NATIONAL SECURITY LAWS OF INDIA & FUNDAMENTAL RIGHTS UNDER THE INDIAN CONSTITUTION: PROVISION, PRINCIPLES, PROCEDURES AND CASES

Author-Rutvij Vyas, Faculty of Law, GLS University

 Introduction

National security or National defence is a comprehensive attempt of a government to ensure the security over its territory and its people through the application of economic, political, diplomatic and military power. National security includes the overall efforts of providing security to its citizens, economy, and its institutions. As per Chanakya’s arthashastra, It is the duty of government/state to ensure the safety and well beings of tis citizens. For that every government in all due course of time enacts several legislations to ensure the national security. This article explores the effort of State in enacting the laws for ensuring the security. There are 2 major types of National security i.e Internal and external security. Internal security refers to all the measures taken by the State to protect itself from threats originating within its territory. It includes protection of law and order and also removing and resolving conflicts as well as risks that threaten the nation’s sovereignty¹. External security refers to all the measures taken by the Government to protect itself from all the threats originating from outside its territory, it was originally perceived as security against military attack from enemy state, however in reference to current times it also includes the external aggression from non- state actors, such as terrorists. The concept of external security includes tackling conflicts and risks emerging outside the territory2, the external security can be further classified to symmetric and asymmetric external security. The Constitution makers were well aware of the concept of internal and external security, and the constitution provides a dedicated framework for ensuring the internal and external security of a nation, including provisions for the defence forces (u/a:- 33, 34), emergency powers (u/a:- 352 to 360), security of the state as a reasonable restriction to a fundamental right, and the role of the government in ensuring security. As per notable Jurist, Harold laswell (1950), “The distinctive meaning of the national security means freedom from foreign dictation” thus it can be asserted in purview of national security, that the ultimate aim of national security is to secure the sovereignty of State.

Keywords:- National Security, preventive detention, Fundamental rights & Judicial Scrutiny

Fundamental Rights under the Indian Constitution vis-a-vis internal and external security

Fundamental rights enshrined under articles 12 to 35 (part 3) of the Constitution are the cornerstone of the Indian Constitution³, providing citizens with fundamental protections of rights and liberties. They guarantee individual freedoms and ensure the personal liberty, dignity, equality, and justice of each person⁴. This article explores the interplay between fundamental rights and the security concerns faced by India;

We can observe a clear balance between national security and fundamental rights, as the State has the power to preserve its national interest and to maintain its national security, but the action of government must be ultra vires and shouldn’t be violative of fundamental rights (article 13). In the leading case of People’s Union for Civil Liberties (PUCL) v. Union of India (2003)5 – The Hon’ble Supreme Court i.e. the Apex Court has emphasised that national security concerns should not be used as a pretext to violate fundamental rights. It was held that ‘any restrictions on fundamental rights must be necessary, proportionate, reasonable and conform to the principles of rule of law’. The Fundamental rights outline the reasonable restrictions in the interest of public order, sovereignty, and integrity of India, friendly relations with foreign states, and security of the state, however, such terms are subject to individual facts and circumstances, which makes the interpretation of courts important.

In the case of K.S. Puttaswamy v. Union of India (2017)⁶– (also called as right to privacy verdict) The Supreme Court recognised that the right to privacy is a fundamental right under Article 21, as stated byJs DY Chandrachud, this rights are not an absolute right and can be restricted for legitimate state interests, such as national security, and such right would not be violated to take counterterrorism measures and to ensure the security and safety of the people. In the case of Romesh Thapper v. State of Madras (1950)⁷ , where a fundamental right of freedom of speech was at concern, the Supreme Court differentiated between ‘Security of State’ and ‘maintenance of public order’, and held that the liberty of the press is an essential part of freedom of speech and is foundation stone of all democratic functioning, and the state has no power to contravene it using the reasonable restrictions.

