National Security Versus Individual Liberties - A Legal And Ethical Perspective Of Fundamental Rights
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Category: Constitutional & Human Rights
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NATIONAL SECURITY VERSUS INDIVIDUAL LIBERTIES:
A LEGAL AND ETHICAL PERSPECTIVE OF
FUNDAMENTAL RIGHTS
Pia Awana, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University
ABSTRACT
It has been quite a long and complex fight between national security and individual and civil liberties, which has taken various dirty turns in recent times. While there is a crucial need to put the interest of the nation as a collective first, there have been situations wherein the name of national interest have been used to hamper and sideline the needs of the individuals. Many civilians have faced hardships including their fundamental rights being taken away in the most gruesome manner. Similarly, there have been instances wherein the individuals have misused their rights and acted against the primary interests of the nation and such must not go unnoticed. This research paper delves into the justification of the laws and legislations that were and have been enforced to combat the threats to our nation’s security.
While there is a necessity of stringent laws while dealing with national security there must be no arbitrary use of power when the subject to such arbitrariness is civilians and their liberties. The principles of due process of law, transparency and justice must be followed in every situation, where the nation or any of its part is a subject. Various judicial interventions in view of guarding national interest have been significantly addressed including the reforms brought in due course. This paper aims to strike a balance between the need for stringent measures to protect the nation’s security while upholding the core values of a democratic nation. Keywords: national security, individual liberties, fundamental rights, arbitrariness, due process of law, transparency, justice, national interest, democratic
LIST OF CASES
CASES NAME
CITATION
PAGE NUMBER
1. ADM JABALPUR V.
SHIVKANT
SHUKLA
AIR 1976 SC 1207
2. JUSTICE
K.S.
PUTTASWAMY V.
UNION OF INDIA
(2017) 10 SCC 1
3. PEOPLE’S UNION
FOR
CIVIL
LIBERTIES
V.
UNION OF INDIA &
ORS.
(2001) 5 SCC 203
4. MANEKA GANDHI
V.
UNION
OF
INDIA
AIR 1978 SC 597
5. ANURADHA
BHASIN V. UNION
OF INDIA
(2020) 3 SCC 637
INTRODUCTION
The debate between a nation’s security and the liberties of its citizens have been a constant source of disputable presentation. Although National Security has not been defined, we can interpret it within the ambit of the Indian Law as the ability of the state to cater to the protection and defence of its citizenry1 as has also been defined by the United Nations. National security is protecting the nation from upheaval of its basis which is its sovereignty and territorial integrity. It is extremely important for any nation to protect itself and bolster its strategy for the security of the nation. This in itself is a fundamental right as well which safeguards the nation as a collective.
A tenuous nation cannot survive and in the case for India, the stones and the hurdles thrown at us could not have been survived without putting in place the required measure from 1National Security versus Global Security | United Nations
Preventive Detention Act of 1950 to Terrorist and Disruptive Activities ( prevention) act of
1985 to Prevention of Terrorism Act of 2002. Although one may argue the draconian measures
taken in the sphere of implementation of such laws, we cannot simply take away from the boon of such acts and its success in restoring the peace cannot be ignored. The implementation of such measures also brings along with itself several corruptive practices, which lead to innocent citizens losing their fundamental rights. Civil liberties enclose practises of freedom from arbitrary measures, freedom of speech and expression, right to defend oneself, right to bodily integrity and many more. Under the scope of Indian Jurisdiction, such civil liberties can be found under part III of the constitution of India, the fundamental rights. The encroachment upon individual rights and privacy cannot be simply justified by the way of the act done for preserving the nation’s security.
National security and infringement of civil liberties are directly proportional to each other, as the influence and focus on national security increases, the erosion of civil liberties increases as well. There is a need to bring harmony and parity between the two significant fundamentals of our nation. National security is of great significance for any country but especially for a country like India, given its social, geopolitical and economic challenges. The security threats that India faces are of diverse nature and can lead to cession or separation if not dealt with properly. It would take us a while to quantify the threats that India has faced over the years but examples are the Kashmir Insurgency leading to the 2001 Parliament attack, the northeast insurgency leading to more than 1000 jawans sacrificing their lives.
