Image for Representation
Editor’s Note: This article is a legal and constitutional analysis examining the use and interpretation of the NSA in India. The views and arguments presented are those of the author.
NEW DELHI: On the morning of February 13 2020 Dr Kafeel Khan was supposed to walk free. An Aligarh court had granted him bail the day before after weeks in custody for a speech he had delivered at Aligarh Muslim University. Instead of releasing him his district administration served a National Security Act detention order the same day his bail was granted. He remained in custody for seven more months.
On September 1 2020 the Allahabad High Court quashed the order. The court found that the District Magistrate had engaged in selective reading of the speech, lifting isolated phrases while ignoring its overall call for national unity and non-violence. The detention was described as an attempt to circumvent the bail granted by the ordinary judiciary. The court warned that allowing such executive action would be “nothing but a licence to allow the executives to act at their whims or caprice against the fundamentals of our constitutional values.” Dr Khan’s case was not an exception. It was a pattern.
What the NSA Actually Is
The National Security Act was enacted on September 23 1980 under Prime Minister Indira Gandhi. Its Statement of Objects and Reasons describes it as necessary to prevent persons from acting in a manner “prejudicial to the security of India, maintenance of public order, or maintenance of supplies and services essential to the community.”
Three provisions define its reach. Section 3 empowers Central and State Governments through District Magistrates and Commissioners of Police to order detention based on their subjective satisfaction that a person poses a threat. Section 8 allows the detaining authority to withhold the grounds of detention for up to ten days. Section 12 permits detention for up to twelve months after an Advisory Board review.
The constitutional architecture enabling this sits in Article 22(3) to (7), the same Article that guarantees the right to be informed of arrest grounds, to consult a lawyer and to be produced before a magistrate within 24 hours. Article 22(3)(b) categorically withdraws all these protections for persons detained under preventive detention law. In other words, the Constitution simultaneously guarantees personal liberty and provides a formal exit ramp from it.
The Supreme Court upheld the NSA’s validity in AK Roy vs Union of India in 1982. But Chief Justice YV Chandrachud warned that because the statutory phrases in Section 3 are inherently vague they must be given “more limited construction” to prevent administrative overreach. Subsequent legal controversies have renewed debate over those concerns.
Governments have consistently defended preventive detention laws such as the NSA as necessary tools for maintaining public order, preventing communal violence and responding to threats before escalation. Security agencies argue that in volatile situations, ordinary criminal procedure may not always be sufficient to prevent large-scale disturbances or threats to public safety. The Supreme Court itself has upheld the constitutional validity of the NSA while cautioning against arbitrary application.
The Colonial Inheritance Nobody Acknowledges
The NSA did not emerge from a vacuum. Its genealogy runs directly through the most contested laws in Indian legal history.
Bengal Regulation III of 1818 empowered the East India Company to detain individuals indefinitely on “reasons of state” without trial. The Rowlatt Act of 1919 permitted detention without jury or appeal, provoking the “no vakil no appeal no daleel” protests that culminated in the Jallianwala Bagh massacre. The Preventive Detention Act of 1950 under Nehru was intended as a temporary measure. It was renewed seven times before lapsing in 1969. The Maintenance of Internal Security Act under Indira Gandhi during the Emergency detained over 34,988 political opponents after judicial review was eliminated by amendment.
The NSA of 1980 preserved nearly identical statutory language to MISA. During the Constituent Assembly debates Mahavir Tyagi had warned the drafters presciently, “There might come a time when these very clauses will be used freely by a government against its political opponents.” Critics of preventive detention laws argue that subsequent developments have reflected those concerns.
The Numbers That Tell the Story
An exhaustive investigation by The Indian Express reviewed 120 habeas corpus petitions decided by the Allahabad High Court challenging NSA detentions in Uttar Pradesh between January 2018 and December 2020.
The findings highlighted significant judicial scrutiny of detention orders.
The High Court quashed 94 of 120 detention orders, a quash rate of 78.3%. The single largest category for NSA invocation was cow slaughter, accounting for 41 cases or 34.1% of the total. Every single individual detained under NSA for cow slaughter belonged to a religious minority community. In over 73% of those cow slaughter cases, the High Court quashed the detention orders citing a complete absence of evidence of any public order threat.
The UP government’s own data is equally revealing. Between January 1 and August 19 2020 the state detained 139 individuals under the NSA. Of those, 76, more than half, were for alleged cow slaughter. Despite the High Court repeatedly quashing these orders, the UP Police issued two administrative circulars in 2020, Circular No 14 and Circular No 30, explicitly directing district officers to aggressively invoke the NSA in cow slaughter cases.