The Constitution articles 352 to 360 (Part 18) deals with emergencies. As stated in Article 352, the President can declare a state of National emergency, if there is a threat of external aggression or internal- armed rebellion. The President, in the situation when the Governor of state proposes the collapse of constitutional government, might take over the affairs of that state by assumption, under Article 356. The Constitution, under Articles 358 and 359, allows for the suspension of fundamental rights during a state of emergency. However, the rights under articles 20 and 21 can’t be suspended during an emergency; in the landmark case of ADM Jabalpur v. Shiv Kant Shukla⁸ (1976), it was held that the right to life and personal

liberty can be suspended during a national emergency. While this decision was then overturned by the court in subsequent judgements, it came to be later overruled under the 44th Amendment Act, 1978.

National Security Laws of India

National security laws play a crucial role in safeguarding the State’s security and territorial sovereignty. The Indian parliament has enacted numerous laws and legislations to ensure the security of every person living in the Country.

1. The Foreigners Act, 1946 is a legislation that regulates & governs the entry, stay, and departure of non-citizens in India. Under section 3 of the act provides the power to the central government to make order with regards to the prohibition-restriction and regulation of the entry and departure of the foreigners. The Hon’ble Supreme Court of India in a leading case of Sarbananda Sonowal v. Union of India⁹ examined the issue of illegal immigration from People’s Republic of Bangladesh into the State of Assam and the constitutional validity of the Foreigners Act was also challenged. In the Majority judgement delivered by Js G.P. Mathur upheld the constitutional validity of the Foreigners Act.
2. The Official Secrets Act, 1923 is a colonial anti-espionage law, it aims to protect sensitive information and prevent its unauthorised disclosure. This act was highly effected by the OSA,1911 and the scenario of ongoing Independence struggle during that times. The OSA, 1923 provides for non-liniant and stringent punishments for offences made under this act.

The Apex court in S. Nambi Narayanan V. Siby mathews & ors.¹⁰ (also called as ISRO

espionage case) whereby a prominent ISRO scientist S. Nambi Narayanan was alleged in 1994 of committing cries under official secrets act. In the leading case, the apex court examined the importance of balancing concerns of Personal liberty over National Security & Professional integrity, furthermore, the bench led by the then CJI Dipak Mishra, held that this law should be used sensibly and arrests of the accused shouldn’t be made only on the grounds of suspicion.

3. The Unlawful Activities (Prevention) Act (UAPA) is a crucial legislation enacted in 1967, later amended in 2019 as a substantial National security law and Anti-terror law designed & formulated to counter anti-national and unlawful activities that endanger the State’s security. This law empowers the Union government to declare any organisation or any person to be “unlawful” and to take any preventive action to combat their unlawful activities. In the landmark precedent of Arup Bhuyan v. State of Assam¹¹ whereby the Supreme Court of India took upon the issue of constitutional validity of several sections of UAPA, which includes the arbitrary authority of Union government to ban any organisation or declare it to be unlawful which also makes granting bail difficult, which may be misused to attain political vendetta. The bench duly concluded, that this Act’s provisions must be rigidly interpreted by judicial scrutiny and the provisions of UAPA do not violate the fundamental rights and henceforth the bench upheld the constitutional validity of UAPA. In recent times many notable persons were arrested under UAPA such as, Binayak Sen(Doctor and Human right activist), Arun Ferreira, mammal Khan, Kamran Yousuf (Photojournalist), Shoma Sen (Professor), Sudha Bharadwaj, Masrat Zehra, Meeran Haider, Umar Khalid, Stan Swamy (jesuit religious leader), Yasin Malik, Khurram Parvez.
4. The Army Act 1950 is a law that regulates the Indian Army and other land security forces and also forms a well disciplined structure to administer the justice where martial law is declared, maintain discipline, and ensure effective conduct of all army personnel .This code provides a series of description of all kinds of offences, as well as the establishment of a procedure for trial by Military Court with their legal authority and structured Jurisdiction. This act is further supported by the Border Security Force Act, of 1968. In the latest verdict of Lt. Col. Prasad Shrikant Purohit v. Union of India12, the Apex Court has adjudicated on what extent armed forces personnel can be prosecuted for terrorism and insurgency-related offences.
5. The Air Force Act 1950 is a crucial law which is responsible for the legal regulation of the Indian Air Force and other air security forces. This crucial legislation gave a well structured framework for the administration of justice where air force personnel are involved, this act also provides for maintenance of discipline and the conduct of Air Force personnel.
6. The Indian Navy Act 1957, is the law of administration naval justice and this act also provides for well structured framework of naval security forces which ensures the discipline of naval officers. This act also lays a legal course for the hearings of naval crimes and other misconduct of Navy servicemen. The court in Union of India v. Rajbir Singh¹³ (2015) sought to test whether the military court martial could award capital punishment under offences committed by naval servicemen. A notable case related to crime done by Naval officer is commander Kavas Mankshaw Nanavati V. State of Maharashtra in 1960, whereby a naval officer was alleged of murder of lover of his wife.
7. National Security Act, 1980– This is an important preventive detention legislation enacted in the year 1980, to ensure national security and Law and public order. As per a well accepted definition, Preventive Detention refers to an action of the state; confining an individual to prevent them from engaging in future criminal activities and/or evading future legal proceedings14. The National Security Act (NSA) empowers the Union and/or state governments to arrest or detain a person for acts that may endanger national security in addition to maintaining law and public order or ensuring the continuity of essential goods nd services of the area under the essential commodities act of 1955. In terms of imprisonment, the maximum period of imprisonment under the NSA is 12 months i.e. 1 year. This act also provides for the creation of a three-tier National Security Council (NSC) chaired by the prime minister, which includes a National Security Advisor, Chief of defence staff, Deputy National Security Advisors, Ministers of Home Affairs, Ministers of Defence, Minister of Finance, Vice Chairman of the NITI Aayog, Ministers of External Affairs. The NSA has been criticised by many scholars due to its lack of transparency, misuse of power, violation of human rights and limited effectiveness15. This act should be further read with, the National Investigation Agency Act, which was enacted in 2008, after the 26/11 terror attacks in Mumbai.

