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National Security Public Order and Rule of Law
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LLM · Group 1 Constitutional and Administrative Law
2024-25 Examination
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LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2024-25 Question Paper with Solutions
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First published on munotes.in on 2 November 2026.
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The question paper reproduced here is the paper as set by the University of Mumbai at the 2024-25 examination.
Contents
The questions below are the paper as the University of Mumbai set it at the 2024-25 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2024-25 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
1.Compare and contrast the legal frameworks governing emergency detention in England and preventive detention in India. Highlight the similarities and differences in their approaches to balancing national security and individual liberties.[25]
Answer
For full marks, cover: what both systems mean by detention without trial; the English framework (no written constitution, detention only by statute, the wartime cases and Lord Atkin's dissent, the 2001 scheme and the House of Lords decision of 2004, the European Convention and its derogation clause); the Indian framework (article 22, the legislative entries, the National Security Act 1980 and its time limits, judicial review of the satisfaction); the similarities; the differences, in a table; and a reasoned view on which system balances security and liberty better.
What is being compared. Both systems allow the State to hold a person without charge or trial, on the satisfaction of the executive, in order to prevent harm rather than to punish a past act. Both justify it by the security of the State. Both have learned the same lesson painfully: a power based on an official's belief is easy to use and hard to test. They differ in where the power comes from, when it may be used, and how far a court can look behind it.
England: a power that only Parliament can give
No written constitution, so no constitutional guarantee. In England personal liberty is protected by the common law and by the writ of habeas corpus. The writ requires the gaoler to produce the prisoner and to show legal authority for the detention. It tests legality, not wisdom. Because Parliament is sovereign, detention without trial is lawful whenever a statute authorises it. The protection is therefore only as strong as the words Parliament chooses.
The First World War. Regulations made under the Defence of the Realm Consolidation Act 1914 authorised internment. In R v Halliday, ex parte Zadig, [1917] AC 260, the House of Lords upheld it, reasoning that in a national crisis personal liberty may "to some extent" be sacrificed by legal enactment for national success in the war.
The Second World War and Lord Atkin. Regulation 18B of the Defence (General) Regulations 1939 allowed the Home Secretary to detain a person if he had "reasonable cause to believe" him to be of hostile origin or associations. In Liversidge v Anderson, [1942] AC 206, the majority read those words as meaning if the Minister thinks he has reasonable cause, so the belief was his and could not be examined. Lord Atkin dissented. He said that amid the clash of arms the laws are not silent, that they speak the same language in war as in peace, and that judges should not be "more executive minded than the executive". His construction later became the accepted one, and the majority view is not now followed on that point.
After 2001: detention of foreign terror suspects. Part 4 of the Anti-terrorism, Crime and Security Act 2001 let the Home Secretary certify a non national as a suspected international terrorist whose presence was a risk to national security. Section 23 then allowed him to be detained even though he could not be deported, because he would face torture at home. That turned a power to hold a person pending removal into a power to hold him indefinitely. To do this the United Kingdom derogated from article 5 of the European Convention on Human Rights under article 15, which permits derogation in a public emergency threatening the life of the nation, but only "to the extent strictly required".
The House of Lords, 16 December 2004. In A v Secretary of State for the Home Department, [2004] UKHL 56, the House accepted that there was a public emergency, Lord Hoffmann dissenting on that point. But the majority held the scheme disproportionate and discriminatory. It applied only to foreigners although British suspects posed a similar threat; it let suspects leave the country and carry on abroad; and it was drafted too widely. Lord Bingham rejected the argument that national security was for politicians alone: judicial review, he said, is a cornerstone of the rule of law and is not undemocratic. The House made a declaration under section 4 of the Human Rights Act 1998 that section 23 of the 2001 Act was incompatible with the Convention.
What the declaration achieved. A declaration does not bind the parties or release anyone. The detainees stayed in custody. But the Government repealed Part 4, released them in March 2005 on control orders under the Prevention of Terrorism Act 2005, which applied to nationals and foreigners alike, and withdrew the derogation. In A and Others v United Kingdom (2009) the Grand Chamber of the European Court of Human Rights agreed and found violations of article 5 of the Convention.
India: a power written into the Constitution
The constitutional source. India is the rare democracy that names preventive detention in its bill of rights. Article 22(3) excludes a preventive detainee from the ordinary arrest safeguards of clauses (1) and (2), such as production before a magistrate within twenty four hours. Clauses (4) to (7) then give him a separate code of protection:
- Article 22(4): no detention beyond three months unless an Advisory Board of persons who are, have been or are qualified to be High Court judges reports within that time that there is sufficient cause, or unless the detention is under a law of Parliament made under clause (7).
- Article 22(5): the grounds must be communicated as soon as may be, and the detenu must have the earliest opportunity to make a representation.
- Article 22(6): facts the authority considers against the public interest need not be disclosed.
- Article 22(7): Parliament may prescribe the maximum period and the circumstances of longer detention.
