CHAPTER 1

INTRODUCTION
Terrorism is one of the biggest tests of a democracys ability to abide by its pre-commitment to
fundamental rights. It induces higher levels of insecurity and greater willingness on the part of
citizens to allow legislatures to enact laws that may allow secret trials, detention without trial,
surveillance, and even torture. Anti-terror laws are particularly insidious because they bypass
constitutional and procedural safeguards, thus instituting a dual or parallel system of
justice.1Unlike the punitive nature of criminal law, detention and anti-terror laws are preventive,
that is, an individuals autonomy can be curtailed by tapping phones, by reading e-mails, and
by imprisonment - merely on the suspicion that he/she may commit an act that might infringe the
security of the state.
The judiciary, as the interpreter of anti-terror laws, is at the forefront of balancing the demands of
security with the obligation of democracy to protect fundamental liberties. Those who answer in
the affirmative see courts as providing a constitutional check on executive power and ensuring
democratic accountability.2 Their reasoning is that judges are insulated from political preferences
and therefore, from majoritarian prejudices, allowing them to act without fear or favour, and
protect minorities. But empirical evidence supporting such a view is limited. The four main
reasons why traditional explanations would argue that courts are likely to fare poorly on matters
of national security during a crisis.3
First, judges, notwithstanding their independence, are members of state institutions and are
likely to identify with other institutions such as the Parliament and the Army when the security of
the country is at stake. This, coupled with a rally around the flag effect makes judges less likely
to stand above the crisis.
1 UJJWAL KUMAR SINGH, THE STATE, DEMOCRACY AND ANTI-TERROR LAWS 70 (2007); UPENDRA
BAXI, THE RULE OF LAW IN INDIA, 4 SUR-REVISTAINTERNACIONAL DE DIREITOS HUMANOS 6,
(2007).

2 CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP, (2002).

3 BRUCE ACKERMAN, TERRORISM AND THE CONSTITUTIONAL ORDER, 75 FORDHAM L. REV., (2006);
JEREMY WALDRON, SECURITY AND LIBERTY: THE IMAGE OF BALANCE, 11 JOURNAL OF POLITICAL
PHILOSOPHY, 191-203 (2003); DAVID COLE, JUDGING THE NEXT EMERGENCY: JUDICIAL REVIEW AND
INDIVIDUAL RIGHTS IN TIMES OF CRISIS, 101 MICH. L. REV., 2565-95, (2003).

Secondly, crisis situations inherently push the judges to defer to the Executive since the court
lacks complete information to assess the validity of the threat. As Cole andothers point out, the
US Supreme Courts decision in Korematsu,4where it deferred to military claims of necessity as
sufficient reason for interning Japanese- US citizens, was later shown to be based on an
inaccurate record.
Thirdly, if the court rules against the executive on a matter of national security, they may face
and most likely lose a challenge to their credibility and legitimacy.
Finally, judges might worry that their decision might be followed at some subsequent cost to
National security.

4 KOREMATSU V. UNITED STATES, 323 U.S. 214, 246 (1944)

2

RESEARCH METHODOLOGY
PROBLEM
Role of Judiciary in the area of Anti Terrorism law. Whether judicial review has
acted as a vital tool for the protection of these rights? There are certain
areas where improvement is required and except judiciary, rest of the two
wings are not in a position to do that. Hence, the judiciary has to step
forward to protect the rights of the citizens.
RATIONALE
There are certain situations where legislature and executive wings of the
nation are not capable to protect the integrity and necessity of the rights.
The Role of Judiciary in that case becomes much more important for the
protection and upliftment of the rights. The judicial review has played an
important role as the decades have passed by.
OBJECTIVE

To find out that whether the judiciary has protected the essence and
uplifted the rights of the individuals under anti terrorism laws .

To study that the Judicial review is sufficient in nature in order to

protect the rights?

HYPOTHESIS
The Judicial review is the most important tool for the upliftment and
protection of individual rights under anti-terrorism laws

REVIEW OF LITERATUREM.P. Jain, Indian Constitutional Law, Lexis Nexis-Butterworths Wadhwa Publication,
Nagpur (6th Edn. Reprint 2011)
This book helped the author understand the concept of Judiciary and its role in the form of
Judicial review, for the protection of Fundamental Rights.
Dr, L.M. Singhvi, Constitution of India, Thompson Reuters Publication (3rd Edition,
2012)
This work helped the author in learning about various creative decisions of the Apex court in the
way it interpreted the Constitution especially the prevention rights.
Dr. H.O. Agrawal, International Law and Human Rights, Central Law Publications , 19th
edition, 2013
The above mentioned book helped the author understand the concept of enumerated and not
specifically enumerated and to compare them to the model of rights in the Constitution of India,
Jayana Kothari, Social Rights and the Constitution, (2004) 6 SCC J-32 and Mrunalbuval,
A Critical Analysis of the Role of the Judiciary in Interpreting the Directive Principles of
State Policy with Respect to Fundamental Rights, (2010) 3 GNLU L. Rev. (October) 53
These works explain as to how the judiciary has interpreted the DPSPs in consonance with the
Fundamental rights.
NATURE OF RESEARCH
The nature of research is Doctrinal.
SOURCES OF DATA
Primary as well as Secondary Sources and Internet have been used.

CHAPTERISZATION
This Project has been divided into six Chapters. The First chapter sets out the basic introduction
and the Research Methodology. Chapter II deals with different types of Anti-Terrorism Laws in
India. Chapter III deals with the Prevention detention laws and limits on judicial review. Chapter
IV deals with the creativity that the courts have used to interpret various kinds of rights i.e.
judicial approval. Chapter V deals with direction for reforms and restoration of judicial review.
And the last Chapter deals with the Conclusion and Suggestions.

CHAPTER 2
PREVENTIVE DETENTION ACT, 1950
The Preventive Detention Act, 1950 was originally passed for one year but was extended
periodically up to 1969. During this period the Act was challenged in Supreme Court for its
validity and Parliament continued to amend it. Again in 1971, need was felt to frame another
Preventive Detention Act with the object to maintain internal security. And this was the
infamous Maintenance of Internal Security Act (Maintenance of Internal Security Act, 1971),
which was later grossly misused to settle all political opposition during emergency (1975-1977).
The Act gave extraordinary powers to the executive, the misuse of which was observed by the
Supreme Court:
It turned into an engine of oppression posing threat to democratic way of life. 5 The total rout
of the Congress party, during the March 1977 General Election could be taken as a measure of
public resentment against the misuse of Maintenance of Internal Security Act. The Janata Party
Government fulfilling one of its polls promise repealed Maintenance of Internal Security Act on
July 3, 1978.
Though Maintenance of Internal Security Act was gone, yet the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 along with Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act. 1980 continued. Soon the
need was felt to frame another Preventive Detention Act, to tackle communalism and extremist
activities. The National Security Act (NSA) was formulated in 1980 with the object to cope with
situations of communal disharmony, social tension, extremist activities, industrial unrest and
increasing tendency on the part of various interested parties to engineer agitations on different
issues. Framersof our Constitution were of the view that in free India, when there will be
democratic and representative Government, the need for framing such preventive detention laws
will rarely arise and shall be sparingly and cautiously used. But it was right that in 1950 that the
5BANKAT LAL V. STATE OF RAJSTHAN, AIR 1975 SC 522
6

