|Date | Version
|August 31, 2022| 1.0
|‘Private Security Agencies’, ‘Private Security Guards’, ‘License, ‘Welfare of Labour’, ‘Union Legislation’, ‘State Legislation’, ‘Concurrent List’
|List of Legislation Referred.
Abstract- This write-up examines and provides insights to the legal requirements of the Private Security Agencies and (Regulation) Act 2005, which regulates the business of security services in India.
Private Security Agencies (Regulation) Act (Act) was enacted in 2005 to oversee and regulate security agencies operating in the country. The Act was introduced to deal with the growing concerns about the functioning of private security agencies, which were conducting their operations without any background verification of the personnel employed as private security guards and supervisors.
The Act aims to administer the functioning of private security agencies so that they operate within a legal framework and are accountable to a regulatory mechanism. Above all, the object is to regulate these agencies so that they do not intrude upon the duties of the police, illegally use weapons, indulge in criminal activities and wear uniforms resembling those of the police.
Legal Requirements under the Act
A private security agency refers to “a person or body of persons other than a government agency, department or organisation engaged in the business of providing private security services including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property.”
The Act prescribes the legal framework for carrying on the business of a private security agency and requires such agencies to comply with the same. The legal requirements are as follows:
1. Without a licence, no person is to carry on or commence the business of a private security agency.
Eligibility Criteria for holding a license:
|For obtaining a license by a private security agency
|For a private security guard
|A person shall not be considered eligible for the issue of a license if he has been:
A company, firm or an association of persons shall not be considered eligible for the issue of a license, if:
|A private security agency shall not employ or engage any person as private security unless he:
Further, no such person convicted by a competent court or dismissed or removed on the grounds of misconduct or moral turpitude shall be employed or engaged as a private security guard.
Preference shall be given to any person who has served as a member of the army, navy, air force, any other union armed forces, police, and home guards.
Through the Private Security Agencies Regulation (Amendment) Act, 2019, the Government of India launched the Private Security Agency Licensing Portal. It has features like a single window system for licencing across the nation, which is linked to the Integrated Criminal Justice System (ICJS) for background verification, online licencing fee payment, along with facilities of e-sign and geo-tagging to simplify the licence process under the Act.
2. A private security guard’s uniform must be unique and not resemble the one worn by the Army, Navy or Air Force personnel. The uniform must also include the following:
- an arm badge distinguishing the agency;
- chest badge indicating designation;
- whistle attached to the whistle cord, to be kept in the left pocket;
- shoes with laces;
- a unique mark of the agency that may be exhibited on the headgear
3. Security companies are required to provide photo identity cards to their security staff as prescribed.
4. Every private security agency shall ensure imparting such training and skills to its private security guards and supervisors. The hours of training shall be for “a minimum of 100 hours of classroom instruction and 60 hours of field training.”
5. All persons employed as security guards are required to meet the basic minimum standard of physical fitness. The standards for fitness are as follow:
- Height and Weight should be according to the standard table of height and Weight;
- Shall have a clear vision with or without corrective lenses and shall not have such low vision as to render him unfit for duty of a supervisor or guard;
- Hearing shall be free from defect, and he shall be able to hear and respond to the spoken voice and the alarms generated by security devices;
- The candidate shall have dexterity and strength to perform searches, handle objects and use force for restraining individuals in case of need; and
- A candidate shall be free from evidence of any contagious or infectious disease. He shall not be suffering from any disease which is likely to render him unfit for service or endanger the health of the public;
- Every guard must undergo a medical examination every two years during their working period.
- The guard shall produce the medical fitness certificate from an authorised medical officer, and the Form for fitness shall be such as may be approved by the Controlling Authority.
6. The private security agencies, security companies or organisations who seek licences under the Act are required to follow various labour legislations, which ensures that the rights of security guards are protected. The labour laws that need to be complied with are as follows:
- The Payment of Wages Act, 1936
- The Industrial Disputes Act, 1947
- The Minimum Wages Act, 1948
- The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
- The Payment of Bonus Act, 1965
- The Contract Labour (Regulation and Abolition) Act, 1970
- The Payment of Gratuity Act, 1972
- The Equal Remuneration Act, 1976
- The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service)
7. The security agencies shall maintain a register(s) containing the following information:
- name and addresses of the persons managing the private security agency;
- name, addresses, photographs and salaries of the security staff working in the agency; and
- name and addresses of the persons or companies to whom the agency provides security services
- ‘Welfare of labour’ appears in the Seventh Schedule under List III: Concurrent List and referred to in Article 246 of the Indian Constitution. While the Act establishes a comprehensive framework, the State governments are also entitled legislate in respect of matters concerning welfare of labour. This leaves room for inconsistency between the Union legislation and the State legislation, if any. What would constitute an ‘inconsistency’ is an interesting issue and requires a careful deliberation. An example of this is discussed below.
- According to Article 254(1) of the Indian Constitution, regardless of whether the Union legislation was passed earlier or later in time, the Union law will take precedence over the State law if it is “repugnant” to the Union law regarding a concurrent subject. The issue of repugnancy only arises “if it is found that the two enactments cover the same matter substantially and that there is a direct and irreconcilable conflict between the two.”
- Questions regarding the inconsistency was raised in the Supreme Court, in the case of Security Association vs Union Of Indiain respect to the Private Security Agencies and (Regulation) Act 2005 (Central Act) and the Maharashtra Private Security Guards (Regulation of Employment & Welfare) Act, 1981 (State Act). The Supreme Court held the following:
- There is no repugnancy between the State Act and the Central Act. The subject matter of the State Act is the welfare of private security guards who may be engaged by the principal employer either through the Board or through the security agencies. The subject matter of the Central Legislation is not the private security guards, but private security agencies. Thus, the subject of two Legislations is different.
- Perusal of the Central Act shows that it makes an endeavour to regulate the establishment and working of private security agencies. Perusal of the provisions of the State Act shows that it does not make any attempt to regulate the business of private security agency.
- The other test to determine the issue of repugnancy is the “doctrine of occupied field” which stipulates that even where the Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the State Act. Whereas, it is evident in this case that both Acts occupy entirely different fields.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.