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“National Security Laws in India: The Unraveling of Constitutional Constraints”



This article examines national security legislation in India, argues that the usual constitutional limits on the executive have failed to restrain the Indian government’s power and actions under security laws, and considers how to resuscitate constitutional checks and balances. The article elucidates how security laws are designed to enhance the executive’s powers in ways that facilitate human rights abuses. It then argues that the executive has controlled the process of legislating security laws to an extent that significantly dilutes Parliamentary debate and scrutiny. The article analyzes how the Indian Supreme Court has reviewed the constitutionality of security laws since 1980, and argues that the Court failed to engage with constitutional standards when evaluating security laws. Thus, both the legislature and judiciary have endorsed the executive’s national security powers without fully engaging with the impact and import of these powers. Repeated endorsement has, in turn, eroded constitutional constraints – in particular, constitutional rights – in significant ways. The article then considers what measures might make the executive more accountable. Past literature has concentrated on moderating the executive’s substantive powers under security laws. This article proposes reforms that could better regulate the executive’s exercise of power under security laws, by weaving regular legislative and judicial scrutiny into decisions that are currently the exclusive preserve of the government. The article argues that the reforms proposed would lower the stakes of disagreeing with the executive, and would, therefore, harness debate and negotiation between different branches of the State on national security.
National Security Laws in India: The Unraveling of Constitutional Constraints
Surabhi Chopra
Introduction ........................................................................................................... 2
I. Security legislation since Independence: expansion and entrenchment .............. 4
A. Preventive detention ............................................................................................... 5
B. Proscribing organizations and creating ‘status offences’............................................ 7
C. Domestic deployment of the military....................................................................... 7
D. Anti-terrorism laws ................................................................................................. 8
1. TADA.............................................................................................................................8
2. POTA .............................................................................................................................9
3. The amended UAPA....................................................................................................11
E. Expansion and entrenchment................................................................................ 11
II. Executive power under national security laws................................................. 13
A. Ambiguous scope .................................................................................................. 13
B. Special security measures in demarcated zones....................................................... 16
C. Preventive detention powers.................................................................................. 18
D. “Status offences” and the power to proscribe organizations.................................... 20
E. Enhanced powers to investigate and prosecute ....................................................... 22
F. Power to create special courts................................................................................. 25
G. Limits on judicial review ....................................................................................... 26
III. Consequences of security laws – excess, overlap, and abuse............................ 29
A. Human rights abuses............................................................................................. 30
B. Insulation from accountability .............................................................................. 32
C. Discriminatory and partisan use of the law ............................................................ 33
D. Security laws as crutch and cover........................................................................... 35
IV. Executive-led legislation, Parliamentary endorsement ................................... 39
A. Structural advantage.............................................................................................. 39
B. Pressing home the executive’s advantage................................................................ 40
C. Diluted debate and scrutiny .................................................................................. 44
V. Judicial approval............................................................................................ 47
A. Challenges to Parliament’s legislative authority...................................................... 50
B. Challenges to expansive executive powers............................................................... 51
1. Ambiguous scope .........................................................................................................52
Assistant Professor, Faculty of Law, Chinese University of Hong Kong. I first explored some of the
ideas in this paper during a consultancy project for the International Development Research Centre in
August-September 2012 on national security laws in India. I am grateful to the International
Development Research Centre for the opportunity they gave me, and in particular to Navsharan Singh
for her feedback on my work. [Surabhi, Chopra, The Law on National Security in India: When the
Exceptional and Normal Intersect. (October 2012) (unpublished consultancy report) (on file with
author)]. I am grateful to the Chinese University of Hong Kong for supporting my research through a
Direct Research Grant. I would also like to thank Ria Singh Sawhney for research assistance and
Shruti Chopra for her comments.
2. Special security measures in demarcated zones ...........................................................52
3. Preventive detention powers ........................................................................................53
4. “Status offences” and the power to proscribe organizations .......................................55
5. Enhanced powers to investigate and prosecute ...........................................................56
6. Power to create special courts ......................................................................................57
7. Limits on judicial review ..............................................................................................59
C. Assessing the Supreme Court’s security jurisprudence............................................ 61
1. Championing executive powers...................................................................................61
2. Conflating legislative legitimacy with constitutionality ...............................................64
3. Selective attention to socio-politics..............................................................................68
VI. Directions for reform ................................................................................... 71
A. Restoring judicial review ....................................................................................... 73
B. Reforming security legislation shared discretion, regular scrutiny........................ 78
VII. Conclusion ................................................................................................. 85
Since India gained independence in 1947, it has had in force “security laws” avowedly
concerned not with commonplace crime, but with acts that ostensibly pose deeper,
more enduring threats to ordinary life. Terrorism, organized crime, separatism, and
public disorder are amongst the harms these laws seek to prevent and punish. In
addition to national security laws, many Indian states1 have state laws simultaneously
regulating these harms. These “security laws” operate alongside India’s ordinary
substantive and procedural criminal codes. Governments advocating these laws argue
that ordinary criminal law cannot address certain dangers, and therefore these
particularly serious dangers require a tailored response. This bespoke response is also a
1 India is a federal country, divided into 28 states and 7 union territories. Union territories are smaller
geographical and administrative units than states and are governed by the national government
exclusively, while each state has its own government. The Constitution of India lays down the Central
Government’s areas of responsibility (subject areas in List I of the Seventh Schedule or the Central
List), State Governments’ areas of responsibility (subject areas in List II of the Seventh Schedule or the
State List) as well as areas or issues over which both levels of government have shared responsibility
(subject areas in List III of the Seventh Schedule or the Concurrent List).
heightened response, giving the law and order machinery more power than ordinary
criminal law allows.
In this paper, I examine significant security legislation in India and trace the ways in
which it enhances the executive’s powers. I argue that the usual constitutional limits
on the executive - electoral democracy, legislative scrutiny, judicial review and
constitutional rights have failed to restrain the executive’s power and actions under
security laws. I demonstrate that the Indian legislature and judiciary have endorsed
executive powers in principle, and failed to regulate them in practice. Repeated
endorsement and regulatory failure have, in turn, eroded constitutional constraints in
particular, constitutional rights in significant ways. Finally, I consider what measures
might feasibly make the executive more accountable and moderate its dominance.
While this inquiry is rooted in the particularities of the Indian context, it is relevant
beyond India as well, particularly in a century that began with the United Nations
Security Council exhorting Member States to pass counter-terrorist legislation2. Very
few countries in the developing world have been constitutional democracies for as long
as India has3. Across South Asia, legislation and jurisprudence tend to draw heavily
upon Indian precedent. The Indian experience with security laws might help us to
understand the vulnerabilities of other post-colonial, developing democracies, and
guard against these vulnerabilities when crafting counter-terrorist legislation.
2 See S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).
3 India gained independence from British rule in 15 August, 1947, adopted a national constitution on 26
November, 1949 which came into force on 26 January, 1950, and held its first national elections in
In Section 1 of this paper, I trace the chronology of major security legislation since
India gained independence in 1947. In Section 2 of the paper, I highlight features of
these laws that depart from ordinary criminal law and grant great power to the
executive. Then, I discuss in Section 3 the practical consequences of security laws. In
Section 4, I reflect upon the legislature’s role in passing security laws and in Section 5
upon the Indian Supreme Court’s response when the constitutionality of security laws
has been challenged. Finally, in Section 6, I consider directions for reform.
I. Security legislation since Independence: expansion and entrenchment
The Indian Penal Code criminalises the standard array of violent crimes and property
crimes. Those who kill or injure members of the public are committing long-
established crimes, as are those who harm public or private property, for which they can
be investigated, charged and prosecuted. In addition, the IPC includes security and
public order crimes4, such as sedition5 and the offence of “promoting enmity between
different groups” based upon identity, and “doing acts prejudicial to the maintenance
of harmony”6. Intentionally committing any of these forbidden acts is a criminal
offence. It is also an offence under Indian law to help another person to commit them,
encourage another person to commit them7, attempt unsuccessfully to commit them8 or
plan to commit them9.
4 See PEN. CODE (1860), in particular Chapter VI and Chapter VIII.
5 PEN. CODE § 124A (1860).
6 PEN. CODE § 153A (1860).
7 PEN. CODE §§ 107-120 (1860).
8 The Indian Penal Code does not define what it means, in general, to attempt an offence. However,
Past and present security laws have operated alongside the Indian Penal Code (“IPC”)
which defines substantive offences, and the Code of Criminal Procedure (“CrPC”),
which lays down rules of criminal procedure.
A. Preventive detention
The Preventive Detention Act10 (“PDA”) was passed in 1950, soon after the
Constitution of India came into force. This law authorized the government to detain
individuals without charge for up to a year. Initially, this Act was passed as a
temporary, twelve-month measure to deal with the challenges of governing after the
violence and displacement during the partition of India11. The Minister of Home
Affairs told Parliament that permanent preventive detention powers “required closer
study” before more lasting legislation was passed12. However, the Act was renewed
repeatedly for almost two decades, finally being allowed to expire in 1969.
common law principles on liability for an attempt apply in India, and are reflected in the IPC. PEN.
CODE § 511 (1860) lays down the general rule for punishment for attempting an imprisonable offence.
In addition, the IPC creates some offences of attempting to commit a particular offence, such as the
offence of attempt to murder and the controversial offence of attempt to commit suicide. See PEN.
CODE §§ 307 - 309 (1860). The IPC places some attempts on the same footing as the completed
offence, and specifies the same sanction for the attempt as for the full offence. See for example, PEN.
CODE §§ 124-126 (1860).
9 PEN. CODE §§ 120A-120B (1860)
10 The Preventive Detention Act, Act No. 4 of 1950 (India) [hereinafter PDA].
11 Pradyumna K. Tripathi, Preventive Detention: the Indian Experience, 9 AMERICAN JOURNAL OF
COMPARATIVE LAW 219, 222 (1960); Anil Kalhan, et al., Colonial Continuities: Human Rights,
Terrorism, and Security Laws in India, 20 COLUM. J. ASIAN L. 93, 135 (2006).
12 A.G. Noorani, Preventive Detention in India, ECONOMIC & POLITICAL WEEKLY, Nov. 16,
1991, at 2608 (quoting Vallabhbhai Patel); Derek Jinks, The Anatomy of an Institutionalized
Emergency: Preventive Detention and Personal Liberty in India, 22 MICH. J. OF INT’L L. 311, 341-
342 (2000-2001). See also Anil Kalhan et al, supra note 11,135.
In 1971, two years after the Preventive Detention Act had lapsed, the Maintenance of
Internal Security Act13 (“MISA”) was passed, and it resurrected most of the preventive
detention powers under the older Act. These powers were widened in 1975, when the
government declared a state of national emergency, and procedural protections
originally built into MISA were removed14. Prime Minister Indira Gandhi’s
government used MISA aggressively against political opponents, trade unions and civil
society groups who challenged the government. In 1977, the government lifted its
declaration of emergency and called national elections. The incumbent Prime Minister
and her party were voted out of power, and the new national government, some of
whose members had personally been preventively detained, repealed the now notorious
However, when proposing to repeal MISA, the Janata Party-led government also
proposed incorporating preventive detention powers into ordinary law15. This did not
happen. Instead, two years later the National Security Act, 198016 (“NSA”) created
preventive detention powers akin to those in the Preventive Detention Act and the
Maintenance of Internal Security Act. The NSA continues to be in force.
13 Maintenance of Internal Security Act, Act No. 26 of 1971 (India) [hereinafter MISA].
14 A state of emergency was formally declared on 25 June 1975 by the Indian President, Fakhruddin
Ali Ahmed under Article 352 of the Constitution of India, on the request of the then Prime Minister
Indira Gandhi. This period, described in India simply as “the Emergency”, lasted from 25 June 1975 to
21 March 1977 and is usually. During this time, constitutional rights were suspended, judicial review
restricted, and the media heavily censored. For a historical account of the Emergency, see
LARGEST DEMOCRACY 488-521(Picador. 2007). For an anthropological account focusing on the
experiences of ordinary citizens affected by forced sterilization and slum clearance programmes, see
(Hurst & Co. 2003).
