Maintenance of Internal Security Act

The Maintenance of Internal Security Act (MISA), passed by the Indian parliament in 1971, was a highly controversial piece of legislation. It granted Prime Minister Indira Gandhi’s administration and Indian law enforcement agencies extensive powers, including the ability to indefinitely detain individuals preventively, conduct searches and seizures without warrants, and wiretap communications. These measures were ostensibly aimed at quelling civil and political disorder, countering foreign-inspired sabotage, terrorism, subterfuge, and threats to national security. During the national emergency declared between 1975 and 1977, the act was amended multiple times and primarily used to suppress political dissent. MISA was eventually repealed in 1977 following Indira Gandhi’s defeat in the general election and the subsequent rise to power of the Janata Party.

History:

On July 2, 1971, a significant legislative shift occurred with the enactment of an Act that replaced the “Maintenance of Internal Security Ordinance,” previously promulgated by the President of India on May 7, 1971. This new Act drew inspiration from the Preventive Detention Act of 1950 (PDA), initially enacted for a year and subsequently extended until December 31, 1969.

This legislation soon became infamous for its severe disregard for legal and constitutional safeguards of civil rights. Its enforcement peaked during the national emergency period (1975–1977), a time marked by widespread reports of arbitrary arrests, torture, and even forced sterilizations. The Act was also notoriously used to target political opponents of Prime Minister Indira Gandhi, including leaders and activists of the opposition Janata Party. During the emergency, approximately 100,000 individuals, including journalists, scholars, activists, and opposition politicians, were detained without trial for up to 18 months. Some were detained for opposing forced sterilization campaigns or the demolition of slums.

The 39th Amendment to the Constitution of India fortified this legislation by placing it in the 9th Schedule, thus rendering it immune to judicial review, even if it violated Fundamental Rights or the Basic Structure of the Constitution. However, this law was repealed in 1977 following the election of the Janata Party-led government, with the 44th Amendment Act of 1978 removing it from the 9th Schedule.

Despite the repeal, other stringent laws such as the Armed Forces (Special Powers) Act, 1958 (AFSPA), the Essential Services Maintenance Act, 1968 (ESMA), and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) remained in force. Later, legislation like the National Security Act (1980), the Terrorism and Disruptive Activities (Prevention) Act (TADA, 1985–1995), and the Prevention of Terrorism Act (POTA, 2002) continued the legacy of empowering authorities with extensive powers ostensibly to combat terrorism and political violence, often at the expense of civil liberties.

Law related to MISA Act :

Section 16A in Maintenance of Internal Security Act, 1971

1. Scope of Effect:
   • These provisions override any other law or natural justice rules.
   • Applicable during the Emergency proclaimed on December 3, 1971, or June 25, 1975, or for 24 months from June 25, 1975, whichever is shorter.
2. Review of Detention Orders:
   • All detention orders made between June 25, 1975, and the start of this section must be reviewed within 15 days.
   • The government must determine if detention is necessary for dealing with the emergency and issue a declaration if so.
3. State Government Approval:
   • If the State Government declares detention necessary, it automatically approves the detention order, bypassing certain approval requirements.
4. New Detention Orders:
   • For orders made after this section’s commencement, the necessity for detention must be assessed, and a declaration issued.
   • Declarations by officers must be reviewed by the State Government within 15 days.
5. Reconsideration of Necessity:
   • The necessity of continued detention must be reviewed every four months.
6. Non-Disclosure of Information:
   • The government can act on information without disclosing it to the detainee.
   • Sections 8 to 12 of the Act do not apply to cases reviewed under these provisions.
7. Modifications and Reporting Requirements:
   • State Governments must report detention orders to the Central Government within 20 days.
   • The Central Government can request information from the State Government about the detention order.
8. Central Government Oversight:
   • The Central Government can require the State Government to provide information justifying the detention and related materials.
9. Confidentiality:
   • Grounds and materials for detention orders are confidential and considered matters of state.
   • Detainees are not entitled to this information.

