Before delving into the question of imposition of the National Security Act (NSA), 1980, leading to Sonam Wangchuk detention under the NSA, the Act itself needs to be understood first.

The National Security Act (NSA)

The genesis of the NSA, ironically, lies in article 22 of the Indian Constitution, which is the right to protection against arrest and detention. It recognizes preventive detention and authorizes the state to make law for the same. It protects the rights of the person detained by allowing detention of no more than 3 months without the report of an advisory board confirming it. The advisory body has to be comprised of persons who either have already been or are qualified to be appointed as high court judges. The grounds of detention need to be disclosed except if they are against public interest. However, the exceptions are also allowed along with the above at the pleasure (assuming justified reasoning) of the parliament.

The parliament has, of course, made the NSA on the same. The NSA allows passing a detention order for a period ranging from 12 days to 3 months in the first instance. The order can be passed by the central government or a state government as well as a district magistrate/commissioner of police. A district magistrate/commissioner of police, if empowered, is only empowered to pass a detention order for maintaining the security of the state, the public order or the essential supplies, from threats arising within his local jurisdiction in view of the special circumstances prevailing therein. It is to be noted that “the state” above doesn’t mean India or Union of India. It means the states defined under the 12th schedule of the Indian Constitution.

However, both a state government and the central government can pass detention orders in the interest of security of India, defense of India, and its relations with foreign powers. They can also pass detention orders against foreigners for ensuring either their continued presence in or expulsion from India. It is to be noted that the detention of a foreigner is not for any other purpose.

The ground/s for detention have to be communicated within 5 days and, in exceptional circumstances, in no more than 15 days while withholding information that is deemed against public interest. The order passed by a district magistrate/commissioner of police is valid for 12 days only unless approved by the state government. However, ironically, if he communicates the ground/s of detention after 5 days, his order per se shall have the validity of 20 days.

All detention orders passed or approved by a state government have to be reported to the central government. Either the central government or the state government who passed the detention order can revoke it at any time. The act, interestingly, also allows for temporary release of a person with or without conditions.

Normally, the detention orders passed by the central government and passed/approved by a state government are valid for three months unless confirmed by an advisory board — the detention orders in case of Punjab till 1989, however, could be passed for a period of 6 months without confirmation by the advisory board; this has now become obsolete. However, a subsequent detention order can be passed on the same facts even after non-confirmation by the advisory board and thus the revocation thereof. The maximum detention can, however, be 12 months only on the same set of facts, irrespective whether one order or multiple consecutive orders have been passed.

The advisory board comprises three members with the chairperson being a sitting or a past judge of a high court. Other members of the board should also be either a sitting judge, past judge, or qualified to be appointed as a judge of a high court. However, the point to be noted is that the detainee has no right of representation through a legal practitioner before the board.

The NSA Is a Political Tool

There can be no doubt that the NSA is a political tool, not an Act made for the preservation of article 22 right under the Indian Constitution. If it were an act for the preservation of article 22 right, the emphasis would have been on ensuring proper hearing of the detainee before the advisory board, not on nullifying contradictory advisory board decisions by passing subsequent orders on the same set of facts.

In fact, this particular provision under section 14(2) of the NSA giving power to pass subsequent orders on the same set of facts is unconstitutional clearly impinging on the article 22 right. The advisory board is the protector of the article 22 right, and the proper hearing before the advisory board itself is part of the article 22 right.

The NSA not only fails to grant proper hearing to a detainee by allowing hearing only in person and that too not in all cases, but also makes whatever hearing has been provided otiose by making a provision for nullifying the decision of the advisory board itself. This is even against the right of judicial review as advisory board is at least a quasi-judicial body, if not a judicial body. The said section 14(2) is reproduced below:

(2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984 (60 of 1984)] bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person:

Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.]

Furthermore, the NSA per se is an arbitrary law for setting arbitrary procedures. It just doesn’t make any sense to increase the time period of validity of a detention order passed by a low-level administrative/police officer if he fails to duly supply the grounds of detention to the detainee. This defies all logic. It can be presumed that such a provision has been made to provide leeway to the officers to detain a person on their whims and fancies.

The Act doesn’t specify exceptional circumstances when grounds for detention can be held back for a longer period. I, as a human rights advocate, can’t think of any circumstances which should allow detention of a person without intimation of grounds at the very outset. The circumstances, if any, can only be for exercise of authoritarianism in a democracy. Of course, this makes the whole Act arbitrary. Elsewhere, I have discussed how an arbitrary procedure set up under a law makes the law itself arbitrary.

Another provision making the Act suspect of arbitrariness is section 15. It, interestingly, allows for temporary release of a detainee with or without conditions. If conditions are imposed, the detainee is obliged to sign a bond with or without sureties and pay fine on failing to keep the conditions. This is a provision similar to bail or furlough. The occurrence of such a provision in an Act for preventive detention for ensuring “national security”, is ridiculous.