15 Anil Kalhan, et al., supra note 11, 192.
16 National Security Act, Act No. 65 of 1980 (India) [hereinafter NSA].
B. Proscribing organizations and creating ‘status offences’
In 1967, the national government supplemented its preventive detention powers when
a new law, the Unlawful Activities (Prevention) Act17 (UAPA) gave it the power to
declare organizations “unlawful” and then limit their activities and scrutinize their
members to a significant degree. Just as individuals could be designated as potentially
dangerous and detained without a trial, organizations too could now be designated
suspect, without the State having to prove those suspicions to a criminal standard of
proof in a court of law. Once the government categorized an organization as unlawful,
this designation was the foundation for criminalizing membership or support of the
C. Domestic deployment of the military
In addition to preventive detention laws, legislation was also passed that granted the
executive greater power to use force than is allowed under the CrPC. In September
1958, the Indian Parliament passed the Armed Forces (Special Powers) Act18
(“AFSPA”), which enhanced the domestic, civilian powers of the armed forces,
empowering the military to act alongside the police in designated “disturbed areas”.
Under AFSPA, the armed forces have enhanced power to use force against civilians.
Originally, the national government enacted AFSPA in response to separatist
17 Unlawful Activities (Prevention) Act, Act No. 37 of 1967 (India) [hereinafter UAPA].
18 Armed Forces (Special Powers) Act, Act No. 28 of 1958 (India) [hereinafter AFSPA].
movements in Nagaland19, a state in the northeast of India. By 1972, it was extended
to all seven states in India’s northeast20. From 1983 to 1997 the national government
applied an iteration of the law to the state of Punjab21, and in 1990 a similar iteration
to Jammu & Kashmir, where it continues to be in force22.
D. Anti-terrorism laws
Parliament passed the Terrorist Affected Areas (Special Courts) Act23 in 1984, which
allowed the national government to designate parts of the country as “terrorist
affected”, and set up special courts in those areas to prosecute defendants accused of
being terrorists. A year later, this law was incorporated into the Terrorist and
Disruptive Activities (Prevention) Act24 (“TADA”), 1985. TADA also created new
criminal offences related to terrorist activity, enhanced procedural powers for the police
and significantly reduced procedural protections for defendants.
20 These include the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland
and Tripura.
21 Armed Forces (Punjab and Chandigarh) Special Powers Act, Act No. 34 of 1983 (India). This state-
specific iteration has the same provisions as AFSPA 1958.
22 Armed Forces (Jammu and Kashmir) Special Powers Act, Act No. 21 of 1990 (India). This state-
specific iteration has the same provisions as AFSPA 1958.
23 Terrorist Affected Areas (Special Courts) Act, Act. No. 61 of 1984 (India).
24 Terrorist and Disruptive Activities (Prevention) Act, Act. No. 28 of 1987 (India) [hereinafter
TADA incorporated a sunset clause - Parliament had to review and renew the Act every
two years25. Evidence of human rights abuses under TADA mounted over time26, and
in 1995, TADA was allowed to lapse when it lost the support of opposition parties in
Parliament. However, as when the notorious preventive detention law, MISA, was
repealed in 1977, the government of the day proposed incorporating many of TADA’s
provisions into ordinary criminal law27. This proposal failed28, but in the wake of
terrorist attacks on the World Trade Centre in New York City on September 11, 2001,
the ruling National Democratic Alliance proposed a new anti-terror law.
Citing international obligations and cross-border terrorism as reasons29, the Indian
government proposed a new anti-terrorism law in 2001, the Prevention of Terrorism
25 TADA § 1(4).
POLITICAL RIGHTS (1997), available at
27 The Criminal Law (Amendment) Bill was introduced in 1995, but allowed to lapse.
28 For a critical analysis of the Criminal Law (Amendment) Bill and its effects on the rights of the
Documentation Centre. 1999), available at
29 The Ministry of Home Affairs, in its press briefing on the Prevention of Terrorism Ordinance, speaks
of “an upsurge of terrorist activities, intensification of cross-border terrorism” and says “Terrorism has
now acquired global dimensions and become a challenge for the entire world”. Quoted in SOUTH
Rights Documentation Centre. 2001), at 16. Arguments for a new law drew strength from the
international climate after 9/11. The United Nations Security Council passed a resolution urging states
to pass anti-terror legislation, but omitted to caution states that such measures be designed to respect
international law on human rights. See S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).
Several countries, including the United States and Western European democracies, passed new anti-
terror laws that limited civil and political rights in significant ways.
Act30 (“POTA”). POTA incorporated TADA’s enhanced police powers, limits on the
rights of the defence, and special courts, with many of POTA’s provisions reproducing
verbatim the equivalent provisions in TADA. In addition, POTA enhanced the
government’s power to detain individuals and forfeit the proceeds of terrorism. POTA
could also be deployed in any part of the country at all times, without a prior
declaration that a particular area was “terror affected” or disturbed”. And while
TADA had a two-year sunset clause, the sunset clause in POTA was five years.
POTA had a fractious journey through Parliament, and soon sparked controversy. The
ruling alliance at the time was led by the Bharatiya Janata Party, which expressed overt
Hindu majoritarian sympathies. In 2002, this law was used to prosecute Muslims
suspected of setting alight a train carriage carrying Hindu pilgrims but was not similarly
used to prosecute Hindus suspected of participating in State-supported mass violence
that killed 2000 people, most of them Muslim31. POTA never managed to shed its
association with a partisan political agenda. During the next general elections, the
main opposition parties pledged to repeal the Act. It was, in fact, repealed in
September 2004 after the NDA was ousted from power, on the initiative of a newly
elected government formed by a coalition of political parties called the United
Progressive Alliance (“UPA”).
30 Prevention of Terrorism Act, Act No. 15 of 2002 (India) [hereinafter POTA].
31 Nitya Ramakrishnan, Godhra: The Verdict Analysed, ECONOMIC & POLITICAL WEEKLY April
09, 2011.
3. The amended UAPA
The UPA government, however, recanted its rejection of a special anti-terrorism law
after multiple, brutal terrorist attacks in Mumbai on 26 November, 2008. Within a
month of these attacks, the UPA-led national government proposed and Parliament
agreed to amend the Unlawful Activities (Prevention) Act, 1967 (“UAPA”). This
amendment inserted into the UAPA many provisions from POTA and TADA, with
some addition, alteration and dilution32. Parliament also passed the National
Investigation Agency Act, creating a federal agency that can investigate and prosecute
terror related crime across the country without permission from the governments of
individual states.
E. Expansion and entrenchment
The remit of security laws regulating dangers deemed exceptional - suggests that there
would be very few security laws, which would focus on narrow dangers, and apply at
times when these narrowly defined dangers are acute. In fact, multiple such laws have
been in force since India became independent in 1947. The Indian State has added
different types of laws to its national security armoury over time, from preventive
detention laws to laws authorizing domestic use of the military to anti-terrorism laws.
32 For a critical analysis of the 2008 amendments to the UAPA, see SOUTH ASIA HUMAN RIGHTS
Rights Documentation Centre. 2009), available at and HUMAN RIGHTS WATCH, BACK
favourable view of the UAPA, see C Kelso, et al., Unlawful Activities Prevention Act-UAPA(India) &
U.S.-Patriot Act (USA): A Comparative Analysis, 5 HOMELAND SECURITY REVIEW 121(2011).
While the types of laws have expanded, the content of laws falling within any particular
category has remained quite consistent.
Amendments to the UAPA in 2008 are a recent reminder that the core content of
security legislation in India has been relatively stable, despite multiple repeals,
amendments and new laws. In 1985, TADA adopted the framework that the original
UAPA 1967 gave the government to proscribe organizations, but re-designed it to apply
specifically to “terrorist organizations”. After TADA was repealed, most of TADA’s
provisions were incorporated into POTA. The amended UAPA, in turn, incorporates
many provisions of POTA, even though POTA itself has been repealed; the amended
Act contains powers to regulate “unlawful” organizations as well as powers to regulate
“terrorist” organizations. The trajectory of anti-terrorism legislation echoes that of
preventive detention legislation. The PDA, 1950 was substantially replicated in MISA.
Despite MISA’s notoriety, the NSA, 1980 incorporated similar, and many identical,
provisions on preventive detention.
However, while newer laws incorporate content from repealed laws, this resuscitated
content has become more firmly entrenched over time as sunset clauses in earlier laws
have been discarded in subsequent legislation. The Preventive Detention Act, 1950
required annual review and renewal by Parliament. The National Security Act, 1980
which is currently in force does not have a sunset clause at all. TADA acknowledged its
singularity by providing that Parliament would review it every two years. POTA
provided for less frequent review, but retained a sunset clause nevertheless. Unlike
TADA and POTA, the UAPA has no sunset clause33, and therefore provides a
particularly secure harbour for expansive executive powers to ban and limit
II. Executive power under national security laws
Thus, we see particular mechanisms and methods, and attendant executive powers,
being relayed from older laws to newer ones. Since the content of security laws has
been relatively stable, it is possible to identify particular, recurring features in these laws
which enhance the executive’s powers. I discuss these features below. I draw primarily
upon the following laws currently in force: the Armed Forces (Special Powers) Act,
1958, the Unlawful Activities (Prevention) Act, 1967 (as amended in 2008) (“UAPA”),
the National Security Act, 1980 (“NSA”). I also draw upon preventive detention and
anti-terrorism laws such as the PDA, MISA, TADA and POTA, which have now been
repealed. I do not discuss in detail the provisions of all these laws but concentrate
instead on characteristics I consider distinctive.
A. Ambiguous scope
Indian security laws aim to preserve, inter alia, national security, public order, public
peace and religious harmony. Past and current laws have tended to treat the meaning
of their stated bedrock goals as self-evident, and failed to demarcate the scope or limits
of these goals.
The NSA, for example, allows the central and state governments to detain an individual
where this is considered necessary to prevent that person “acting in any manner
prejudicial to the security of the State or from acting in any manner prejudicial to the
maintenance of Public order”34. The Act defines neither “State security” nor “public
order”, nor which actions may be prejudicial to either. It is difficult to discern the
boundaries of such a sweeping provision, which potentially catches a large swathe of
political and religious speech and writing that criticizes the government.
Offences under anti-terrorism laws are very broadly drafted. The UAPA, when it was
amended in 2004 and 2008, incorporated wide definitions of ambiguous scope. The
Act creates the offence of “committing a terrorist act”, and includes within the ambit of
“terrorist acts” using force against a public official, using force against any individual in
order to pressure the government, using violent means to kill, damage property or
“disrupt” “any supplies or services essential to the life of the community in India or in
any foreign country”35. Experts advise limiting the definition of terrorism to
intentionally causing death or injury with the motive of intimidating the general public
or pressuring a government or international body to act in particular ways36. Contrary
to this view, UAPA chooses to include not just death and injury, but also property
34 NSA § 3(2).
35 UAPA § 15.
36 K Roach, Defining Terrorism, in THE HUMAN RIGHTS OF ANTI-TERRORISM (N LaViolette &
C Forcese eds., 2008); HUMAN RIGHTS WATCH, supra note 32 at 5; UN Commission on Human
Rights, “Report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Martin Scheinin,” E/CN.4/2006/98, December 28,
damage and disruption of supplies, not just within India but in other countries too.
While the actus reus of this offence is broad, it is the mens rea that makes the offence
difficult to fathom. Someone committing a “terrorist act” must intend to “threaten the
unity, integrity, security or sovereignty of India” or “strike terror in people” in India or
“in any foreign country. However, it is also enough if an individual’s actions are likely
to [emphasis added]have these same effects37. The language of the Act leaves entirely
unclear whether an individual needs to know about or be reckless as to likely
consequences, and could be read as creating a strict liability offence.
In a state law promulgated recently, we see a similar lack of clarity. The Chhattisgarh
Special Public Safety Act38, 2005 gives the Chhattisgarh government power to ban and
prosecute organizations committing “unlawful activities”. Unlawful activities are not
restricted to actions that are offences under existing criminal law. They include speech
or actions that, inter alia, “constitute a danger or menace to public order, peace and
tranquility”39 orencourage or preach disobedience to established law and its
institutions”40 or “interferes or tends to interfere with the administration of law”.
These provisions gratuitously use synonyms (danger or menace) and lower the
threshold that tips something into being unlawful (“interferes or tends to interfere”
[emphasis added]).
Widely drafted provisions render potentially criminal many types of peaceful speech and
activity that are critical of the government of the day or challenge nationalist views on
37 UAPA §15.
38 Chhattisgarh Special Public Safety Act, Act 14 of 2006, Chhattisgarh Rajpatra Asadharan 174
[hereinafter CSPSA].
39 CSPSA § 2(e)(i).
40 CSPSA § 2(e)(vi).
history and politics. This allows the executive generous latitude to decide which actions
technically falling within the ambit of a widely drafted offence it will actually prosecute.
Individuals subject to these laws cannot confidently calibrate how to comply with
loosely defined standards. By the same token, it is difficult to challenge an executive
decision as being outside the scope of the executive’s statutory authority under a
particular legal provision if that provision is so widely drafted that its boundaries are
difficult to determine.
