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CNLU LJ (8) [2018-19] 22

Unravelling the Impediments to National Security : The Need to Reconcile

Security and Human Rights

UNRAVELLING THE IMPEDIMENTS TO NATIONAL SECURITY : THE NEED TO RECONCILE

SECURITY AND HUMAN RIGHTS
by
Priyanka Anand*
ABSTRACT
Indian parliament has passed a variety of a typical measures intended at
countering terrorism. In this article, I would analyse these major security legislation
of India and what has ensued from it, i.e. the departure of this action to new
contexts in the states and territories. This has occurred to the point that this
course, once considered extreme, has now become a conventional feature of the
criminal justice system, and has in turn given rise to even more stringent legal
measures. This article explores the dynamic by which once exceptional measures
has now become normalised and then extended to new extremes and the
ramifications that come with it. I examine the ways in which these security laws
depart from the general criminal law standards and contend that the usual
constitutional limits on the executive have failed to bridle the executive's power and
actions. Even the Indian legislature and judiciary have approved executive powers
in principle, and failed to check them in practice which in turn has abraded
constitutional constraints.
I. INTRODUCTION
“Law is made not to be broken but to be obeyed and the respect for law is not
retained by demonstration of

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strength but by better appreciation of the reasons, better understanding of its reality
and implicit obedience. It goes without saying that the achievements of law in the
past are considerable, its protection in the present is imperative and its potential for
the future is immense. It is very unfortunate that on account of lack of respect, lack of
understanding, lack of effectiveness, lack of vision and lack of proper application in the
present day affairs, law sometimes falls in crisis.”1

—S. Ratnavel Pandian, J.

In Kartar Singh v. State of Punjab Terrorism has become a universal issue
confronted by both developed and developing economies. The roots of terrorism can be
traced back to the 1st Century depending on how one defines terrorism. It is as old as
man's willingness to use violence to affect politics. From the Sicarii2 in the 1st Century
to the modern day Al-Qaida3 , Al-Shabaab4 or Boko Haram5 , the effects of terror
activities have been frightful and widespread.
Several stratagems worldwide have been taken to counter-terrorism such as coming
up with Anti-Terrorism laws, schemes, defence strategies, technology, and law
enforcement, intelligence all with the aim to combat or prevent terrorism.
Nonetheless, these schemes and policies have had certain blemishes as far as respect
to human rights is concerned. It is worth noting that the war against terror or rather
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war on terrorism waged without the rule of law undermines the very values that it
seeks to uphold.
India's age old struggle to fight politicized violence has created what we may say as
a “chronic crisis of national security” that has become part of the very “essence of
India's being.”6 Many have lost their lives and been

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wounded in this violence, whether terrorist, insurgent, or communal, and in the

subsequent responses of security forces. Terrorism, in particular, has affected India
more than most countries. As required by the times, India has also retorted back by
enacting special antiterrorism laws, part of a broader array of emergency and security
laws that periodically have been enacted in India over the last few decades, since
Independence.

“National Security Laws” avowedly concerned not with ordinary crime, but with acts
that ostensibly pose more enduring threats to common life. These laws seek to check
and reprimand terrorism, organized crime, separatism, and public disorder. In addition
to national security laws, many Indian States have State laws simultaneously
regulating these harms. These “security laws” operate alongside India's ordinary
substantive and procedural criminal codes on the pretext that ordinary criminal law
cannot address certain threats, and therefore these particularly grave dangers require
a customized response. This bespoken response is also an exaggerated response,
giving the law and order machinery more power than ordinary criminal law allows7 .
All these counter-terrorism policies have mostly violated human rights. This is due
to the reason that these methods have precipitated waning of civil liberties and
individual privacy, extend sequestered detention without judicial intervention, torture,
and extradition of persons and generally subvert and sabotage the rights and
freedoms of citizens and other persons. The Universal Declaration of Human Rights
was actuated after the Second World War as a reply to the contraventions of human
rights by some States on their own Citizens or perceived enemy Countries during that
war. “All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.”8 This study emphasizes that human rights belong to all by the virtue of
being human beings.
Human rights are often depicted as a prospective impediment to effective immunity
from terrorists’ acts rather than a necessity for genuine security.9 Every State has an
obligation and a right to guard its citizens from terrorism and other criminal acts;
nevertheless such course of action must be implemented within a structure of human
rights protection that do not weaken legitimate dissent. “Some rights may not be
derogated from under

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any circumstances. These include the right to life, freedom of thought, conscience and
religion, freedom from torture or cruel, inhumane or degrading treatment, and the
principles of precision and non-retroactivity of criminal law except where a later
imposes a lighter penalty. For other rights, any derogation is only permitted in the
special circumstances defined in International human rights law”10 Such statements
reaffirm the need for States to come up with counter-terrorism legislation and policies
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that protect human rights and not those that undermine fundamental rights and
freedoms.