How are such upheavals to be justified without putting forth the importance of national security, when it is what has been exacerbated numerous times. Simultaneously, we must consider the unjustified curtailment of civil liberties from the time of emergency period in 1975-1977, the case of Bhima Koregaon where several individuals were made subject to UAPA without justified grounds in 2018 or the very recent Citizen Amendment Act protests in 2019 wherein various activists were put behind bars reading to cause upheaval which was mere use of their fundamental rights. If there is more weight on the side of national security, it is the individuals of the same nation that may suffer, however if we drive our vision
towards securing the individual liberties of a citizen, we are under a threat to the next plot by those disrupting our nation’s security. The focus point and core issue is if there can be a balance or equilibrium between the homeland security and the liberties of an individual, guaranteed to him by the virtue of being a citizen of this nation.
NATIONAL SECURITY
National security is the right of a sovereign, and its duty as well. It is the security of the state that keeps its subjects safe and secure, for a nation which faces several threats regularly. It is of utmost importance to place a nation’s security above all else, because if a nation collapses its citizenry does too. No human can sustain in a milieu where security is not provided, and if one does, there exists a constant trepidation to an individual’s life. This flows towards the question whether the security of a citizen in itself is a fundamental right? In real life time consequences, we must consider that our society is a cluster of terrorists along with the innocents.
The innocents must not be harmed at the threshold of those of ill mind in respect to a nation, for it is not fair for those who are innocent and uninvolved, moreover, it is their fundamental right to live a peaceful life. It is inequitable and unreasonable for an entire nation to be held at ransom for the wrongdoings of a few, this is where national security is prioritised. Additionally, a nation which is troubled cannot focus on the subsequent issues such as human rights, the example of the ongoing conflict between Israel and Palestine is a very important one. Within any of the lands, the talk of human rights and liberties is secondary to their nation’s security. Similarly, the invasion of Afghanistan by the Taliban has created havoc, and in its interiors the concept of individual liberties has been completely subdued.
For a nation like Afghanistan, which blossomed with human rights, freedom and liberties, its lax and deficient security could not withstand the invasion and acquisition and the state is now a victim of aggression. This situation highlights the need for an unbreachable security, within the parameters of which, a state shall not fall into any breach of its fundamentals. India has witnessed severe threats and atrocities, creating fear in the minds of our citizens. While India has successfully advanced as a nation in all the fields, its national security is still
at a threshold of a few terrorist organisations, which subsequently hampers its progress of development, in all aspects. India is a nation capable of much more, depending just on its progress over the last 70 years of independence, and to let grave acts by organisations, would be an impediment to the growth and potential of this very nation. Post Independence Attacks Partition with Pakistan: The 1947 partition resulted in mass migration and displacement of millions of people. There was communal violence to great extents which was overwhelming for a freshly partitioned nation to deal with, along with its nation’s security. There were both external and internal security threats and upheavals. Just a few months after the partition, Pakistan invaded Kashmir, leading to the long standing war between the two nations.
As a newly partitioned and independent nation, India did not have resources or skills to combat the attacks it had faced. There have been developments of militancy in the affected regions. Over the years, the attacks increased and India developed measures to protect itself against such attacks. However, in the late 80’s and 90’s tensions, on both sides of the border, from militants, in 2001 the Indian Parliament in New Delhi witnessed a deadly parliament attack, in which 9 people lost their lives. This incident highlighted the need for India to prioritise its security both internally and externally, since this incident led to regional instability, and called out for extreme security measures to be taken. Northeast Insurgency The northeast India has had inter-tribal conflict, unemployment, illegal migration from neighbouring nations which leads to competition for resources.