B. Special security measures in demarcated zones
The Armed Forces (Special Powers) Act allows national and state governments to
designate parts of India asdisturbed. Once an area is declared “disturbed”, the
Armed Forces (Special Powers) Act authorises the military to use force in that area far
in excess of what ordinary criminal law authorizes, without being invited to do so by
the civil administration. AFSPA lowers the threshold for using lethal force on citizens,
forgoing any requirement that force should be proportionate to the threat at hand. It
also dispenses with limits on holding people in pre-trial custody.
The declaratory mechanism first seen in AFSPA has since been included in other laws.
The now repealed Terrorist Affected Areas (Special Courts) Act in 1984, allowed the
national government to designate parts of the country as “terrorist affected”, which
triggered special criminal procedures in that area. A state law, the Jammu & Kashmir
Public Safety Act41, 1978 allows the government of Jammu & Kashmir to designate
areas where the police have enhanced powers to stop, search, use force, and
preventively detain individuals.
In all these laws, current and past, the executive’s decision to designate an area as
unusually dangerous or volatile is unconstrained by threshold conditions or even
guiding criteria. For example, AFSPA requires only that the deciding authority be “of
the opinion” that the area in question be “in such a disturbed or dangerous condition
that the use of armed forces in aid of civil power is necessary”42. These spatial
designations have serious consequences for individuals within the area so designated.
Despite this, the decision-maker is not required to publicize the reasons behind the
decision, or justify it by reference to empirical conditions. AFSPA did not even require
that a declaration be time-bound, but as will be discussed in Section 4 below, the
Indian Supreme Court read a time limit into the law.
If the Indian government declared a part of India to be in a state of emergency under
Article 356 of the Constitution, it would have to specify how long the emergency will
last, and Parliament would review any declaration of emergency43. By contrast, when
an area is designated as disturbed under AFSPA, this need not be reviewed by central
or state legislatures. Such declarations can be, and have been, renewed by the executive
repeatedly, effectively persisting for years at a stretch44. As a result, some human rights
groups have argued that laws like AFSPA allow the Indian government to constrain
41 Jammu & Kashmir Public Safety Act, Act No. 6 of 1978, (Jammu & Kashmir, India) [hereinafter
42 AFSPA § 3.
43 INDIA CONST. art. 356.
44 AFSPA has applied to all or part of the states of Assam and Manipur since 1958.
rights in the way it would by declaring a constitutional emergency, while evading the
constitutional checks that regulate a decision of such gravity45.
Spatially limited laws have the potential to reinforce or validate racial and ethnic
prejudice against those who live in “disturbed” parts of the country. They can map
easily on to regional or religious differences between the areas where they apply, and
the majority of the country where they do not. When an area is designated as
“disturbed”, this might more easily allow law enforcement authorities to perceive its
residents with a broad brush, conflating the peaceful majority with the minority of
people who have adopted violent means for political ends.
C. Preventive detention powers
The Indian Constitution empowers national and state legislatures to enact preventive
detention laws one of the few democratic Constitutions to do so46. Preventive
detention laws can be passed not only for national or state security, but also for
maintaining public order, and for maintaining “supplies and services essential to the
community” nationally or in a particular state47. An Indian citizen can be preventively
detained not just because he is considered a threat to security or order, but also to
prevent non-violent crimes, such as hoarding supplies and fiscal crimes48.
Human Rights Documentation Centre. 1995) and HUMAN RIGHTS WATCH, supra note 19.
46 SAHRDC argues that the Indian Constitution is the only constitution in a democratic country to
expressly authorize preventive detention. See SAHRDC, supra note 29 at 100.
47 INDIA CONST. List III, Entry 3
48 A number of other national and state laws create some measure of preventive detention powers.
These include, inter alia, the Prevention of Blackmarketing and Maintenance of Supplies of Essential
Individuals in preventive detention are not accorded the due process rights that the
Indian Constitution recognises for individuals arrested and tried under ordinary
criminal law49. Instead, the Constitution grants such individuals a limited, modified
set of procedural rights. Preventive detention is subject to administrative review by an
advisory board50. No one can be detained for more than three months unless the
advisory board authorizes longer detention51. The detainee must be told the grounds of
detention “as soon as possible”, and be given “the earliest opportunity” to “make a
representation”, i.e. to submit reasons he should not be detained52. However, the
Constitution does not set concrete deadlines within which a detainee has to be told the
grounds on which he is being detained or be allowed to challenge his detention. By
contrast, someone arrested under the Criminal Procedure Code must be presented
before a court within 24 hours, according to Article 22 of the Constitution. The
government also has a large measure of discretion over what it will disclose to the
detainee. Information the government considers “against the public interest”53 need
not be disclosed.
Thus, the Constitution unambiguously renders legitimate detention that is not
mediated by the rules of criminal procedure and evidence. National and state
Commodities Act, 1980, the Conservation of Foreign Exchange and Prevention of Smuggling Act,
1974, the Orissa Prevention of Dangerous Activities of Communal Offenders Act, 1993; the Uttar
Pradesh Gangsters and Anti-Social Activities (Prevention) Act 1996; the Maharashtra Control of
Organised Crime Act 1999; the Andhra Pradesh Control of Organised Crime Act, 2001.
49 Articles 22(1) and (2) of the Constitution provide that on arrest, an individual has the right to know
“as soon as may be” the grounds for arrest. He has the right to consult and be represented by a lawyer
of his choosing. The police must produce an arrested individual before a judicial magistrate within 24
hours of his arrest. Unless the magistrate orders longer detention, an arrested individual cannot be
detained for more than 24 hours. See INDIA CONST. art. 22, §§ 1-2.
50 INDIA CONST. art. 22, § 4.
51 INDIA CONST. art. 22, § 5.
52 Id.
53 INDIA CONST. art. 22, § 6.
governments have not shied away from using this constitutional leeway. The
Constitution sets the floor on preventive detention powers it does not require full
due process rights for detainees but does not prohibit such rights either. However, the
NSA, like MISA and the PDA before it, grants detainees only the barebones procedural
rights listed in the Constitution. Detainees are not entitled to disclosure of the
evidence against them, access to legal representation, or a public hearing54.
D. “Status offences” and the power to proscribe organizations
Traditionally, criminal law creates an offence by defining the actions that constitute the
substance of the offence, and the state of mind that must accompany the act to render
the actor culpable. Criminal liability rests upon the State proving beyond reasonable
doubt that an individual carried out the wrongful act with the necessary state of mind.
Indian security laws, by contrast, create several “status offences, where criminal liability
rests upon belonging to a formal or informal group with an agenda that is deemed a
threat to public order or security. The UAPA allows the government to label groups as
being “terrorist organizations” or “unlawful associations”. POTA, now repealed,
similarly allowed the government to designate groups as “terrorist organizations”. The
recent Chhattisgarh Special Public Safety Act, 2005 (“CSPSA”) also allows the state
government to declare a group unlawful. The meanings of “terrorist” and “unlawful”
have a wide and unclear scope under all these laws, extending, in the CSPSA as far as,
inter alia, “encouraging…disobedience to established law and its institutions”55. These
laws create “status offences”, such that once a group is banned, membership in and of
54 NSA §§ 8(2) and 11; JKPSA §§ 13 and 16.
55 CSPSA § 2(c)(vi).
itself constitutes a crime. In addition, a host of direct and indirect dealings with that
group are rendered criminal. For example, under the UAPA, membership in a
terrorist organization or gang that is “involved in” a terrorist act can attract life
imprisonment, regardless of whether the individual member was involved in any way
with the terrorist act56.
As Roach argues, status offences such as these muddy the distinction between
intelligence and evidence57. Security agencies collect information about possible threats
to security, and monitor suspicious individuals and groups in different ways. The
quality of security intelligence is evaluated internally, but is not put to the test of cross-
examination, or criminal standards of proof. When intelligence is used as conclusive
grounds for rendering an individual’s connection to a group criminal, the accused’s
right to a fair hearing is compromised.
Under the UAPA, associations are allowed administrative review of the government’s
decision to label and ban them. However, the government need not disclose its
grounds for a ban. In addition, groups designated as “terrorist organizations” cannot
present new evidence or witnesses before the review board58. The government need not
wait for the results of administrative review its declaration has immediate force and
suspected members of terrorist organizations can be arrested and prosecuted before
56 UAPA § 20.
57 Kent Roach, The Eroding Distinction between Intelligence and Evidence, in COUNTER-
Lynch, et al. eds., 2010) at 48.
58 UAPA §§ 36(4) and 37.
there is any finding on whether the government’s evidence for banning the group in
question was adequate59.
E. Enhanced powers to investigate and prosecute
Security laws such as AFSPA and the UAPA enhance the State’s powers of search,
seizure and arrest. The UAPA, like TADA and POTA before it, significantly
diminishes the procedural rights of the accused as compared to the Criminal Procedure
Code, 1967.
If we look at powers of search, seizure and arrest, the UAPA allows “any officer of a
Designated Authority” to search any person or property, and seize any property or
arrest any person, where they have “reason to believe from personal knowledge or
information given by any person and taken in writing ... or from any document” or
from “any other thing” that an offense has been committed under the UAPA60. The
Code of Criminal Procedure, by contrast, requires the police to havecredible
information” or “reasonable suspicion” before arresting someone without a warrant61.
It authorizes a search without a warrant only where a police officer has “reasonable
grounds” to believe that something essential to an investigation could not be obtained
in any other way without unreasonable delay62.
59 UAPA §§ 35 and 36.
60 UAPA § 43A.
61 CODE CRIM. PROC. § 41.
62 CODE CRIM. PROC. §§ 41 and 165.
Under ordinary law, an arrested person must be informed “forthwith” of the “full
particulars of the [suspected] offence”63. Under the UAPA’s lower standards, the
police only have to inform an arrested person of the grounds of arrest “as soon as may
be”64. As Human Rights Watch points out, this would permit the police to keep
arrested individuals in the dark, and limit their wherewithal to respond to the
suspicions against them65.
A person arrested under CrPC powers cannot be held in custody for more than 24
hours without being charged of an offence66. The UAPA, following POTA, allows
suspects to be detained without charge for up to 180 days. Thirty days out of the
permissible 180 can be in police custody, where the accused would be particularly
vulnerable to torture and forced confessions67. Courts can authorize the first 90 days of
detention without any special grounds. To extend detention after 90 days, the
prosecution needs to demonstrate only that investigation has made some progress.
This long period of pre-charge detention muddies the boundary between pre-trial
detention and preventive detention.
The amended UAPA, like its anti-terrorism forebears, TADA and POTA, shifts the law
on bail. Traditionally, the law on bail rests on the principle that limiting a person’s
liberty is a serious resort. Accordingly, until guilt has been proven, a judge will
consider whether that individual’s liberty can be preserved, weighing in the balance the
63 CODE CRIM. PROC. § 50(1).
64 UAPA § 43B (inserted by Unlawful Activities (Prevention) Amendment Act, Act No. 35 of 2008
(India), § 12.
65 HUMAN RIGHTS WATCH, supra note 32, at 12.
66 CODE CRIM. PROC. § 151(2).
67 HUMAN RIGHTS WATCH, supra note 32, at 13.
possible risks of release. Bail is usually subject to conditions and limits, which are
typically more onerous when the alleged offence is more serious or the potential risks of
release relatively high. Under India’s anti-terrorism laws, however, rather than
weighing the risk that the accused might commit an offence or abscond or intimidate
witnesses if released, the court must consider whether there are reasonable grounds for
believing that the accusations against the accused are prima facie true68. The bail
hearing becomes an abridged, premature trial, where the applicant is unlikely to meet
the high threshold of disproving his guilt. His resulting remand in custody might
indirectly prejudice his trial because it will be difficult for the trial judge to discount a
colleague’s early assessment of guilt.
Once trials are underway, these security laws also allow the court to presume guilt based
upon certain kinds of inculpatory evidence, freeing the prosecution from showing that
the accused acted with the requisite criminal intent. TADA and POTA allowed
confessions made to the police as evidence during trial, departing from Section 25 of
the Indian Evidence Act69, without explicitly barring statements made under torture70.
While the UAPA does not allow this, the various procedural departures it permits
considerably erode the right to a fair trial71.
