Security At A Cost - How Executive Discretion In National Security Threatens Constitutional Rights

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SECURITY AT A COST: HOW EXECUTIVE DISCRETION IN

NATIONAL SECURITY THREATENS CONSTITUTIONAL

RIGHTS

Sahil Hussain Choudhury, Hamdard Institute of Legal Studies and Research (HILSR), Jamia Hamdard, New Delhi

ABSTRACT

National security laws are essential for recipients sovereignty and public order, but unrestricted application is a sure threat to the principles of constitutionality and democratic freedoms. India has the UAPA, NSA and AFSPA that give the executive extraordinary powers. Intended to address genuine threats, however, these laws are often misused to stifle dissent, target marginalised communities and violate basic rights granted under Articles 14, 19, 21 and 22 of the Constitution. This paper challenges historical amnesia, covering the colonial genealogy of such laws with the emergence of the Rowlatt Act to the post-independence adaptations of such laws. It delves deep into landmark cases such as the Bhima Koregaon arrests, the detention of Dr Kafeel Khan and extra-judicial killings in Manipur.

It also closely examines the historical trajectory and abuse of these laws since their colonial origins in Rowlatt Act, and postindependence adaptations. The research builds on the ICCPR and ECHR, among other international standards, to make a strong case for immediate reforms, progressive narrowing of statutory definitions, strict necessity and proportionality reviews to be conducted by judges, repeal of immunity provisions under AFSPA, and the introduction of independent oversight mechanisms. It contends that national security must be balanced with the protection of the fundamental rights that are at the heart of India’s democracy.

This can only be done by recalibrating India’s national security framework so that while India pursues safety, it does so in a way that reinforces and does not undermines justice, liberty, and equality, which are all essential values enshrined in our Constitution.

1. Introduction

At the heart of every state, its existence and stability, is national security. It guarantees the sovereignty and territorial integrity, individual and collective security of citizens against internal and external threats. But when it comes to national security, democratic principles and even the most basic of freedoms are narrowed. India as a constitutional democracy sought to calibrate the demands of national security with the need of protecting civil liberties. But the abuse of statutory regimes like Unlawful Activities Prevention Act, National Security Act and Armed Forces Special Powers Act shows the folly of unchecked executive discretion.

1 The tension between national security and constitutional rights is now apparent in the context of laws where they are used not only to combat a so-called war on terrorism but also to oppress dissent, persecute minorities, or cement political power. For instance: • The arrest of activists in the Bhima Koregaon case under the UAPA is a clear case of what unnecessary expansion of the definition of “terrorism” does: It allows for the crackdown of legitimate dissent. 2 • Public order is conflated with national security, supported by a bubble of state secrecy, to justify their arbitrary detention, as noted in the continued preventive detention of Dr. Kafeel Khan under NSA. 3 • AFSPA In conflict areas such as Manipur and Kashmir, AFSPA has been linked to persistent complaints of human rights violations, including extrajudicial killings.

4 These incidents are symptomatic of a wider malaise that the discretionary powers that are given to the executive through these laws usually are at the cost of constitutional safeguards under Articles 14, 19, 21, and 22. 5 1 National Crime Records Bureau, Crime in India 2019: Statistics (2020), available at https://ncrb. gov. in (last visited Dec. 5, 2024). 2Supreme Court Observer, "Bhima Koregaon Arrests Under UAPA," available at https://www. scobserver. in/cases/romila-thapar-v-union-of-india-arrested-activists-background/ (last visited Dec. 6, 2024).

3 Dr. Kafeel Khan v. State of Uttar Pradesh, 2020 SCC OnLine All 2615.

4 Extra-Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 491.

5 India Const., arts. 14, 19(1)(a), 21, and 22.

The lesson of the statutes is not that we can’t have those statutes but rather that they need to be applied.” The Constitution of India envisages this appropriate balance between security and liberty, which is subverted in excess by the unrestricted exercise of discretion by the executive under the laws mentioned above.6 This paper contends that abuses of these laws constitute a systemic challenge to the rule of law and democratic accountability. This paper contends that abuses of these laws constitute a systemic challenge to the rule of law and democratic accountability.

