Human Rights Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties

By Kumar, C. Raj | Denver Journal of International Law and Policy, Spring 2005 | Go to article overview

Human Rights Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties


Kumar, C. Raj, Denver Journal of International Law and Policy


"Liberty is itself the gift of the law and may by the law [be]forfeited or abridged." (1)

"[T]he principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary [corollary] of the concept relating to sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution." (2)

I. INTRODUCTION

The September 11, 2001 attacks in New York and Washington D.C., (3) and the December 13, 2001 attack on the Indian Parliament (4) have intensified the debate regarding the necessity of formulating national security laws in India and the laws' potentially serious impact on human rights and civil liberties. (5) The strengthening of national security laws (6) worldwide is apparently pursued with the objective of combating terrorism (7) and other forms of internal and external threats to the States and the societies in which people live. In response to these developments, the Indian government passed a new anti-terrorism law, which in this author's view, was draconian and unnecessary. The Indian government promulgated this law notwithstanding substantial public opinion against its passage. In fact, the National Human Rights Commission of India (NHRC) critiqued the Prevention of Terrorism Act of 2002 (POTA) (8) when it was still a bill. After a unanimous decision that "there is no need for the enactment of a law based on the Draft Prevention of Terrorism Bill [of] 2000," the NHRC recommended the bill not be passed. (9) While the constitutional validity of POTA was upheld by the Supreme Court of India in a later decision, the United Progressive Alliance (UPA) government led by the Congress party that came to power in India in May 2004 after the elections repealed POTA by way of a Presidential Ordinance on 21 September 2004. (10) However, the fact that some of the provisions of POTA came by way of a new avatar in the amendments to the Unlawful Activities (Prevention) Act (UAPA) has once again brought to the focus how governments tend to tinker with human rights when responding to terrorism or in the name of preserving national security. (11)

Human rights and national security are at times perceived to be at odds with one another. (12) When government officials speak about national security, their arguments rest primarily upon the premise that protecting human rights and civil liberties is at times subservient to protecting national security. In India, the government has passed stringent laws protecting national security and combating terrorist threats, but these same laws cannot pass the test of human rights scrutiny. During the last five decades since independence, India has made significant efforts to strengthen the legal, constitutional, and institutional framework to protect, promote and institutionalize human rights. Since the 1980s, the Indian judiciary, particularly the Supreme Court of India, (13) has supported these efforts through numerous judgments limiting the powers of government--including police and other enforcement machinery--while simultaneously expanding the notions of freedom and liberty. These limitations were justified by invoking a broad and purposive interpretation of Fundamental Rights, which are enshrined in Chapter III of the Constitution of India. (14)

The international human rights framework, conventions or treaties to which India was a signatory or ratifying party, also justified the limitations on governmental powers. However, the contemporary reality of Indian executive governance demonstrates the weaknesses and inadequacies of the treaties and conventions. As a result, police, military and para-military forces continue to violate human rights. This problem underscores the need to develop a culture amongst law enforcement officials that respects human rights as a sine qua non for the preservation of the rule of law. Passing certain laws under the guise of protecting national security in India offers an occasion to examine the human rights understanding in a constitutional sense. …

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