68 UAPA § 43D(5).
69 Indian Evidence Act, Act no. 1 of 1872 (India), § 25.
70 POTA § 32; TADA § 15.
71 Article 21 of the Constitution of India protects the right to life and liberty. The Supreme Court has
read into the right to liberty the right to a fair trial (see for example, Police Commissioner, Delhi v
Registrar Delhi High Court, (1996) 6 SCC 323 (India)), the right to fair procedure (see Maneka Gandhi
v India, (1978) 1 SCC 248 (India)), the right to natural justice (see for example, Sunil Batra v Delhi,
(1978) 4 SCC 494 (India). The Supreme Court has also clarified that Article 21 protects particular
elements of a fair trial, such as the right to a public trial (see Vineet Narain v India, (1998) 1 SCC 266
(India)), the right to a speedy trial (see Hussainara Khatoon v Bihar, (1980) 1 SCC 81 (India)), and the
right to legal aid in criminal proceedings (see Hussainara Khatoon v Bihar, (1980) 1 SCC 108 (India)).
Article 20 of the Constitution of India recognizes the right against self-incrimination, the right against
conviction for a retroactive offence and the right against double jeopardy. Article 22 of the
Constitution of India recognizes certain procedural rights for an individual under arrest. In addition,
F. Power to create special courts
These disadvantages faced by the defence are compounded by the fact that trials under
anti-terrorism laws are held in special courts.
TADA and POTA gave central and state governments the power to establish special
courts to try offences under these Acts72. The recently passed National Investigation
Agency Act, 2008 (“NIAA”) similarly authorizes the creation of special courts to try a
range of security offences including, inter alia, offences under the UAPA73. India’s
constitution gives the High Court of each state the authority to regulate trial courts74.
However, security laws vest the executive with authority to appoint judges and
determine the jurisdiction of special courts, upending the usual order of things and
relegating the High Court to a largely formal role75. Experience indicates that since
special courts for security offences were first established in 1984, governments have
tended to choose judges who favour the prosecution76.
In special courts, procedural rules are modified to dilute the rights of the defence. The
NIAA, like POTA before it, empowers special courts to hold proceedings “at any place”
when it is “expedient or desirable” to do so77. This could mean, for example, holding
India is party to the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S.
171 (“ICCPR”), which recognizes the right to a fair trial and fair procedures in Articles 14, 15 and 16.
72 POTA § 23; TADA § 9.
73 National Investigation Agency Act, Act no. 75 of 2008 (India), §§ 11-21 [hereinafter NIAA].
74 INDIA CONST. art. 235.
75 NIAA § 11.
76 Anil Kalhan, et al., supra note 11, at165.
77 NIAA § 12.
court hearings inside a prison facility, which might intimidate the defendant. Such
proceedings are open in theory but effectively hidden from view. Special courts are also
empowered if they “so desire”78 to hold closed, or in camera, proceedings. The NIAA
even allows special courts to try the accused in his absence “if it thinks fit”, something
that the Code of Criminal Procedure does not permit79.
Judicial powers that result, formally or informally, in closed trials are troubling given
the executive’s strong role in appointing judges. In addition, transparent proceedings
are particularly important in relation to the politically freighted crimes that are tried in
special courts, as public fear about terrorism might make the prosecution and the court
more prone to miscarriages of justice.
G. Limits on judicial review
Indian security laws give the executive large doses of discretionary power. They
simultaneously restrict judicial review over these expansive powers. Laws are designed
so that they assign decision-making authority to government officials at a certain level
of seniority, but do not specify any criteria for decision-making. So, as long as the
official is of the right rank, his or her subjective satisfaction on the issue at hand
suffices. For example, as discussed above, a declaration under AFSPA that an area is
disturbed cannot be substantively reviewed, unless it can be shown that the central or
state government made the decision in bad faith and was not genuinely “of the
opinion” that civil authority needed to be supplemented with military force. Similarly,
78 NIAA § 17(1).
79 NIAA § 16 (5); POTA §§ 29(5) and 30.
the decision to preventively detain someone without charge cannot be reviewed on
substance. The NSA only allows judicial review on whether the decision-maker
complied with the necessary procedure.
Not only is the scope of judicial review limited to procedural questions, some security
laws set up administrative review mechanisms that an applicant must traverse before
approaching the courts for judicial review. Administrative review under older security
laws, including the NSA, 1980 and the UAPA, 1967, is designed to oversee each
decision the government makes on a particular issue. For example, every preventive
detention order under the NSA has to be placed before an advisory board that confirms
the order or recommends revocation. Similarly, every declaration under the UAPA that
an organization is “unlawful” must be placed before a review committee. Laws passed
after 1980 adopt a different mechanism, under which an individual or organization can
challenge a decision before the administrative review body, but the executive is not
obliged to submit its decisions for review as a matter of course. For example, when an
organization was declared a “terrorist organization” under TADA or POTA, or is
declared as such under the amended UAPA, that organization could challenge the
decision before a review committee. The burden is on the affected individual or group
to initiate review. Thus, more recent laws have diluted the scrutiny provided by
administrative review, while preserving the hurdle it creates for an applicant seeking
judicial review.
Administrative review proceedings are weighted against the applicant. Preventive
detention laws expressly bar the detainee from having legal representation80.
Proceedings before all these administrative bodies are closed to the public. If the
relevant government considers it in the public interest, it has the discretion to withhold
information from affected parties on the grounds of an order against them. None of
the current administrative review mechanisms provide for amicus curiae or special legal
counsel who have security clearance to review classified evidence and advise on its
strengths and weaknesses.
These attenuated procedural rights are accompanied by limits on the independence of
administrative review mechanisms. The government of the day appoints members to sit
on these bodies81. While the chairperson of an advisory boards under the NSA and
review committee under the UAPA has to be a retired or sitting judge of the High
Court82, there are no statutory guidelines for choosing other members. Under current
laws, review mechanisms are not “standing” bodies the government has the option of
creating them as needed83. The inherent conflict in the Ministry of Home Affairs
appointing the committee that reviews its decisions only becomes deeper when such a
committee is appointed ad hoc to review a specific decision.
Decisions by the administrative review body’s bind the government. But, government
orders on preventive detention or proscribing organizations take effect immediately and
80 NSA § 11(4).
81 NSA § 9; UAPA §§ 5 and 37
82 NSA § 9(3); UAPA § 37(3)
83 See NSA § 9(1) which empowers the Central Government and each state government to constitute an
advisory board “whenever necessary”. See also UAPA § 5(1) which similarly empowers central and
state governments to constitute an administrative tribunal “as and when necessary”.
remain effective until and unless the review committee disagrees with the government.
Detainees or banned organizations can turn to the High Court if administrative review
goes against them, as it generally does. However, it is worth noting that the relevant
laws themselves do not grant the High Court appellate jurisdiction over administrative
review decisions. Jurisdiction flows instead from the Court’s constitutional power (and
duty) to hear citizens’ petitions seeking to enforce fundamental rights84. In order to
petition the courts, the applicant has to demonstrate a prima facie violation of a
constitutional right.
III. Consequences of security laws – excess, overlap, and abuse
Some observers argue that ordinary criminal law, in the form of the Criminal
Procedure Code and Indian Penal Code, gives governments adequate tools to control
and prosecute terrorist and separatist violence85, and that special security legislation is
unnecessary. This counter-factual is difficult to evaluate, given that security laws have
been a consistent part of independent India’s legal landscape, with new security laws
drawing heavily upon their predecessors. We can, however, trace the consequences of
security laws. As discussed in Section 2 above, India’s security laws enlarge the
executive’s power to use force, detain, investigate, arrest and try individuals. These
procedural powers rest upon loosely drafted criteria, and accompany sprawling
84 See INDIA CONST. art. 32, which grants citizens the right to approach the Supreme Court for
enforcement of fundamental rights recognized in the Constitution and empowers the Supreme Court, in
turn, to grant a range of remedies to enforce such rights. See also art. 226, § 1, which similarly
empowers state High Courts to issue directions, orders and writs within its jurisdiction.
85 SAHRDC, supra note 29, at17-19.
substantive offences of indeterminate scope. Laws are designed to shield government
actors from criminal or civil suit, and to dilute judicial review. Below, I discuss in more
detail the consequences that flow from the distinctive features that have been
reproduced in successive generations of laws.
A. Human rights abuses
Human rights groups argue that India’s security laws are, in and of themselves,
incompatible with international human rights law and the Indian Constitution86. They
point out that security laws currently in force place excessive, unnecessary restrictions
on the rights to a fair trial, freedom of association, freedom of speech and freedom of
movement, as guaranteed by the International Convention on Civil and Political
Rights, to which India is a party87. They also argue that AFSPA, which bestows
generous “shoot-to-kill” powers on the military in “disturbed” areas, disproportionately
restricts the right to life88.
Expansive executive discretion created by legal provisions that fall far short of human
rights standards creates ample room for abuse of power. Over the years, journalists,
86 See for example, SAHRDC, supra note 26; SAHRDC, supra note 45, SAHRDC, supra note 32; ,
CRIMINAL LAW AMENDMENT BILL (People's Union of Democratic Rights 2000); PEOPLE'S UNION OF
LAW: UAPA AND THE MYTH OF NATIONAL SECURITY (People's Union of Democratic Rights.
87 SAHRDC, supra note 26; SAHRDC, supra note 45, SAHRDC, supra note 32; HUMAN RIGHTS
WATCH supra note 32; HUMAN RIGHTS WATCH supra note 19.
88 SAHRDC, supra note 44; HUMAN RIGHTS WATCH, supra note 19, at 6.
academics and human rights groups have documented a multitude of serious human
rights abuses committed by State functionaries using powers granted by security laws.
Credible accounts abound of torture in custody and coerced confessions89. Defendants
charged with crimes under TADA and POTA have received unfair trials90. The military
has used gravely, often fatally, disproportionate force against civilians in disturbed areas
under the Armed Forces (Special Powers) Act91. Arbitrary detention and extrajudicial
execution are frequent, and persist despite criticism from United Nations human rights
mechanisms92. A recent petition before the Supreme Court claimed that, in one small
north-eastern state alone, an estimated 1528 people been extra-judicially killed by
security forces since May 197993. Women have faced sexual violence from state actors
using security powers, particularly in areas where the military has powers under
AFSPA94, but also in other Indian states such as Jharkhand and Chhattisgarh.
OF TORTURE (Asian Centre for Human Rights 2007); ASIAN CENTRE FOR HUMAN RIGHTS,
TORTURE IN INDIA 2011 (Asian Centre for Human Rights. 2011).
(PREVENTION) ACT: THE LACK OF "SCRUPULOUS CARE" (Amnesty International. 1994);
People's Union of Democratic Rights, Trial of Errors: a critique of the POTA court judgement on the
13 December case (People's Union of Democratic Rights 2003); People's Union of Democratic Rights,
Judicial Terror: Death Penalty, TADA and the Rajiv Gandhi Assassination Case (People's Union of
Democratic Rights 1998); SAHRDC, supra note 26.
91 See for example, Civil Society Coalition on Human Rights in Manipur and the UN, Manipur: A
Memorandum of Extrajudicial, Arbitrary or Summary Executions 2012 [submitted to Christof Heyns,
United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions];
92 Civil Society Coalition on Human Rights in Manipur and the UN, supra note 90; Special Rapporteur
on extrajudicial, summary or arbitrary exécutions, Report on mission to India, Human Rights Council,
U.N. Doc A/HRC/23/47/Add.1 (Apr. 26, 2013) (by Christof Heyns); Special Rapporteur on the
situation of human rights defenders, Report on Mission to India (1021 January 2011), Human Rights
Council, U.N. Doc Mission to India A/HRC/19/55/Add.1 (Feb. 6, 2012) (by Margaret Sekaggya) ;
Dolly Kikon, The predicament of justice: fifty years of Armed Forces Special Powers Act in India, 17
93 Extra-judicial Execution Victim Families Association (EEVFAM) v India, 2013 (2) SCC (India);
Extra-judicial Execution Victim Families Association (EEVFAM) v India, Writ Petition (Crim) No.
129 of 2012 [on file with author]; Meenakshi Ganguly, Extrajudicial Killings Corrode Democracy in
India, N. Y. TIMES, July 15, 2013, available at; Sandeep
Joshi, Court-appointed panel highlights misuse of AFSPA in Manipur, THE HINDU, July 17, 2013,
available at
INDIA (University of Bradford. 2004); Namrata Gaikwad, Revolting bodies, hysterical state: Women
Gendered violence against women by the police and military is often neglected, but the
limited documentation that exists should cause serious disquiet95. A less visible effect
of such laws is on the families of individuals who are detained or prosecuted. Past
experience has shown that trials can last a long time, as can preventive detention, with
detention orders being renewed year after year. Families of detainees and defendants
lose an earning member, while having to defray lawyers’ fees and navigate the legal
system. This would strain most families, but be potentially ruinous for those who are
B. Insulation from accountability
It is highly likely that we do not have the full measure of abuses committed by
government actors or agents using security laws. Enhanced powers to detain and
interrogate are, by their nature, wielded behind closed doors. Targets of torture and
inhumane treatment in custody might conceal abuse entirely. Victims of sexual
violence in custody both men and women might be particularly likely to hide such
abuse. Affected individuals might speak out within their families, wider communities
or to civil society groups, but may not be willing to file a formal complaint. This is
particularly likely in remote areas where the official who would investigate the
complaint might work closely with the officials who are the subject of the complaint.