Madhya Pradesh shows the same pattern. In June 2024 alone NSA was invoked in Mandla district following allegations of cattle slaughter, with 11 homes demolished the day before Eid-ul-Adha. In Ratlam four individuals were detained after cow remains were thrown near a temple. In Mhow in March 2025 NSA was invoked against two individuals for violence during a cricket victory rally. Critics argued that the law was being applied in situations traditionally handled through ordinary criminal law.
The National Crime Records Bureau does not publish data on NSA detentions. RTI applications seeking this data from the UP State Crime Records Bureau, the Director General of Police and the Ministry of Home Affairs were all rejected on the grounds that the data was “not available.”
The Legal Core: Public Order vs Law and Order
Understanding why courts keep quashing these orders requires understanding one fundamental legal distinction, the difference between public order and law and order.
The Supreme Court established this distinction in Ram Manohar Lohia vs State of Bihar in 1966 through what has since been called the concentric circles test. Justice Hidayatullah described three circles. The outermost circle is law and order, individual-scale breaches that affect only the persons immediately involved. The middle circle is public order, disturbances that threaten the even tempo of community life. The innermost circle is security of the state, cataclysmic threats to national survival.
His plain language illustration remains the clearest explanation in Indian constitutional law. If two people fight in a street it is law and order. If those same people, motivated by communal hatred, attack a religious procession causing shops to close and residents to flee, it becomes public order. The same act in different contexts can cross different thresholds.
The NSA can only be lawfully invoked for public order or security of state threats. Law and order situations must be addressed through ordinary criminal law.
In Saeed vs State of UP the Allahabad High Court applied this directly to cow slaughter. A person was arrested at 5.45 AM inside his private house with a slaughtered cow. The court quashed the NSA order, holding, “We do not think that a few men clandestinely slaughtering a cow in the security of their home away from the public eye in the dark hours, perhaps for survival or for consuming the meat, can come in the category of actions which intrinsically disturb public order.”
But in Hasnen vs Union of India decided in 2026 the same High Court upheld an NSA detention for cattle slaughter done in public view on the first day of Chaitra Navratri, finding that the deliberate public timing was designed to trigger communal violence. The court emphasised it is always a matter of quality and degree.
The legal framework is therefore not broken. The judicial answer exists and is clear. What is broken is the executive’s consistent failure to apply it before issuing detention orders and Parliament’s consistent failure to enforce what courts have said.
The Cases That Defined the Pattern
Three cases illuminate the full scope of how the NSA has been applied beyond its legislative intent.
Dr Kafeel Khan’s detention for a university speech critical of the Citizenship Amendment Act has already been described. The Allahabad High Court’s finding of selective reading and circumvention of bail stands as one of the clearest judicial statements of what NSA misuse looks like in practice.
Sonam Wangchuk, the Ladakhi climate activist and educationist, was detained under the NSA on September 26 2025 following protests demanding statehood for Ladakh. He was transferred to Jodhpur Central Jail in Rajasthan, thousands of kilometres from his home. His detention lasted 169 days. During Supreme Court hearings the court expressed deep scepticism about the evidence, questioning the state over major discrepancies including seven-minute translations of three-minute speeches used to justify the detention. On March 14 2026, three days before a crucial Supreme Court hearing, the Ministry of Home Affairs revoked the detention.
The government stated it was done to foster an environment of peace and mutual trust. Legal experts noted the timing.
Amritpal Singh, detained under NSA in April 2023 following the Ajnala police station attack, presents the most complex case. Singh had genuine criminal antecedents and the Punjab government’s concerns about communal harmony and national security were legally documented. Yet his three-year continuous NSA detention, including through his election as an MP from Khadoor Sahib while detained in Dibrugarh, raises structural questions about whether NSA was being used to freeze criminal proceedings rather than prevent a genuine security threat. On April 23 2026 his NSA detention expired. Punjab Police immediately arrested him under ordinary criminal law for the Ajnala attack. The sequence raised questions among legal experts about the continued use of preventive detention.
The Constitutional Dilemma
The fundamental tension sits between two provisions of the same Constitution. Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Article 22(3)(b) withdraws those very protections for anyone detained under a preventive detention law.
Justice BK Mukherjea, writing in AK Gopalan vs State of Madras in 1950, called preventive detention laws a “most unwholesome encroachment” on personal liberty that should ideally have no place in a democratic constitution. Justice DY Chandrachud in Nenavathi Bujji vs State of Telangana in 2024 condemned routine preventive detention as a “callous exercise of exceptional power”, warning that the inability of police to tackle a law and order situation “should not be an excuse to invoke the jurisdiction of preventive detention.”
