Between Security and Liberty: A Critical Analysis of National Security Laws in India

INTRODUCTION

For any country, the sovereignty, security, integrity and unity are the prior concern which needs to be protected at any cost. India is also not an exception. This is the most important concern for India as well. Since the very beginning, India has faced several attacks from the various parts of the world like Mughal attacks, intervention of English rulers e.t.c. which has always challenged the very existence of the same. The violation of Human rights by acts of terrorism is not an incidental effect: acts of terrorism are directed at destroying human rights.¹ After the independence of the country also, India came into confrontation with many countries like Pakistan, China etc. which is always a very serious threat or of a very significant concern for the nation. Looking the needs of the nation, the members of the Constituent Assembly deliberated incorporated many provisions under the Constitution of India which gave power to either Central or state government to deal with the matters relating to national security or embark duty upon the people for protecting the same. First of all, our preamble imposes a duty upon the people of India to protect the sovereignty of the nation. Thereafter, many articles² under the Constitution of India directly or indirectly deal with the national security concerns. Although, Humankind was blessed with definite rights simply by virtue of them being “human”.³

By using the power under art. 355, the central government has passed many numbers of special laws relating to national security because the section empowers the same to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried out in accordance with the provisions of the constitution. Moreover, Art. 246 r/w Entry no. 9 of seventh schedule also gives the power to central government to make laws if the matter is preventive detention of the persons connected with Defence, Foreign Affairs or the security of India or persons subjected to preventive detention.

After the independence of India, the need for special laws was still felt because of the partition of India in 1947. To avoid the post-partition violence, first of all, Preventive detention Act⁴ was brought not as a permanent legislation but was to be reviewed after 12 months by the government. Avoiding this the Act was continued till 1969 when it was ceased to be effective. Then again in 1971, the Indira Government came with a new legislation⁵ to suppress the voices of the people by giving unrestrained powers to law enforcement agencies to indefinitely detain people without trial, search and seize the property without trial. Later this Act was amended several times during 1975-77 seeking the needs of the government in the name of internal security. Each government wants power as much as it can achieve and therefore when Janta Party won the election after emergency although they removed the MISA but again Indira Gandhi government came with a new special law in 1980 named as National security Act⁶ despite the movement for the incorporation of national security provisions under classical criminal laws. Later many Acts like TADA,⁷ UAPA,⁸ POTA⁹ were passed by the respective governments to deal with the matters relating to national security. Offences under UAPA are described as status offences because of linking with the terrorist organization.¹⁰

The cumulative or combined study of Arts. 245, 246 and Entry 1 of List Ⅱ and Entry 3 of List Ⅲ under seventh schedule of the Constitution of India empowers or authorizes the state to pass anti-terror or preventive detention laws unless it is not inconsistent with the provisions under union legislation. In this process the Karnataka Government passed an Act¹¹ prevent, control and cope up with criminal activity by organized crime syndicate or gang. Then, Similar to the Act of Karnataka, the Maharashtra Control of Organized Crime Act¹² which is applicable in the State of Maharashtra is said to be one of the most stringent and effective law in the country because of giving wide powers to the investigating authorities like extension of police custody to 30 days in comparison to 15 days prescribed under S. 187 of BNSS¹³ or to record confession of an accused to which is otherwise inadmissible under S. 23 of BSA.¹⁴ Moreover, in Jammu and Kashmir also, an Act¹⁵ was passed allowing detention of one if acting against security of state or maintenance of Law and Order.

In current times also, India is facing a number of problems relating to national security which are even increasing. Terrorist activities in India have become a regular scenario in our country. India has witnessed some of the worst terror attacks on mankind including that of the 2008 Mumbai attack, following with the death sentence execution of Ajmal Kasab. Laws of the yesteryears and the recently created ones have continued to consider terrorism as a major threat to law, peace and order in the country. Terrorism of today is fought in several forms including that of Narco Terrorism, Cyber Terrorism, Nuclear Terrorism, Bio Terrorism, Currency Terrorism, Etc. Although the word terrorism does not enjoy a universal definition but varies differently in different places. A person may be terrorist in view of one person but the same may be freedom fighter for another. The term ‘terrorism’ indicates use of violence by a group or an organization against a nation or its civilians with the intention of achieving social, political or ideological aim which is generally done by terrorizing people. In fact, some regard it as a form of warfare, an unconventional and psychological war. The definition of terrorism today not only confines to the act of main perpetrator, but also includes any person who directly or indirectly contributes to terrorism, thus including under its ambit all forms of aiding and abetting. So, now the researcher wants to trace the need for special laws relating to national security despite the existence of classical criminal laws.