Parliament passed the Preventive Detention Act to curb the violent and terrorist activities of
the communities in Hyderabad, West Bengal and Madras States.
The constitutional validity of the Act was upheld by the Supreme Court in terms of the
Parliaments power to enact such a law but Chief Justice Kania and Justice Mahajan and
Mukherjee, observed in, A. K. Gopalan v. State of Madras 6, that preventive detention laws were
repugnant to democratic constitutions and did not exist in democratic countries, Gopalan in the
petition under Article 32 (1) of the Constitution of India for a writ of habeas corpus against his
detention in the Madras Jail and he has given various dates showing how he has been under
detention since December, 1947. Under the ordinary Criminal Law he was sentenced to terms of
imprisonment but those convictions were set aside. While he was thus under detention under one
of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an
order made under Section 3(1) of the Preventive Detention Act, IV of 1950. He challenges the
legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles
13, 19 and 21 and the provisions of that Act were not in accordance with article 22 of the
Constitution He has also challenged the validity of the order on the ground that it is issued mala
fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of
Section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for
his detention and the question of mala fides of the order therefore cannot be gone into under this
petition. The question of the validity of Act IV of 1950 was argued before Supreme Court at
great length. This is the first case in which the different Articles of the Constitution of India
contained in the Chapter on Fundamental Rights had come for discussion before Supreme Court.
In another case the Chief Justice of the Supreme Court, PatanjaliShastri in Ram Krishnan
Bhardwaj v. State of Delhi7, Stated:
Preventive Detention is a serious invasion of personal liberty and such meager safeguards as
the Constitution has provided against improper exercise of the power must be zealously watched
and safeguarded by the Supreme Court.

6 AIR 1950 SC 27
7 AIR 1953 SC 318
7

This was a petition under Article 32 of the Constitution for the issue of a writ in the nature of
habeas corpus directing the release of the petitioner Dr. Ram Krishan Bhardwaj who is a medical
practitioner Delhi and was said to be under unlawful detention.8

THE UNLAWFUL ACTIVIIES (PREVENTION) ACT, 1967

The Unlawful Activities Prevention Act, 1967 was designed to deal with associations and
activities that questioned the territorial integrity of India. When the Bill was debated in
Parliament, leaders, cutting across party affiliation, insisted that its ambit be so limited that the
right to association remained unaffected and that the executive did not expose political parties to
intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial
integrity of India. The Act was a self-contained Code of provisions for declaring secessionist
associations as unlawful, adjudication by a tribunal, control of funds and places of work of
unlawful associations, penalties for their members etc. The Act has all along been working
holistically such and is completely within the purview of the Central list in the 7th Schedule of
the Constitution.
THE MAINTENANCE OF INTERNAL SECERITY ACT, 1971
On December 3, 1971, the President issued a proclamation of emergency under Article 352 of the
Constitution. On December 4, 1971, Parliament enacted the Defence of India Act, 42 of 1971.
The Act was passed in view of the grave emergency, which then existed as proclaimed by the
President, and to provide for special measures to ensure public safety and interest, the defence of
India and civil defence, for trial of certain offences and for matters connected therewith.
Section 2(3) of the Act would remain in force using the period of operation of the proclamation
of emergency and for six months thereafter. By Section 6, the Act introduced amendments in
several Acts, one amongst them being the Maintenance of Internal Security Act, 1971. Clause (d)
of sub-section (6) of Section 6 amended Section 13 of the Act by adding after the words therein
from the date of detention, the words and figures or until the expiry of the Defence of India
8THE PETITIONER WAS ARRESTED ON THE 10TH MARCH, 1953, UNDER AN ORDER OF THE
DISTRICT MAGISTRATE OF DELHI MADE UNDER SECTION 3 OF THE PREVENTIVE DETENTION
ACT AS AMENDED. THE GROUNDS OF DETENTION WERE COMMUNICATED TO THE
PETITIONER ON THE 15TH MARCH, 1953
8

Act, 1971, whichever is later. By clause (e) of sub-Section (6) of Section 6, a new Section, and
Section 17-A was inserted in the Act. The new section, Section 17-A 9 effectuates three main
changes: (1) by its non-obstante clause overrides the other provisions of the Act, (2) a person
may be detained in a class or classes of cases or under the circumstances set out in sub-classes
(a) and (b) of its sub-Section, (1) without obtaining the opinion of an advisory board for a period
longer than three months, but not exceeding two years from the date of detention, that is to say,
no opinion of an advisory board need now be obtained for 21 months from the date of detention,
the first three months of the detention being permissible without such opinion even before the
insertion of Section 17-A; and (3) the maximum period of detention of such a person can be
three years or until the expiry of the Defence of India Act, 1971 whichever is later.
These changes have been brought about by Parliament exercising power contained in clause (4)
(b) read with clause 7 (a) and (b) of Article 22. The power is exercised in respect of classes of
cases and circumstances relating to all the heads under Entries 9 and 3 of Lists I and III of the
Seventh Schedule, except one, viz.., maintenance of essential and services, in respect of which
Parliament has the power to pass preventive detention laws.
THE TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT, 1984
The above Act 61 of 1984, applicable to the whole of India except the State of Jammu and
Kashmir received the assent of the President on August 31, 1984 replacing Ordinance No. 9 of
1984 promulgated on July 14, 1984, the object of which is to provide for the speedy trial of
certain offences in terrorist affected areas and for matters connected therewith.
THE TERRORIST AND DISRUTIVE ACTIVITIES (PREVENTION) ACT, 1985
This Act was published in the Gazette of India, which received the assent of the President of May
23, 1985 and Extra. Part II, Section I, dated May 23, 1985, came into force on May 24, 1985 in
whole of India for a period of two years. Originally the proviso to sub-Section (2) to Section 1
was added and it reads: Provided so much of this Act as relates to terrorist acts shall not apply
to the State of Jammu and Kashmir. However, this proviso was omitted by Act 46 of 1985 and
the provisions of this Act were made applicable to the State of Jammu and Kashmir w.e.f. June 5,
1985. The preamble of this Act read that the special provisions of this Act were made for the
9 SECTION 17 A (1) OF MISA.
9

prevention of and for coping with, terrorist and disruptive activities and for matter connected
therewith or incidental thereto.
THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987
Act 28 of 1987 was enacted as Act 31 of 1985 was due to expire on May 23, 1987 and as it was
felt that in order to combat and cope with terrorist and disruptive activities effectively, it was not
only necessary to continue the said law but also to strengthen it further. Since both the Houses of
Parliament were not in session and it was necessary to take immediate action, the President
promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on
May 23, 1987, which came into force w.e.f. May 24, 1987.
However, this Act repealing the Ordinance received the assent of the President of India on
September 3, 1987 and was published in the Gazette of India, Extra. Part III, Section 1, dated
September 3, 1987. The scheme of Act 31 of 1985 and Act 28 of 1987 as reflected from their
preambles is the same. The schemes of the special provisions of these two Acts were/are for the
prevention of and for coping with, terrorist and disruptive activities and for matters connected
therewith or incidental thereto. TADA incorporated a sunset clauseParliament had to review
and renew the Act every two years. 10 Evidence of human rights abuses under TADA mounted
over time11 and TADA was allowed to lapse when it lost the support of opposition parties in
Parliament in 1995. However, as when the notorious preventive detention law, MISA, was
repealed in 1977, the government of the day proposed incorporating many of TADAs provisions
into ordinary criminal law.12 This proposal failed,13 but in the wake of terrorist attacks on the
World Trade Center in New York City on September 11, 2001, the ruling National Democratic
Alliance proposed a new anti-terror law.