Nagaland, Mizoram, Tripura, Meghalaya all have faced insurgencies, few of which have been resolved yet others stand unresolved. Along with this there has been cross-border tensions in Myanmar and Bangladesh which brought further turmoil to the Northeast region. Such tensions create widespread insurgencies, killings, kidnappings, extortion, targeted assassinations. The Indian government had to intervene and deploy para-military forces to
secure its territory. Armed Forces (Special Powers) Act, (AFSPA) was brought into fruition, which allowed for the military to declare any area as disturbed area and enact special powers to maintain the peace and order. This has acted as significant and necessary action to bolster the state's fallen victim state to such insurgency. If special measures had not been taken, the insurgency and conflicts would have increased causing no economic or political development in the regions. There simply would have been no path to augment the growth for the region and rather would exacerbate the bearings of the region. Mumbai 2008 Attack On November 26, 2008, Mumbai was under the attack of terrorists. The terrorists were believed to be part of Lashkar-e-Taiba, a Pakistan based terrorist group. Numerous civilians were targeted and around 174 people lost their lives due to such attacks.
The terrorist group reached the state by water, by hijacking a fishing trawler. Many innocent civilians were harmed and their security was subdued, due to various gaps in India’s security measures. The weak coastal security, ineffective communication and delayed response, made the matters worse. This attack taught the significance of a strong national security. It paved the way for a robust intelligence mechanism and surveillance for the potential threats, it taught the nation how an attack can leave such a grave impact, high-profile targets require more security and to dismantle the heap of cross-border tensions and keep the borders under surveillance. The attack highlighted the weak system of communication and action coordination, which requires stringent measures in our nation’s security regime to be incorporated.
Pulwama Attack The Pulwama Attack of 2019, one of the deadliest terrorist attacks in the history of Jammu and Kashmir, leading to regard 14th of February as the Black day. 40 CRPF personnels were martyred. The attack was condemned worldwide, and it raised various concerns for the security and safety of the nation. The terrorist group of Jaish-e-mohammed claimed responsibility for the attack.
This attack was a sharp and alarming reminder of the cross-border tension and it highlighted the need to bolster our security protocols, intelligence networks and counter-terrorism protocols. It can be argued that given the resources and communication present with us, we cannot get a real time legislative or judicial response, and the counter action when it comes to the security of a nation has to be taken immediately and in adequate time. If the forces were to wait for the judicial response to proceed with the further measures, more lives would be endangered. This argument reflects the need for real time effective response and protocols along with necessary precautions. Due to this, the security with the state of Kashmir was increased and various freedoms had to be restricted, in order to prevent further attacks and gain awareness of potential attacks.
Naxalism Naxalism, which started in the Naxalbari village in West Bengal, general designation given to several Maoist-oriented and militant insurgent and separatist groups that have operated intermittently in India since the mid-1960s. More broadly, the term—often given as Naxalism or the Naxal movement—has been applied to the communist insurgency itself. Naxalism means to overthrow the authority of the state through violent means. The naxal movement affects the red corridor, which consists of Chhattisgarh, Jharkhand, Odisha, Andhra Pradesh, Telangana, Maharashtra, and a few parts of Bengal and Bihar. What evolved from a simple peasants movement, has now transpired into an insurgency of violent form. These movements have affected not only the CRPF and military personnels but public property has been destroyed, along with several acts of abduction and extortion.
Such ways only hinder the development of the region, which results in economic backwardness. Industrial equipment, which acts as the primary means for the growth of a nation, is harmed which delays the progress of the nation. The rule of law and due process of law is not adhered to, which further infringes the rights of several. These acts have interfered with the nation's security and brought along with itself unstable internal harmony, creating more conflicts than peace. The volatile actions have affected not
only government personnel but the local communities and their development as well. The affected areas do not function with stability, which causes hindrances to social development. This highlights the need for a stable environment for the progress of the communities and a pathway for growth, additionally to create a safe and secure environment to exercise the rule of law democratically.
LEGISLATIVE ACTS
1. Unlawful Activities (prevention) act (1967)
India continues to be subjected to various threats and casualties and therefore to combat those, Unlawful activities (prevention) act was brought into force. The purpose of the act stands to be to protect the integrity and sovereignty of India. Over the course of time, the legislative act has gone through various amendments, after the realisation of the need for more stringent protocols and measures. The objective of the act has been to provide for legal measures to prevent unlawful activities. UAPA deals with anti-terrorism law, and threats to national security. The act allows for the law to arrest and prosecute those who are involved in the planning, execution and financing of the terror operations. This allows not only as a measure to provide justice but allows to prevent the attack, as well.