NATIONAL SECURITY PROVISIONS UNDER CLASSICAL CRIMINAL LAWS

Laws are very important part of any democratic and civilized society where the peace and harmony need to be ensured. Laws covers a variety of issues and national security is one of them. The laws which deals with such issues can be categorized in two- classical laws and special laws. The former is the legal framework that deals with general aspects of law and order which remain in effect under normal conditions but there are some exceptional circumstances such as threats to national security and emergencies which requires special attention and which the government can’t tackle by following classical laws procedures.

Under the Indian Penal Code which is now Bharatiya Nyaya Sanhita,¹⁶ there are numerous provisions dealing with national security directly or indirectly. Under Chapter Ⅶ (Offences Against the State) of the BNS, S. 147 punishes those persons who wages war or attempt to wage such war or even abets the waging of such war against the government of India for a term which may extend to imprisonment for life or death sentence as well. S. 148 punishes the conspiracy to commit offences covered under S. 147 with similar amount of punishment. Ss. 149, 150, 151 punishes collection of arms with the intent to wage war against the government of India, or concealing with intent to facilitate design to wage war or assaulting President or Governor with intent to compel or restrain exercise of any lawful power. The most important section is S. 152 which punishes those acts endangering the sovereignty, unity or integrity of India and the section is very wide in nature itself and the punishment may extent to life imprisonment.

Under Chapter Ⅷ (Offences Against Public Tranquility) of the BNS, S. 192 says that whoever wantonly or malignantly does a provocation with the intent to rioting to be committed shall be punished with one year imprisonment if rioting is committed and for six months if rioting is not committed. Moreover, S. 197 punishes those persons who promote enmity between different groups on grounds of religion, race, place of birth, residence, language e.t.c. and does act which is prejudicial to maintenance of harmony. Besides this, S. 197 deals with the matters which are imputing or asserting something which is prejudicial to national integration. Apart from the above, S. 189 also widely covers matters which is in some way or other detrimental to the interests of the nation.

Under Chapter ⅩⅥ (Offences Relating to Religion) of the BNS, S. 299 punishes those deliberate or malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs for a term of imprisonment which may extend to three years. Moreover, Ss. 300, 302 punishes those persons who disturbs the religious assembly or person uttering words with deliberate intent to wound religious feelings of any person respectively and punishment for both these offences may extend to one year imprisonment. So, these were some sections prescribed or mentioned under ordinary criminal laws which are in themselves not sufficient to cover whole of the matters relating to national security. And so, because of different nature of these matters, the need was felt for special laws so as to avoid or deal with national security concerns.

DESIRABILITY OF SPECIAL NATIONAL SECURITY LAWS

Despite the above mentioned provisions under ordinary substantive criminal laws, the government of India came with different national security legislations from time to time. We need a wider perspective on our anti-terrorism laws which comparison with similar laws elsewhere alone can provide.¹⁷ So, the researcher is eager to discuss those compelling circumstances that led to the introduction or enactment of these laws. Some of these circumstances are described below-