10 THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987, NO. 28, ACTS OF
PARLIAMENT, 1987 (INDIA) [HEREINAFTER TADA].

11 HTTP://WWW.HRDC.NET/SAHRDC/RESOURCES/ALTERNATE_REPORT.
12 THE CRIMINAL LAW (AMENDMENT) BILL WAS INTRODUCED IN 1995, BUT WAS ALLOWED TO
LAPSE.

13 HTTP://HRDC.NET/SAHRDC/HRFEATURES/HRF12.
10

THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 199314

This Act was enacted as Act 31 of 1985 was to expire on May 23, 1987 and as it was felt that in
order to combat and cope with terrorist and disruptive activities effectively, it was not only
necessary to continue the said law but also to strengthen it further. Since both the Houses of
Parliament were not in session and it was necessary to take immediate action, the President
promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on
May 23, 1987 which came into force w.e.f May 24, 1987. However, this Act repealing the
Ordinance received the assent of the President of India on September 3, 1987 and was published
in the Gazette of India, Extra. Part II Section 1, dated September 3, 1987. The Scheme of Act 31
of 1985 and Act 28 of 1987 as reflected from their preambles is the same. The Scheme of the
special provisions of these two Acts was for the prevention of and for coping with, terrorist and
disruptive activities and for matters connected there with or incidental thereto.
THE CHEMICALS WEAPONS CONVENTION ACT, 200015
In order to give to the Convention on the prohibition of development, production, stockpiling and
use of chemical weapons and their destruction the Chemical Weapons Convention Act, 2000 has
been enacted. In view of the fact that the statute has been enacted in fulfillment of the countrys
international commitments the Act extends to the whole of India. It also applies to citizens of the
country outside India and associates, breaches or subsidiaries outside India of companies or
bodies corporate registered or incorporated in India. To underscore the primacy according to
international commitments of the country, Section 3 of Act unequivocally lays down that
notwithstanding anything to the contrary contained in any other law the provisions of the
Convention set out in the Schedule to this Act shall have the force of the law in India.
THE PREVENTION OF TERRORISM ACT, 2002
Taking into account the terrorist activities of various group in several parts of the country and the
fact that some of these groups sponsored by foreign elements, the Government came to the
conclusion that alternative law to effectively deal with terrorism is necessary. Pursuant to this,
14 ACT 28 OF 1987.
15 ACT NO. 34 OF GAZETTE OF INDIA 29.8.2000 PART II S. I (EXTRA) SI. 42.
11

the Government enacted another Act namely, the Prevention of Terrorism Act (POTA). the
Prevention of Terrorism Act16 (POTA). POTA incorporated TADAs enhanced police powers,
limits on the rights of the defense, and special courts, with many of POTAs provisions
reproducing verbatim the equivalent provisions in TADA In addition, POTA enhanced the
governments power to detain individuals and forfeit the proceeds of terrorism. Further, while
TADA had a two-year sunset
Clause, the sunset clause in POTA was three years 17 POTA had a fractious journey through
Parliament, and soon sparked controversy. The ruling alliance at the time was led by the
Bharatiya
Janata Party, which espouses Hindu-majoritarian political positions. In 2002, this law was used
to prosecute Muslims suspected of setting alight a train carriage carrying Hindu pilgrims but was
not similarly used to prosecute Hindus suspected of participating in state supported mass
violence that killed 2000 people, most of them Muslim. 18 POTA never managed to shed its
association with a partisan political agenda. During the next general elections, the main
opposition parties pledged
To repeal the Act. It was, in fact, repealed in September 2004, after the NDA was ousted from
power on the initiative of a newly elected government formed by a coalition of political parties
called the United Progressive Alliance (UPA).
Unlawful Activities (Prevention) Amendment Act, 2004
The Act does not define the word terrorist in its definition clause but defines a terrorist act. The
word terrorist is to be construed according the definition of the terrorist act. Terrorist act is
defined in the Act as Whoever, with intent to threaten the unity, integrity, security or
sovereignty of India or to strike terror in the people or any section of the people in India or in any
foreign country, does any act by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other
16 THE PREVENTION OF TERRORISM ACT, 2002, NO. 15, ACTS OF PARLIAMENT, 2002
(INDIA) [HEREINAFTER POTA].
17 POTA, 1(6).
18NITYA RAMAKRISHNAN, GODHRA: THE VERDICT ANALYSED, ECONOMIC AND POLITICAL WKLY.,
APR. 09, 2011.

12

chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in

such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss
of, or damage to, or destruction of, property or disruption of any supplies or services essential to
the life of the community in India or in any foreign country or causes damage or destruction of
any property or equipment used or intended to be used for the defence of India or in connection
with any other purposes of the Government of India, any State Government or any of their
agencies, or detains any person and threatens to kill or injure such person in order to compel the
Government in India or the Government of a foreign country or any other person to do or abstain
from doing any act, commits a terrorist act.

UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2008

The first law made in independent India to deal with terrorism and terrorist activities that came
into force on 30 Dec 1967 was The Unlawful Activities (Prevention) Act 1967 (UAPA).70 The
UAPA was designed to deal with associations and activities that questioned the territorial
integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party
affiliation, insisted that its ambit be so limited that the right to association remained unaffected
and that the executive did not expose political parties to intrusion. So, the ambit of the Act was
strictly limited to meeting the challenge to the territorial integrity of India. The Unlawful
Activities (Prevention) Amended Act 2008 has amended certain provisions of the Unlawful
Activities (Prevention) Act, 1976 with a view to strengthening the law for dealing with terrorism.
THE NATIONAL INVESTIGATION AGENCY ACT, 2008
The object of the National Investigation Agency Act, 2008 is to constitute an investigation
agency at the national level to investigate and prosecute offences affecting the sovereignty,
security, and integrity of India, Security of State, friendly relations with foreign States and
offences under Acts enacted to implement international treaties, agreements, Conventions and
resolutions of the United Nations, its agencies and other international organisations and for
matters connected therewith or incidental thereto It is applicable to whole of India even to
citizens of India residing outside India. Government service holders and to person on ship,
13

aircrafts registered in India.19 The Agency has been empowered to investigate offences laid down
under the schedule20 as schedule offence.21

CHAPTER 3
PREVENTIVE DETENTION LAWS IN INDIA
India has had a long and complex history of administrative detention, and there are three
detention regimes currently place in India.22 First under the Armed Forces (Special Powers) Act
(AFSPA), the military may make warrantless arrests leading to preventive detention up to two
years in officially declared disturbed areas.23 Those arrests- which occur essentially outside
judicial review- have led to widespread reports of torture and extrajudicial killings. 24 Second , the
National Security Act (NSA) permits state and federal officers to detain any individual up to
twelve months with a view to preventing him from acting in any manner prejudicial to various
state interests, including national security and public order.25 Those arrests include administrative
review and offer modest procedural protections, but have been employed in practice to suppress
19 SECTION 1(2) OF NATIONAL INVESTIGATION AGENCY ACT, 2008 HEREINAFTER KNOWN
AS NIA, IT EXTENDS TO THE WHOLE OF INDIA AND IT APPLIES ALSO- TO CITIZENS OF INDIA
OUTSIDE INDIA; TO PERSONS IN THE SERVICE OF THE GOVERNMENT WHEREVER THEY MAY
BE; AND TO PERSONS ON SHIPS AND AIRCRAFTS REGISTERED IN INDIA WHEREVER THEY
MAY BE
20 SECTION 2(1) (F) OF NIA, SCHEDULE MEANS SCHEDULE TO THIS ACT
21 SECTION 2(1) (G) OF NIA, SCHEDULE OFFENCES MEANS OFFENCES SPECIFIED IN THE
SCHEDULE.
22 ANIL KALHAN ET AL., COLONIAL CONTINUITIES: HUMAN RIGHTS, TERRORISM, AND
SECURITY LAWS IN INDIA, 20 COLUM.J. ASIAN L. 265-266 (2006).
23 HTTP://WWW.HRW.ORG/LEGACY/BACKGROUNDER/2008/INDIA0808/.
24 HTTP://WWW.STATE.GOV/G/DRL/RLS/HRPT/2005/61707.HTM
14

