PREVENTIVE DETENTION UNDER THE NATIONAL SECURITY ACT, 1980: BALANCING NATIONAL SECURITY AND CONSTITUTIONAL LIBERTY

Preventive detention is a highly controversial measure in constitutional democracies, in that it allows for the deprivation of personal freedom without a typical criminal trial. Preventive detention is a procedure under criminal law in which liberty is curtailed based on an apprehension of the future conduct of the applicant, in contrast to criminal law which works after commission of an offence and requires a judicial determination of guilt. Preventive detention is constitutionally guaranteed in India under Article 22 of the Constitution, but is subject to other constitutional protections of equality, freedom, personal liberty and fair procedure. The key statute on preventive detention, where the matter of national security and public order is concerned, is the National Security Act, 1980 (NSA). This paper review the question of whether the NSA meets the constitutional requirements of proportionality, procedural fairness, judicial accountability and rule of law in the process of advancing legitimate security goals. The study is carried out through a doctrinal and comparative approach, as it involves the analysis of constitutional provisions, statutory provisions, judicial decisions, academic literature, international human rights standards and comparative practices of United Kingdom and United States. So far the literature has concentrated on the constitutional issues and judicial interpretations of preventive detention. Paper builds on the existing scholarly work on the NSA by examining it within a wider proportionality, rights protection, accountability of the Executive and democratic safeguards. It states that while preventive detention can be allowed in the "exceptional circumstances" referred to in the NSA, extensive powers of discretion granted to the executive branch by the NSA can give rise to cases of arbitrary deprivation of freedom of the person in the absence of more explicit procedural safeguards and institutional control. This paper ends with the conclusion that the goals of national security and constitutional liberty do not conflict with one another. A democratic State can, indeed, legitimately defend security interests only on the condition that their exercise is subject to the limits of constitutional morality, rule of law, transparency and respect for human dignity.