Indian parliament has sanctioned a variety of atypical measures intended at

preventing terrorism. These measures encompass control orders, which were not
intended for use outside of the terrorism milieu. In this article, I would analyse these
major security legislation of India and what has ensued from it, i.e. the departure of
this action to new contexts in the states and territories. This has occurred to the point
that this course, once considered extreme, has now become a conventional feature of
the criminal justice system, and has in turn given rise to even more stringent legal
measures. This article explores the dynamic by which once exceptional measures
become normalised and then extended to new extremes and its ramifications. It
explores these issues in the context of the role that constitutional values have played
in this process. I examine the ways in which these security laws depart from the
general criminal law standards and contend that the usual constitutional limits on the
executive have failed to bridle the executive's power and actions. Even the Indian
legislature and judiciary have approved executive powers in principle, and failed to
check them in practice which in turn has abraded constitutional constraints.
The issue discussed in this article, though is premised in the Indian context, is
germane universally. It's because this century began with the United Nations Security
Council exhorting Member States to pass counter terrorist legislation.11 Very few
countries in the developing world have been constitutional democracies for as long as
India has.12 Legislations and jurisprudence generally draw profoundly on Indian
precedent across South Asia. The

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Indian experience with security laws might help to understand the vulnerabilities of
other post colonial, developing democracies, and guard against these vulnerabilities
when crafting counter terrorist legislation.

This article shall proceed by first, introducing the significant security legislations
passed, since India gained independence in 1947. Then, in the next part of the article,
I shall examine the ramifications that these extraordinary laws have had because of
the deviation from ordinary criminal law and the grant of exceptional powers to the
executive. Lastly, I shall conclude my article by reflecting on the lessons that can be
learnt from the ramifications of these laws.
II. PART I - NATIONAL SECURITY LAWS : SCOPE AND INFRINGEMENT
The Penal Code, 1860 (IPC) proscribes the general types of violent crimes and
property crimes. It provides for provisions for investigation and prosecution of
established crimes such as murder, injury to another person, public or private
property. In addition, the IPC includes security and public order crimes,13 such as
sedition,14 the offense of “promoting enmity between different groups” based upon
identity, and “doing acts prejudicial to the maintenance of harmony.”15 Committing
any of these prohibited acts deliberately is a criminal offense. It is also an offense
under Indian law to help another person to commit them, encourage another person to
commit them,16 attempt unsuccessfully to commit them,17 or plan to commit them.18
All the extraordinary security laws have operated in conjunction with the IPC, which
defines substantive offenses, and the Code of Criminal Procedure (CrPC), which sets
down rules of criminal procedure.
With the spurt in terrorism in recent years, India enacted appropriate and stringent
anti-terrorism laws for dealing with terrorism in the past. Now I shall trace out some of
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these significant security legislations that were

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developed and expanded since the time when India became independent in the year
1947.

A. Preventive Detention
The Preventive Detention Act19 (PDA) was passed in 1950 which sanctioned the
government to detain individuals without charge for up to a year. Initially, the PDA
was passed as a provisional, twelve-month measure to tackle the issues of
administration after the devastating violence and displacement that accompanied the
partition of India.20 However, the Act was renewed repetitively for almost two decades
before finally being allowed to lapse in 1969.
In 1971, two years after the Preventive Detention Act expired, the Maintenance of
Internal Security Act21 (MISA) was passed, and it revived most of the preventive
detention powers under the PDA which was further widened in 1975, when the
government declared a state of national emergency, and procedural safeguards
originally incorporated into MISA were removed.22 Prime Minister Indira Gandhi's
government used the iniquitous MISA aggressively against political opponents, trade
unions, and civil society groups who challenged the government and in 1977, it was
repealed by the new government.
Two years later, the National Security Act of 198023 (NSA) created preventive
detention powers similar to those in the PDA and MISA, which continues to be in force
till date.
B. Military Deployment Within the Country
Armed Forces (Special Powers) Act24 (AFSPA) was passed in September 1958,
which increased the powers of the armed forces significantly. AFSPA empowered the
military to act parallel to the police in designated “disturbed areas,” while giving
military greater power to use force against civilians

