Internal Security Laws: UAPA, AFSPA, NSA and NIA Notes

Internal security law is the part of Indian polity that answers a single question: what powers does the state take for itself when it faces terrorism, insurgency or a collapse of public order? Examiners return to this topic because its facts are exact — a year, a section number, an authority, a maximum period. Four laws and one agency cover almost everything asked: the Unlawful Activities (Prevention) Act of 1967, the Armed Forces (Special Powers) Act of 1958, the National Security Act of 1980 and the National Investigation Agency Act of 2008. Behind all four lies the constitutional scheme. Public order and police are State subjects, being Entries 1 and 2 of the State List. The armed forces of the Union are Entry 2 of the Union List, and their deployment in aid of civil power is Entry 2A, inserted by the 42nd Amendment. Preventive detention for reasons connected with the defence and security of India is Entry 9 of the Union List, while preventive detention for reasons of State security and public order is Entry 3 of the Concurrent List. Article 355 places a duty on the Union to protect every State against external aggression and internal disturbance.

The Unlawful Activities (Prevention) Act, 1967

The UAPA was passed on the recommendation of the National Integration Council, after the 16th Constitutional Amendment of 1963 added the sovereignty and integrity of India as a ground on which the freedoms in Article 19 may be restricted. In its original form the Act dealt with unlawful associations and unlawful activity, meaning any action supporting the secession of a part of India or questioning its sovereignty. The chapters on terrorist acts and terrorist organisations were inserted in 2004, when the Prevention of Terrorism Act was repealed and its substance shifted into the UAPA. The 2008 amendment, passed after the Mumbai attacks, extended the time available for investigation before default bail to 180 days and made bail harder through Section 43D(5). The 2019 amendment allows the Central Government to notify an individual, and not merely an organisation, as a terrorist, permits an NIA officer of the rank of Inspector and above to investigate, and allows attachment of property with the approval of the Director General of the NIA. When the Government declares an association unlawful, the notification must be placed before a Unlawful Activities (Prevention) Tribunal of one sitting judge of a High Court, which confirms or cancels it within six months; a confirmed declaration stays in force for five years. A terrorist act causing death is punishable with death or imprisonment for life.

The Armed Forces (Special Powers) Act, 1958

AFSPA traces its ancestry to an ordinance of 1942 issued during the Quit India Movement. Under Section 3 the Governor of a State, the administrator of a Union Territory or the Central Government may declare an area to be a disturbed area. Section 4 then gives even a non-commissioned officer the power to fire upon, after due warning, a person contravening an order prohibiting the assembly of five or more persons or the carrying of weapons, to arrest without warrant, to search premises without warrant and to destroy arms dumps and fortified positions. Section 5 requires an arrested person to be handed over to the nearest police station with the least possible delay. Section 6 is the much-litigated immunity clause: no prosecution or legal proceeding may be instituted against a person acting under the Act except with the previous sanction of the Central Government. A separate Armed Forces (Jammu and Kashmir) Special Powers Act was enacted in 1990. The Supreme Court upheld the constitutionality of AFSPA in the Naga People's Movement of Human Rights case of 1997, while the Jeevan Reddy Committee of 2005 and the Second Administrative Reforms Commission recommended its repeal.

Preventive detention and the National Security Act, 1980

Preventive detention means detaining a person to stop an apprehended act, not to punish a completed one. The National Security Act replaced the Maintenance of Internal Security Act of 1971, which had been repealed in 1978. A person may be detained on grounds relating to the defence of India, relations with foreign powers, the security of India, the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. The order may be made by the Central Government, a State Government or a District Magistrate or Commissioner of Police so empowered; an officer's order lapses unless the State Government approves it within twelve days. Grounds of detention must ordinarily be communicated within five days and, in exceptional circumstances, within ten. The maximum period of detention is twelve months. Article 22(4) bars detention beyond three months unless an Advisory Board reports that there is sufficient cause, and Article 22(5) gives the detainee the right to be told the grounds and to make a representation. The protections of Article 22(1) and 22(2), namely information of the ground of arrest, a lawyer of choice and production before a magistrate within twenty-four hours, do not apply to preventive detention.

The National Investigation Agency

The NIA Act was enacted in 2008 in the weeks after the Mumbai attacks, and the agency works under the Ministry of Home Affairs with its headquarters in New Delhi and a Director General at its head. It investigates the scheduled offences listed in the Schedule to the Act, which include offences under the UAPA, the Atomic Energy Act and the anti-hijacking law, and such cases are tried by Special Courts with an appeal to the High Court. The amendment of 2019 widened its reach to offences committed outside India against Indians or Indian interests and added human trafficking, counterfeit currency, the manufacture or sale of prohibited arms and cyber terrorism to the Schedule.

The laws at a glance

Repealed anti-terror laws

Three repealed laws are asked as often as the living ones. The Terrorist and Disruptive Activities (Prevention) Act of 1985 was allowed to lapse in 1995 after criticism of its low conviction rate. The Prevention of Terrorism Act of 2002 was repealed in 2004. The Maintenance of Internal Security Act of 1971, the detention law of the Emergency years, was repealed in 1978. Remember the sequence MISA, TADA, POTA, UAPA: each time a special law went, its substance travelled into the Act that survived.