National Security and Human Rights: An Assessment

In one line

India's answer is to permit almost every security power and to place a floor beneath it, and the floor has held better than the safeguards above it.

In the wording a student can write in an exam: the Indian constitutional answer to the conflict between national security and human rights is not to choose between them but to permit the security power and to condition it. Preventive detention is expressly authorised by article 22 and simultaneously regulated by clauses (4) to (7); exceptional legislation is permitted and controlled by judicial construction rather than invalidation; an emergency may be proclaimed but only on a narrowed ground, for six months at a time and by a special majority; the enforcement of most rights may be suspended but never that of articles 20 and 21; and judicial review by the High Courts and the Supreme Court is part of the inviolable basic structure. The assessment of that answer must be made against what the evidence in this book shows about how each of those conditions has worked.

The four questions this paper asks

Return to [The Three Ideas in the Title, and How They Pull Against Each Other]. The paper puts four questions and every module answers one.

May the State act against a person on suspicion rather than on proof? Module I: yes, under article 22, subject to grounds, a Board and a maximum period.

May it alter the ordinary criminal process for a class of case? Module II's first half: yes, subject to competence, article 14 and a procedure that is fair, just and reasonable.

May it suspend the ordinary constitutional order? Module II's second half and Module III: yes, on a proclamation, and it may close the courts on every right except articles 20 and 21.

And what protects the person while it does all this? Module IV: the rights, the institutions, and a court that must remain open.

What the evidence shows: five findings

An assessment is only as good as the facts it rests on, and this book has assembled five that can be stated without qualification.

One. The safeguards that were judicially supplied have been more effective than those the statutes contained. The six confession guidelines in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, became section 32 of POTA; the do's and don'ts in Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, became binding under the Army Act; the eleven requirements in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, became sections 38 and 56 of the Sanhita of 2023; and the guidelines in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, became an Act.