This has allowed for terrorist groups to be banned under the act, cutting off their finances, and workings. This act has helped aiding the counter-terrorism in various regions such as, Jammu and Kashmir and even during the citizenship amendment act riots in 2019.
2. National Security Act (1980)
The act allows for prevention of crime. It is a stringent legislation, promulgated in the year 1980. It helps in stopping the violence before it is committed, to maintain the public order and social harmony in any society or region. This act provides the authority to detain individuals or groups who are believed to cause a threat to India’s national security. Those who are the intermediaries, or spies, present within the nation who send out data regarding the nation to cause upheaval can be
detained with ease and threats can be combated. Even in the cases of the groups causing communal violence, the authorities have the power to detain them to ensure public order.
INDIVIDUAL LIBERTIES
These Liberties can be seen as rights and freedoms that are the core of the dignity of any human being. Such are the liberties that are the most fundamental right of a citizen of a nation, which provides for protection against the tyranny, unwarranted and arbitrary measures of the nation itself. Within the ambit of the Indian Jurisdiction, the essence of individual liberties are endowed under the chapter III of the Constitution of India. The chapter is called Fundamental Rights and includes various rights and freedoms such as right to equality, freedom of speech and expression, right to privacy among many others. Such rights cannot be curtailed, and if they are to be curtailed the due process of law must be followed. The arbitrary rule of law is condemned and unlawful, and would be held invalid if implemented or executed.
The rights are provided with the aim to protect a citizen’s dignity and provide them with security. The state cannot take away such dignity and security. The cornerstone of any nation is its provision of human rights, as has been made significant with the development of the Universal Declaration of Human Rights as well. Fundamental rights holding such importance cannot be denied, and the state has the ultimate duty to protect them. However, if the state itself denies such rights, it is a grave violation. Such instances can evidently be seen during the 1975 emergency , imposed by then Prime Minister Indira Gandhi.
1975 National Emergency
The emergency of 1975, declared by then Prime Minister Mrs. Indira Gandhi and the formal proclamation issued by then President, Farukhuddin Ali Ahmed, saw curtailment of all civil liberties. The national emergency was declared under article 352 of the Indian Constitution, under which a national emergency can be declared if the security of India or a part of it is threatened by:- - War
External aggression - Armed rebellion Earlier, the word internal disturbance was the third ground for proclamation of emergency, however later it was replaced with the word ‘armed rebellion’ by way of 44th constitutional amendment act, for reasons being vagueness of the word internal disturbance. The reason for the emergency was regarded as due to internal disturbance. The most highlighted part of the proclaimed emergency was the suspension of the fundamental rights, especially those guaranteed under Article 19:- ARTICLE 19: protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right — (a) to freedom of speech and expression (b) to assemble peaceably and without arms; (c) to form associations or unions or co-operative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to practise any profession, or to carry on any occupation, trade or business.
Herein, we must note the usage of clause 2 of article 19, which reads “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. ” This provision of law aids the operation of law and order of a nation by imposing reasonable
restrictions on such exercise of freedom and expression. And such restrictions can only be done when the security of the state, friendly relations with foreign states, public order is in jeopardy or decency or morality, or in relation to contempt of court, defamation or incitement to an offence. However, this clause can be abused by the governments, and this freedom can be curtailed. The emergency included even taking away the article which is the heart and soul of the constitution, Article 32, which provides for enforcement of fundamental rights. There was no path left for the innocent citizens to get remedy against the arbitrary rule of the government they were being subjected to. This abuse of power caused grave hurt to the principle of democratic element present within the working of our nation. A democratic nation must work in democratic ways.
Additionally, there was abuse of arbitrary power and preventive detention without grounds. There were mass arrests, and censorship was applied. All the actions taken by the state in national interest were simply a state overreach. Judicial Intervention ADM Jabalpur v. Shivkant Shukla2 The issue raised in the case was the maintainability of article 226, for the issuance of the writ of Habeas Corpus. The state argued that in the case of proclamation of national emergency, the state rules have supremacy over all. Within the judgement of the case, majority opinion was that when there stands to be a presidential order, no person has any locus standi to claim enforcement of fundamental rights under article 226. It was only Justice Hans Raj Khanna, who took a dissenting stance to the judgement, and argued that article 21 is fundamental and cannot be suspended even during emergency.