2. Background and Development

2.1 Preventive Laws: The Colonial Background

Most of India’s post-colonial national security laws are based on colonial-era legislation that increasingly emphasised state control rather than the rights of an individual. The Rowlatt Act, passed by the British colonial government in 1919, was meant to keep public order, but in practice, allowed the government to arrest and detain people indefinitely without charge.. This law attracted widespread opposition because it was an unambiguous curtailment of civil liberties. The Rowlatt Act, which introduced the concept of preventive detention, paved the way for the post-independence laws such as the Preventive Detention Act of 1950, which further culminated in the National Security Act of 1980.

7 Perhaps, the preventive detention laws which have their roots in the colonial legal framework shows a continuity of governance models that prioritise state security, at the cost of procedural justice. 8 This, which is necessary under colonial rule to suppress dissent, is simply not suitable for a constitutional democracy, where Articles 19, 21, and 22 guarantee fundamental rights.

2.2 Enactment of Security Laws Post-Independence

India faced internal and external threats post-independence, and laws were needed to preserve public order. One of the earliest Parliament-enacted laws to counter these problems was the Preventive Detention Act, 1950. But its application was abused, leading to its repeal in 1969, 6 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1999), at 315- 320.

7 Ujjwal Kumar Singh, Political Prisoners in India (Oxford University Press, 1998), at 112.

8 V. Krishna Ananth, India Since Independence: Making Sense of Indian Politics (Pearson Education India, 2011)

only to be reflected back as a principle into the National Security Act, 1980. 9 Preventive detention laws were misused most during the Emergency of 1975-1977. The case of ADM Jabalpur v. Shivkant Shukla demonstrates the unbridled authority of the executive in this time when habeas corpus had been suspended. 10 In ADM Jabalpur, the Supreme Court upheld the suspension of fundamental rights in favor of state necessity over individual liberty. This decision was subsequently critiqued around legal principles and reversed in subsequent judgments, especially in Justice K. S. Puttaswamy v. Union of India, which reiterated the inviolability of constitutional rights. 11 The emergency had shown the perils of untrammeled executive discretion.

Although the NSA was formed post-Emergency, the agency was built on the basis and foundation of the same unfettered powers that were egregiously abused during this era.

3. Legislative frameworks and practice

3.1 Unlawful Activities (Prevention) Act (UAPA): The Sap of Terror and Human Rights

The UAPA was passed in 1967 and was meant to deal with unlawful activities threatening the sovereignty and territorial integrity of India.Legislative frameworks and practice. Over the years, the scope has broadened considerably, and in 2004, 2008, and 2019, anti-terrorism provisions were also include.12 While these amendments were intended to fortify the counterterrorism mechanisms, they have faced activists ’challenges for their broad definitions, procedural inadequacies resulting in space for executive overreach, and lack of accountability.13 Key Provisions and Concerns. • Section 15 defines “terrorist act” broadly to cover any act that causes or is likely to cause damage to India’s unity or is a threat to its sovereignty or integrity. Such broad-

9 Srikanta Ghosh, The Law of Preventive Detention in India (S. Chand & Co., 1969).

10 ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

11 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

12 Unlawful Activities (Prevention) Amendment Act, 2004, No. 29, Acts of Parliament, 2004; Unlawful

Activities (Prevention) Amendment Act, 2008, No. 35, Acts of Parliament, 2008; Unlawful Activities (Prevention) Amendment Act, 2019, No. 28, Acts of Parliament, 2019.

13 Amnesty International, "Unlawful Activities (Prevention) Act: A Tool of Repression," available at

https://www.amnesty.org/en/documents/asa20/1875/2020/en/ (last visited Dec. 6, 2024).

ranging definitions create vagueness, regularly conflating dissent and terrorism. 14 • Under Section 43D(2), an individual can be detained for 180 days without a chargesheet even in the second largest democracy if the provisions written at the core of Article 21 of the Constitution are subverted. 15 • 2019: Expanded Act to designate individuals as terrorists without judicial review. Critics say that violates due process and the presumption of innocence. 16 The 2018 Bhima Koregaon violence had culminated in the arrest of activists under UAPA for their alleged links to Maoist organisations. Sudha Bharadwaj, Varavara Rao, and Anand Teltumbde were among those arrested while limited evidence led to years-long incarceration. 17 In 2021 too, the Supreme Court, in Union of India v. K. A.