SPECIALIZED THREATS

The most important or widely given justification for the enactment of national security laws is because of its different nature of threats. This can better be understood by analyzing the need of some special national security laws. For example, AFSPA¹⁸ was passed in 1958 to deal with specific circumstances. The Act grants special power to Indian armed forces and the state and paramilitary forces in areas classified as disturbed areas. The objective is to maintain law and order in these areas. firstly, Armed Forces (Special Powers) Ordinance, 1942 was brought to deal with the violence coming out of Quit India Movement. Taking the above ordinance as a backdrop, Indian government promulgated four ordinances in 1947 to deal with internal security issues and unrest arising due to partition in four provinces (Bengal, Assam, East Bengal and the United Provinces) which can’t be addressed through classical criminal laws. In Assam Naga National Council was established in Feb 1946 which was a political organization running secessionist movement from India. Henceforth, they boycotted general elections (1952) and government schools and officials. Consequently, Assam government imposed The Assam Maintenance of Public Order (Autonomous District) Act in Naga Hills in 1953, intensifying police action against the rebels. But the situation worsened and Assam Rifles were deployed in Nagahills and Assam Disturbed Areas Act, 1955 were enacted, providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But even they could not contain naga rebellion and the rebel NNC formed a parallel government’ The Federal Government of Nagaland on 23^rd march 1956. It led to the promulgation of Armed Forces (Assam and Manipur) Special Powers ordinance 1958 which later became the Act as The Armed Forces (Assam and Manipur) Special Powers Act,1958 on 11 sep 1958. The Act was renamed as The Armed Forces Special Powers Act,1958 in 1972. The Act empowered the governor of state or administrator of Union Territory or Central Government to declare any areas as disturbed areas in those regions covered under AFSPA. So, it is evident that these situations could not be tackled with traditional criminal laws and so AFSPA was brought with the intention to give wide powers to law enforcement agencies to tackle with this emergency situation and to protect the integrity or sovereignty of the nation.

The other example is the enactment of TADA¹⁹ in 1987. The object of the Act says that it is an Act to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. The Act was intended to halt the khalistani movement, an armed Sikh separatist movement in Punjab. Due to sunset provision it lapsed on 24^th may 1987 but was kept alive through an ordinance which was later replaced with the TADA, 1987. The Act also lapsed in 1995 due to increasing unpopularity after widespread abuse. It was first anti-terrorism law legislated by the government to define and counter terrorist activities. So, the Act was brought with the intent to tackle a specific situation emerging in Punjab which was impossible to be tackled with traditional criminal laws.

NEED OF SPECIAL EXPERTISE

It is well known to everyone that it is the duty of police to deal with the matter related to law and order. But there are some situations which these ordinary police are not able to tackle with and it pressed the need for creating specialized agencies which would be more efficient in investigation and prosecution and even special courts have been established to further the process of trials regarding the same.

For example, The National Investigation Agency Act²⁰ of 2008 was enacted on 31-12-08 with which the National Investigation Agency (NIA) was born. The NIA which functions as the Central Counter Terrorism Law Enforcement Agency in India, aims to investigate and prosecute offences affecting the sovereignty, security and integrity of India, friendly relations with foreign States and offences under such Acts which are enacted to implement international treaties, agreements, conventions and resolutions of the United Nations and other international organizations and for matters connected therewith or incidental thereto.²¹

Over the past several years, India has been the victim of large scale terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by Left Wing Extremism, but also in the form of terrorist attacks and bomb blasts, etc., in various parts of the hinterland and major cities, etc. A large number of such incidents are found to have complex inter-State and international linkages, and possible connection with other activities like the smuggling of arms and drugs, pushing in and circulation of fake Indian currency, infiltration from across the borders, etc. keeping all these in view, it was felt that there was a need for setting up of an Agency at the Central level for investigation of offences related to terrorism and certain other Acts, which have national ramifications. NIA has registered and investigated 315 cases as on date i.e. 05.02.2020. After submission of charge sheets, 60 cases have been finally or partially decided in trial. Of these, 54 cases have ended in conviction giving NIA an enviable conviction percentage of 90%.²²

According to the National Investigation Agency Rules, 2008, it has been said that NIA has to provide assistance to and seek assistance from other intelligence and investigation agencies of the central government and state governments. Officers of the NIA above the rank of Sub Inspector are empowered with special powers to pursue and investigate any offence relating to terrorism. They are entrusted with all such duties, privileges and liabilities which any other local police officers have in connection with cases relating to terrorism. Special courts have also been established for speedy trial of terror-related offences, with hearings to be held on day-to-day basis. The above arguments prove that these situations can’t be dealt with ordinary police and the officers under this are specially trained to collect the information of terror-related offences. They are professional work force specially trained for specific purpose.

