The National Security Act: From Order to Release

Sub-section (4). Nothing in the section entitles the person against whom an order has been made to appear by any legal practitioner in any matter connected with the reference to the Board; and the proceedings of the Board and its report, excepting that part in which the opinion is specified, shall be confidential.

The qualifications A.K. Roy v. Union of India, AIR 1982 SC 710, placed on sub-section (4) are worked in [The Advisory Board in Practice, and A.K. Roy].

Section 12: what follows the report

Sub-section (1). Where the Board has reported that there is sufficient cause, the appropriate Government may confirm the order and continue the detention for such period as it thinks fit.

Sub-section (2). Where the Board has reported that there is no sufficient cause, the appropriate Government shall revoke the order and cause the person to be released forthwith.

The asymmetry is the Board's real value: it can stop a detention and it cannot compel one.

Section 13: the maximum

The maximum period for which a person may be detained under an order confirmed under section 12 is twelve months from the date of detention, with a proviso preserving the power of the appropriate Government to revoke or modify the order at any earlier time.

Section 14: revocation, and a second order

Sub-section (1). Without prejudice to section 21 of the General Clauses Act 1897, a detention order may at any time be revoked or modified: notwithstanding that it was made by an officer under section 3(3), by the State Government to which he is subordinate or by the Central Government; and notwithstanding that it was made by a State Government, by the Central Government.

That is worth noticing. The Central Government can revoke a State's order. A representation addressed to it must therefore be decided by it, which is the point made in [Delay in Deciding the Representation].

Sub-section (2). The expiry or revocation of an earlier detention order does not bar the making of a subsequent order under section 3 against the same person. The conditions on that power are worked in [Revocation, and a Second Detention on the Same Facts].

Sections 15 to 18

Section 15: temporary release. The appropriate Government may at any time direct that a detenu be released for a specified period, with or without conditions he accepts, and may cancel the release. It may require a bond with or without sureties. The person must surrender at the time and place and to the authority specified. Failure to surrender without sufficient cause is punishable with imprisonment up to two years, or fine, or both. Breach of a condition or of the bond makes the bond liable to be forfeited.

Section 16: protection of action taken in good faith. No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of the Act.

Section 17: State laws. Nothing in the Act applies to or has any effect with respect to orders of detention made under any State law which were in force immediately before the commencement of the National Security Ordinance 1980.

Section 18: repeal and saving, repealing the Ordinance and saving what was done under it.

The timetable, as dates

For a detention beginning on 1 April:

by 22 April, reference to the Advisory Board under section 10, three weeks;

by 20 May, the Board's report under section 11, seven weeks;

by 30 June, the constitutional three month limit in article 22(4), by which the Board must have reported sufficient cause;

at any time, revocation by the State or the Central Government under section 14, and temporary release under section 15;

not beyond 31 March of the following year, the twelve month maximum in section 13.

A worked example

An order is made by a Commissioner of Police on 1 April under section 3(3). Grounds are served on 5 April. The State Government approves on 14 April. It refers the case to the Board on 30 April. The Board reports on 2 June that there is sufficient cause. The State Government confirms on 5 June and fixes twelve months.

Approval. Within twelve days of 1 April is 13 April, and the grounds were served within five days, so the twenty day extension does not apply. Approval on 14 April is one day late, and the order lapsed on 13 April. That is fatal, and no later step cures it.

Reference. 30 April is beyond three weeks from 1 April, which was 22 April. A second breach.

The Board's report. 2 June is within seven weeks of 1 April, which was 20 May. A third breach.

And the three month rule. Even a report of 2 June is before 30 June, so article 22(4) is satisfied on timing.

The example is deliberately constructed so that the constitutional limit is met and the statutory timetable is breached three times. That is the common pattern in real cases, and it is why an answer should work the statute rather than only the article.

What it does NOT mean

The Board does not confirm the detention. It reports; the Government confirms.

Twelve months is not a term. It is a maximum, and the Government may revoke at any time.

Section 16 does not bar habeas corpus. It protects against suits and prosecutions for things done in good faith. It does not oust the writ jurisdiction, which is a constitutional jurisdiction.

Temporary release is not bail. It is an executive indulgence on conditions the detenu accepts, revocable at any time, with a criminal sanction for failing to surrender.

Quick revision

• s.9: Boards constituted whenever necessary; three members who are, have been, or are qualified to be High Court Judges; appointed by the appropriate Government.
• s.10: reference within three weeks, comprising the grounds, the representation and the section 3(4) report.
• s.11: report within seven weeks; opinion in a separate part; majority prevails; no legal practitioner; proceedings and report confidential except the opinion.
• s.12: favourable report, Government may confirm; adverse report, Government shall revoke and release forthwith.
• s.13: twelve months maximum from the date of detention.
• s.14: revocation at any time, by the State Government or by the Central Government, and a second order is not barred by the expiry or revocation of an earlier one.
• s.15 temporary release, two years for failure to surrender; s.16 good faith protection; s.17 pre-1980 State orders untouched; s.18 repeal and saving.

Test yourself

1. Give the three statutory periods. Reference to the Board within three weeks of the date of detention; the Board's report within seven weeks of the date of detention; and a maximum of twelve months from the date of detention for a confirmed order.

2. What three things must be placed before the Board? The grounds on which the order was made, the representation if any made by the person affected, and, where the order was made by an officer under section 3(3), that officer's report under section 3(4).

3. Who may revoke an order made by a State Government? The State Government itself, and also the Central Government, under section 14(1)(b).

4. Does section 16 prevent a detenu from moving the High Court? No. It bars suits, prosecutions and other legal proceedings for things done in good faith under the Act; it does not oust the constitutional writ jurisdiction.

5. What is the punishment for failing to surrender after a temporary release? Imprisonment which may extend to two years, or fine, or both, unless the failure was with sufficient cause.