dissent and to target minority groups. 26 Third, India has recently experimented with a specific
detention regime for terrorism suspect. The Prevention of Terrorism Act (POTA) effectively
instituted a modified regime of detention without trial. The statute was often used to justify the
incarceration without charge or trial of terrorist suspects for up to 180 days. 27Moreover, the
statute reversed the burden for bail so that a detainee had to show that there were reasonable
grounds to believe that the accused was not guilty and unlikely to commit to commit any other
offence while on bail.28 Judicial review was guaranteed, but ex parte evidence could be
considered on a finding that disclosure could jeopardize public safety.29 Facing increased
criticism and evidence of widespread abuses, 30 legislators repealed POTA in 2004. Following the
November 2008 terrorist attacks in Mumbai, the Indian Parliament hastily enacted a modified
version of POTA that, among other things, again empowers police to detain suspects for up to
180 days without charge.31
Ambiguous Scope
Indian security laws aim to preserve, inter alia, national security, public order, public peace, and
religious harmony. Past and current laws have tended to treat the meaning of their stated bedrock
goals as self-evident, and failed to demarcate the scope or limits of these goals. The NSA, for
example, allows the central and state governments to detain an individual where this is

25 C. RAJ KUMAR, HUMAN RIGHTS IMPLICATIONS OF NATIONAL SECURITY LAWS IN INDIA:

COMBATING TERRORISM WHILE PRESERVING CIVIL LIBERTIES, 33 DENV. J. INTL L. & POLY
195, 213 (2005)
26 HTTP://WWW.ACHRWEB.ORG/REPORTS/INDIA/AR05/MANIPUR.HTM
27 POTA S 49(2)(A)-(B)
28 POTA S 49(6)-(7). THE SUPREME COURT UPHELD THESE PROVISIONS. PEOPLES UNION
FOR CIVIL LIBERTIES V. UNION OF INDIA, [2004] S.C. 456; STATE OF TAMIL NADU V.
R.R.GOPAL, [2003] SC 800.
29SHALANISONI V. UNION OF INDIA (1980) 4 SC 544
30HTTP://WEB.AMNESTY.ORG/AIDOC/AIDOC_PDF.NSF/INDED/ASA200292003ENGLISH/
$FILE/ASA2002903.PDF; HTTP://WWW.HRW.ORG.UN/CHR59/COUNTER-TERRORISMBCK.PDF
31 HTTP://WWW.HRDC.NET/SAHRDC/HRFEATURES/HRF191.HTM.
15

considered necessary to prevent that person acting in any manner prejudicial to the security of
the State or
From acting in any manner prejudicial to the maintenance of public order.32 The Act defines
neither State security nor public order, nor which actions may be prejudicial to either. It is
difficult to discern the boundaries of such a sweeping provision that potentially catches a large
swath of speech and writing that criticizes the government.
In addition to being vague, the scope of offenses under anti-terrorism laws is very broad. The
UAPA, when it was amended in 2004 and 2008, incorporated wide and ambiguous definitions.
The a0mended UAPA creates the offense of committing a terrorist act, and includes within the
ambit of terrorist acts using force against a public official, using force against any individual in
order to pressure the government, using violent means to kill, damage to property, or to disrupt
any supplies or services essential to the life of the community in India or in any foreign
country.33 Experts advise limiting the definition of terrorism to intentionally causing death or
injury with the motive of intimidating the general public or pressuring a government or
international body to act in particular ways. 34 Contrary to this view, the UAPA chooses to include
not just death and injury, but also property damage and Disruption of supplies, not just within
India but in other countries too. While the actus Reusof this offense is broad, it is the mens rea
that makes the limits of the offense difficult to fathom. Someone Committing a terrorist act
must intend to threaten the unity, integrity, security or sovereignty of India or strike terror in
people in India or in any foreign country. 35 However, it is also enough if an individuals
actions are likely to have these same effects.36The language of the Act leaves entirely unclear

32 NSA, 3(2).
33 UAPA, 15.
34 UN COMMISSION ON HUMAN RIGHTS, REPORT OF THE SPECIAL RAPPORTEUR ON THE
PROMOTION AND PROTECTION OF HUMAN
RIGHTS AND FUNDAMENTAL FREEDOMS WHILE
COUNTERING TERRORISM, MARTIN SCHEININ, E/CN.4/2006/98, DEC. 28, 2005.

35 UAPA, 15.
36 UAPA, 15.
16

whether an individual needs to know about or be reckless as to likely consequences, and could be
read as creating a strict liability offense.
In a state law promulgated recently, we see a similar lack of clarity. The Chhattisgarh Special
Public Security Act of 200537gives the Chhattisgarh government power to ban and prosecute
organizations committing unlawful activities. Unlawful activities are not restricted to actions
that are offenses under existing criminal law. They include speech or actions that, inter alia,
constitute a danger or menace to public order, peace and tranquility 38 or encourage or preach
disobedience to established law and its institutions39 or interferes or tends to interfere with the
administration of law.40 These provisions gratuitously use synonyms (danger or menace) and
lower the threshold that tips something into being unlawful.
Widely drafted provisions render potentially criminal many types of peaceful speech and activity
that are critical of the government of the day or challenge nationalist views on history and
politics. This allows the executive generous latitude to decide which actions technically falling
within the ambit of a widely drafted offense it will actually prosecute. Individuals subject to
these laws cannot confidently calibrate how to comply with loosely defined standards. By the
same token, it is difficult to challenge an executive decision as being outsidethe scope of the
executives statutory authority under a particular legal provision if that provision is so widely
drafted that its boundaries are difficult to determine.
Enhanced Powers to Investigate and Prosecute
Security laws such as the AFSPA and the UAPA enhance the states powers of search, seizure,
and arrest. At the same time, the UAPA, like TADA and POTA before it, significantly diminishes
the procedural rights of the accused as compared to the Criminal Procedure Code of1967. If we
look at powers of search, seizure, and arrest, the UAPA allows any officer of a Designated
Authority to search any person or property, and seize any property or arrest any person, where
37 CHHATTISGARH SPECIAL PUBLIC SECURITY ACT, 2006, NO. 14, ACTS OF PARLIAMENT,
2006[HEREINAFTER CSPSA].

38ID. 2(E) (I).