PROTECTION OF NATIONAL INTERESTS

The best and usually referred justification behind the enactment of special laws relating with national security is the protection of national interests. These all special laws whether TADA, UAPA, POTA and others were enacted with the sole purpose of protecting the interests of the nation. This can be understood through some case laws where the constitutionality of these laws was challenged.

In the case of A.K. Roy v. Union of India²³ the constitutionality of preventive detention under National Security Act was challenged. The respondent argued that the Act was brought with a special purpose to prevent a person from engaging in activities that may harm national security or public order. It was argued that the preventive detention framework in the NSA was a necessary tool for maintaining national security and public order, particularly when there was insufficient evidence to take other legal action. The court also while pronouncing the judgment upheld the constitutionality of the Act and said that the Act was designed to protect the national security and public order but at the same time it stressed that it should be used sparingly and should not be abused by the authorities. The law must be applied within the prescribed limits, and the rights of the individual must be protected as per constitutional safeguards. The important thing to note here is that the court did not declare the law unconstitutional while guiding the way the law should be used.

In the case of Kartar Singh v. State of Punjab²⁴ the constitutional of TADA was challenged. The government contended that the brutal activities of terrorist can be dealt with by making stringent laws enlarging and strengthening the legal powers of the state to fight terrorism within the boundaries of legal framework. They also contended that the Act was created with the objective of protecting national interests because the terrorist uses diverse techniques and procedures which are incapable to be dealt with ordinary national security laws. Moreover, the court also upheld the constitutionality of the Act and said that the legislature is competent to pass special laws to deal with the specific situation to prevent it from occurring. Terrorism being a growing cause of concern that has a tendency to disrupt sovereignty and integrity of the nation and thus justifies the enactment of national security laws. In this case also the Supreme Court did not declare the law unconstitutional and suggested for cautious application of the provision and directed the government not to misuse the provision.

In the case of People’s Union for Civil Liberties v. Union of India²⁵ the constitutionality of POTA was challenged. The government gave the same argument that the Act was necessary step for protecting national security and public order in the face of increasing terrorist activities particularly after 2001 Indian Parliament Attack. The Supreme Court upheld the constitutionality of POTA, but with important qualifications, it reaffirmed the need for a balance between national security concerns and the protection of individual fundamental rights. While acknowledging the severity of terrorism as a threat, the Court emphasized the importance of safeguards to ensure that the law was not misused, particularly with respect to preventive detention, judicial review, and the banning of organizations.

These cases prove that national security is the prior concern for any country and so all laws specifically enacted to deal with situations which is impossible to be tackled with ordinary laws are constitutional and it has been reaffirmed by the Supreme Court in the above mentioned cases.

PREVENTION AND DETERRENCE

Under the ordinary laws a person can be detained under police custody for a maximum period of 15 days which was in itself not sufficient to investigate the special categories of offences and such detention is required to prevent the person avoiding or failing which may be detrimental to the interests of the people as well as the nation. So, the common thing in all these special laws is the extended period of detention without trial and investigation period was also extended because of its unique characteristics. For example, under TADA, the maximum detention period was 180 days without filing any formal charges but such detention was subject to review by the advisory board. Moreover, under POTA and UAPA also a person could be detained for 180 days without filing any chargesheet or trial but detention after the 3 months should be subject to review by the advisory board. Most significantly under NSA, the detention period was extended for even 12 months without any trial. All these laws allowed for the detention of the period so that the police officers could easily investigate the offences because sometimes they have to seek cross-border evidence and these evidences are very technical in nature and so it justifies the detention.

It is well known that these offences are of special nature and if the government fails to tackle this at pre stage, it could lead to mass destruction. So, the accused under these Acts are detained at prior stage so that the future ramifications could be avoided. These steps are very important to deter the terrorist activities which are direct threat to the sovereignty and integrity of the nation.