Najeeb, noted the extreme delay in trials of cases registered under UAPA, adding that even in cases concerning national security, procedural fairness should not be completely disregarded security. 18 The arrests at Bhima Koregaon demonstrate how those provisions of UAPA can result in criminalising dissent. By providing for indefinite detention without trial, the Act violates the principle of natural justice and the principle of proportionality and therefore undermines not only article 21 of the Constitution, but also India’s obligations under article 9 of the ICCPR. 19

3.2 The National Security Act 1980 : Preventive Detention and Its Misuses

The National Security Act (NSA), enacted in 1980, allows the executive to detain individuals considered to be a threat to national security or public order for a year without formal charges.20 Despite its goal of responding to urgent threats, the Act's vague criteria for detention

14 Unlawful Activities (Prevention) Act, 1967, s15.

15 Unlawful Activities (Prevention) Act, 1967, s43D(2).

16 Unlawful Activities (Prevention) Amendment Act, 2019, s5.

17 Supreme Court Observer, "Bhima Koregaon Arrests Under UAPA," available at

https://www.scobserver.in/cases/romila-thapar-v-union-of-india-arrested-activists-background/ (last visited Dec. 6, 2024).

18 Union of India v. K.A. Najeeb, (2021) 3 SCC 713.

19 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 9.

20 National Security Act, 1980, No. 65, Acts of Parliament, 1980, s3.

and the absence of procedural safeguards have generated broad condemnation. 21. Key Provisions and Issues • Section 3 gives the executive the authority to detain without explanation, limiting judicial oversight. 22 • NSA Preventive detention: In several instances, it has fallen into the trap of confusing public order with national security. Dr. Kafeel Khan was booked under NSA in 2020 for allegedly promoting communal disharmony in a speech given at anti-CAA protests. 23 The Allahabad High Court overturned his detention, ruling that his speech did not pose a threat to public order and that the detention order demonstrated an abuse of power.

The judgment distinguish between “public order” and “law and order” and emphasised that the exception of “right of personal liberty” on grounds of preventive detention cannot be invoked if the object of preventive detention is the suppression of dissent or political ideologies. 24 The NSA’s discretionary power and lack of procedural clarity often leads to arbitrary detentions. This would amount to violating the constitutional rights available to the citizens under Articles 21 and 22 which also underscores the necessity of stringent judicial scrutiny.

3.3 The Armed Forces Special Powers Act : Extraordinary Powers and Limited

Accountability The Armed Forces Special Powers Act was enacted in 1958 and gives the armed forces sweeping powers in “disturbed areas. These powers include the right to lethal force, to make arrests without a warrant, and to conduct searches without judicial authorisation.25 Meant to 21 "The Web of Preventive Detention and Indian Democracy," Leagle Samiksha (Feb. 10, 2022), available at https://leaglesamiksha.com/2022/02/10/the-web-of-preventive-detention-and-indian-democracy/ (last visited Dec. 6, 2024).

22 National Security Act, 1980, s3(2).

23 Dr. Kafeel @ Dr. Kafeel Ahmad Khan v. State of Uttar Pradesh & Another, Criminal Misc. Habeas Corpus Writ Petition No. 700 of 2020, Allahabad High Court (2020)

24 Dr. Kafeel Ahmad Khan v. State of Uttar Pradesh, 2020 SCC OnLine All 1052.

25 Armed Forces (Special Powers) Act, 1958, No. 28, Acts of Parliament, 1958, ss 4(a), 4(c), 4(d).

combat insurgency in various conflict-prone areas, its execution has been plagued by accusations of human rights abuses. 26 Key Provisions and Concerns • The law’s Section 4 authorises armed forces to shoot to kill in “disturbed” areas. 27 • Section 6 immunity provisions protect armed forces personnel from prosecution except with prior approval of the central government. 28 In 2016, in Extra-Judicial Execution Victim Families Association v. Union of India, the Supreme Court ordered investigations into 1,528 alleged extrajudicial executions in Manipur. This visibility revealed the systemic abuses sanctioned by AFSPA and shone a light how it impedes accountability of armed forces. 29 The immunity provisions of AFSPA violate these principles of accountability and equality before the law under Articles 14 and 21.