The legislative power. Entry 9 of List I lets Parliament legislate on preventive detention for reasons connected with defence, foreign affairs or the security of India. Entry 3 of List III gives the Union and the States a concurrent power for the security of a State, public order and essential supplies and services. So India has a peacetime detention power, used every day by Union and State laws.
The National Security Act 1980. Section 3 allows the Union or a State Government to detain a person to prevent him from acting prejudicially to the defence of India, its foreign relations or its security, the security of the State, public order, or essential supplies and services. Section 8 requires the grounds to be communicated ordinarily within five days, and in exceptional circumstances, for reasons recorded, within fifteen days. Section 10 requires the case to be placed before an Advisory Board within three weeks. Section 11 requires the Board to report within seven weeks. Section 13 fixes the maximum at twelve months.
The unfinished amendment. The Forty fourth Amendment 1978 rewrote article 22 to cut the period without a Board's opinion to two months and to make the Board judicial. Section 3 of that Amendment was never brought into force. In A.K. Roy v. Union of India, AIR 1982 SC 710, the Court upheld the National Security Act and refused to issue a mandamus to bring it into force, holding that Parliament had left the timing to the Central Government. The three month rule of 1950 therefore still applies.
How far the courts look. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, the Court treated article 22 as a complete code and read "procedure established by law" as any law validly enacted. Maneka Gandhi v. Union of India, AIR 1978 SC 597, changed that: the procedure must be fair, just and reasonable. The satisfaction remains subjective, as Khudiram Das v. State of West Bengal, AIR 1975 SC 550, held, so a court will not weigh whether the grounds were sufficient. But it will quash an order founded on vague, irrelevant or stale grounds, or made without application of mind. In Banka Sneha Sheela v. State of Telangana, AIR 2021 SC 3656, the Court quashed a detention because cheating that the ordinary law could handle was a matter of law and order, not public order. Ameena Begum v. State of Telangana, 2023 INSC 788, listed the matters a constitutional court may examine and quashed an order that ran beyond the power conferred.
India in an emergency. In 1976 the Supreme Court held in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, that while a Presidential order suspended article 21 no detenu could move for habeas corpus. Khanna J. dissented. The Forty fourth Amendment then made articles 20 and 21 non suspendable, and in K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161, a nine judge Bench overruled ADM Jabalpur.
The similarities
One: the satisfaction is the executive's. Regulation 18B, the 2001 Act and section 3 of the National Security Act all rest on what an official believes. In both systems that makes the power hard to test.
Two: courts first deferred, then recovered. Liversidge v Anderson and ADM Jabalpur are the two great failures of nerve. Each produced a dissent, Lord Atkin's and Khanna J.'s, that later became the law.
Three: secret material. England sent the 2001 cases to the Special Immigration Appeals Commission, which could hear closed evidence. India allows facts against the public interest to be withheld under article 22(6).
Four: an independent review body. The Special Immigration Appeals Commission in England and the Advisory Board in India both stand between the executive and the detainee, though neither is an ordinary court.
The differences
| Point | England | India |
|---|---|---|
| Source | statute only; Parliament sovereign | the Constitution itself, article 22 |
| Occasion | war, or a declared emergency with derogation from article 5 | ordinary peacetime, Union and State laws |
| Maximum period | none in the 2001 Act; indefinite | twelve months under the National Security Act |
| Test applied | proportionality and non discrimination under the Convention | procedural safeguards of article 22 and fairness under article 21 |
| Court's remedy | a declaration of incompatibility, not binding | release by habeas corpus under articles 32 and 226, binding |
| Who may be held | the 2001 scheme reached only foreigners, and fell for that reason | citizens and foreigners alike |
The deepest difference is the occasion. England treats detention without trial as an exception that needs an emergency and a formal derogation. India treats it as a normal tool of government. That is why the Indian safeguards are procedural: they assume the power will be used and try to discipline its use.
The remedy cuts the other way. An English court in 2004 could only declare; Parliament had to act. An Indian court can release at once. India has the stronger remedy, and in 1976 it was not used; England had the weaker remedy, and its court used what it had.
How each balances security and liberty
England balances by proportionality: is the measure strictly required, rationally connected to the threat, and applied without discrimination? Its strength is that it asks whether detention was necessary at all. Its weakness is that the final word is Parliament's.
India balances by procedure: grounds, representation, an Advisory Board, a time limit and judicial review of the satisfaction on limited heads. Its strength is that a court can free the detenu. Its weakness is that it accepts detention in peacetime, and that the 1978 reform of article 22 is still not in force.
Conclusion. Both systems allow detention without trial on executive satisfaction, and both have seen their highest courts first defer and later recover, with Lord Atkin and Khanna J. as the reference points. England keeps the power for war or a declared emergency, tests it by proportionality and non discrimination, and showed in 2004 that a court can force repeal even without the power to release. India writes the power into article 22 and uses it in peacetime under the National Security Act, protecting the detenu by grounds, representation, an Advisory Board, a twelve month cap and a binding writ. The better balance would take the strengths of each: India's binding remedy with England's question whether detention was needed at all, and the Forty fourth Amendment's reform of article 22 brought into force.
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