39ID. 2(E) (VI).
40ID. 2(E) (III).
17

they have reason to believe from personal knowledge or information given by any person and
taken in writing . . . or from any document or from any other thing that an offense has been
committed.41 The Code of Criminal Procedure, by contrast, requires the police to have credible
information or reasonable suspicion before arresting someonewithout a warrant. 42 Similarly,
the CrPC authorizes a search without a warrant only where a police officer has reasonable
grounds to believe that something essential to an investigation could not be obtained in any
other way without unreasonable delay.43 Under ordinary law, an arrested person must be
informed forthwith of the full particulars of the suspectedoffense. 44 Under the UAPAs lower
standards, the police only have to inform an arrested person of the grounds of arrest as soon as
may be.45 As Human Rights points out, this would permit the police to keep arrested individuals
in the dark, and limit their wherewithal to respond to the suspicions against them. 46A person
arrested under the Crpc cannot be held in custody for more than 24 hours without being charged
of an offense.47 In sharp contrast, the UAPA, following POTA, allows suspects to be detained
without charge for up to 180 days.48 Thirty days out of the permissible 180 can be in police
custody, where the accused would be particularly vulnerable to torture and forced
confessions.49Courts can authorize thefirst ninety days of detention without any special
grounds.50 To extend detention after ninety days, the prosecution needs to demonstrate only that

41 UAPA, 43A
42 CODE CRIM. PROC. 41 (1974).
43 CODE CRIM. PROC. 41, 165 (1974).
44 CODE CRIM. PROC. 50(1) (1974).
45 UAPA, 43B (INSERTED BY UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, ACT NO.
35 OF 2008 (INDIA)), 12.

46 HTTP://WWW.HRDC.NET/SAHRDC /HRFEATURES/HRF191.HTM#FTN5
47 CODE CRIM. PROC. 57 (1974).
48 UAPA, 43D (2).
49 SUPRA NOTE 46.
18

investigation has made some progress.51 This extended pre charge detention has the potential to
operate as de facto preventive detention. The amended UAPA, like its anti-terrorism forebears,
TADA and POTA, shifts the law on bail. Traditionally, the law on bail rests on the principle that
limiting a persons liberty is a serious step 52 Accordingly, until guilt has been proven, a judge will
consider whether that individuals liberty should be preserved, weighing in the balance the
possible risks of release.53 Bail is usually subject to conditions and limits, which are typically
more onerous when the alleged offense is more serious or the potential risks of release relatively
high.54 Under Indias anti-terrorism laws, however, rather than weighing the risk that the accused
might commit an offense or abscond or intimidate witnesses if released, the court must consider
whether there are reasonable grounds for believing that the accusations against the accused are
prima facie true.55 The bail hearing becomes an abridged, premature trial, where the applicant is
unlikely to meet the highthreshold of disproving his guilt. His resulting remand in custody
mightindirectly prejudice his trial because it will be difficult for the trial judge to discount a
colleagues early assessment of guilt. Once trials are underway, these security laws also allow the
court to presume guilt based upon certain kinds of inculpatory evidence, freeing the prosecution
from demonstrating that the accused acted with the requisite criminal intent. 56The burden of
proof shifts to the defense if, for example, the accused persons fingerprints are found at the site
of a terrorist offense or on anything used in connection with the offense, or if the accused
person is found with arms or explosives that might have been used in a terrorist offense. 57 TADA
50 UAPA, 43D (2).
51 IBID
52BABU SINGH V STATE OF UTTAR PRADESH (1978) 1 SCC 579 (INDIA); STATE OF RAJASTHAN V
BALCHAND(1977) 4 SCC 308 (INDIA).

53 IBID
54 CODE CRIM. PROC. 436437(1)(2)
55 UAPA, 43D(5).
56 UAPA, 43E.
57 IBID
19

and POTA allowed confessions made to the police as evidence during trial, reversing the bar
against using custodial confessions during trial imposed by theIndian Evidence Act,58 without
explicitly barring statements extracted by threatening or inflicting torture. 59 While the UAPA
does not go quite as far as allowing courts to rely on confessions made in police custody, the
various procedural departures that it does permit (including presumptions of guilt) considerably
erode the right to a fair trial.60

Limits on Judicial Review

Clearly, Indian security laws give the executive large doses of discretionary power. They
compound this by simultaneously restricting judicial review over these expansive powers. These
laws are designed so that they assign decision-making authority to government officials at a
certain level of seniority, but do not specify any criteria for decision making. As long as the
decision maker is of the right rank, his or her subjective satisfaction on the issue at hand suffices.
For example, as a declaration under AFSPA that an area is disturbed cannot be substantively
reviewed, unless it can be shown that the central or state government made the decision in bad
faith and was not genuinely of the opinion that civil authority needed to be supplemented with
military force.61 Similarly, the decision to preventively detain someone without charge cannot be
reviewed on substance. The NSA only allows judicial review on whether the decision maker
complied with the necessary procedure.62Not only is the scope of judicial review limited to
procedural questions, some security laws set up administrative review mechanisms that an
applicant must traverse before approaching the courts for judicial review. Administrative review
under older security laws, including the NSA and the UAPA, is designed to oversee each
58 INDIAN EVIDENCE ACT, NO. 1 OF 1872, INDIA CODE (1872), 25,
HTTP://INDIACODE.NIC .IN.
59 POTA, 32; TADA, 15.
60POLICE COMMISSIONER, DELHI V. REGISTRAR DELHI HIGH COURT, (1996) 6 SCC 323
61 AFSPA, 3.
62 NSA, 3.
20

decision the government makes on a particular issue. For example, every preventive detention
order under the NSA has to be placed before an advisory board that confirms the order or
recommends revocation.63Similarly, every declaration under the UAPA that an organization is
unlawful must be placed before a review committee. 64 Laws passed after 1980 adopt a different
mechanism, under which an individual or organization can challenge a decision before the
administrative review body, but the executive is not obliged to submit its decisions for review as
a matter of course. For example, when an organization was declared a terrorist organization
under POTA, or is declared as such under the UAPA, that declaration could be challenged before
a review committee.65But, the burden is on the affected individual or group to initiate review.
Thus, more recent laws have diluted the scrutiny provided by administrative review, while
preserving the hurdle it creates for an applicant seeking judicial review. Administrative review
proceedings are weighted against the Applicant. Proceedings before all these administrative
bodies are closed to the public.66Preventive detention laws expressly bar the detainee from
having legal representation.67 Furthermore, the relevant government has the discretion to
withhold information from affected parties on the reasons for the order against them. None of the
current administrative review mechanisms provide for amicus curiae or special legal counsel
who have security clearance to review classified evidence and advice on its strengths and
weaknesses. These attenuated procedural rights are accompanied by limits on the independence
of administrative review mechanisms. The government of the day appoints members to sit on
these bodies.68 While the chairperson of an advisory boards under the NSA and review
committee under the UAPA has to be a retired or sitting judge of the High Court, 69there are no
63 NSA, 10.
64 UAPA, 4.
65 UAPA, 36.
66 NSA, 11(4).
67 IBID
68 NSA, 9; UAPA, 5, 37.
69 NSA, 9(3); UAPA, 37(3)
21

statutory guidelines for choosing other members. Under current laws, review mechanisms are not
standing bodiesthe government has the option of creating them as needed. 70 The inherent
conflict in the Ministry of Home Affairs appointing the Committee that reviews its decisions
only becomes deeper when such a committee is appointed ad hoc to review a specific decision.
Decisions by the administrative review bodies bind the government. But government orders on
preventive detention or proscribing organizations take effect immediately and remain effective
until andunless the review committee disagrees with the government. 71 Detainees or banned
organizations can turn to the High Court if administrative review goes against them, as it
generally does72 However, it is worth noting that the relevant laws themselves do not grant the
High Court appellate jurisdiction over administrative review decisions. Jurisdiction flows instead
from the Courts constitutional power (and duty) to hear citizens petitions seeking to enforce
fundamental rights.In order to petition the courts, the applicant has to demonstrate a prima facie
violation of a constitutional right.
In Kartar Singh, the Supreme Court proclaimed its special role in preserving the rule of law,
there is no institution to which the duty can be delegated except to the judiciary. Early in
PUCL, the Court acknowledges clear Constitutional limitations on . State actions within the
context of the fight against terrorism and further that the judiciary has the responsibility to
maintain this delicate balance by protecting core Human Rights. On occasion, the Supreme
Court cited citizens ability to challenge government actions in court as one of the reasons that
provisions encroaching on constitutional rights are acceptable. In PUCL, for example, the Court
upheld status offenses on the ground that an organization can contest the decision to ban it in
Court. However, while the Supreme Court presented review by the higher judiciary as an
important check, it also preserved statutory limits and hurdles to judicial review. The Court had
no quarrel with decision making powers that required only the subjective satisfaction of the
decision maker, such as the power to preventively detain someone or the power to declare an
70 NSA, 9(1)
71 NSA, 10.
72 NILOUFER BHAGWAT, INSTITUTIONALIZING DETENTION WITHOUT TRIAL, 13(11) ECON. & POL.
WKLY. 512 (1978).