Individuals willing to seek redress have to persuade the police and prosecution to
pursue their complaint, who in turn need special permission from the central
protesting the Armed Forces (Special Powers) Act (1958), 17 CONTEMPORARY SOUTH ASIA
95 Namrata Gaikwad, supra note 93.
government to take any action96. The limited information available suggests that
permission has rarely been granted97.
Even where victims would like to seek redress, they may not know that the
government’s actions can be formally challenged, or how to pursue such a challenge,
since it requires more than a complaint to the police. As an example, AFSPA has
applied to Assam and Manipur continuously since 1958, and to the other five
northeastern states since 1972, but there are very few reported habeas corpus cases in the
relevant High Court until 1981, after which the High Court regularly heard petitions
from individuals arguing that they were arbitrarily detained. It is possible that abuses
by the armed forces were far fewer in the first two decades of AFSPA’s existence. It is
also likely that victims of abuse lacked the information and experience to seek redress.
C. Discriminatory and partisan use of the law
The Indian experience so far suggests that once security laws create expansive executive
power, empowered governments are not cautious about using that power. In 1985,
96 CODE CRIM. PROC. § 197 provides that government officials belonging to a government service
administered by Central Government cannot be criminally prosecuted unless the Ministry of Home
Affairs permits such prosecution. Members of the armed forces are shielded from arrest for actions
performed as a part of their official duties by CODE CRIM. PROC. § 45. AFSPA § 6 bars any legal
proceedings, criminal or civil, against members of the armed forces without prior permission from the
Central Government. For a discussion of jurisprudence on Section 197 of the CrPC see Surabhi
Chopra, Accountability of public officials for mass violence, in ACCOUNTABILITY FOR MASS
VIOLENCE IN INDIA (Surabhi Chopra & Prita Jha eds., 2013). For critical commentary, see
Tarunabh Khaitan, Parties should be asked to repeal impunity provisions, THE HINDU, 2009,
available at
97 There are no publicly available statistics on the number of applications for permission to prosecute
government officials, civil or military. A report by SAHRDC on AFSPA states that, as of 1995, no
individual from the north-east states had applied for permission to file a civil suit or writ petition
against the armed forces. See SAHRDC, supra note 44. A research study that used India’s Right to
Information Act, 2005 to seek information about applications and permission to prosecute under
Section 197, CrPC in relation to mass violence recorded that the Ministry of Home Affairs refused
multiple requests to disclose the information requested. See Surabhi Chopra, supra note 95.
TADA gave every state in India the power to prosecute terrorist offences in special
courts. Over time, human rights groups documented that the highest number of
TADA cases was registered not in states with a history of violent, non-State militant
activity, but in Gujarat, a state that saw little terrorist or separatist activity during the
time TADA was in force98. As discussed in Section 2, expansive security offences
potentially render criminal a wide sweep of non-violent speech and activity that criticizes
the government or challenges existing security policies, even though it does not on any
reasonable assessment actually endanger public order or national security.
Security laws have lent themselves to religious and ethnic discrimination. Singh traces
how POTA prosecutions relied heavily upon religious profiling, and describes the Act
as “creating suspect communities”99. Individuals who are Muslim, Sikh (under TADA),
or from India’s north-eastern states have been disproportionately investigated, detained
and prosecuted under security laws100. The state government of Jharkhand used POTA
very heavily in parts of Jharkhand that are poor and have a high proportion of people
from tribal groups101. Violent far-Left groups were active in these areas, but rather than
targeted investigation, human rights reports record scatter-shot violence, and wholesale
arrests and detention of people from particular tribal communities102.
98 SAHRDC, supra note 29 at 33.
(Routledge. 2007) at 165-219.
100 SAHRDC, supra note 26.
101 UJJWAL KUMAR SINGH, supra note 98 at 195-203.
TERRORISM ACT (POTA): BACKGROUND DOCUMENT (Sabrang Communications 2004) at 3 and 20,
available at See generally, PREETI VERMA, THE TERROR OF
Communications 2004).
Security laws have also been used by those in political office against opponents and
critics. As mentioned in Section 2, Indira Gandhi deployed MISA aggressively against
political opponents during the Emergency. More recently, the Chief Minister of the
state of Tamil Nadu used POTA against an uncooperative member of the state
legislature, as did the Chief Minister of Uttar Pradesh103. In 2007, the UAPA was used
to prosecute a senior member of a national civil liberties organization who was critical
of civilian militias organized by the state government of Chhattissgarh to counter far-
Left groups104. Media coverage brought out that these individuals posed no threat to
the nation, and publicized the State’s lack of cogent grounds for acting against them.
However, in a technical sense, it is arguable that arrests and prosecution in these
instances fell squarely within the ambit of widely defined POTA and UAPA offences.
While legal action against public figures has garnered headlines and drawn criticism, it
illustrates the likelihood of similar action, free of media scrutiny, against individuals
who are not politically influential.
D. Security laws as crutch and cover
Publicly available official statistics on security laws are scant. India’s National Crime
Records Bureau used to report arrests and convictions under TADA, annually, but has
not released similar information related to POTA or the UAPA. The national
103 UJJWAL KUMAR SINGH, supra note 98 at 220-260; Manoj Mate & Adnan Naseemullah, State
Security and Elite Capture: The Implementation of Antiterrorist Legislation in India, 9 JOURNAL OF
HUMAN RIGHTS 262(2010).
104 See Frontline Defenders, Binayak Sen, Frontline Defenders, available at See also Malavika Vyawahare, A Conversation With:
Human Rights Activist Binayak Sen, N. Y. TIMES, Dec. 10, 2012.
government reports the number of individuals in preventive detention, but does not
break this down by state, or report reasons for detention or time spent in detention105.
The limited statistics that are available seem to validate documentation by human rights
groups and journalists. The national government’s information suggests that national
security laws are used excessively, without due care and sufficient justifications.
Statistics reported by the government in October 1993 showed that since TADA came
into force, central and state governments arrested and detained 52,268 individuals
under the law, but only 0.81 percent of these individuals were eventually convicted of
any offence. In Punjab, only 0.37 percent of the 14,557 individuals detained under
TADA had been convicted. Central government figures from 1994 show that of
67,059 people detained under TADA since its enactment, only 8,000 people – less than
12% of those arrested and held in custody - were put on trial. Of these 8000, 725
people – less than 1% of total TADA detainees - were eventually convicted106.
These statistics suggest that people arrested under TADA were held for long periods
and eventually released without charge, or charged and tried, but acquitted after
protracted trials. Low rates of indictment suggest arrests based on weak evidence and
poor investigation. High rates of acquittal despite the pro-prosecution tilt of special
courts, in turn, suggests trials founded on scant evidence and lackadaisical prosecution.
It seems that security laws even those that create criminal offences - serve largely to
preventively detain individuals and proscribe organizations based upon suspicion rather
than proof to the criminal standard. Kalhan et al point to structural weaknesses in
105 The National Crime Records Bureau, Ministry of Home Affairs reports the number of individuals in
preventive detention on an annual basis. These statistics are available at
106 SAHRDC, supra note 26.
India’s criminal justice system to explain this phenomenon107. They argue that poorly
trained police personnel and strained, inefficient, courts cannot meet the actual
demands of investigating and prosecuting serious crime; security laws help governments
to paper over these weaknesses.
On this view, security laws have enduring appeal not because they make it easier to
investigate and punish terrorist and separatist violence, but because they allow the State
to pull individuals and groups out of circulation without having to prove wrongdoing
beyond reasonable doubt. Security laws that create terrorist offences and special courts
add to the State’s preventive powers by allowing easier arrests and long periods on
remand. In addition, overlap and intersections between preventive detention and anti-
terror laws, as well as security law and ordinary criminal law, can be used in concert to
further enhance the state’s preventive and procedural powers. For example,
prosecutors can charge the same individual with crimes under security laws and under
the IPC, and place evidence before the court that under ordinary evidential standards
would be tainted or inadmissible. Human rights reports as well as court decisions show
that preventive detention laws are used to detain people before they are prosecuted for
a crime, and detainees are arrested as criminal suspects as soon as they are released
from detention108.
107 Anil Kalhan, et al., supra note 11.
108 AMNESTY INTERNATIONAL, supra note 85 at 61-62. Several decisions by the High Court of Jammu
& Kashmir on writ petitions challenging detention under the Jammu & Kashmir Preventive Detention
Act reveal that petitioners were in prison on remand or on bail when an order of preventive detention
was passed against them. See for example, Vijay Kumar v Jammu & Kashmir, AIR 1982 SC 1023
(1981) (India), Mohd. Iqbal Sheikh v Jammu & Kashmir, (2003) 3 JKJ 534 (India) and Zakir Hussain v
Jammu & Kashmir (2006) 2 JKJ 672 (India).
Thus, expansive security powers can, and evidently have, facilitated human rights
abuses. The limited official data on criminal justice strongly indicates that security laws
are used wantonly as a matter of course. In addition, the enhanced ability to arrest,
detain, prosecute and use force has allowed serious abuses by official actors to
proliferate. Considerable room for maneouvre, reproduced in one law after another,
accompanied by official tolerance for the police, prosecution and military abusing such
power can shift institutional culture so that disproportionate force or harsh
interrogation become routine rather than exceptional. The occupation of Oinam
village, Manipur by paramilitaries in July, 1987 is one of several infamous examples of
extreme abuse109. The Assam Rifles launched a combing operation in Oinam after one
of their posts was raided by a separatist group. They occupied Oinam for four months,
and residents accused the Rifles of violence, torture, rape and murder110. Human rights
groups documented brutal, drawn out violence. The Assam Rifles hung people upside
down, administered electric shocks and buried people alive in order to extract
information from them. Women were subjected to sexual assault and rape111. The
Rifles allegedly forced two women who went into labour to give birth in front of the
soldiers. They used force not to control an actual or perceived threat, but to humiliate
or subdue people subject to such force. While the events in Oinam in 1987 were
particularly serious, they lie on a spectrum of State abuse aided by security powers, and
remind us that security laws can make the individual insecure112.
109 MANDY TURNER & BINALAKSHMI NEPRAM, supra note 93 at 28-29
110 MANDY TURNER & BINALAKSHMI NEPRAM, supra note 93 at 28-29
111 Manipur Baptist Convention and Anr. v Union of India, (1988) 1 GLR 433 (India).
112 Asad challenges the “good versus evil rhetoric that accompanies most national security measures,
and argues that terrorist violence and the state’s use of force to prevent such violence share a kinship
that emotive, moralized language can obscure. See Talal Asad, Thinking about terrorism and just war,
23 CAMBRIDGE REVIEW OF INTERNATIONAL AFFAIRS 3(2009), 3; Donohue similarly reflects
on the potential for counter-terror measures to mirror terrorist violence. She argues further that states
blur the difference between their counter-terrorist actions and terrorist acts when such measures are
IV. Executive-led legislation, Parliamentary endorsement
By this point, there is years’ worth of credible documentation demonstrating how
sweeping security powers foster serious abuses of human rights113. However, the
content of security laws has shifted little in response. In this section I show how
India’s national legislature follows the executive’s lead on security legislation, and argue
that the legislature’s repeated acquiescence flows both from institutional structure, as
well as substantive agreement with the executive’s proposals.
A. Structural advantage
India is a parliamentary democracy. The political party that wins the maximum number
of parliamentary seats in periodic national elections forms the government. As a result,
the government of the day has substantial sway over Parliament’s legislative agenda.
While individual members of India’s legislature have frequently proposed bills, or draft
laws, government bills have conventionally garnered greater time and priority in
violent, intended to induce fear, directed at a wider audience than the immediate physical target, and
borne by people who are “non-combatants”. See Laura Donohue, Terrorism and Counter-Terrorist
Discourse, in GLOBAL ANTI-TERRORISM LAW AND POLICY (V Ramraj, et al. eds., 2005).
113 See for example, SAHRDC, supra note 26; SAHRDC, supra note 45, SAHRDC, supra note 32; ,
supra note 19; AMNESTY INTERNATIONAL, supra note 85; AMNESTY INTERNATIONAL, supra
RIGHTS, supra note 89.