FLEXIBILITY AND ADAPTABILITY

Last but not the least justification behind the enactment of these special laws is the need of the current situation. Previously, mainly the terrorist activities were carried on after entering the territories of the nation but now the nature of committing terrorism has changed. Currently there are many types of terrorism like Narco Terrorism, Bio Terrorism, Cyberterrorism which can’t be dealt with the frameworks provided under the existing laws and thus the need was felt for introducing some new laws to tackle with these specific situations. Although many reforms have been brought about in the provisions relating to national security under the ordinary criminal laws but are not sufficient in nature. For example, The Information Technology Act²⁶ was passed in this process. The Act criminalizes cyber terrorism under S. 66F which covers a wide variety of acts affecting critical cyber infrastructure and imposes a punishment of imprisonment which may even extend to imprisonment for life. Many other crimes related to this have also been defined and punished which were absent under the existing laws. These circumstances pressed the need for coming with the new laws to tackle this emergency situation.

DELAY AND MISUSE OF NATIONAL SECURITY LAWS

It is very well evident from the above argument that national security legislatures can’t be removed or denied. All the above judgments declared above also pressed the need for the continuance of these laws but gave many directions regarding the application of these laws. With the help of one very incident, the researcher would like to emphasize upon the misuse of these laws rather than actual application of the same.

In an article written by Dr. Lokendra Malik,²⁷ he highlighted the misuse of special laws by the government. On a Habeas Corpus petition filed by Dr. Kafeel khan’s mother, a Division Bench of the Hon’ble High Court of Allahabad comprising Chief Justice Govind Mathur and Justice S D Singh found no substance in the state’s accusations against Dr. Khan and ordered his immediate release from Mathura jail. He was detained under the National Security Act alleged to have been delivered provocative speech at the Aligarh Muslim University campus during the Anti-CAA/NRC protests. The Court said that the speech was a call for national integrity and unity and did not mirror any effort to promote hatred or violence. In addition to this, the subjective satisfaction of the District Magistrate who gave the detention order was found to be baseless. The author also mentioned that the court observed that the mere apprehension expressed in the grounds of detention, not founded on any material shown to exist on record, if allowed to stand, would fall foul with the test laid down by the Supreme Court in Khudi Ram Das in as much, neither is there any objective material giving rise to the subjective satisfaction nor the subjective satisfaction is found to have been reached in a legal and regular manner but on whim and humour.

The above incident highlighted the clear misuse of preventive detention laws particularly the NSA in state of U.P. It was considered as a gross violation of due process of law. Many preventive detention laws are enacted for specific purposes, particularly for controlling the anti-social elements in society. But these laws should not be used to suppress the dissent or fair criticism. In recent times, the state authorities have frequently invoked the preventive detention laws to criminalize free speech, dissent, and peaceful protests. A democratically elected government is constitutionally bound to have equal respect and concern for each citizen irrespective of his political choice. Once elected, the government belongs to all including those who do not support it in elections. Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. But many people were detained under this law without valid reasons for months in different states. There detention was extended without any valid justification. From dumping cow carcasses to protesting against the government, Anti- CAA/NRC protesters, the NSA is imposed for anything that strikes the government’s whim and fancy. It is widely observed that this law is being used to punish, not prevent, because people can be locked in jail for 12 months although most cases. The NSA has become a weapon of torture and harassment. Out of 139 arrests under NSA, 76 were related to cow slaughter. The period of 12 months in jail is not a small thing. The delay regarding the application of these laws can be furthered by speedy trial process and speedy investigation of the matter related to national security. Although NIA Act can be taken as a step towards it but more considerations are still required.

In Shreya Singhal v. Union of India,²⁸ the Supreme Court said that on the basis of use and misuse of the law, a law can’t be declared as unconstitutional. So, these special laws are necessary to be continued with but it should be used very cautiously and deliberately.