How can a detainee who has been kept in custody bona fide becomes a non-threat for a short duration and then becomes a threat again at the whims and fancies of the executive! This Act is, of course, a colorable exercise of power by no less than the parliament to regulate the lives of those people whose rights the executive wants to keep suspended on its whims and fancies. On no stretch of imagination can it be considered an act for preservation of the article 22 right under the Indian Constitution.

Sonam Wangchuk Case

There is lots of noise in the media. However, the grounds for Sonam Wangchuk detention under the NSA, as retrieved by DeepSeek from ministry of home affairs and Ladakh administration, is provocative speeches threatening the security of the state and the maintenance of public order. The detention order was passed by the district magistrate of Leh on September 26, 2025. Of course, it was passed in consequence of the specific circumstances of September 24, 2025, in Leh, and has nothing to do with the security of India. The reference to “the state” above should be accordingly construed as a reference to the UT of Ladakh. However, I am not 100 percent sure. This BJP government can stretch any molehill into a mountain.

The specific allegations for Sonam Wangchuk detention under the NSA are as follows:

• Making reference to Arab Spring.
• Making reference to Gen Z protests in Nepal.
• Self-immolation appeals.

The only medium to verify the above allegations is either media or courts. The matter is pending in the Supreme Court of India (SCI) with the next date of hearing on 29th October, 2025. However, I am not waiting for the court proceedings and expressing my opinion on Sonam Wangchuk detention under the NSA on the basis of his interaction with the media on Times Now.

From the interaction, it is clear that the reference to Arab Spring was distant in time before the specific circumstances of September 24, 2025, arose. There is no way to link the Arab Spring remarks to the said specific circumstances and the threat to the security of state and the maintenance of public order thereof. Furthermore, Sonam Wangchuk has explained his remarks in the media interview.

Sonam Wangchuk has clearly stated that the reference to Arab Spring was for preclusion of such circumstances in Ladakh, not for their creation. He offered himself in self-sacrifice to avoid martyrdom of many people in an Arab Spring like situation. The self-immolation appeal was also in the same context. He didn’t ask others to self-immolate. He would obviously like it to be said that a heroic appeal has been projected as a villainy.

Similarly, Sonam Wangchuk has clarified that the reference to Gen Z protest, if any, was made to explain the events of September 24, 2025. He has further justified the same as akin to a responsible commentary by a person of average intellect with social responsibility, not an attempt to incite violence.

To be frank, I am willing to accept every defense of Sonam Wangchuk on the strength of his credentials. Nevertheless, I am a trained lawyer and can read facial expressions and manners to decide whether a person is speaking the truth or lying. Of course, he is speaking the truth. Moreover, he has not denied anything. He has rather explained his past conduct. More importantly, he called of the agitation because of the violence on September 24, 2025, and accepted his mistake to that extent.

The fact he called off the agitation removes all apprehension of threat whatsoever. If there won’t be any agitation, how would there be any threat to the security of the state or to the maintenance of public order? On September 24, 2025, there was an attack on the local BJP office. It was set on fire. It seems the police was also attacked, who opened fire on the protesters in the claimed self-defense killing 4 persons. I don’t see anything more than a local riotous situation, which could have been controlled and is often controlled just by imposition of curfew without resorting to drastic measures like application of the NSA.

There can be no doubt that the order passed by the district magistrate for Sonam Wangchuk detention under the NSA is not an independent order. It has obviously been passed on the orders of the higher-ups in the political hierarchy. If district magistrates started imposing the NSA like this, all politicians will be behind bar. Sonam Wangchuk detention under the NSA is, undoubtedly, an act of political rivalry.

Sonam Wangchuk had become an eyesore for BJP ever since he started siding with Congress. The one thing BJP never tolerates is the perceived treachery to itself. It has grown so big and arrogant in India that it can apply draconian laws like the NSA even on minor local level events threatening no national security or even in non-events — they have imposed the NSA even on cow smugglers calling killing of cows a threat to the national security and/or public order, or even on someone who just publishes a tweet: “If Durga Puja celebrations will take place on roads, namaz should be offered on roads too“.

The Solution

The imposition of draconian laws on well-meaning citizens is a serious threat to human rights. The NSA has the clear ramification of identifying a person as a terrorist in the eyes of ordinary people. As discussed above, the NSA per se is an arbitrary law and a political tool of the executive. Leaving aside its misuse, its use per se is threatening, far more threatening than the so-called “national security” threat.

However, BJP has been consistently misusing such draconian laws to imprison people. Of course, they take the inspiration from Israel. However, a goon only becomes stronger if it is not challenged. In a democracy, the correct way to challenge a goon is through elections. But, how many more lives will be destroyed in the interim is a big question.

Furthermore, what is the gurantee that BJP will not win the next election on the strength of its resources and propaganda. Moreover, the opposition in India is adept at missing opportunities given to them on a platter — only a fool could have missed the opportunity to form the government after the 2024 general elections. Do I have a solution? No, but I know the solution is not the next general elections in 2029.