113 SAHRDC, supra note 26; SAHRDC, supra note 45, SAHRDC, supra note 32; HUMAN RIGHTS
supra note 89; MANDY TURNER & BINALAKSHMI NEPRAM, supra note 93; Namrata Gaikwad,
supra note 93.
Parliament114. Clearly, the government authoring a bill makes the first move in shaping
the content of the resulting law. Bills proposed by the government typically secure a
majority in Parliament, often aided by whips issued by the ruling party corralling its
members to support the party’s position. The vast majority of bills passed by the Indian
parliament have been government bills115. Thus, India’s national government has an
embedded structural advantage in shaping and passing legislation in general.
B. Pressing home the executive’s advantage
Where security laws are concerned, this general structural advantage has been
converted by the Indian government into substantial control over the legislative
process. To do this, the executive has used with a free hand constitutional powers that
are meant to be used sparingly.
Article 123 of the Constitution empowers the Indian President to pass ordinances,
which have the same effect as laws passed by Parliament116. The President can pass an
114 During the fourteenth Lok Sabha, or lower house, of Parliament, which lasted from 17 May 2004 to
18 May 2009, 328 private members bills were introduced, but only 14 were discussed. During the
thirteenth Lok Sabha which lasted from 10 October 1999 to 6 February 2004, 343 private members
bills were introduced, but only 17 were discussed. PRS LEGISLATIVE RESEARCH, Vital Stats: Private
Members Bills in Lok Sabha, available at
members-bills-in-lok-sabha-2010-1011/ (last visited 2 October, 2013).
115 Only 14 private members bills have been passed by the Indian Parliament since 1950. No private
members bills have been passed since 1970. Table 33: Private Members Bills Passed by Parliament
since 1952 so far. GOVERNMENT OF INDIA, STATISTICAL HANDBOOK 2012, 101 (Ministry of
Parliamentary Affairs ed., June 27, 2012), available at; PRS
LEGISLATIVE RESEARCH, supra note 113. For a recent analysis of how government bills dominate the
legislature’s agenda in the United Kingdom’s Parliament, which has procedures and conventions similar
SECOND REPORT OF SESSION 201314 (VOLUME I) (House of Commons. 2013), available at
116 On ordinance making power under the Indian constitution and ways to limit it, see generally
Shubhankar Dam, Constitutional Fiats: Presidential Legislation in India’s Parliamentary Democracy,
24 COLUM. J. OF ASIAN L. 96(2010).
ordinance when he or she perceives a critical need, and Parliament is not in session.
The Constitution allows the President to legislate on any subject upon which the
Indian Parliament could legislate, but balances this by insisting upon the soonest viable
Parliamentary scrutiny. Accordingly, executive ordinances have to be placed before
Parliament the next time it is in session, where they undergo the usual process of
legislative review, debate and voting117.
Most major national security laws in India were first passed as executive ordinances.
The Preventive Detention Act was preceded by an executive ordinance in 1950, as was
the original UAPA in 1967. Ordinances also preceded MISA, AFSPA, the NSA, the
Terrorist Affected Areas (Special Courts) Act, TADA, POTA and amendments to the
UAPA in 2004, i.e. all the laws discussed in Section 1 above118. Interestingly, most of
these ordinances were issued a few weeks in many instances less than a month - after
a session of Parliament ended, or a few weeks before a session began119. This suggests
117 INDIA CONST. art. 123, § 2.
118 See Preventive Detention (Amendment) Ordinance, Ordinance No. No. 19 of 1950; Armed Forces
(Assam--!Manipur) Special Powers Ordinance, Ordinance No. 26 of 1958; The Unlawful Activities
(Prevention) Ordinance, Ordinance No. 6 of 1966; Maintenance of Internal Security Ordinance,
Ordinance No.5 of 1971; The National Security Ordinance, Ordinance No. 11 of 1980; The Armed
Forces (Punjab and Chandigarh) Special Powers Ordinance, Ordinance No. 9 of 1983; The Terrorist
Affected Areas (Special Courts) Ordinance, Ordinance No. 9 of 1984; The Terrorist and Disruptive
Activities (Prevention) Ordinance, Ordinance No. 2 of 1987; The Armed Forces (Jammu and Kashmir)
Special Powers Ordinance, Ordinance No. 3 of 1990; The Prevention of Terrorism Ordinance,
Ordinance No. 9 of 2001; The Prevention of Terrorism (Second) Ordinance, Ordinance No. 12 of 2001;
The Unlawful Activities (Prevention) Amendment Ordinance, Ordinance No. 2 of 2004
119 The Armed Forces (Assam--!Manipur) Special Powers Ordinance was passed on 22 May 1958, 12
days after the preceding session of the lower house of Parliament, the Lok Sabha, ended on 10 May
1958. The Unlawful Activities (Prevention) Ordinance, 1966 was passed on 17 June 1966, less than a
month after the preceding session of the lower house of Parliament ended on 20 May 1966. The
Maintenance of Internal Security Ordinance, 1971 was passed on 7 May 1971, 17 days before the next
session of the Lok Sabha began on 24 May 1971. The National Security Ordinance, 1980 was passed
on 22 September 1980, a few weeks after the preceding session of the Lok Sabha ended on 12 August
1980. The Terrorist Affected Areas (Special Courts) Ordinance, 1984 was passed on 14 July 1984, 9
days before the next session of the Lok Sabha began on 23 July 1984. The Terrorist and Disruptive
Activities (Prevention) Amendment Ordinance, 1985 was passed on 5 June 1985, 15 days after the
previous session of the Lok Sabha ended on 20 May 1985. The Prevention of Terrorism Ordinance,
2001 was passed on 24 October 2001, less than a month before the next session of the Lok Sabha
began on 19 November 2001. The Prevention of Terrorism (Second) Ordinance, 2001 was passed on
that the national government could have placed a bill before Parliament, rather than
introducing an executive ordinance, by acting just slightly faster or waiting slightly
longer, and further suggests that such executive measures were a strategic choice rather
than an absolute necessity.
The power to pass ordinances sits uneasily with the principle of separation of powers,
which is enshrined in the Indian constitution. Implicit in this unusual power, which
encroaches on the legislature’s domain, is the expectation that the executive will
exercise it cautiously. Security ordinances, with their departures from domestic and
international legal standards, are a very bold exercise of executive law-making power,
arguably against the spirit of Article 123. Taking AFSPA as an example, granting extra
powers to the armed forces affects an important precept of India’s constitutional design
as well as democratic governance more generally: civilian control of the military. It is
striking, therefore, that the national government chose to pass an ordinance with these
provisions at all, rather than acknowledging that these controversial questions should
be left to the popularly elected legislature to debate. The executive’s lack of
moderation seems particularly pronounced because it passed the Armed Forces (Assam-
-!Manipur) Special Powers Ordinance only 12 days after a session of Parliament had
been adjourned.
A strategically timed executive ordinance arguably gives the government of the day an
advantage when the ordinance is eventually placed before Parliament. By this point,
30 December 2001, 9 days after the previous session of the Lok Sabha ended on 21 December 2001.
The Unlawful Activities (Prevention) Amendment Ordinance, 2004 was passed on 21 September 2004,
3 weeks after the previous session of Parliament ended on 30 August 2004.
the new law is a fact on the ground rather than a possibility. The government may
already have established new institutional mechanisms, such as special courts or
executive review boards, or be working towards implementing them. Since the
ordinance has been in place for a few weeks or months, concerns that the law will allow
violations of individual rights can be dismissed as hypothetical, because there isn’t a
substantial empirical record on the effects of the ordinance at that point. Opponents
of the law thus face the prospect of dismantling something already in place, and the
accusation of being lenient about the country’s security. As a result, the price of
opposition will be higher, and the resulting debate in Parliament is likely to be muted.
It is certainly the case that, so far, the legislature has endorsed security ordinances, and
converted them into laws, with relative ease.
More recently, the national government has used security ordinances even more overtly
to force a particular result in Parliament. In 2001, the POTA was preceded by not one
but two executive ordinances120. The second of these ordinances was promulgated after
the Opposition in the lower house of Parliament had made clear it was voting against
the Act, and the ruling alliance was unsure about whether it would get the majority it
needed to pass the bill into law. The second Prevention of Terrorism Ordinance was
an imposition of the national government’s will, pre-empting the evolving
Parliamentary debate.
On occasion, the national government has used tactics even more aggressive than the
strategic use of ordinances. When Parliament was considering POTA in 2002,
120 The Prevention of Terrorism Ordinance, Ord. 9 of 2001 (India) and the Prevention of Terrorism
(Second) Ordinance, Ord. No. 9 of 2001 (India).
government complicity in mass sectarian violence in Gujarat concentrated attention on
the ways that expansive executive powers could be abused. Opposition to POTA
gained momentum in Parliament as a result. In response, the ruling National
Democratic Alliance called a joint session of Parliament, where the lower and upper
houses vote as a single body. Joint sessions are allowed by the Indian Constitution, but
are meant to be exceptional measures, and have very rarely been used121. The NDA
used its cumulative numbers in both houses to get an easy majority in the joint session
and pass POTA. In doing so, it circumvented a likely defeat in the upper house of
Parliament and scotched the usual balancing role of the upper house in legislative
debate and scrutiny.
C. Diluted debate and scrutiny
Thus, the executive has repeatedly arrogated legislative power over security laws. As
discussed above, the use of ordinances raises the stakes of opposing features of the
ordinance that are already being implemented, and consequently weakens legislative
debate. While the debate that should accompany the passage of a law has been
compromised, the legislature’s power to review these laws has also eroded over time.
Past security laws, such as the Preventive Detention Act, TADA and POTA, included
sunset clauses. Such sunset clauses were a mechanism to acknowledge the
extraordinary – and therefore temporary - nature of the powers under these laws, and to
review these powers through periodic legislative scrutiny.
121 Joint Sessions of the Indian Parliament have been called twice before 2002, once to consider the
Dowry Prohibition Bill in April 1961 and once to consider the Banking Service Commission (Repeal)
Bill in December 1977. See UJJWAL KUMAR SINGH, supra note 98 at 90 n.132.
It is telling, however, that the interval between legislative reviews increased from earlier
laws to later ones, until such reviews were abandoned altogether. The PDA provided
for annual review by Parliament. From 1951 onwards, Parliament renewed the PDA
every year until 1968, rendering preventive detention powers de facto routine and
permanent. The PDA’s current successor, the National Security Act, 1980 formalised
this de facto permanence, and dispensed entirely with a sunset clause. Laws creating
terrorist offences followed a similar trajectory. TADA provided for review every two
years, and POTA for review every five years. However, when POTA’s provisions were
incorporated into the UAPA, these amendments made no provision for legislative
It is possible to argue that repeated legislation demonstrates deep political support in
Parliament for the recurrent, and problematic, features of these laws discussed in
Section 2. However, the executive has so dominated the process of legislation, that this
seeming consensus may very likely have resulted from a lack of sufficient Parliamentary
scrutiny and engagement with these particular features, rather than reasoned,
substantive support. Exploring this question empirically is beyond the scope of this
essay, but some features of the political context are worth considering in this regard.
As discussed in Section 3, security laws in their current form seem to serve as both
crutch and cover in the face of a poorly functioning criminal justice system. It is not
surprising that security laws have appealed to the national government despite changes
in political dispensation, if they help to avert and distract from the arduous reform that
the criminal justice system needs.
When executive ordinances come to be debated in Parliament, the extent as well as the
content of debate is influenced by the fact that the harmful consequences of security
laws can easily be perceived as a minority issue. Human rights abuses by State
functionaries using security powers might affect a large number of individuals, but in the
Indian context they will only ever affect a tiny proportion of people. Many who fall
within this numerical minority will also be overtly different from the norm (or the
perceived norm), in their religious beliefs, ethnicity, language or regional affiliation.
Electoral democracy, and the legislative priorities that result, skew away from issues that
affect minorities, however seriously. Even though the Indian legislature includes
representatives from a range of political parties, their electoral incentives are not likely
to favor scrutinizing security legislation in depth, particularly where the government of
the day is arguing that executive powers within a security law are essential for the
security of the majority.
This incentive to acquiesce rather than question has shifted, on occasion, when a
particular law has acquired a strong reputation for allowing abusive or partisan
behavior and been heavily criticized in the popular press. For example, in the 1970s,
MISA was used heavily not just against human rights activists perceived as being on the
fringe, but also against members of large trade unions, student unions and mainstream
political parties. Similarly, in 2002 when the government of Gujarat used the
Prevention of Terrorism Ordinance heavily against Muslims but not against Hindus in
the fraught aftermath of communal violence, a few political parties in states or
constituencies with a high proportion of Muslim voters argued against POTA in the
national parliament. POTA was repealed when the political coalition that authored it
lost the next national elections.