Although the Act is purportedly a security response, its application is antithetical to the rule of law and enables impunity. 30 This was affirmed by the Jeevan Reddy Committee Report (2005) that recommended its repulsion, observing that AFSPA has become a symbol of oppression and alienation. 31

3.4 Compliance Including International Comparisons

National security laws in India do not meet international standards. For instance article 9 of the ICCPR deals with the protection against arbitrary detention, whereas article 5 of the ECHR mandates immediate judicial oversight of detention.32 26 Human Rights Watch, "Getting Away With Murder: 50 Years of the Armed Forces (Special Powers) Act," Aug. 2008, available at https://www.hrw.org/legacy/backgrounder/2008/india0808/india0808.htm (last visited Dec. 6, 2024).

27 Armed Forces (Special Powers) Act, 1958, s 4(a).

28 Armed Forces (Special Powers) Act, 1958, § 6.

29 Extra-Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536.

30 Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia (SAGE Publications, 2013), at 145. 31 Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, Ministry of Home Affairs, Govt. of India, 2005, at 75, available at https://www.mha.gov.in/sites/default/files/AFSPA_ReviewCommitteeReport2005.pdf (last visited Dec. 6, 2024)

32 European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221, art. 5.

In A v. United Kingdom, the European Court of Human Rights found that indefinite detention under anti-terror laws violated both proportionality and procedural fairness. The ruling serves as a reminder that there must be a balance between security and civil liberties.33 Unlike many such laws around the world, India’s national security laws (most notably, UAPA and NSA) do not have comparable safeguards in place, or, where they do exist, are not robust enough to be meaningful, which of course increases demands for reform to align these laws with other international human rights norms.

4. Checks and Challenges on the Judiciary

4.1 The Executive’s Power; The Courts ’Deference

India is a case study of the judiciary’s uneven role as an enforcer of constitutional rights in the midst of national security emergencies. Courts have had a history of swinging between deference to executive discretion and judicial scrutiny to protect fundamental rights. This paradox finds expression in the landmark case of ADM Jabalpur v. Shivkant Shukla (1976), where the Apex Court had approved of suspension of right to habeas corpus during the Emergency period and practically equated executive actions to state necessity34 However, the post-Emergency jurisprudence, particularly in cases like Maneka Gandhi v. Union of India (1978), demonstrates a marked departure towards broadening fundamental rights and procedural fairness. 35 But the judiciary’s attitude changed considerably in subsequent years.

In one of the landmark judgments under ADM Jabalpur, the Supreme Court explicitly overruled ADM Jabalpur and emphatically held that fundamental rights do not yield entirely even in times of a crisis in Puttaswamy v. Union of India. 36 The Court recognised privacy as a fundamental right inherent to Article 21, and that any state activity has to pass the tests of legality, proportionality, and necessity. This was a reaffirmation by the judiciary of its role as the bulwark of personal liberty

33 A v. United Kingdom, App. No. 3455/05, Eur. Ct. H.R. (2009).

34 A.D.M. Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

35 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

36 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

against arbitrary actions by the executive branch.37 A parallel evolution was visible in Anuradha Bhasin v. Union of India (2020) where the

Supreme Court tackled the indefinite shutdown of the Internet in J&K. The Court guaranteed the proportionality principle only in the concrete measures of restricting fundamental rights, claiming that such measures would always need to be transparent, reviewed from time to time and justified to be established by law.38 These judgments mark the judiciary’s evolving posture from deference to active involvement, underlining that national security does not provide a blanket justification for arbitrary restrictions on constitutional rights. They established a precedent that balanced interests of the state with individual liberties.

4.2 The Power of the Courts: Judicial Activism

The judiciary in the last couple of years has adopted a more activist approach to deal with the misuse of laws pertaining to national security such as UAPA, NSA. Hence in Dr. Kafeel Khan v. State of Uttar Pradesh (2020), the Allahabad High Court invalidated the detention of Khan under the NSA and observed that preventive detention cannot be justified on vague, generalised or speculative threats to public order.39 In Anuradha Bhasin v. Union of India, likewise, the Supreme Court ruled that indefinite shutdowns was disproportionate under Article 19 when imposed in Jammu and Kashmir. The decision emphasised the need to balance national security with constitutional freedoms for preserving the constitutional principles laid down in the constitution.40

4.2.1 Judicial Approaches

Courts around the world have built stronger protections against abuse of national security laws. 37 Anup Surendranath, "The 'Due Process' of Privacy: The Puttaswamy Judgment and the Strengthening of the Republic," National Law School of India Review, Vol. 29, No. 1 (2017), at 1.