This opinion of Justice Khanna, highlighted judicial oversight and gave priority to civil liberties.
2 AIR 1976 SC 1207
This case is a landmark case which is famously known as the habeas corpus case. This case was highly criticised and the judgement was reversed in the case of Justice K.S. Puttaswamy v. Union of India which upheld the interests of an individual over the interest of the state. Justice K.S. Puttaswamy v. Union of India3 In 2012, a retired High Court judge, Justice K.S. Puttaswamy, filed a writ petition in the Supreme Court, challenging the AADHAAR scheme introduced by the UPA government. A nine judge bench unanimously held that the right to privacy is a constitutionally protected right within the interpretation of the Indian constitution. The court held that right to privacy is a fundamental right guaranteed under article 21, and even though it is not an absolute right, the invasion done must satisfy the triple test;
1. Legitimate aim
2. Proportionality
3. Legality
This case along with the right to privacy highlighted the unalienable concept of few rights which cannot be suspended even during a national emergency. Therefore, the above judgements give effect to the broad usage of article 21, the interpretations have a wide scope and thus the interests of an individual, which includes their freedom, security and privacy, cannot be curtailed in the namesake of national security. The action of the state must not be unlawful, and the state must perform its duty of acting in the best interest of its citizens, which is its primary objective. People’s Union for Civil Liberties vs.
Union of India & Ors4 PUCL, a voluntary organisation, filed a public interest litigation, challenging the constitutionality of section 5 (2) of the Indian Telegraph Act, 1885, which allowed for the central and state governments to intercept messages when they believed it was necessary on the grounds on national sovereignty, maintaining friendly relations with other nations and
3 Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1
4 AIR 1997 SC 568, (1997) 1 SCC 301)
preserving the public order. The contention of the petition was that the privacy of an individual was being violated. This case is famously known as the phone tapping case. The court within this case noted that a right to privacy was not explicitly mentioned; however, it can be inherited from the right to life and liberty under article 21 of the Indian constitution, and it could only be taken away by the procedure established by law. The court stated that phone tapping is an infringement upon article 21, and the only way it can be permitted is through legally established procedure. This judgement aided the prevention of misuse of the power by the executive and protected the right to privacy. Maneka Gandhi v. Union of India5 The petitioner was given her passport under the passport act of 1967, the regional passport officer, New Delhi, requested to give up her identification.
When the petitioner asked the reason behind such impoundment, the ministry of external affairs declined to provide a reasoning in the interests of the general public. The court in the landmark judgement provided that scope of personal liberty must be interpreted in a broad and liberal sense rather than in a narrow and stricter sense. It obliged the courts to give exponential validation to individual freedom and secure the right to life and liberty graciously. This judgement provided for the interpretation of article 21 in a much broader extent to include the individual liberty and dignity of an individual. It upheld the significance of the principle of ‘ procedure established by law’ over ‘ due process of law”. The law must be carried out as per what is established and no right must be curtailed without such grounds, if so is done it is a grave violation of the fundamental right.
Anuradha Bhasin v. Union of India6 The issue of the case began with suspension of internet, mobile and landline services, along
5 1978 AIR 597, 1978 SCR (2) 621
6 AIR 2020 SUPREME COURT 1308, (2020) 1 MAD LJ 574, (2020) 1 SCALE 691, (2020) 77 OCR 784,
AIRONLINE 2020 SC 17
with movement restrictions. The petitioner challenged the internet shutdown, on the grounds of violation of freedom of press and profession. The court in the famous case aimed to strike a balance between the liberty of the citizens and security of the state. It dealt with various issues, which highlighted that the presence of fundamental right makes it a responsibility of the state to protect them and those rights can not be suspended in the mere apprehension of danger. The court relied on the principle of proportionality, which entails the balance between interference and individual freedoms to protect from arbitrary decisions. It held that the curtailment, if necessary of a fundamental right, must be proportional and the least restrictive method must be chosen by the state.