22

area disturbed under AFSPA. As discussed earlier, statutory powers of this nature restrict courts
to reviewing whether the decision maker used the proper procedure, which under the terms of the
NSA and AFSPA involves checking only if the official in question was of the correct rank.
Nevertheless, the Court did not requireor even recommend obiter dictumthat these powers
be amended to include decision-making criteria that add some rigor and certainty, and reduce the
potential for arbitrariness. The Supreme Court also uniformly rejected challenges to
administrative review mechanisms. It disagreed with arguments in A.K.Roy that advisory boards
did not accord preventive detainees a fair hearing. In PUCL, the Court similarly rebuffed
arguments that review committees did not give banned organizations genuine opportunity to
challenge the national governments decision to designate them as terrorist groups. The
petitioners argument that the National government had too much power over appointing
members of review committees met a similar fate.73 The Court affirmed administrative review
mechanisms, with their lack of independence and highly abbreviated procedural protections. It
did not expressly acknowledge that administrative review delayed access to judicial review, or
that limits on disclosure to evidence made it difficult for applicants to credibly challenge the
governments decision to detain or ban them. Further, when the Supreme Court recommended
additional checks and balancesas in Kartar Singh where it suggested that the national
government appoint a screening committee to review legal proceedings as well as state
governments actions under TADAthese suggested measures were also committees appointed
exclusively by and responsible only to the national government.

CHAPTER 4
JUDICIAL APPROVAL
Within a democratic constitutional order, independent courts of law play, in theory, a rights
protective, counter-majoritarian role.74Judges do not have to face the electorate, so they should be
more willing to protect the rights of minorities, even very small or unpopular ones. The Indian
judiciary is well placed to scrutinize, check and balance executive power. The Indian
Constitution grants the Supreme Court the power to review whether legislation is constitutional.
The Supreme Court and High Courts can receive petitions directly from citizens seeking to
73 IBID
74 WALTER F. MURPHY, CIVIL LAW, COMMON LAW, AND CONSTITUTIONAL DEMOCRACY, 52 LA. L.
REV. 91 (1992).

23

enforce their constitutional rights, and exercise strong remedial powers in response. The four
decisions include the Courts 1982 decision in A.K. Roy v. Union of India75(AK Roy) which dealt
with the constitutionality of the National Security Act, Kartar Singh v. State of
Punjab76(KartarSingh) in 1994 which addressed the constitutionality of TADA, Naga Peoples
Movement of Human Rights v. Union of India 77 (NagaPeoples Movement) in 1998 which
considered AFSPAs constitutionality, and Peoples Union of Civil Liberties v Union ofIndia 78
(PUCL) in 2004 which decided on the constitutionality of POTA. Each of these four cases was
elaborate. In three out of the four cases, the petitioners argued that the national legislature did not
have the authority to pass the law as a whole. In all four, petitioners argued that several
individual provisions of the law infringed provisions in the Constitution. And on each occasion,
the Supreme Court ruled very substantially in favor of the state.
A. Challenges to Parliaments Legislative Authority
Petitioners arguments about legislative competence rested upon the Constitutions division of
legislative authority between the national legislature and state legislatures.79The petitioners
argued in each case that state legislatures have exclusive authority to legislate on public
order,80 and therefore the national legislature was not constitutionally competent to pass the law
in question. This argument was dismissed without much ado every time. The Court maintained
that security laws deal with threats more elevated than public disorder, and the national
legislature, which is constitutionally empowered to legislate on matters concerning the defense
of India, has clear authority to pass these laws.
75 A.K. ROY V. INDIA, (1982) 1 SCC 271 (INDIA) [HEREINAFTER A.K. ROY].
76KARTAR SINGH V. PUNJAB, (1994) 3 SCC 569 (INDIA) [HEREINAFTER KARTAR SINGH].
77 NAGA PEOPLES MOVEMENT OF HUMAN RIGHTS V. INDIA, AIR 1998 SC 432 (INDIA)
[HEREINAFTER NAGA PEOPLES MOVEMENT]

78 PEOPLES UNION OF CIVIL LIBERTIES V. INDIA, (2004) 9 SCC 580 (INDIA) [HEREINAFTER PUCL].
79 PUBLIC ORDER FALLS WITHIN THE STATE LEGISLATURES EXCLUSIVE LEGISLATIVE
AUTHORITY. INDIA CONST. LIST II, ENTRY 1

80KARTAR SINGH, SUPRA NOTE 75; NAGA PEOPLES MOVEMENT, SUPRA NOTE 76; PUCL, SUPRA
NOTE 77.

24

B. Challenges to Expansive Executive Powers

While the petitioners might have overreached in challenging Parliaments authority to legislate
on security in general, their challenges to particular provisions of the NSA, TADA, POTA, and
AFSPA respectively were rigorous and persuasive on the whole. All four petitions concentrated
on the ways in which the laws at issue departed from ordinary criminal law. They elucidated how
these departures were incompatible with a range of constitutional rights. The Court rejected most
of these arguments.
1. Ambiguous Scope
In A.K. Roy, which challenged the NSA, the petitioners argued that the grounds for preventive
detention were too wide, having been transposed from the Constitution into ordinary law without
any attempt at precise statutory definition.81 The Court responded by ruing the imperfections of
language,82 but insisting that a certain amount of minimal latitude was necessary in order to
make preventive detention laws effective.83 Arguments in Kartar Singh about broadly drafted
powers in TADA to declare an area terrorist affected and establish special courts within it
received similar treatment from the Court.84 While the Supreme Court dismissed arguments that
government powers should be clearer and narrower, challenges to ambiguity in the mens rea
requirement of criminal offenses received a more favorable response. In Kartar Singh, the Court
read a mens rea requirement into the offense of abetment, holding that imprecision could render
a legal provision arbitrary and void for vagueness.85 It followed this precedent in PUCL and
clarified that the offense of abetment required intention and the offense of unauthorized
possession of arms required knowledge of possession.86
2. Special Security Measures in Demarcated Zones
81 SUPRA NOTE 74.
82 IBID.
83 IBID.
84SUPRA NOTE 75.
85 IBID.
86 SUPRA NOTE 77.
25