In the apex court’s precedent of Vijay Narain Singh V. State of Bihar¹⁶, Hon’ble Mr Js A.P Sen in their dissenting opinion said, “The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except under the procedure established by law.”

8. Preventive Detention Act is an important law enacted in 1950, This is also a preventive legislation that was enacted in order to detain any person who may threaten or endangers the security of State or its citizen. In the leading case of AK Gopalan v. State of Madras¹⁷, whereby a Communist-Socialist leeader was detained, the Supreme Court in 5 judges bench agreed and upheld to the constitutionality of the Preventive Detention Act and the judgement delivered by Js. HJ Kania widened the scope of Article 22 of the Constitution in providing a well-structured and procedural safeguard for preventive detention to maintain law and order, harmony and internal security. Again when a socialist leader of UP was detained and the detention was questioned was raised before the Apex Constitutional court, Ram Manohar Lohia v. State of Bihar, the larger bench made a lucid-clear distinction between the words “security of the state”, “law and order” & “public order”. It was held that the legislative intent behind PDA was completely for maintaining law and order, and any other ground would make the detention order void.
9. Armed Forces (Special Power) Act, 1958:– This is a crucial military legislation which traces its roots to the colonial law of Armed Forces (Special Power) Act of 1941. This law continues to be used by the Government in insurgency-ridden areas such as Kashmir,Northeast, etc. The Armed Forces (Special Powers) Act, of 1958 is an effective legislation to combat terrorism and organisations that support terrorism¹⁸. This law provides special powers to members of the armed forces in disturbed areas in the State of [Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura]. Under Section 3 of this act, which provides the power to declare any area, as a disturbed area to the governor, administrator, or the central government. In the aftermath of Inderjit Barua v.State of Assam¹⁹ , such agovernor order can’t be challenged on the grounds of the absence of legislative guidelines, and such absence of guidelines would not make this order arbitrary. In Naga People’s Movement of Human Rights v. Union of India20, the Supreme Court decided the time limit/ periodic review of this act as 6 months. This act provides all discretionary powers to the armed force, to maintain law and order, if the officer may feel necessary may also fire upon any person. The union government has established 3 major committees to review this act, i.e. Justice Reddy, Justice Hegde and Justice Verma Committee.