Ravi Nair, Executive Director of the South Asian Human Rights Documentation Centre, has identified what may be the most honest explanation for the pattern: “The police often rely on the NSA when they are unwilling or unable to make an appropriate criminal case under the strictures of constitutional and statutory law.”
This is the constitutional dilemma in plain language. The NSA gives the executive a tool that bypasses every procedural safeguard the Constitution guarantees and the temptation to use that tool for cases where ordinary criminal law would require evidence, trials and judicial scrutiny is structurally inherent in the law’s design.
Professor VS Rekhi of Aligarh Muslim University, in a reported study of preventive detention cases, argued that under 8% were grounded in genuine national security or public order threats. The Advisory Board meant to serve as a safeguard is executive-appointed, meets infrequently, denies the detainee the right to legal representation and its opinion is non-binding. Senior advocates Indira Jaising and Gopal Subramanium have publicly argued that routine offences including cow slaughter should not be routed through NSA at all.
The 44th Constitutional Amendment of 1978 sought to reform Article 22, requiring Advisory Boards to be constituted on the recommendation of the Chief Justice of the respective High Court and reducing maximum pre-board detention from three months to two months. No government since 1978 has notified the provision. It remains dormant law passed by Parliament and deliberately not enforced by every successive executive.
What Would Actually Fix This
Five concrete reforms emerge from the accumulated judicial wisdom and expert analysis of this law.
First, enforce the 44th Amendment. Parliament passed it. No government has implemented it. Doing so would immediately make Advisory Boards independent of executive appointment and reduce the pre-board detention window.
Second, repeal Section 5A introduced in 1984. This provision allows a detention order to survive even if most of its grounds are found invalid. It directly weakened judicial review and must be reversed to restore the pre-1984 position that a single invalid ground vitiates the entire order.
Third, mandate 72-hour judicial review. Every NSA detention should be placed before a High Court division bench within 72 hours for a preliminary assessment of whether the grounds meet the public order threshold. This single reform would eliminate the most egregious cases at the earliest stage.
Fourth, restore the right to legal counsel before the Advisory Board. Section 11(4) explicitly denies this right and it must be repealed. The state is represented by seasoned prosecuting officers. The detainee argues alone in a closed hearing. Critics argue that the safeguard mechanism remains institutionally weak.
Fifth, introduce a parliamentary sunset clause. The NSA should require re-authorisation every three years following a mandatory transparent audit of its applications. No such accountability mechanism currently exists.
The United Kingdom limits preventive detention to terrorism suspects with judicial review every 48 hours and a maximum of 14 days. The United States prohibits it almost entirely outside narrow immigration contexts. New Zealand’s Law Commission in March 2025 recommended abolishing preventive detention as an indefinite sentence entirely. India allows detention for twelve months on executive satisfaction alone with a non-binding advisory review and no mandatory judicial check.
The Question That Remains
The NSA is not unconstitutional. The Supreme Court has said so. The courts have not struck it down and are unlikely to. What the courts have done consistently, in 94 of 120 cases in one three-year period in one state, is strike down individual orders as illegal, mechanically prepared or beyond the law’s proper scope.
Courts cannot reform a statute through habeas corpus petitions alone. They can release individual detainees. They cannot prevent the next District Magistrate from issuing the same order the next morning using the same verbatim FIR language. That has happened. The UP Police circulars directing aggressive NSA use in cow slaughter cases were issued after the High Court had already quashed dozens of such orders.
Mrinal Satish, Executive Director of the Centre for Constitutional Law Policy and Governance at NLU Delhi, has argued that the amendments to cow protection laws, making offences non-bailable and reversing the burden of proof, feed directly into the arbitrary application of the NSA by providing a ready-made investigative hook for detention orders.
Sajjad Hassan of Citizens Against Hate has argued that in several states local police have increasingly relied on information provided by vigilante groups in alleged cattle slaughter cases, raising concerns among rights activists about the broader application of preventive detention laws.
India built this law to protect the nation. The question its documented application pattern forces, not as a political claim but as a constitutional one, is who the law is protecting, from what and whether the answer to that question has anything to do with national security at all.
The courts have said their piece. Ninety-four times in three years in one state alone. Parliament has the five reforms needed to align the law’s application with its stated intent. The only question that remains is whether Parliament will act or whether the next District Magistrate’s order will be the 95th case waiting for a High Court to answer a question that should never have reached it.
About the Author
