Human rights implications of national security laws in India: combating terrorism while preserving civil liberties.

• Author: Kumar, C. Raj

"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)

1. 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Alliance (UPA) government led by the Congress party that came to power in India in May 2004 after the elections repealed POTA by way of a Presidential Ordinance on 21 September 2004.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. These laws granted significant powers to the Indian executive, thus providing greater opportunity for abuse and violation of fundamental rights.

   This article addresses the issue of Indian national security law operation and the efforts to combat terrorism while protecting human rights as follows:

   First, it provides an overview of the historical background of national security and human rights issues in India within the context of the Constituent Assembly debates;

   Second, it explains the legal and constitutional framework of national security legislation in India and the limitations on governmental exercise of power as provided in the Indian Constitution. It also analyzes certain national security cases decided by the Indian judiciary. Further, it considers how the balance between protecting national security and promoting human rights has been achieved;

   Third, it explains the legal framework of the anti-terrorism laws in India with particular reference to the Prevention of Terrorism Act of 2002 (POTA) and examines its critical implications from a human rights standpoint. It also discussed the decision of the Supreme Court of India in upholding the constitutional validity of POTA, while underlining the need for checks and balances in enforcing anti-terrorism laws. However, the forming of a Congress-led government in India has resulted in POTA being repealed. This is a significant positive development as far as resistance of the human rights movement is concerned to ensure that civil liberties are not compromised in the fight against terrorism and the need for protecting national security. However, fears are expressed as to how strengthening of other criminal law legislation can potentially have the same effect of POTA.

   Fourth, it evaluates the human rights consequences of emergency provisions under the Indian Constitution with the intent to examine their present status of jurisprudence. It also critically examines certain decisions of the Supreme Court of India which have resulted in the development of habeas corpus law.

   Fifth, it examines the human rights framework and its impact on preventive detention laws in India;

   Sixth, it provides an overview of international developments that have attempted to balance counter-terrorist and national security interests with the protection and promotion of human rights;

   Seventh, by differentiating between national security and human security, it provides a way forward and proposes that national security strategies should take into consideration the relevance of human rights and development. The goal of protecting human security will supplement the existing strategies for protecting national security, but human rights and fundamental freedoms cannot be compromised in the pursuit of state security policies. Rather, it is argued that the processes of protecting human rights should result in citizen empowerment--the foundation upon which human security will be achieved. In this regard, it is useful to refer to the recent report of the U.N. Secretary General, In Larger Freedom: Towards Development, Security and Human Rights for All, in which there has been an attempt to link some of the issues relating to security to development and human rights. (15) But operationalization of these linkages will require a holistic understanding of human security and its acceptances by states followed by a paradigmatic shift in their approach toward fighting terrorism and preserving national security. This can only result in the rhetoric of the U.N. Secretary General's Report becoming a reality.

   Eighth, the Indian experience in balancing national security concerns with human rights commitments is examined in order to provide certain guidelines for other countries. While most countries have already developed, or are in the process of developing, their own national security legislation, the Indian experience is useful to understand the importance of democratic institutions; an independent judiciary, a free press, and a vibrant civil society to protect and promote human rights and civil liberties from the adverse effects of draconian legislation intended to protect citizens from real and perceived threats to national security; and

   Finally, the article argues that it is natural for citizens worldwide, including citizens in India, to feel threatened under certain "terrorized" circumstances, but that any State or territory's response to terrorism or other national security threats needs to be fashioned within the domestic and international human rights framework. Understanding that the rule of law cannot be protected by the rule of force supports this argument; hence, India and other countries of the world ought to ensure that in their zeal to combat terrorism and to create a secure environment, they should not pass laws, rules, and regulations that violate constitutional ideals, political culture and other domestic and international human rights commitments.

2. HISTORICAL BACKGROUND AND CONSTITUENT ASSEMBLY DEBATES

   During the struggle for independence, leaders of India's national freedom movement resisted the British implementation of "national security" laws; these laws were intended to create political dissent within Indian society. For example, the British passed several "preventive detention" laws which continue to exist today. The British defended preventive detention on grounds of extreme threats to public order and national security, even though there were numerous cases in which they were applied arbitrarily. (16) The government-authorized practice of preventive detention in India had been in vogue since the passage of the East India Company Act of 1784. This Act provided for the "detention of any person who was suspected of participating in any correspondence or activities prejudicial or dangerous to the peace and safety of British possessions and settlements in india."...