National Security: What the Phrase Means in Law
Chapter Two
Syllabus topic 1, "National Security, Public Orders and Rule of Law"
Pages 6 to 11 of 657
In one line
National security is the State's interest in continuing to exist as a State, and in law it works as a reason rather than as a rule.
In the wording a student can write in an exam: national security is not a defined legal term in Indian law. It is a purpose recognised by the Constitution and by statute, describing the protection of the sovereignty, unity and integrity of India, the defence of the country against external aggression and internal armed rebellion, and the functioning of the State's essential institutions. Its legal significance is that once an action is shown to be genuinely referable to it, the ordinary requirements of law are relaxed to a degree that no other purpose commands.
Why an undefined term matters more, not less
A student's instinct on being told a phrase has no definition is to move on. Do the opposite. An undefined purpose is legally more powerful than a defined one, for three reasons.
It cannot be exhausted. A defined term contains a list, and anything outside the list is outside the power. National security contains no list, so a Government can bring a new threat within it by argument rather than by amendment.
It travels. Because there is no definition tying it to one statute, courts and governments use the phrase across contexts that have nothing else in common: a restriction on a newspaper, a detention order, an interception of a telephone call, a refusal to disclose a document, the blocking of a website, the cancellation of a licence.
It attracts deference. The commonest judicial statement about national security is that the executive is better placed than a court to assess it. That statement is doing the real work in a great many cases, and an LL.M. answer should say so.
Where the Constitution actually uses it
The Constitution does not use the words "national security" as a term of art. What it uses are four related expressions, and locating them is the beginning of the answer.
"The sovereignty and integrity of India", in article 19(2). Inserted by the Constitution (Sixteenth Amendment) Act 1963, it is the widest of the four, and it is the ground on which a law restricting speech may be defended when it is aimed at separatism rather than at disorder.
"The security of the State", also in article 19(2). This is the narrowest and gravest, and it has a judicial content of its own, worked in [Security of the State].
"The security of India", in Entry 9 of List I of the Seventh Schedule, which gives Parliament exclusive power over "Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention."
National Security: What the Phrase Means in Law
"War or external aggression or armed rebellion", in article 352(1), which is the trigger for a proclamation of emergency. This is the constitutional high-water mark: it is the only place where a threat to the nation lets the Constitution's ordinary operation be altered.
Two further entries in List I matter for the same reason. Entry 1 is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation." Entry 2 is "Naval, military and air forces; any other armed forces of the Union." Entry 2A, inserted in 1976, covers "Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power", together with the powers, jurisdiction, privileges and liabilities of the members of such forces while so deployed. Entry 2A is the constitutional foundation of the Armed Forces (Special Powers) Act 1958.
Where the statutes use it
Two uses are worth naming now because they recur through the book.
The National Security Act 1980 is named for it and does not define it. Its section 3 speaks of acting in a manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India, the security of the State, the maintenance of public order, and the maintenance of supplies and services essential to the community. National security is the title, not the test.
The Right to Information Act 2005 exempts from disclosure, by section 8(1)(a), information the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relations with foreign States or lead to incitement of an offence. That is the widest statutory statement of the interest in Indian law, and it shows the phrase's reach: economic interests sit in the same clause as the security of the State.
The judicial approach: a purpose that must be genuine, and then is deferred to
Two propositions have to be held together, and an answer that gives only one of them is half an answer.
First, the label does not settle the question. A Government cannot make an action lawful by saying the words. In Romesh Thappar v. State of Madras, AIR 1950 SC 124, the State of Madras banned the entry and circulation of the weekly Cross Roads under a public order statute, and defended it as necessary for public safety.
Facts. Romesh Thappar published Cross Roads, an English weekly printed in Bombay. Madras banned its circulation in the State under section 9(1-A) of the Madras Maintenance of Public Order Act 1949. He moved the Supreme Court directly under article 32, and the State objected that he should have gone to the High Court first.
National Security: What the Phrase Means in Law
Held. The preliminary objection failed: the Supreme Court is constituted the protector and guarantor of fundamental rights and cannot decline an application merely because a High Court has concurrent jurisdiction. On the merits, by a majority with Fazl Ali J. dissenting, the section was void. Freedom of speech includes freedom of propagation of ideas, which is ensured by freedom of circulation. Article 19(2) as it then stood saved only a law relating to a matter which undermines the security of, or tends to overthrow, the State, and a law aimed generally at public safety or public disorder went far beyond that.
Why it matters here. It is the earliest and clearest statement that the gravest ground is not available for the least grave facts. The State said security; the Court asked whether the statute was in truth directed at the security of the State, and held it was not. Note the sequel, which an answer should give: the Constitution (First Amendment) Act 1951 added public order to article 19(2) precisely because this decision and its companion had left the State without that ground.
Second, once the ground is genuinely engaged, courts defer. The clearest modern statement of the limits of that deference is Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, which is worked in [National Security and the Freedom of Speech]. Its importance to this chapter is the framework it insists on: even where security is genuinely at stake, an order must be published, must be reasoned, must be the least restrictive measure available, and must be reviewed periodically. Deference is to the assessment of the threat, not to the manner of responding to it.
