Where the Power Comes From: Entry 9 of List I and Entry 3 of List III

The National Security Act is worth pausing on. Its section 3 is drafted in two sub-sections, and the division is not accidental: sub-section (1) collects the Entry 9 grounds and sub-section (2) collects the Entry 3 grounds. A student who notices that has understood the constitutional architecture from the face of the statute.

COFEPOSA's own preamble supplies its constitutional justification in terms: it recites that violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, and that having regard to the persons by whom and the manner in which such activities are organised, and to the fact that in certain areas highly vulnerable to smuggling such activities of considerable magnitude are clandestinely organised and carried on, it is necessary to provide for the detention of the persons concerned.

Why a State may not use the Union grounds

Because Entry 9 is in the Union List, and by article 246(1) Parliament has exclusive power with respect to the matters in that List. A State law purporting to authorise detention for reasons connected with the defence of India is beyond the competence of the State Legislature, and the question of repugnancy under article 254 never arises: an incompetent legislature does not reach that stage.

Where two competent laws collide

Because Entry 3 is concurrent, both legislatures may occupy the field, and article 254 decides a conflict. If a State law is repugnant to a Union law with respect to the same concurrent matter, the Union law prevails and the State law is void to the extent of the repugnancy, unless the State law was reserved for the consideration of the President and received his assent, in which case it prevails in that State. Even then, Parliament may afterwards enact a law adding to, amending, varying or repealing the State law.

The National Security Act itself deals with the overlap directly. Section 17 provides that nothing in the Act shall apply or have 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.

A worked example

The Legislature of Maharashtra passes an Act authorising the detention of a person, for up to two years, to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community, and provides that the Advisory Board shall consist of two retired District Judges.

Is the reason within the State's competence? Yes. The maintenance of supplies and services essential to the community is in Entry 3 of the Concurrent List.

Is the Advisory Board provision valid? No. Article 22(4)(a) requires an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court. A retired District Judge who is not qualified for appointment to a High Court does not answer that description, and no legislature can dilute a constitutional condition.

Is the two year period valid? Only if it satisfies article 22. A detention beyond three months requires either a favourable Advisory Board report under clause (4)(a) or a law made by Parliament under clause (7). A State Legislature cannot make a law under clause (7), because that clause names Parliament. So a State Act must build its scheme around the Board.

What if a Union Act covers the same ground? Article 254 applies, and unless the State Act was reserved and received the President's assent it is void to the extent of the repugnancy.

What it does NOT mean

It does not mean a State cannot detain for security reasons at all. It may, for the security of that State.

It does not mean the Union cannot legislate on public order. Entry 3 is concurrent, and section 3(2) of the National Security Act rests on it.

Competence is not the same as validity. A law within the competence of the legislature that made it may still be void for offending Part III. Competence is the first question, not the only one.

Quick revision

• List I Entry 9: preventive detention for defence, foreign affairs or the security of India, and persons so detained. Exclusive to Parliament.
• List III Entry 3: preventive detention for the security of a State, public order, or essential supplies and services, and persons so detained. Concurrent.
• List III Entry 4: removal of such persons from one State to another. Concurrent.
• The division is by the REASON for detaining.
• NSA s.3(1) collects the Entry 9 grounds; s.3(2) collects the Entry 3 grounds. COFEPOSA's preamble ties smuggling to the national economy and the security of the State.
• Article 254 governs a clash on the concurrent field; a State law needs the President's assent to prevail in that State.
• Article 22(7) names Parliament, so no State Act can use the without-a-Board route.

Test yourself

1. A State Act authorises detention for reasons connected with the relations of India with foreign powers. Valid? No. That is within Entry 9 of the Union List, which is exclusive to Parliament, and it is not in Entry 3.

2. Why is section 3 of the National Security Act drafted in two sub-sections? Because sub-section (1) uses the Entry 9 grounds, which only Parliament may enact, and sub-section (2) uses the Entry 3 grounds, which are concurrent.

3. Which entry supports moving a detenu from Maharashtra to Gujarat? Entry 4 of the Concurrent List, and section 5(b) of the National Security Act, which requires the consent of the other State Government where the order is made by a State Government.

4. Can a State Act provide for detention beyond three months without an Advisory Board? No. That route exists only under article 22(7)(a), which empowers Parliament, and a State Legislature cannot use it.

5. What does COFEPOSA's preamble say about the security of the State? That violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.