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than the police were allowed to use. Initially, the Indian government enacted the
AFSPA in response to separatist movements in Nagaland25 . By 1972, it was extended
to all seven states in India's northeast.26 From 1983 to 1997, the government
implemented an iteration of the law to the state of Punjab,27 and in 1990, a similar
iteration to the northern state of Jammu & Kashmir, where it continues to be in force.28

C. Proscribing Organizations
In 1967, the Unlawful Activities (Prevention) Act29 (UAPA) was enacted which
empowered the government to declare organizations “unlawful” and then curb their
activities and scrutinize their members. Under this law, organizations could now be
designated suspect, without the state having to prove those suspicions to a criminal
standard of proof in a court of law and this in turn was the foundation for criminalizing
membership or support of the organization.
D. Anti-Terrorism Laws
i. TADA
The Terrorist Affected Areas (Special Courts) Act30 was passed in 1984, which
empowered the national government to designate parts of the country as “terrorist
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affected” and set up special courts in those areas to prosecute defendants accused of
being terrorists. A year later, this law was integrated into the Terrorist and Disruptive
Activities (Prevention) Act31 (TADA). TADA also created new criminal offenses related
to terrorist activity, enhanced procedural powers for the police, and significantly
reduced procedural protections for defendants. TADA imbibed a sunset clause—
Parliament had to review and renew the Act every two years.32 Evidence of human
rights abuses under TADA increased over time33 and TADA was

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allowed to lapse when it lost the support of opposition parties in Parliament in 1995.

ii. POTA
The Prevention of Terrorism Act34 was passed in 2001, to meet international
obligations and cross border terrorism,35 which incorporated TADA's enhanced police
powers, limits on the rights of the defense, and special courts, with many of POTA's
provisions reproducing verbatim the equivalent provisions in TADA36 . POTA enhanced
the government's power to detain individuals and forfeit the proceeds of terrorism and
had a sunset clause of three years.37 POTA had a fractious journey through Parliament
and was opposed vehemently by the opposition for the enhanced powers which were
being misused. As a result, it was, repealed in September 2004.
iii. The Amended UAPA
In response to the multiple, brutal terrorist attacks in Mumbai on November 26,
2008, the UPA led national government proposed and Parliament agreed to amend the
Unlawful Activities (Prevention) Act of 1967 (UAPA).38 This amendment inserted into
the UAPA many provisions from POTA and TADA, with some addition, alteration, and
dilution.

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Parliament also passed the National Investigation Agency Act,39 creating a federal
agency that can investigate and prosecute terror related crime across the country
without permission from the governments of individual states.

III. PART II - RAMIFICATIONS OF SECURITY LAWS : EXCESS, OVERLAP, AND

ABUSE
Some people contend that ordinary criminal law, in the form of the Criminal
Procedure Code and Penal Code, 1860, gives governments adequate tools to control
and prosecute terrorist and separatist violence,40 and that special security legislation is
unnecessary. This counter-factual stance 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, therefore, trace the
consequences of security laws. 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 substantive offenses 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 security laws.
A. Human Rights Abuses
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Human rights groups argue that India's security laws are incompatible with
international human rights law and the Indian Constitution.41 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 party.42 They also argue that AFSPA, which bestows generous “shoot-to-kill”
powers on the military in “disturbed” areas, disproportionately restricts the right to
life.43
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, academicians, and human rights groups have documented a multitude of
serious human rights abuses committed by state

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functionaries using powers granted by security laws. Credible accounts abound of

torture in custody and coerced confessions.44 Defendants charged with crimes under
TADA and POTA have received unfair trials.45 The military has used gravely, often fatal,
disproportionate force against civilians in “disturbed” areas under the Armed Forces
Special Powers Act.46 Arbitrary detention and extrajudicial execution are frequent, and
persist despite criticism from United Nations human rights mechanisms.47 A 2013
petition before the Supreme Court claimed that, in one small north-eastern state
alone, an estimated 1528 people have been extra-judicially killed by security forces
since May 1979.48 Women have faced sexual violence from state actors using security
powers, particularly in areas where the military has powers under AFSPA,49 but also in
other Indian states such as Jharkhand and Chhattisgarh50 . Gendered violence against
women by the police and military is often neglected, but the limited documentation
that exists should cause serious disquiet.51 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 poor.