38 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

39 Vrinda Bhandari, "Preventive Detention and Judicial Review: A Study of Habeas Corpus Jurisprudence in India," Journal of the Indian Law Institute, Vol. 62, No. 3 (2020), at 345.

40 Gautam Bhatia, "The Supreme Court’s Verdict in Anuradha Bhasin: A Missed Opportunity," Indian

Constitutional Law and Philosophy (Jan. 10, 2020), available at https://indconlawphil.wordpress.com/2020/01/10/the-supreme-courts-verdict-in-anuradha-bhasin-a-missedopportunity/ (last visited Dec. 6, 2024).

One such rule is the requirement of judicial review of preventive detention, which is established by Art 5(4) ECHR as a rule of international human rights law.41 In A v. United Kingdom (2009), the European Court of Human Rights struck down indefinite detention of foreign nationals under anti-terror laws alongside procedural fairness and proportionality.42 Likewise, here in the United States, the Supreme Court held that even in cases of national security, the detainees there are entitled to challenge their detention in Hamdi v. Rumsfeld.43

4.2.2 Resisting the Shortcomings of Judicious Oversight

In terms of exercising adequate control over the national security laws seeking to marginalise dissent, the Indian judiciary has faced a comparatively more profound crisis in recent years, especially in the context of its engagement with the Unlawful Activities (Prevention) Act (UAPA) and the National Security Act (NSA). This encompasses deference to executive power, postponed judgments by the courts and ambiguities in the legal standards.

1. Deference to the Executive

Courts tend to be reluctant to intervene in national security matters, contending that they are institutionally incompetent to do so and that the executive branch has particular expertise. Such deference can lead to indefinite detention without meaningful judicial review. For instance, Case of Harsh Mander v. Union of India,In its ruling, the Supreme Court used the opinions of the executive and deferred to it in the deportation of Rohingya refugees, citing national security as a pseudo-legal backing to violate human rights as were recommended.44

2. Delays in Justice

Slow-paced legal processes make judicial reparations ineffective, and keep pretrial detentions indefinitely.

41 European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221, art. 5.

42 A. and Others v. the United Kingdom, App. No. 3455/05, 49 Eur. H.R. Rep. 29 (2009).

43 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

44 Harsh Mander v. Union of India, Writ Petition (Civil) No. 793 of 2017, Supreme Court of India (2021),

A case in point: According to the data from the National Crime Records Bureau (NCRB), from

2016 to 2019, only 2.2% of the UAPA cases led to a conviction, a depressingly long time,

given the high rate of acquittal and delays of justice. 45

3. Ambiguity in Standards

However, short of clear and discernable judicial standards in respect of preventive detention and the principle of proportionality, any subjective interpretation based on the facts and circumstances of each case is vulnerable to undesirable judicial excesses and, indeed, could result in conflicting judgments. For instance, in Zahoor Ahmad Shah Watali v. National Investigation Agency, the Supreme Court explained how even though its power to grant bail under UAPA was in fact unfettered, this alone could be insufficient without compelling legislative intent and national security concerns justifying the imposition thereof.

46 Recommendations To improve judicial oversight, Indian courts may refer to the international structures: • European Convention on Human Rights (ECHR):Article 5 of the ECHR, however, provides that preventive detention must be subject to judicial oversight and guarantees a remedy to victims of arbitrary detention.. 47 • International Covenant on Civil and Political Rights (ICCPR): Article 9 highlights the right to liberty and security of person, calling for protections against arbitrary arrest and detention. 48 Embracing such principles will allow the Indian judiciary to strengthen safeguards to uphold that national security should not entail sacrificing fundamental rights. 45 National Crime Records Bureau (NCRB), Crimes in India: Annual Report 2019, Ministry of Home Affairs, Govt. of India, available at https://ncrb. gov. in/en/crime-in-india (last visited Dec. 6, 2024).

46 Zahoor Ahmad Shah Watali v. National Investigation Agency, (2019) 5 SCC 1, available at

https://indiankanoon.org/doc/82149335/ (last visited Dec. 6, 2024).