CONCLUSION

From the above discussion, it is very clear that these special laws relating to national security are very crucial which can’t be avoided because it is very important to protect the sovereignty, unity and integrity of the nation. Whether before or after the independence of India, the existence of these laws can easily be observed. The government always favoured the continuance of these laws because none of them on the one side wanted to compromise with the security of the nation or lose their power over the people of the nation. So, from time to time, the number of national security laws always increased rather than decreasing. Not only the government but the courts also through its variety of judgments proved that these laws were necessary for the nations and so uphold the constitutionality of many national security laws but at same time suggested the deliberate and cautious use of these laws. Although these legislations are always claimed to be used against the human rights of the people but were necessary in the modern era to curb the menace of terrorism. Terrorism being a very serious offence has the potential to give mass destruction and so many provisions have been incorporated not only under the ordinary substantive criminal laws but the special national security laws as well.

RECOMMENDATIONS AND SUGGESTIONS

After going through the research, the researcher went through a variety of information and which contributed to the storehouse of the knowledge. But the researcher is also enthusiastic to give some suggestions which would be a good step for the proper application of national security laws while at the same time balancing with the basic fundamental rights of the people. Although these suggestions were in themselves would not be sufficient in the total reformation in this area but absolutely contribute to a better application of these laws and would help in preventing the misuse of these laws. The suggestions are as follows

•  First of all, if the police officers deliberately misuse the application of these laws and the liberty of persons are curtailed through illegal detention, then those persons should be compensated out of the salaries of the persons who are wrongfully applying the laws.

•  The other suggestion is that the officers wrongfully detaining the person should be made liable for the departmental action so that a fear could arise among them which would ultimately curb the menace of illegal detention.

•  Moreover, the courts should accelerate the hearing of those petitions which are related to illegal detention of the person because the liberty of persons are of paramount importance which should be curtailed only in exceptional circumstances not on the basis of subjective satisfaction only but the objective satisfaction should be there.

•  Both the courts and legislatures should take initiative in this regard. The court should accelerate the matter relating to national security through speedy trial methods and should also give guidelines regarding false imprisonment or illegal detention. Not only this, the legislature should make rules for the application of national security legislations which would be a step towards protecting the fundamental rights of the people without compromising with the national security.

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Footnotes

1. Kamlesh Kumari, Anti-terrorism Laws in India: A Critical Analysis, 4 Indian Journal of Law and Legal Research. 1 (2022).

2. Arts. 19, 22(3)(b), 34, 51, 246, 249, 250, 311, 352, 355, 356, 358, 360, 364, THE CONSTITUTION OF INDIA, 1950,

3. Akansha Sharma, Desirability of Sedition Laws in Modern India, 4 Indian J.L. & Legal Research 1 (2022-2023).

4. The Preventive Detention Act, 1950.

5. The Maintenance of Internal Security Act, 1971.

6. The National Security Act, 1980.

7. The Terrorist and Disruptive Activities (Prevention) Act, 1987.

8. The Unlawful Activities (Prevention) Act, 1967.

9. The Prevention of Terrorism Act, 2002.

10. Surabhi Chopra, National Security Laws in India: The Unraveling of Constitutional Constraints, 17 Oregon Review of International Law. 1 (2015).

11. The Karnataka Control of Organized Crimes Act, 2000.

12. The Maharashtra Control of Organized Crime Act, 1999.

13. The Bharatiya Nagarik Suraksha Sanhita, 2023.

14. The Bharatiya Sakshya Adhiniyam, 2023.

15. The Jammu and Kashmir (Public Safety) Act 1978.

16. The Bharatiya Nyaya Sanhita, 2023.

17. A.G. Noorani, Anti-terrorism Legislation, Economic and Political Weekly. 1741-42 (2003).

18. The Armed Forces (Special Powers) Act, 1958.

19. Supra note 7.

20. The National Investigation Agency Act, 2008.

21. Available at https://nia.gov.in/about-us.htm (Dec. 7, 2024).

22. Ibid.

23. AIR 1982 SC 710.

24. 1994 SCC (3) 569.

25. AIR 2004 SC 1442.

26. The Information Technology Act, 2000.

27. Dr. Lokendra Malik, Taking Misuse of National Security Act Seriously, (Dec. 7, 2024), https://livelaw-ili.refread.com/columns/taking-misuse-of-national-security-act-seriously-163016?fromIpLogin=37800.19829741974.

28. Shreya Singhal v. Union of India (2013) 12 SCC 73.