These points provide a concise overview of the provisions applicable during the specified Emergency periods, focusing on the review, approval, and confidentiality of detention orders.

Section 7  Powers in relation to absconding persons.

If the Central or State Government, or an authorized officer, believes that a person with a detention order has absconded or is hiding to avoid arrest, they can:

(a) Report this to a Metropolitan Magistrate or a Judicial Magistrate of the first class, triggering the application of Sections 82 to 86 of the Code of Criminal Procedure, 1973, treating the detention order as a warrant issued by the Magistrate.

(b) Issue an order, published in the official Gazette, directing the person to appear at a specified place and time. Failure to comply without valid reason can result in imprisonment for up to one year, a fine, or both.

Additionally, any offense under clause (b) is considered cognizable, meaning the police can arrest without a warrant

Section 15  Temporary release of persons detained.

The government has the authority to release a detained person temporarily, either unconditionally or under specified conditions, and can cancel this release at any time. The government may require the person to enter into a bond to ensure compliance with the conditions of release. If released, the individual must report back as directed. If the person fails to surrender as required and is suspected of absconding or hiding, the government can report this to a magistrate, who will then apply certain provisions of the Criminal Procedure Code to the case.

Section 4 Execution of detention orders.

– A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the[Code of Criminal Procedure, 1973]

Cases relating to MISA :

Rabindranath Prusty vs State Of Orissa on 24 November, 1984

The prosecution alleges that Gangadhar Misra (P.W. 1) was extorted by an accused police officer who demanded bribes to influence investigations and avoid arrest under the Maintenance of Internal Security Act (MISA). Misra, who owned a grocery shop and cultivable land, had disputes over land purchases with Joharimal Gajanan, leading to a police complaint. The accused officer demanded and received multiple payments from Misra, promising favorable police action and protection from arrest. Misra ultimately reported this extortion to higher authorities, leading to a sting operation where marked currency was given to the accused and subsequently recovered from him. The accused denies these allegations, claiming that the money involved was either a loan or his own funds, not bribes.

Sewakram  Sobhani vs R.K. Karanjia, Chief Editor, Weekly … on 1 May, 1981

1. Application’s Prayer: The application before the High Court sought to quash an order dated November 30, 1977, by the Chief Judicial Magistrate, Bhopal, rather than the complaint itself. The High Court quashed the complaint, which was a technical defect.
2. Focus on Substantial Justice: In an appeal under Article 136 of the Constitution, the Supreme Court is more concerned with substantial justice than with technicalities.
3. Defamatory Imputations: The news item titled “MISA Rape in Bhopal Jail” published in Blitz contained serious allegations against the complainant’s character and conduct.
4. Exception to Defamation: To invoke the 9th Exception to Section 499 of the Indian Penal Code, it must be shown that the imputations were made:
   1. In good faith.
   1. For the protection of the person making it or any other person, or for the public good.
5. Definition of Good Faith: Section 52 of the IPC defines ‘good faith’ negatively, requiring actions to be done with due care and attention. Recklessness and negligence are excluded.
6. Standard of Good Faith: The standard of care and attention depends on:
   1. The circumstances of each case.
   1. The nature of the imputation.
   1. The need and opportunity for verification.
   1. The context and situation in which the imputation was made.
   1. The position of the person making the imputation.
7. Good Faith and Public Good: Both ‘good faith’ and ‘public good’ are questions of fact that must be determined based on evidence specific to each case.
8. Exception in Section 499 IPC: The 1st Exception to Section 499 IPC explicitly states that whether an imputation is for the public good is a factual question.

CONCLUSION:

 The Maintenance of Internal Security Act (MISA) was a contentious legislation known for its stringent measures that curtailed civil liberties and freedom of expression. Enforced predominantly during the Emergency period in India, MISA was criticized for its draconian provisions aimed at quelling political dissent and opposition voices. Its repeal in 1977 marked a significant moment for civil liberties and democracy in India, viewed widely as a positive step towards restoring fundamental rights and upholding democratic values.

Khushboo Handa (legal intern)