The court stressed that the orders passed, which have an effect on fundamental rights, cannot be passed in secrecy and arbitrarily, it must be done democratically. This judgement rightly upheld the principles of proportionality, reasonableness and necessity. It focused on the need for the citizens to have knowledge regarding the affairs of the state, which struck a balance between the liberties of the citizenry and security of the state.
THE BALANCED WAY FORWARD
It is an ongoing debate over a few decades now, as to what must be given more importance: a nation's security or an individual’s rights. Although the primary aspect of any nation is its security, it must be done in accordance with the protection of its citizens. All things considered, there would be no nation without its citizens, who must be respected and provided with dignity and rights. While taking measures to safeguard the nation, the principles of transparency and accountability must be given importance. There must be transparency, as to preventive detention and the procedures being followed, to ensure that the due process of law is in place.
There must be measures to limit the powers of the government to be taken in situations of national emergency, which adhere to the principle of proportionality and accountability rather than having arbitrary rule. Along with this, there must exist regular judicial review, to keep the laws in check and maintain it in alignment with the international human rights standards and maintain a balance between the security measures and measures of infringement over individual liberties without justification. There is a significant need to end the debate and move forward with a balanced approach to the issue of national security and individual liberties. There has to exist a careful consideration of each element in the purview of democratic values along with individual rights.
Securing a balance is of utmost importance in this era, since it would lead further growth and development of the entire nation, and the nation could focus on several other issues, rather than constantly being in a state of internal instability.
CONCLUSION
National security is a crucial and primary object of any government and it has to stay intact for further working of any nation, however, it does not regard individual liberties as secondary to it. Both the elements are of equal importance and neither cannot be afforded by the nation to subdued in character, for our nation is built on the cornerstone of these elements. The principles of democracy, justice and due process of law have to be considered with grave significance, while following any protocol for national security. While we cannot ignore the due development and progress of our nation, and to protect itself from external and internal instability, the core and fundamental rights of an individual must not be curtailed, and if the curtailment is necessary, it must be in proportion and within the ambit of due process of law.
There cannot be arbitrariness in a nation which is built on the grounds of democratic principle and therefore, such measures and protocols must be kept in check regularly through judicial scrutiny. It provided access for the judiciary, the third pillar of the government to keep in check the outdated elements, inconsistencies and form alignment with what serves the nation and its
citizens the best, for the constitution, laws and statues cannot be a dead letter of law. There must exist accountability of governmental actions in the name of national security and the public must be given access to justice, if there exists any arbitrariness. The government must act within its powers and must maintain a constant balance between safeguarding the nation and the rights of the individuals as well.
BIBLIOGRAPHY
LIST OF BOOKS REFERRED:-
1. Arvind Gupta, How India Manages its National Security, 2018
2. Subramaniam Swamy, Terrorism in India, 2008
3. Rohan J. Alva, Liberty after Freedom, 2023
LIST OF ARTICLES REFERRED:-
1. Human rights implication of national security laws in India - Human Rights
Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties
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rights and national securityhttps://openresearchrepository.anu.edu.au/server/api/core/bitstreams/1f724d0b-fb9e-44e3-b8bd- 3f07c1a7d7af/conten
3. Human
rights, terrorism, counter-terrorism - https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet32EN.pd 4. National security strategy- https://indianexpress.com/article/explained/india-to-bringin-a-national-security-strategy-what-is-it-why-is-it-important-9014489/ 5. What is AFSPA? - https://vajiramandravi.com/upsc-daily-current-affairs/prelimspointers/about-armed-forces-special-powers-act-afspa/ 6. Mumbai terrorist attack of 2008 - https://www.britannica.com/event/Mumbai-terroristattacks-of-2008
7. After
Mumbai- India’s responsehttps://www.rusi.org/explore-ourresearch/publications/commentary/after-mumbai-indias-response
8. The Pulwama Attack- The Pulwama Attack: Significance, Implications and the Way
Forward
9. Global
freedom of expression - https://globalfreedomofexpression.columbia.edu/cases/puttaswamy-v-india/
10. Article 32- Article 32 in Constitution of India