The Indian Parliament is structured to give the government of the day a strong role in
proposing legislation and an advantage in passing it. Where security laws are concerned,
this structural advantage has calcified over time into executive dominance over the
entire legislative process. Parliament passes the executive’s proposed bills, or as has
happened more often, endorses the executive’s ordinances that have already been
implemented before they are considered by the legislature. The executive’s aggressive
use of its constitutional power has limited the thoroughgoing debate that security laws
warrant. As a result, the crucial checking and balancing function that Parliamentary
debate and scrutiny should play has little purchase over security legislation. A change
of government in New Delhi has sometimes meant that the outgoing government’s
flagship security law is jettisoned. But such repeal has aimed more to reject the taint of
a particular law rather than genuinely debate and discard those of its features that
created room for abuses to proliferate.
V. Judicial approval
Within a democratic constitutional order, independent courts of law play, in theory, a
rights-protective, counter-majoritarian role122. Judges do not have to face the electorate,
so should be more willing to protect the rights of minorities, even very small minorities
or very unpopular ones123. The Indian judiciary is well placed to scrutinize, check and
balance executive power. The Indian Constitution grants the Supreme Court the
power to review whether legislation is constitutional124. The Supreme Court and High
Courts can receive petitions directly from citizens seeking to enforce their
constitutional rights125, and exercise strong remedial powers in response126.
Since the early 1980s, the judiciary has wielded its robust constitutional powers rather
forcefully. In long-running public interest litigation, the Supreme Court and many
High Courts have issued detailed directions to governments, shaping policies,
monitoring compliance127, and sometimes going as far as to create de facto legislation128.
122 W Murphy, Civil Law, Common Law, and Constitutional Democracy, 52 LA. L. R. 91(1992).
123 For a discussion of instances when courts in Western common-law jurisdictions have protected
minority rights in national security cases, see Kent Roach, Judicial Review of the State’s Anti-
Terrorism Activities: The Post 9/11 Experience and Normative Justifications for Judicial Review 3
INDIAN J. CONST. L. 138 (2009) at 156 - 158. For a discussion of the judiciary’s potential and
responsibility to protect minority rights generally, see Puja Kapai, A Principled Approach Towards
Judicial Review: Lessons from W v Registrar of Marriages, 41 HONG KONG L. J. (2011) at 49.
124 INDIA CONST. art. 13 lays down that any law that is inconsistent with or derogates from fundamental
rights is unconstitutional.
125 INDIA CONST. art. 32 empowers individuals to move the Supreme Court in order to enforce their
fundamental rights, and empowers the Supreme Court to issue directions or orders or writs, including
writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, in order to enforce
fundamental rights recognized in the Constitution. INDIA CONST. art. 226 similarly empowers High
Courts to issue writs of habeas corpus, mandamus, prohibitions, quo warranto and certiorari in order to
enforce fundamental rights.
126 INDIA CONST. art. 142 provides, inter alia that the Supreme Court “may pass such decree or make
such order as is necessary for doing complete justice in any cause or matter pending before it, and any
decree so passed or orders so made shall be enforceable throughout the territory of India”. INDIA
CONST. art. 144 obligates “all authorities, civil and judicial” to “act in aid of the Supreme Court”. For
a more detailed discussion of remedial powers under the Constitution of India, see Christine M. Forster
& Vedna Jivan, Public Interest Litigation and Human Rights Implementation: The Indian and
Australian Experience, 3 ASIAN JOURNAL OF COMPARATIVE LAW 1(2008) at 4-6.
127 See Christine M. Forster & Vedna Jivan, supra note 125; See also SANGEETA AHUJA, PEOPLE,
128 See for example, Vishaka and Ors. v. Rajasthan, (1997) 6 SCC 253 (India) or the “Vishaka case”, in
However, in contrast to its activist stance in a range of cases alleging large-scale
violations of constitutional rights, India’s higher judiciary has been far more cautious
when considering national security matters. In this section, I look at how the Indian
Supreme Court has responded when the constitutionality of security laws has been
challenged. I consider in particular four Supreme Court decisions since 1980129. The
four decisions include the Court’s 1982 decision in A.K. Roy v Union of India130 (“AK
Roy”) which dealt with the constitutionality of the National Security Act, Kartar Singh v
State of Punjab131 (“Kartar Singh”) in 1994 which addressed the constitutionality of
TADA, Naga People’s Movement of Human Rights v Union of India (Naga People’s
Movement”)132 in 1998 which considered AFSPA’s constitutionality and People’s Union of
Civil Liberties v Union of India133 (PUCL”) in 2004 which decided on the
constitutionality of POTA.
which the Supreme Court defined sexual harassment in the workplace and pending legislation on the
issue, gave detailed guidelines on prevention and redress. See also Surabhi Chopra, Holding the State
Accountable for Hunger, XLIV ECONOMIC & POLITICAL WEEKLY 8 (2009) for a discussion of
long-running litigation on the right to food where the Supreme Court made a series of far-reaching
orders on provision of food for the destitute.
129 The early 1980s, after the end of the Emergency, are seen as the beginning of a new assertiveness by
the Indian Supreme Court, after the Court’s support for the executive during the Emergency. For a
discussion of the Emergency generally, see GUHA, supra note 14. On July 22, 1975, the Constitution
of India was amended to bar judicial review of the declaration of Emergency and the legality of the
election of the Prime Minister. The government suspended the enforcement of fundamental rights to
equality under Article 14, life and personal liberty under Article 21 and due process during arrest and
detention under Article 22. During the 18-month period of constitutional Emergency, the Supreme
Court upheld the Prime Minister’s stark violations of law. In a notorious decision, A.D.M. Jabalpur v
Shivakant Shukla, (1976) 2 S.C.C. 521 (India), the Court overruled High Courts that had issued writs
of habeas corpus in response to petitions challenging preventive detention. The Supreme Court ruled
that the judiciary did not have the jurisdiction to review preventive detention orders under MISA even
if these orders went beyond the legal power given to the executive or were issued in bad faith. For a
discussion of this cases, see Mrinal Satish & Aparna Chandra, Of Maternal State and Minimalist
Judiciary: The Indian Supreme Court's Approach to Terror-Related Adjudication, 21 NAT'L L. SCH.
INDIA REV. 51 51(2009). After the Emergency, the higher judiciary’s assertiveness, particularly in
reviewing the enforcement of constitutional rights, is widely understood as a bid to rebuild credibility
and public trust. On this point, see Christine M. Forster & Vedna Jivan, supra note 125 at 4.
130 A.K. Roy v India, (1982) 1 S.C.C. 271 (India) [hereinafter “AK Roy”].
131 Kartar Singh v Punjab, (1994) 3 S. C.C. 569 (India) [hereinafter “Kartar Singh”].
132 Naga People’s Movement of Human Rights v India, AIR 1998 SC 432 (1997) (India) [hereinafter
Naga People’s Movement”].
133 People’s Union of Civil Liberties v India, (2004) 9 S.C.C. 580 (India) [hereinafter “PUCL”].
Each of these four cases was elaborate. In three out of the four cases, the petitioners
argued that the national legislature did not have the authority to pass the law as a whole.
In all four, petitioners argued that several individual provisions of the law infringed
provisions in the Constitution. And on each occasion, the Supreme Court ruled very
substantially in favor of the State.
A. Challenges to Parliament’s legislative authority
Petitioners’ arguments about legislative competence rested upon the Constitution’s
division of legislative authority between the national legislature and state legislatures134.
The petitioners’ argued in each case that state legislatures have exclusive authority to
legislate on “public order135, and therefore the national legislature was not
constitutionally competent to pass the law in question. This argument was dismissed
without much ado every time. The Court maintained that security laws deal with
threats more elevated than public disorder, and the national legislature, which is
constitutionally empowered to legislate on matters concerning the “defence of India”,
has clear authority to pass these laws136.
This result was hardly surprising. The Constitution expressly allows preventive
detention by national and state governments, and by implication allows the national
134 The Indian Constitution grants the national legislature exclusive power to legislate on matters in List
I or the Union List in the Seventh Schedule to the Constitution. The Constitution grants state
legislatures exclusive power to legislate on matters in List II or the State List. Both national and state
legislatures have authority to legislate on matters in List III or the Concurrent List. See INDIA CONST.
art. 246 and List I, List II and List III of the Seventh Schedule.
135Public order” falls within the state legislature’s exclusive legislative authority. INDIA CONST. List
II, Entry 1
136 Kartar Singh, ¶ 66, 78; Naga People’s Movement, ¶ 25-31; PUCL, ¶18-21.
government to pass legislation regulating such detention. While the Constitution does
not expressly address terrorism and separatist movements, the national government
argued persuasively that these issues concern national defence and therefore the
national legislature had the authority to pass anti-terrorism laws and AFSPA. Even if
the Constitution had been unclear, the Supreme Court would not have resolved such
ambiguity by divesting the national legislature of legislative authority on terrorism and
armed insurgency. Such an interpretation would have been at stark odds with
international practice. It would have implied that India’s twenty state governments
with their varying capacities, jurisdictions and resources could draft laws on security,
but the national government could not.
B. Challenges to expansive executive powers
While the petitioners might have overreached themselves in challenging Parliament’s
authority to legislate on security in general, their challenges to particular provisions of
the NSA, TADA, POTA and AFSPA respectively were rigorous and persuasive on the
whole. All four petitions concentrated on the ways in which the laws at issue departed
from ordinary criminal law. They elucidated how these departures were incompatible
with a range of constitutional rights. The Court rejected most of these arguments.
Below, I discuss some of the main strands of argument by the petitioners, as well as the
Supreme Court’s response. I concentrate on challenges to the characteristics of security
laws and the corresponding executive powers highlighted in Section 2.
1. Ambiguous scope
In AK Roy, which challenged the NSA, the petitioners argued that the grounds for
preventive detention were too wide, having been transposed from the Constitution into
ordinary law without any attempt at precise statutory definition137. The Court
responded by ruing the “imperfections of language”138, but insisting that “a certain
amount of minimal latitude” was necessary in order to make preventive detention laws
effective139. Arguments in Kartar Singh about broadly drafted powers in the TADA to
declare an area “terrorist affected” and establish special courts within it received similar
treatment from the Court140. While the Supreme Court dismissed arguments that
government powers should be clearer and narrower, challenges to ambiguity in the mens
rea requirement of criminal offences received a more favorable response. In Kartar
Singh, the Court read a mens rea requirement into the offence of abetment, holding that
imprecision could render a legal provision arbitrary and void for vagueness”141. It
followed this precedent in PUCL and clarified that the offence of abetment required
intention and the offence of unauthorized possession of arms required knowledge of
2. Special security measures in demarcated zones
137 AK Roy, 63.
138 AK Roy, 67.
139 AK Roy, 66.
140 Kartar Singh, 137.
141 Kartar Singh, 127, 130 - 133.
142 PUCL, 25 and 27.
In Naga People’s Movement, the Court held that the power to declare an area “disturbed”
was neither arbitrary nor unguided143, even though AFSPA lays down no guiding
criteria for such a declaration. The court also rejected any suggestion that the military’s
extensive powers to search, seize property, arrest people and use force against them were
excessive144. In Kartar Singh, the Court responded in similar ways to arguments against
the executive’s power to constitute special courts in a “terrorist affected area”. It held
that the TADA implicitly required that terrorist or “disruptive” activities were of a scale
and seriousness that warranted special measures145.
The Supreme Court did inject one important limit into the executive’s power under
AFSPA to create a zone where the military has generous leeway to use force. The Court
held that the words of AFSPA implied a time-bound declaration, and therefore, a
declaration that an area is disturbed cannot take effect for six months at a time. While
this does not prevent national or state governments from renewing declarations
repeatedly, it does force a formal reconsideration every six months.