In Naga Peoples Movement, the Court held that the power to declare an area disturbed was
neither arbitrary nor unguided,87 even though AFSPA lays down no guiding criteria for such a
declaration. The court also rejected any suggestion that the militarys extensive powers to search,
seize property, arrest people and use force against them were excessive. 88 In Kartar Singh, the
Court responded in similar ways to arguments against the executives power to constitute special
courts in a terrorist affected area. It held that the TADA implicitly required that terrorist or
disruptive activities were of a scale and seriousness that warranted special measures. 89 The
Supreme Court did inject one important limit into the executives power under AFSPA to create a
zone where the military has generous leeway to use force. The Court held that the words of
AFSPA implied a time bound declaration, and therefore, a declaration that an area is disturbed
cannot take effect for more than six months at a time. 90 While this does not prevent national or
state governments from renewing declarations repeatedly, it does force a formal reconsideration
every six months.
3. Preventive Detention Powers
Preventive detention is constitutionally authorized, so it follows that a law cannot be invalid for
allowing such detention per se. In A.K. Roy, the petitioners did not question the legality of
preventive detention in and of itself, but argued that the procedure established by the NSA
violates the rules of natural justice because it bars legal representation for detainees as well as
cross-examination in hearings before the advisory boardthe administrative review mechanism
established by the NSA. The Supreme Court reminded the petitioners that the Constitution did
not extend the right to legal representation to individuals who are preventively detained. 91
However, the Court failed to consider that while the Constitution does not grant the right to legal
representation to detainees, it does not expressly bar this right either. Therefore, it was possible
to draw upon common law principles on fair procedure to read in such a right while still
87 SUPRA NOTE 76.
88 IBID.
89 SUPRA NOTE 75.
90 SUPRA NOTE 76.
91 SUPRA NOTE 74.
26

respecting the Constitution. The Court went further and upheld statutory provisions on which the
Constitution is silent, such as the NSAs ban on cross-examination during advisory board
hearings, and the governments unrestricted power to determine conditions of detention and
punish infractions by
Detainees.92To justify these conclusions, the Court elaborated that the NSA could attenuate
procedural rights for advisory board hearings because detention depends upon the decision
makers subjective satisfaction rather than a judges decision at trial. 93 The Courts position was
that procedural rights under criminal law were meant to apply specifically during criminal trials,
and therefore, it was entirely permissible to remove these rights, and have far lower procedural
protection, during a different type of proceedings. The implications of the Courts reasoning are
disturbing. During criminal proceedings, the rights of the defense are meant to guard against
miscarriages of justice. A law on preventive detention that allows the state to restrict an
individuals liberty without having to prove guilt before a court, carries a greater risk of arbitrary
or unreasoned decisions. Therefore, individuals who are preventively detained should have
correspondingly higher procedural protection and more liberal conditions of detention than
individuals undergoing criminal trials. However, the Supreme Court did not address this pressing
question of principle, nor did it justify why attenuated procedural rights were necessary in the
particular context of security related administrative detention. Instead, the Courts position places
Little weight on long-standing common law principles such as the right to a fair hearing and
allows the government to dispense with basic procedural protections simply by creating a forum
technically distinct from a criminal trial.

92 IBID.
93 IBID.
27

CHAPTER 5
Directions for Reforms
Indias national government has made aggressive, excessive use of its ordinance making power
to press security ordinances into service, preempting and diluting legislative deliberation in the
process. While many individuals have their rights restricted and abused by state actors using
security powers, those who are directly affected by security laws have neither the numbers nor
the Political influence to stir significant debate or sway many votes in Parliament. As a result, the
legislature has endorsed, rather than reviewed or reformed, executive led security legislation.
Just as parliamentary scrutiny of security laws has been mild, judicial review has been
deferential. As a result, the executive branch dominates lawmaking in this arena and exercises
power with little
Restraint. This skewed institutional dynamic has lasting constitutional consequences. Indias
current and past security laws treat constitutional rights as immaterial rather than binding. When
interpreting these laws, the judiciary in its turn has treated constitutional rights as modifiable and
dispensable indulgences, such that whatever remains after the executive has claimed
extraordinary powers to use force and detain individuals is considered adequate. India is not the
only constitutional democracy where judicial review of security laws has been timid and
legislative debate lukewarm. The traditional separation of powers has failed to check executive
excesses in the United States since September 11, 2001, and he goes as far as to suggest creating
a new constitutional body with the special mandate to review executive decisions on national
security.94 Brooks argues that the international law of armed conflict continues to categorize
conflicts in ways that cannot adequately guide states on how to tackle modern-day terrorism.
Sheadvocates that the international law of armed conflict be substantially reformed so it can
better regulate national law and policy on security.95

94 MARK TUSHNET, CONTROLLING EXECUTIVE POWER IN THE WAR ON TERRORISM, 118 HARV. L.
REV. 2673, 268182 (2005).

95 ROSA EHRENREICH BROOKS, WAR EVERYWHERE: RIGHTS, NATIONAL SECURITY LAW, AND THE
LAW OF ARMED CONFLICT IN THE AGE OF TERROR, 153 U. PA. L. REV. 675, 75561 (2004).

28

Restoring Judicial Review

Rigorous judicial review is essential in checking and balancing executive power under security
laws.that the Indian Supreme Court neglects constitutional and international normswhen
reviewing security laws, denuding the content of constitutional rights in the process. This
normatively barren deference amounts to judicial retreat, harms the rule of law, and leaves
individuals vulnerableto serious abuses. For the individual citizen and for the rule of law, it is
Important that the Court shift its approach. It can do so by concentrating on the substantive
content of constitutional rights, drawing upon the rich resources offered by its own rights
jurisprudence outside the national security context, comparative jurisprudence from other
constitutional democracies, and international human rights law. In all four decisions discussed
above, the Court rarely referred to international human rights norms, and used this material
somewhat tendentiously. In PUCL, the Court suggests that U.N. S.C.R. 1373 obligates India to
pass a new anti-terrorism law.96However, although U.N. S.C.R. 1373 requires states to take
certain anti-terrorism measures, particularly related to terrorist financing, it does not demand a
new law and certainly does not require the particular measures the Indian government imported
from TADA into POTA. Further, while the Supreme Court invoked international law in support
of POTA, it did not engage with international law on human rights, such as the International
Covenant on Civil and Political Rights, to which India is a party, or the jurisprudence of the U.N.
Human Rights Committeeunder the ICCPR.97 Such omissions by the Supreme Court were missed
opportunities. International human rights law has the advantage, as Brooks points out, of
applying at all times to all individuals, regardless of whether the state is dealing with dangers it
considers extraordinary.98The standards in the ICCPR, along with the jurisprudence of the United
Nations Human Rights Committee would be especially relevant to interpreting security laws. The
Indian Supreme Court has tended to treat national security or the more nebulous public order
96HTTP://164.100.24.208/DEBATE/DEBTEXT.ASP?SLNO=3795&SER=&SMODE=T (STATEMENT OF L.K.
ADVANI); LOK SABHA DEBATE (MAR. 18,2002)

97INDIA ACCEDED TO THE ICCPR ON APRIL 10, 1979. SEE UNITED NATIONS TREATY SERIES, 999
U.N.T.S. 171; 1057 U.N.T.S. 407 (DEC. 16, 1966).

98ROSA EHRENREICH BROOKS, WAR EVERYWHERE: RIGHTS, NATIONAL SECURITY LAW, AND THE
LAW OF ARMED CONFLICT IN THE AGE OF TERROR, 153 U. PA. L. REV. 675, 75561 (2004).