B. Caulking 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 hide such abuse. Affected
individuals might speak out within their families, wider communities, or to civil society
groups, but

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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 government to press criminal charges.52 The
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limited information available suggests that permission has rarely been granted.53

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,
because 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 was petitioned more
frequently by individuals alleging arbitrary detention, torture, or the unlawful killing of
a loved one.54 It is possible that abuses by the armed forces were rare in the first two
decades of AFSPA's existence. But it is also quite likely that victims of abuse simply
lacked the information and experience to seek redress.

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C. Prejudicial and Cliquish 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, TADA gave every State in India the power to prosecute terrorist offenses 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 insurgency, but in
Gujarat, a State that saw little terrorist or separatist activity during the time TADA was
in force.55 Expansive security offenses 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.”56 Individuals who are Muslim, Sikh, or from
India's northeastern states have been disproportionately investigated, detained and
prosecuted under security laws.57 The government of Jharkhand used POTA very
heavily in parts of the state that are poor and have a high proportion of people from
tribal groups.58 Violent far-left groups were active in these areas, but rather than
targeted investigation, human rights reports record scatter-shot violence, and
wholesale arrest and detention of people from particular tribal communities.59
Security laws have also been used by those in political office against opponents and
critics. Mrs. 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 Pradesh.60 In 2007, the UAPA was used to prosecute a senior member
of a national civil liberties organization who criticized civilian militias organized by the
State government of Chhattisgarh to counter insurgent groups.61 Media reports
revealed that these individuals posed no threat to the nation, and publicized the
State's lack of cogent grounds for acting against them.

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However, in a technical sense, it is arguable that arrests and prosecution in these

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instances fell squarely within the ambit of widely defined POTA and UAPA offenses.
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 a buttress facade

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 government
reports the number of individuals in preventive detention, but does not break this
down by State, or report reasons why or for how long people have been detained.62
The limited statistics that are available seem to validate documentation by human
rights groups and journalists. The national government's information suggests that
security laws are used excessively, without due care and sufficient justification.
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 offense.63 In Punjab, only 0.37 percent of the 14,557 individuals detained under
TADA had been convicted.64 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.65 of these 8000,
725 people — less than 1% of total TADA detainees - were eventually convicted.66
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 indicate arrests based on weak evidence and
poor investigation. High rates of acquittal despite the pro-prosecution tilt of special
courts, in turn, suggest trials founded on scant evidence and lackadaisical prosecution.
It seems

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that security laws — even those that create criminal offenses - 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 India's criminal justice system to explain this phenomenon.67 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.68

On this view, security laws have enduring appeal not because they make it easier to
investigate and punish terrorist and separate 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 between 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
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suspects as soon as they are released from administrative detention.69

Thus, expansive security powers can, and evidently have, facilitated human rights
abuses. Thus 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 manoeuvre, 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 abuse.70 The Assam Rifles launched a combating

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operation in Oinam after separatist group raided one of their posts, and over a period
of four months were brutally violent towards residents of the village. 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
rape.71 The Rifles allegedly forced two women who went into labor to give birth in front
of the soldiers.72 They used force not to control an actual 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 render the individual citizen insecure.73

IV. CONCLUSION
“An avidity to punish is always dangerous to liberty. It leads men to stretch, to
misinterpret, and to misapply even the best of laws. He that would make his own
liberty secure must guard even his enemy from oppression; for if he violates this
duty he establishes a precedent that will reach to himself.”
—Thomas Paine (On First Principles of Government, 1795)
It is always necessary for the rulers in a democratic country to be reminded of the
words of American Jurist Schaefer that “[T]he quality of a nation's civilization can be
largely measured by the methods it uses in the enforcement of its criminal law”74 The
administration of criminal law, unlike the personal laws, makes its impact directly and
profusely on the society and thereby it marks its reflection on the civilization of the
nation. Human rights in the current context are threatened by many pervasive factors
including terrorism.
Internationally the law of terrorism is a developing subject of law. Parallel to its
development, its misuse also has been in the limelight for long. We can say, from the
above discussion, that in India, at times, fair investigation is an oxymoron to those,
who are termed as terrorist. There are many anti-terror laws that are made in India
but these are disputed on the ground of contravention of fundamental rights of the
people.