47 European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221, art. 5.

48 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 9.

5. Policy Reform Suggestions and Recommendations

There should be reformed national security laws in place that are compatible with the Constitution for India. All this reform must be anchored in legislative precision, enhanced judicial review, institutional accountability and adherence to international human rights standards. The recommendations below aim for a balance between national security concerns and respect for fundamental rights:

5.1. Legislative Reforms

A. Narrowing the Scope of UAPA

Redefine “Terrorist Act”: The first step would be revising the definition of “terrorist acts” given in the Unlawful Activities (Prevention) Act, 1967 with a clear definition of “terrorism”, by defining once and for all, the meaning of terrorism as acts involving use of violence and threat of violence against the state in Section 15. • Limit Preventive Detention : Reduce permissible period of detention without charges under Section 43D(2) of the Unlawful Activities (Prevention) Act from 180 days to 90 days to ensure timely judicial scrutiny. The Supreme Court in Union of India v. K.A. Najeeb, which dealt with UAPA, has underlined the need for expeditious trials, saying that procedural delay under UAPA violates the fairness principle.49

B. Amending NSA

Introduce mandatory judicial review, of NSA detention orders not later than 30 days after its issuance. • Ground for Detention to be Disclosed: Ground for detention should be disclosed to the detainee and their legal counsel. The Allahabad High Court’s decision in Dr. Kafeel Khan v. State of Uttar Pradesh highlighted the misuse of NSA as a tool for political suppression rather than addressing genuine threats to

49 Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, Supreme Court of India (2021)

public order.50 C. Repealing or Reforming AFSPA

Repeal Provisions on Immunity: Amend Section 6 of the Armed Forces (Special Powers) Act (AFSPA) so as to remove immunity from prosecution for armed forces personnel accused of human rights violations. • Sunset Clauses: Mandate the Parliament to assess the necessity & proportionality of AFSPA’s application in “disturbed areas” every five years. The Jeevan Reddy Committee Report (2005) recommended repealing AFSPA, stating that it had become a symbol of oppression and alienation in conflict zones.51

5.2. Judicial Reforms

A. Enhancing Judicial Oversight

Specialised National Security Courts: This means establishing dedicated courts that shall only hear the matters filed under UAPA, NSA and AFSPA, so that speedy adjudication and massive judicial oversight could be ensured. • Proportionality Test: Test the executive action for constitutionality using the doctrine of proportionality, as laid down in K.S. Puttaswamy v. Union of India.52

B. Strengthening Procedural Protections

There must be strict observance of procedural safeguards under Articles 21 and 22 of the Constitution, like the right to seek access to legal assistance without undue delay; periodic review of detention orders by courts. 50 Dr. Kafeel @ Dr. Kafeel Ahmad Khan v. State of Uttar Pradesh & Another, Criminal Misc. Habeas Corpus Writ Petition No. 700 of 2020, Allahabad High Court (2020) 51 Report of the Committee to Review AFSPA (Jeevan Reddy Committee), Government of India, Ministry of Home Affairs, 2005, available at https://andyreiter.com/wp-content/uploads/militaryjustice/in/Government%20Documents/India%20-%202005%20- %20Report%20of%20the%20Committee%20to%20Review%20AFSPA%20%28Reddy%20Report%29.pdf (last visited Dec. 6, 2024).

52 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

Allow habeas corpus petitions to contest preventive detention orders on substantive as well as procedural grounds. In Maneka Gandhi v. Union of India, the Supreme Court the Supreme Court ruled that all laws that restrict personal liberty must be just, not arbitrary, fair and reasonable. Promotes procedural due process and align with national security laws with jurisprudential standard.53

5.3. Institutional Reforms

A. Independent Oversight Mechanisms

National Security Oversight Commission: Establish an independent body of judges, civil society and human rights organisations ’representatives to assess the implementation of national security laws. • Accountability Frameworks: Regular audits of and public reporting on data with regard to arrests, detentions and convictions made under the provisions of the UAPA, NSA and AFSPA.NSA.54

B. Making Human Rights Institutions More Effective

Make stronger the jurisdiction & powers of NHRC to investigate complaints of national security laws. • Form state-level human rights commissions that have the means charitably allocated to them to audit the implementation and intention behind these laws. Human Rights Watch report has said that independent oversight is needed to stem the abuse of national security laws and to hold authorities accountable.