3. Preventive detention powers
Preventive detention is constitutionally authorized, so it follows that a law cannot be
invalid for allowing such detention per se. In AK Roy, the petitioners did not question
the legality of preventive detention in and of itself, but argued that the procedure
143 Naga People’s Movement, 41
144 Naga People’s Movement, 47-55.
145 Kartar Singh, 138.
established by the NSA violates the rules of natural justice because it bars legal
representation for detainees as well as cross-examination in hearings before the advisory
board the administrative review mechanism established by the NSA. The Supreme
Court reminded the petitioners that the Constitution did not extend the right to legal
representation to individuals who are preventively detained146. However, the Court did
not consider that while the Constitution does not grant the right to legal
representation to detainees, it does not expressly bar this right either. The Court went
further and upheld statutory provisions on which the Constitution is silent, such as the
NSA’s ban on cross-examination during advisory board hearings, and the government’s
unrestricted power to determine conditions of detention and punish infractions by
To justify these conclusions, the Court elaborated that the NSA could attenuate
procedural rights for advisory board hearings because detention depends upon the
decision-maker’s subjective satisfaction rather than a judge’s decision at trial148. The
Court’s position was that procedural rights under criminal law were meant to apply
specifically during criminal trials, and therefore it was entirely permissible to remove
these rights, and have far lower procedural protection, during a different type of
The implications of the Court’s reasoning are disturbing. During criminal proceedings,
the rights of the defence are meant to guard against miscarriages of justice. A law on
preventive detention that allows the State to restrict an individual’s liberty without
146 AK Roy, 92.
147 AK Roy, 114.
148 AK Roy, 105.
having to prove guilt before a court, carries a greater risk of arbitrary or unreasoned
decisions. Therefore, individuals who are preventively detained should have
correspondingly higher procedural protection and more liberal conditions of detention
than individuals undergoing criminal trials. However the Supreme Court did not
address this pressing question of principle, nor did it justify why attenuated procedural
rights were necessary in the particular context of security related preventive detention.
Instead, the Court’s position places little weight on long-standing common law
principles such as the right to a fair hearing and allows the government to dispense
with basic procedural protections simply by creating a forum technically distinct from a
criminal trial.
4. “Status offences” and the power to proscribe organizations
The Supreme Court staunchly upheld executive power to tag organizations as
“unlawful” or “terrorist”, as well as the power to prosecute terrorist offences in special
courts. It upheld the procedure for banning organizations laid down in the UAPA,
TADA and POTA. The Supreme Court dismissed petitioners’ arguments in PUCL that
expansive powers under POTA to declare associations as “terrorist” violated the
constitutional right to freedom of association149. The Court said that creating the
status offences at issue was permissible, particularly given the magnitude of terrorism
and the goals of the challenged legislation150. The Court pointed out that the
challenged powers were valid because the Constitution allows restrictions on freedom
149 PUCL, 41.
150 PUCL, 42.
of association151. However, simply because a right is not absolute and can be restricted
should not be enough, in and of itself, to validate an individual restriction, particularly
an onerous one152. The Court did not consider how far freedom of association could
be limited, and whether these particular powers restricted it too far.
5. Enhanced powers to investigate and prosecute
Procedural innovations in TADA and POTA that disadvantaged the defence were also
upheld in Kartar Singh and PUCL respectively. The Supreme Court stated that
defendants under TADA and POTA fell within adistinct class of persons, and
approved of this distinct class being subject to provisions allowing 180-day pre-charge
detention and a prima-facie assessment of innocence as a pre-condition for bail. Some
provisions did divide opinion. Sahai J dissented vehemently in Kartar Singh against the
151 Id.
152 INDIA CONST. art. 19, § 4 permits “reasonable restrictions” on the right to form associations or
unions, “in the interests of the sovereignty and integrity of India or public order or morality”. While
some rights under Chapter III of the Indian Constitution are absolute rights, such as the right against
forced labour recognized in INDIA CONST. art. 23, most rights are expressly or impliedly qualified. See
IN INDIAN AND INTERNATIONAL LAW, 205-294 (2008). The manner in which rights are
recognized and framed in the Indian Constitution is similar to the way civil and political rights are
structured under the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S.
171 (“ICCPR”), even though the catalogue of civil and political rights recognized in the Indian
Constitution overlaps with but is not identical to the rights recognized in the ICCPR. Most rights
enumerated in the ICCPR are qualified rights. An individual’s exercise of a qualified right can be
limited in light of the rights of others or the larger public interest. A few rights are absolute rights, in
that these rights cannot legitimately be subject to legal limits. Examples of absolute rights include,
inter alia, the right to be free of torture and cruel, inhuman and degrading treatment under Article 7 of
the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 (“ICCPR”),
and the right to non-discrimination under Article 2 of the ICCPR. Accordingly, there are no
circumstances under which it would be lawful to discriminate against an individual or to torture an
individual or subject him or her to cruel, inhuman and degrading treatment. When evaluating an
alleged limitation on an absolute right, courts should assess whether the law or official conduct being
challenged constitutes a limitation, and if it does, that law or official act is incompatible with the right.
When evaluating an alleged limitation on a qualified right, courts should engage in a different enquiry
and assess where the limit imposed by the law or official conduct being challenged is compatible with
the right in question. A limit on a qualified right will not inevitably be incompatible with the right, but
might be incompatible if it is based on impermissible criteria or if it goes too far.
admissibility of confessions to police officers as evidence during trial153. However, the
majority in Kartar Singh held that allowing custodial confessions as evidence was neither
“unjust” nor “oppressive”, but recommended that judges be vigilant about detecting
impropriety by the police154. Parliament’s legitimate authority to pass the laws in
question, as well as “the gravity of terrorism unleashed by…terrorists”155 swayed the
majority on this issue. Only one provision of TADA - allowing identification based on
photographs - was unanimously struck down as unconstitutional156. Since POTA
incorporated so many provisions from TADA, the precedent set by Kartar Singh on
these provisions disposed of arguments raised by petitioners in PUCL on similar
provisions in POTA.
6. Power to create special courts
Special courts were challenged in Kartar Singh for violating the constitutional right to
equality. The petitioners argued that defendants on trial in special courts navigated less
favorable courtroom procedure and faced less independent judges than in a regular trial
court. However, the Supreme Court upheld the creation of special courts on the
ground that persons tried under the TADA were “a distinct class of persons”157 who
could therefore be treated differently from other criminal defendants without
153 Kartar Singh ,454 456.
154 Kartar Singh, 253.
155 Id.
156 Kartar Singh, 361.
157 Kartar Singh, 220.
infringing the right to equality. The Court sidestepped the fact that this distinct class
of persons’ was not some prior, already differentiated category.
Defendants under TADA were not prosecuted under that law because they belonged to
a distinct class of persons; they were placed in a distinct class because they were being
prosecuted under that particular law. Given the ambiguous scope of TADA offences,
and overlap with offences under the Indian Penal Code, many TADA defendants could
potentially have been tried under ordinary criminal law in regular trial courts with
greater procedural protection for the defence. Thus, individuals tried in special courts
were placed in a “distinct class of persons” by decision-makers police and prosecution
officials - with considerable discretion to do so. Prosecution under TADA rather than
the Indian Penal Code was not a neutral fact on the ground, but rather a prosecutorial
choice, with very serious consequences for defendants. The Supreme Court glossed over
this, and simply did not consider the genuine question of whether broadly drafted
offences in concert with special courts resulted in discrimination against TADA
The Court also summarily dismissed arguments that the executive’s substantial control
over judicial appointments to special courts sat uneasily with constitutional provisions
on judicial independence and clearly departed from usual procedure. It emphasized
Parliament’s competence to enact the law as a whole, conflating Parliament’s
institutional authority to enact the law in question with the very different question of
whether the resulting method of appointing judges to special courts infringed
constitutional provisions on judicial independence158.
While upholding provisions related to special courts with no hesitation, the Supreme
Court recommended a measure that suggests some unease over the long-term use of
such courts. The Court recommended, but, importantly, did not order, that the
executive appoint a committee to review regularly whether special courts were still
7. Limits on judicial review
In Kartar Singh, the Supreme Court proclaimed its special role in preserving the rule of
law there is no institution to which the duty can be delegated except to the
judiciary”160. Early in PUCL, the Court acknowledges clear [Constitutional]
limitations on the State actions within the context of the fight against terrorism”161and
further that the judiciary has the responsibility “[t]o maintain this delicate balance by
protecting 'core' Human Rights”162. On occasion, it cites citizens’ ability to challenge
government actions in court as one of the reasons that provisions encroaching on
constitutional rights are acceptable. In PUCL, for example, the Court upholds status
offences on the ground that an organization can contest the decision to ban it in
158 Kartar Singh, 159-161.
159 Kartar Singh, 362.
160 Kartar Singh, 366.
161 PUCL, 15.
162 PUCL, 15.
163 PUCL, ¶ 37, 42 and 37. In Kartar Singh, 247, the Court makes the same point, and notes that it
However, while the Supreme Court presented review by the higher judiciary as an
important check, it also preserved statutory limits and hurdles to judicial review. The
Court had no quarrel with decision-making powers that required only the subjective
satisfaction of the decision-maker, such as the power to preventively detain someone or
the power to declare an area disturbed under AFSPA. As discussed earlier, statutory
powers of this nature restrict courts to reviewing whether the decision-maker used the
proper procedure, which under the terms of the NSA and AFSPA involves checking
only if the official in question was of the correct rank. However, the Court did not
require - or recommend obiter that these powers be amended to include decision-
making criteria that add some rigor and certainty, and reduce the potential for
The Supreme Court also uniformly rejected challenges to administrative review
mechanisms. It disagreed with arguments in AK Roy that advisory boards did not
accord preventive detainees a fair hearing. In PUCL, the Court similarly rebuffed
arguments that review committees did not give banned organizations genuine
opportunity to challenge the national government’s decision to designate them as
terrorist groups164. The petitioners’ argument that the national government had too
much power over appointing members of review committees met a similar fate165.
The Court affirmed administrative review mechanisms, with their lack of independence
and highly abbreviated procedural protections. It did not expressly acknowledge that
has granted compensation to victims of fundamental rights violations.
164 PUCL, 39.
165 PUCL, 39.
administrative review delayed access to judicial review, or that limits on disclosure to
evidence made it difficult for applicants to credibly challenge the government’s decision
to detain or ban them. Further, when the Supreme Court recommended additional
checks and balances as in Kartar Singh where it suggested that the national
government appoint a screening committee to review TADA cases and state
governments’ actions under TADA166 - these suggested measures were also purely
administrative committees appointed exclusively by and responsible only to the
national government.
C. Assessing the Supreme Court’s security jurisprudence
1. Championing executive powers
On the one hand, the Supreme Court stressed its special responsibility for upholding
rights and curbing unlawful State behavior. On the other hand, it deferred greatly to
the executive and to the legislature in all four petitions, and was reluctant to actually
wield the review powers that it had emphasized. The security laws challenged in AK
Roy, Kartar Singh, Naga People’s Movement and PUCL, all emerged largely unscathed.
The Court struck down only one provision of TADA. It remedially interpreted a
handful of provisions in TADA, POTA and AFSPA, reading a mens rea requirement
into offences that were ambiguously framed167 and reading a six-month review
166 Kartar Singh, 265.
167 Kartar Singh, 127; PUCL, ¶ 25 and 27.
requirement into the State’s power under AFSPA to designate an area as disturbed168.
Each law was upheld as a whole, and most provisions in each also survived the Court’s
review with ease.
The Supreme Court also adopted on occasion a dialogic mode of review169 rather
than striking down or remedially interpreting an executive power, it suggested non-
binding checks and balances. Some suggestions were concrete the Court proposed
that the national government set up a committee to review how TADA was being
used170. Other suggestions were so obvious as to seem superfluous. The Court
suggested that trial judges remain aware that custodial confessions might be coerced171.
When offering non-binding suggestions, the Court could have considered what good
domestic practice or international standards would point towards. Instead, these obiter
proposals cleaved very close to the contours of the law at issue, suggesting that the
government appoint ad hoc review bodies.
In Naga Peoples Movement, the Supreme Court made an ostensibly binding order that,
on closer examination, is more akin to a non-binding order. The Court directed that
the Indian army treat as bindingan internal list of “Dos and Don’ts” for using
AFSPA powers172. However, the Supreme Court did not read these guidelines into
AFSPA or any other relevant legislation. It failed to clarify if victims of violence could
apply for compensation on the ground that soldiers using AFSPA powers acted against
these internal guidelines. The Supreme Court also chose not to monitor whether
168 Naga People’s Movement, 43.
169 See generally, Mark Tushnet, Dialogic Judicial Review, 61 Ark L. R. 205 (2009).
170 Kartar Singh, 265.
171 Kartar Singh, 263-264.
172 Naga People’s Movement, 63.
national and state governments or the armed forces complied with its orders. By
contrast, in many other constitutional rights cases, the Supreme Court has used
remedies such as structural injunctions to examine whether the executive is
implementing measures to ameliorate widespread or chronic government failures.
The Court suggested self-restraint and self-monitoring by national and state
governments, in the face of considerable evidence that officials and institutions have
abused their security powers. On the Court’s analysis, abuse of power is an aberration -
officials are clearly to be trusted, and seniority is seen as a self-evident safeguard