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When the anti terror laws are put to implementation, the notion of human rights by
which every citizen of India is bound takes a side step. The national constitution
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guarantees that human rights in the country will be appreciated. Taken into a broader
context, the undermining of human rights as well as other physical violations as forms
of counter terror strategies has triggered continuous debate on how to balance
between law enforcement on terrorism and the acknowledgement of human rights.
Abduction, torture and violation are indeed against human rights though these are
considered an ‘effective’ model dealing with terrorists. This paper argues then the
effort of combating terrorism in India will only deepen the undermining of human
rights. Until the time the anti-terror laws are not regulated. The accession to
international conventions such as UDHR and ICCPR is only a ‘window dressing’ act to
show that the country participates in the global agenda of preserving human rights
even in its act of war on terrorism, but in reality it dampens the human rights aside
from critical considerations.
These laws have also been hailed by many on the contention that it has been
successful in ensuring the speedy trial of those accused of indulging in or abetting
terrorism but it cannot be denied that over the time, these laws have been abused and
have violated human right. Many have argued against these laws on the pretext of
constitution, constitutional provisions, and equality before law and civil rights. I
understand that though there are provisions in the constitution where reasonable
restrictions can be enforced, even upon the liberty of people and there is need to have
stringent law to tackle present day terrorism as terrorist are keeping apace with
emerging technology, but I would suggest that the national security laws should be
redrafted in such a manner that it does not neglect the fundamental human rights of
human beings. India needs to fine tune and adopt their anti terror legislation to fight
terrorism of the changing time but equally endorsing human rights on the other. In
the view of the misuse of power, we need to develop a system to stop it misuse. As
Lord Denning said:“The freedom of individual must take second place to the security of
the State”. Thus, there is a need to make stringent law to tackle terrorism but not
neglecting the appreciation for basic human rights of the people.
———
* Assistant Professor of Law National Law University, Odisha.
1
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 36, p. 11.
2Sicarii is a Latin word for dagger. The Sicarii carried out murder and assassinations using short daggers. They
were led by descendants of Judas of Galilee to revolt against Roman Rule of the Roman Governor Quirinius in
Syria so that they could tax them.
3Al-Qaeda is a militant Sunni Islamist multi-national organization founded in 1988 by Osama bin Laden, Abdullah
Azzam, and several other Arab volunteers who fought against the Soviet invasion of Afghanistan in the 1980s.
4
The Harakat Shabaab al-Mujahidin commonly known as Al-Shabaab is based in East Africa. It describes itself as
waging jihad against the enemies of Islam and the Federal Government of Somalia and the African Union Mission
to Somalia (AMISON).
5 Its Official Arabic name is Jama'atu Ahlis Sunna Lidda'awati wal-Jihad meaning “People Committed to the
Propagation of the Prophet's Teachings and Jihad.” It is fighting to create an Islamic State and opposing
Western education.
6 K.P.S. Gill, “The Imperatives of National Security Legislation in India”, Seminar, April 2002, at 14 available at
http : //www.india-seminar.com/2002/512/512%20k.p.s.%20gill.htm (accessed 3rd May, 2018).
7
Anil Kalhan et al., “Colonial Continuities : Human Rights, Terrorism, and Security Laws in India”, 20 Columbia
Journal of Asian Law, [2006], vol. 20 no. 1 (Fall Issue) 97, available at
http : //www.nycbar.org/pdf/ABCNY_India_Report.pdf (accessed 4th May, 2018).
8
Art. 1 of the Universal Declaration of Human Rights.
9 Amnesty International EU Office, “Human Rights Dissolving at the Borders? Counter-Terrorism and EU Criminal
Law”, (White Paper IOR 61/013/2005) 31 May, 2005 available at
http : //www.amnesty.eu/static/documents/2005/counterterrorism_report_final.pdf accessed 13th May, 2018.
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10
Joint Statement issued by Mary Robinson, the UN High Commissioner for Human Rights, Walter Schwimmer,
Secretary General of the Council of Europe and Ambassador Gerard Stoudmann, Director of the OSCE's Office for
Democratic Institutions and Human Rights on 29 November 2001 available at http : //www.osce.org/odihr/54035,
accessed 19th May, 2018.
11
United Nations Security Council Resolution 1373, United Nations (September 28, 2001), available at
https : //www.un.org/sc/ctc/resources/databases/recommended-international-practices-codes-and-
standards/united-nations-security-council-resolution-1373-2001/, accessed 4th May, 2018.
12India gained independence from British rule in August 15, 1947, adopted a national constitution on November
26, 1949, which came into force on January 26, 1950, and held its first national elections in 1951.
13
Penal Code, 1860, Ss. 121-130, 141-160.
14 Penal Code, 1860, S. 124-A.
15 Penal Code, 1860, S. 153-A.
16
Penal Code, 1860, Ss. 107-120.
17 Penal Code, 1860 does not define what it means, in general, to attempt an offense. However, common law
principles on liability for an attempt apply in India, and are reflected in the IPC. Penal Code, 1860, S. 511 lays
down the general rule for punishment for attempting an imprisonable offense. In addition, the IPC creates some
offenses of attempting to commit a particular offense, such as the offense of attempted murder and the
controversial offense of attempted suicide. See, Penal Code, 1860, Ss. 307-309. The IPC places some attempts
on the same footing as the completed offense, and specifies the same sanction for the attempt as for the full
offense. See, e.g., Penal Code, 1860, Ss. 124-126.
18 Penal Code, 1860, Ss. 120-A—120-B.
19
The Preventive Detention Act, 1950 (Act 4 of 1950) (hereinafter “PDA”).
20 Supra note 1 at 93 & 135.
21 The Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter “MISA”).
22A state of emergency was formally declared on 25 June 1975 by the Indian President, Fakhruddin Ali Ahmed
under Art. 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 June 25, 1975 to March 21, 1977. During this time,
constitutional rights were suspended, judicial review restricted, and the media heavily censored. For a historical
account of “the Emergency,” see Ramachandra Guha, India after Gandhi : The History of the World's Largest
Democracy (Picador 2007) 488-521.