29

as an unassailable trump that permits almost any limit on a right. International law such as the
General Comments of the UNHRC99or the Siracusa Principles100 can assist in defining and
evaluating limitations on the grounds of national security and public order. Petitioners, in turn,
should frame arguments with reference to international standards, thus pushing the judiciary to
contemplate seriously how far a right can be constrained. The Supreme Court should elucidate
the content of a constitutional right with reference to international and comparative standards,
and consider how far limitations might extend without rendering the right meaningless. It should
then evaluate whether rights limiting statutory provisions meet these standards. In order to do
this, it should adopt the well-established proportionality approach, inquiring whether a statutory
provision that, prima facie, limits a constitutional right pursues a legitimate aim, and if so,
whether the rights limiting means chosen to achieve that aim impose the smallest possible
restriction on the right in question. When evaluating a statutory measureadmissibility of
custodial confessions for examplecourts should demand convincing evidence from the
government supporting the needfor that particular measure in order to evaluate whether the aim
islegitimate and the measure reasonable, rather than being satisfied with insufficiently examined
appeals to the vital need for security. If a statutory provision limits a right more than is necessary
to achieve its intended aim, that disproportionate limitation should make the provision
unacceptable. Balancing tests do not, of course, completely inoculate against excessive deference
in national security cases, and can be used to put a gloss on arbitrary laws or policies. But, out,
despite its malleability, proportionality analysis at least steers courts towards overtly reasoned
decisions. Structured analysis would sideline the sort of high-strung hypotheticals that run
through KartarSingh and PUCL, and concentrate attention on the likely effect of particular
provision. The structure of the testits focus on whether a limitation goes further than necessary
would encourage both petitioners and respondents to draw upon comparative and
internationaljurisprudence to support their arguments. Applying an established test that facilitates
99DEROGATIONS DURING A STATE OF EMERGENCY (AUG. 31, 2001),
HTTP://WWW.REFWORLD.ORG/DOCID/453883FD1F.HTML; U.N. HUMAN RIGHTS COMMITTEE, CCPR
GENERAL COMMENT NO. 11:ARTICLE 20: PROHIBITION OF PROPAGANDA FOR WAR AND INCITING
NATIONAL, RACIAL OR RELIGIOUSHATRED (JULY 29, 1983)

100U.N. COMMISSION ON HUMAN RIGHTS, THE SIRACUSA PRINCIPLES ON THE LIMITATION AND
DEROGATION PROVISIONS IN THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
(SEPT.28,1984), HTTP://WWW.REFWORLD.ORG/DOCID/4672BC122.HTML.

30

evidence-basedreasoning is especially important when evaluating security laws because judges,

government officials, and legislators will be moreprone to bias on this topic than on many others.
Armed conflict and Terrorist attacks leave vivid memories. Revulsion at arbitrary violence,
sympathy for victims, and fear of future attack might all lead decision maker to overestimate
threats or devalue due process and basic liberties.101 The Indian Supreme Court has clearly
tended to do this when asked to review security legislation. The Supreme Court treats security
threats as an omnipresent menace against which few holds should be barred. When reviewing
security laws, it has typically asserted without explication that statutory provisions under
challenge comply with the Constitution. On occasion, the Court has reasoned a little more
explicitly, and stated that the compass of a constitutional right depends upon the particular
statutory scheme at issue. In doing this, the Supreme Court has subordinated constitutional
provisions to the aim and content of security laws, rather than treating constitutional norms as the
prior standard against which laws should be measured. There is one instancein Kartar Singh
when the Court does treat the relevant constitutionalprovision as a prior standard, but it
articulates a somewhat startling test for evaluating statutory provisions in light of this prior
standard. The Court asks whether a challenged provision completely denies a constitutional
right and is tyrannical and despotically in character;if not, the provision is valid. 102In effect,
unless a statutory provision repudiates a right entirely, it is valid. Proportionality analysiswith
its focus on least restrictive meansimposes a test that protects rights far better than the
principles articulated in the Supreme Courts security jurisprudence. Applying consistent legal
analysis to questions of national security is imperative because security laws bearing the
particular features have been a long-standing part of Indias legal landscape, as have human
rights violations facilitated by these laws. If the courts consistently adopt reasoned review
grounded in specifics, this will compel the government to proffer cogent evidence for a measure
rather than facile invocations of an all-encompassing security threat. Over time, empirically
grounded, proportionality based judicial reasoning might influence how the executive drafts
security legislation in the first place, prodding governments to weigh how past security laws

101
102 SUPRA NOTE 74
31

have actually been used on the ground and to respect due process and individual liberties when
designing the executives security powers.

CHAPTER 6
CONCLUSION
The current mechanisms for executive accountability allowed by Indian security laws are weak
and after the fact. Criminal prosecution of government officials who were acting under security
powers has to be explicitly authorized by the national government, and in any event cannot be
driven by victims of rights violations. While the Supreme Court sets great store by the corrective
and preventive powers of judicial review, this remedy is practically inaccessible to most people.
Few can afford to approach the High Court in the state capital, or the Supreme Court in New
Delhi, paying legal fees as the matter inches its way through the delays routine in Indian courts.If
the executives decisions are subject to scrutiny at an earlier stage, this can serve both to prevent
and correct abuse. For example, if a judge rejects the governments decision to preventively
detain someone because the evidence is dubious, this rejection prevents loss of liberty. If all
preventive detention had to be routinely reported to the legislature, the government would almost
certainly be questioned if the number of detainees increased suddenly, or if many detainees were
from a particular religious or ethnic group.
Reform of Indias security lawswhether substantive or proceduralwill not be easy to push
through, given that certain core security provisions have recurred in different generations of
laws.
However, building support for reforms to better regulate executive power will be easier than
reforms that remove certain powers entirely. Once reforms of this nature are legislated, they have
reasonably good odds of gaining leverage. The Supreme Courts jurisprudence indicates that,
while it may be deferential to the executive, it is reluctant to cede jurisdiction over security laws.
When reviewing security laws, theCourt has disregarded arguments by the government that
would have ousted its jurisdiction over particular executive powers. Political competition
inherent in a democratic electoral system is likely to similarly incline the legislature to retain
review and scrutiny powers for itself. Once these powers are in place, political parties in the
32

opposition are unlikely to welcome amendments that strip them of authority, even if they are
sanguine about provisions that limit individual rights.
Security laws in India present a troubling oxymoron. They establish extraordinary regulation and
place sweeping limits on rights, but are so deeply entrenched as to be, in any meaningful sense,
ordinary. These laws have created long running exceptions to constitutional checks and balances
that leave individuals vulnerable to abuse. While the governments far reaching powers under
security laws have expanded over time, the other branches of the state have retreated, leaving the
Executive overly dominant. Moreover, national security is an arena where governments can too
easily dismiss non-state critics, however cogent, by citing their ignorance of classified
information or questioning their patriotism.

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BIBLIOGRAPHY
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Dr, L.M. Singhvi, Constitution of India, Thompson Reuters Publication (3rd Edition,
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Dr. H.O. Agrawal, International Law and Human Rights, Central Law Publications, 19th
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M.P. Jain, Indian Constitutional Law, Lexis Nexis-Butterworths Wadhwa Publication,
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S.P.Sathe, Liberty, Equality and Justice: Struggles for a new Social Order, EBC
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Jayana Kothari, Social Rights and the Constitution, (2004) 6 SCC J-32

ARTICLES

Dr. Uday Shankar, Socio Economic Rights in India: Responses During Economic Crisis,

SSRN Publications
Dr. Murray Wesson, Emergence and Evolution of Socio Economic Rights. SSRN

id2551703.
Somnath De, Right to Social Justice, SSRN id1794210.
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