Conclusion

“Having survived numerous security challenges since independence, India is on course to emerge as a major power, however, the path would be difficult²¹ ”. To handle this difficulty, the parliament of India has made and enacted several legislations such as the Armed Forces (Special Powers) Act of 1958, The Police Act of 1861, The Data Protection Law, the National Security Act etc. When it comes to Police services, we rely on 19th-century legislation, and 20th-century weapons to solve 21st-century problems. To ensure national security, every district’s safety is vital, and the police play a crucial role. Police reforms have been on the agenda of central & state Governments for almost 75 years, the police are seen as selectively efficient, and unsympathetic to the underprivileged & marginalised communities. It is further accused of criminalisation & politicisation22. As per a report, “ the security legislations have damaged constitutional constraints by making human rights abuses easier by the State, and to reinforce constitutional checks and balances, reforms are needed²³”. Notwithstanding anything said in this report, the ordinary masses have no direct problem with the absence of checks and balances, what ordinary citizens are satisfied with, is our unified nation. Irrespective of the question of whether our national security laws are arbitrarily used by the state, they have successfully ensured our national security from various threats, such as the Khalistani movement, Kashmir terrorism, and other separatist forces.

REFERENCES

1. Books / Commentaries / Journals Referred

• Gupta A, How India Manages Its National Security (Penguin Random House India Private Limited 2018)
• Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. Social Science Research Network.
• Jaiswal A, ‘The Draconian AFSPA, 1958’ (International Journal of Law Management & Humanities) <https://ijlmh.com/paper/the-draconian-afspa-1958/> accessed 4 March 2024
• Kartikay Agarwal and Arjun Sharma, ‘National Security Act, 1980 – Iniquitous Act and Constitutional Tyranny or a Justified Piece of Legislation’ (jurist.org2020) <https:// www.jurist.org/commentary/2020/05/agarwal-sharma-national-security-act-1980/>
• Aditi Dhamdhere, ‘OVERVIEW of NATIONAL SECURITY ACT, 1980 by Aditi Dhamdhere – JOURNAL for LAW STUDENTS and RESEARCHERS’ (Journal for law students and researchers2020) <https://jlsrjournal.in/overview-of-national-security- act-1980-by-aditi-dhamdhere/> accessed 4 March 2024

22 Ministry of Home Affairs, ‘Status Note on Police Reforms in India’ <https://www.mha.gov.in/sites/default/ files/PoliceReforms%28E%29181013.pdf>

23 Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. Social Science Research Network.

• Austin, Granville (1999). The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press. p. 390. ISBN 0-19-564959-1
• Tayal, B. B.;Jacob, A. (2005). Indian History, World Developments and Civics. Avichal Publishing Company.

2.      Online Articles / Sources Referred

• NN Vora, ‘National Governance and Internal Security | Manohar Parrikar Institute for Defence Studies and Analyses’ (idsa.inMay 2008) <https://www.idsa.in/jds 2_1_2008_NationalGovernanceandInternalSecurity_NNVohra> accessed 2 March 2024
• Bhamati Sivapalan And Vidyun Sabhaney, ‘In Illustrations: A Brief History of India’s National Security Laws’ (The Wire 27 June 2019) <https://thewire.in/law/in-illustrations-a- brief-history-of-indias-national-security-laws>

3.      Cases Referred

• People’s Union for Civil Liberties (PUCL) v. Union of India (2003)
• KS Puttasamy V. Union Of India (2017)
• Inderjit Barua v.State of Assam (1983)
• Naga People’s Movement of Human Rights v. Union of India (1998)
• Vijay Narain Singh V. State of Bihar
• AK Gopalan V. State of Madras (1950)
• Col. Prasad Shrikant Purohit v. Union of India
• Union of India V. Rajbir Singh
• Arup Bhuyan V. Sate of Assam
• Sarbanada Sonowal V. State of Assam
• Nambi Narayanan V. State of Kerala
• Romesh Tahppar V. State of Madras (1950)
• ADM Jabalpur v. Shiv Kant Shukla (1976)