23 The National Security Act, 1980 (Act 65 of 1980) (hereinafter “NSA”).

24
The Armed Forces (Assam and Manipur) Special Powers, 1958 (Act 28 of 1958) (hereinafter “AFSPA”).
25
Human Rights Watch, “Getting Away with Murder : 50 Years of the Armed Forces (Special Powers) Act”,
(2008), available at https : //www.hrw.org/legacy/backgrounder/2008/india0808/ p. 13, accessed 4th May,
2018.
26 These include the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura.
27 The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 (Act 34 of 1983). This State-specific
iteration has the same provisions as AFSPA 1958.
28 The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (Act 21 of 1990). This State-specific
iteration has the same provisions as AFSPA 1958.
29
The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967) (hereinafter “UAPA”).
30 The Terrorist Affected Areas (Special Courts) Act, 1984 (Act 61 of 1984).
31
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987) (hereinafter “TADA”).
32 TADA, Supra note 31, S. 1(4).
33South Asia Human Rights Documentation Centre, Alternate Report and Commentary to the United Nation
Human Rights Committee on India's Third Periodic Report under Art. 40 of the International Covenant on Civil and
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Political Right (SAHRDC, 1997) available at http : //www.hrdc.net/sahrdc/resources/alternate_report.htm

accessed May 7, 2018.
34 The Prevention of Terrorism Act, 2002 (Act 15 of 2002) (hereinafter “POTA”).