5.4. Meeting with the global standards

A. Applicable Safeguards under ICCPR and ECHR

53 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

54 Human Rights Watch, "Getting Away With Murder: 50 Years of the Armed Forces (Special Powers) Act," Aug. 2008, available at https://www.hrw.org/legacy/backgrounder/2008/india0808/india0808.htm (last visited Dec. 6, 2024).

India’s preventive detention laws must comply with the international mandates in order to fulfil the obligations enshrined in the International Covenant on Civil and Political Rights (ICCPR) and European Convention on Human Rights (ECHR): Meeting the global standards • ICCPR Article 9: Includes protections against arbitrary detention and the right to contest detention in court.55 • ECHR Article 5: Orders for detention must be timely and subject to judicial review, with proportionality and necessity assessments.56 In A v. United Kingdom, the European Court of Human Rights struck down indefinite detention under anti-terror laws, stressing immunity as no substitute for the need for procedural safeguards.57 B. Takeaways from Other Countries/Practices

United Kingdom: The Terrorism Act 2000, in which pre-trial custody cannot last longer than 14 days, demonstrating a dedication to procedural fairness.58 • Canada: Preventive detention is provided for by anti-terror laws subject to judicial authorisation, balancing security and transparency.59

5.5 Improving public accountability

A. Implementation Transparency

Public reporting of detention and conviction statistics under UAPA, NSA and AFSPA should also be mandated so that the public can scrutinise the data. • To the degree that this is possible, require periodic declassification of government action relating to national security, with reasonable exceptions.

55 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 9.

56 European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221, art. 5.

57 A. and Others v. the United Kingdom, App. No. 3455/05, 49 Eur. H.R. Rep. 29 (2009).

58 Terrorism Act 2000, United Kingdom, available at https://www.legislation.gov.uk/ukpga/2000/11/contents (last visited Dec. 6, 2024). 59 Anti-terrorism Act, Canada, available at https://laws-lois.justice.gc.ca/eng/acts/a-11.7/ (last visited Dec. 6, 2024)

B. Empowering Civil Society

Enable civil society organisations to monitor the effects of national security laws and hold an avenue for redress for impacted groups. Establishing these reforms would bring India’s national security laws into line with constitutional and international human rights requirements that the quest for security must not impinge on basic freedoms.

6. Conclusion

Most of the Indian laws of national security like the Unlawful Activities (Prevention) Act (UAPA), the National Security Act (NSA) and the Armed Forces Special Powers Act (AFSPA), are most crucial to combat terrorism, insurgency and threats on public order. But their implementation has, all too often, underscored a harmful trend of misuse, disproportionately targeting marginalised communities, suppressing dissent and undermining Constitutionally guaranteed rights, including under Articles 14, 19, 21 and 22. This paper has critically analyzed the statutory regime on national security in India with respect to its nature, evolution, usage, and impact on civil liberties. What we are also helping our students to be aware of, through case studies such as the arrests at Bhima Koregaon, the detention of Dr.

Kafeel Khan, and extrajudicial killings in Manipur, is the danger of unfettered executive discretion. The judiciary’s role has been critical, yet it has lacked consistency, with cases where it was too deferential during the Emergency (ADM Jabalpur v. Shivkant Shukla) and cases where it intervened proactively, like in Anuradha Bhasin v. Union of India. To address those challenges, this paper suggests the following measures:

1. Law Reforms: Reframing vague provisions, shortening periods of preventive detention,

and repealing immunity provisions in some laws such as AFSPA.

2. Shall Provide a Judicial Oversight Mechanism: including strengthened judicial review

in national security law matters, provide for special courts for the expedited disposal of matters under national security law.

3. Binding Institutions: Formulate independent institutional mechanisms for monitoring the

implementation of such laws and the compliance to constitutional safeguards.

4. International Alignment: Embrace global norms, including proportionality and prompt

judicial oversight as directed by the ICCPR and ECHR. Even though the Indian Constitution imposes restrictions on rights for the purpose of the security of the State, it also retains the concern of the primacy of individual rights. The difficulty is striking this careful equilibrium. Through the reforms in this paper, India can demonstrate its concern for both security and liberty, and that in its pursuit of safety, it will not sacrifice its democratic soul.