A worked example
The Ministry of Home Affairs directs that a mobile application be blocked because it is transmitting user data to servers outside India and this is said to prejudice national security.
Step one: which power is being used? Blocking rests on statute, not on the phrase. The answer must name the provision, because if there is no power there is no order, whatever the reason given.
Step two: is the recited purpose one the provision allows? A provision permitting blocking in the interests of the sovereignty and integrity of India or the security of the State is engaged; a provision permitting it only in the interests of public order would not be.
Step three: is the purpose genuine on the material? This is the Romesh Thappar question. If the material discloses only commercial rivalry, the recital does not save the order.
National Security: What the Phrase Means in Law
Step four: is the response proportionate and reviewable? This is the Anuradha Bhasin question: reasons, publication, the least restrictive alternative, and periodic review.
That four step sequence is a usable answer plan for any question in this paper that begins "the Government says it acted for reasons of national security".
Distinctions
| National security | Security of the State | Public order | Law and order | |
|---|---|---|---|---|
| Defined in law? | no | no, but judicially explained | no, but judicially explained | no |
| What is threatened | the existence and integrity of the nation | the State as an organised political entity | the even tempo of community life | an individual or a few individuals |
| Typical trigger | war, armed rebellion, espionage, terrorism | waging war, subversion, armed rebellion | riot, communal tension, terror in a locality | assault, theft, private quarrel |
| Constitutional home | articles 19(2), 352; List I Entries 1, 2, 2A, 9 | article 19(2); List III Entry 3 | article 19(2); List II Entry 1, List III Entry 3 | List II Entries 1 and 2 |
What it does NOT mean
It is not a source of power. No authority may act because national security requires it. It must find a provision that confers the power, and the interest then supplies the justification for exercising it. The point is Dicey's first meaning in modern dress.
It is not the same as the security of the State. The second is a term with judicial content and a defined constitutional home; the first is a broader political idea. An answer that treats them as interchangeable will lose the marks that turn on the article 19(2) cases.
It is not automatically a trump card. The proposition that courts will not sit in judgment on an assessment of a security threat is not a proposition that courts will not look at whether the assessment was made at all, on what material, and by whom. That distinction is the whole of [Subjective Satisfaction, and How Far a Court May Examine It].
It does not require a proclamation. Almost everything in Modules I and II operates in ordinary times. Only articles 352 to 360 need a proclamation.
Limits and criticism
Definitional vagueness is the standing criticism, and it is a fair one. A ground that can be asserted and not defined invites use in cases far from its core: the detention of a person for a local dispute, the blocking of speech that is merely embarrassing, the refusal of information that is merely inconvenient.
The answer offered by the courts is procedural rather than definitional. Instead of defining the phrase, they have insisted on the quality of the material, the genuineness of the satisfaction, the giving of reasons and the availability of review. Whether that is enough is one of the arguments a student can develop in [Exceptional Legislation and the Rule of Law: An Assessment].
National Security: What the Phrase Means in Law
Comparative note. International human rights law faces the same difficulty and answers it the same way. Article 4 of the International Covenant on Civil and Political Rights permits derogation only in a public emergency which threatens the life of the nation and which is officially proclaimed, and only to the extent strictly required by the exigencies of the situation. It, too, defines the procedure rather than the threat.
Quick revision
- National security is undefined in Indian law. It is a purpose, not a rule, and not a source of power.
- The Constitution's related expressions: sovereignty and integrity of India and security of the State in article 19(2); security of India in List I Entry 9; war, external aggression or armed rebellion in article 352(1).
- List I Entries 1, 2 and 2A: defence, the armed forces, and their deployment in a State in aid of the civil power. Entry 2A underlies AFSPA.
- The National Security Act 1980 does not define the phrase; its section 3 lists six grounds instead.
- Romesh Thappar v. State of Madras, AIR 1950 SC 124: the label does not settle the question, and the First Amendment followed.
- Anuradha Bhasin v. Union of India, AIR 2020 SC 1308: even a genuine security ground requires reasons, publication, proportionality and review.
- The four step plan: which power, which purpose, genuine on the material, proportionate and reviewable.
Test yourself
1. Is national security defined in the National Security Act 1980? No. The Act is named for it and never defines it; section 3 supplies six grounds instead, of which the security of India and the security of the State are two.
2. Which constitutional entry underlies the Armed Forces (Special Powers) Act 1958? Entry 2A of List I, covering the deployment of any armed force of the Union in any State in aid of the civil power, and the powers, jurisdiction, privileges and liabilities of its members while so deployed.
3. What did Romesh Thappar decide about the relationship between public disorder and the security of the State? That they are different, and that as article 19(2) then stood only a law aimed at undermining or overthrowing the security of the State was saved. A law directed generally at public safety or public disorder was outside the reservation and void.
4. Give the four step plan for testing an action taken in the name of national security. Identify the power; check that the recited purpose is one the power allows; ask whether the purpose is genuine on the material; and test the response for proportionality and reviewability.
National Security: What the Phrase Means in Law
5. Why is an undefined ground legally stronger than a defined one? Because it cannot be exhausted by a list, it travels across unrelated contexts, and it attracts judicial deference to the executive's assessment.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.