- Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.”^16 Similarly, in the Ratilal Bhanji vs State of Maharashtra (1979)^17 case, the petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The key issue before the court was whether the detained person had the right to be represented by legal counsel during the Advisory Board proceedings, which were part of the process for reviewing the detention. The Supreme Court, in its judgment, held that the right to consult and be defended by a legal practitioner is an integral part of the principles of natural justice. The court emphasized that this right was fundamental and could not be denied to a detained person during the Advisory Board proceedings or any other stage of preventive detention, as the proceedings before the Advisory Board have a direct bearing on the liberty of the detainee. However, as seen under Section 11(4) of the NSA, the detainee is not even given the basic right of legal representation in front of the Advisory Board under the said Act. This provision is discriminatory, while taking the Ratilal Bhanji case as a precedent. (^16) National Security Act, 1980, § 11(4). (^17) Ratilal Bhanji v. State of Maharashtra, 1979 AIR 94.
19 To put it succinctly, a sunset clause definitively stipulates the temporal parameters within which a law shall remain operable unless it is expressly renewed, extended, or reenacted by the legislative body. In the context of preventive detention laws, which grant significant powers to the state for the purposes of maintaining national security and public order, the incorporation of a sunset clause assumes paramount importance. Such clauses serve the invaluable function of necessitating periodic reassessment and reauthorization of these laws by the legislative branch. By doing so, they effectively deter the indefinite perpetuation of these extraordinary powers and safeguards the delicate equilibrium between security exigencies and the preservation of fundamental civil liberties.
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