35 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 Prevention of Terrorism Ordinance
2001 : Government Decides to Play Judge and Jury, South Asia Human Rights Documentation Centre, 2001, p. 16
available at https : //bookofrax.tech/download/Prevention%20of%20Terrorism%20Ordinance%202001%
20Government%20Decides%20to%20Play%20Judge%20and%20Jury%20By%20South%20Asia%20Human%
20Rights%20Documentation%20Centre accessed 4th May, 2018.
36 See the following provisions dealing with defining terrorism offenses and specifying punishment for these
offenses : TADA S. 1(2) and POTA S. 1(2); TADA S. 3(1) and POTA S. 3(1)(a); TADA S. 3(2) and POTA S. 3(2);
TADA S. 3(3) and POTA S. 3(3); TADA S. 3(5) and POTA S. 3(5); TADA S. 6 and POTA S. 5. See also the
following provisions related to the operation of special courts : TADA Ss. 9-10 and POTA Ss. 23-24; TADA S. 12
and POTA S. 26; TADA S. 13 and POTA S. 28. See also the substantial overlap between the following provisions
related to the admissibility of confessions made in police custody during trial : TADA S. 15 and POTA S. 32.
37 POTA, Supra note 34, S. 1(6).

38 The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967) was amended by the Unlawful Activities
(Prevention) Amendment Act, 2008 (Act 35 of 2008) (India), which was passed on 31 December 2008, soon
after the terrorist attacks in Mumbai on November 26, 2008.
39 National Investigation Agency Act, 2008 (Act 34 of 2008), India Code (2008), Ss. 11-21,
http : //indiacode.nic.in (hereinafter “NIAA”).
40 SAHRDC, supra note 33, at 17-19.

41 Ibid.
42 Ibid
43 Ibid. at 6.

44Asian Centre for Human Rights, Need for a National Law for Prevention of Torture (25 June 2007) available at
http : //www.achrweb.org/ncpt/ncpt0107.pdf accessed 20th May, 2018.
45Amnesty International, The Terrorist and Disruptive Activities (Prevention) Act : The Lack of “Scrupulous
Care” (Amnesty International, 1994).
46
United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 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).

47 Civil Society Coalition on Human Rights in Manipur and the UN, supra note 46.
48 Extra-Judicial Execution Victim Families Assn. v. India, (2013) 2 SCC 493.
49Surabhi Chopra, “Dealing with Dangerous Women : Sexual Assault under Cover of National Security Laws in
India”, 34(2) B.U. INT’L. L.J. Forthcoming (2016), available at http : //papers.ssrn.com/sol3/papers.cfm?
abstract_id=2654538 accessed 11th May, 2018.
50
Ibid.
51 Ibid.
52
Criminal Procedure Code S. 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 Criminal Procedure Code S. 45. AFSPA, supra note 24, S. 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 Criminal Procedure Code S. 197.
53 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 33. A research study that used India's Right to Information Act, 2005 to seek information about applications
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and permission to prosecute under Criminal Procedure Code S. 197 in relation to mass violence recorded that the
Ministry of Home Affairs refused multiple requests to disclose the information requested.
54 There is no comprehensive review of writ petitions by individuals challenging abuses by the armed forces in
states where AFSPA applies. However, published judicial decisions suggest that such petitions began to appear
in the early 1980s, increased in frequency in the 1990s and continue to be used by individuals in states where
AFSPA applies. India's north-eastern States (where AFSPA applies) come under the jurisdiction of the Gauhati
High Court. Legal databases indicate that the Gauhati High Court made final decisions in response to one writ
petition about AFSPA-related abuse in 1982 (Basi Singh v. State of Assam, 1981 SCC OnLine Gau 66 : 1982 Cri LJ
229), one in 1983 (Naosam Ningol Chandam Ongbi Nungshitombi Devi v. Rishang Keishing, 1982 SCC OnLine Gau
61 : 1983 Cri LJ 574), five such petitions between 1984 and 1989, eighteen petitions between 1990 and 1999,
and seventeen petitions between 2000 and 2013. It is worth noting firstly that High Court decisions are not
comprehensively reported, and secondly that these numbers reflect final disposal by the court, not the number
of petitions filed by individuals. Nevertheless, these numbers suggest that individuals began actively petitioning
courts after suffering abuse in the 1980s and did so in greater numbers from the early 1990s onwards.
55
SAHRDC, supra note 33 at 33.
56 Ujjwal Kumar Singh, The State, Democracy, and Anti-Terror Laws in India (Routledge, 2007) 165, 219.
57 SAHRDC, supra note 33.
58
Singh, supra note 56 at 195-203.
59 Sabrang Communications, “People's Tribunal on the Prevention of Terrorism Act (Pota) : Background
Document” (Sabrang Communications 2004) at 3 and 20, available at http : //www.sabrang.com/pota.pdf.
accessed 19th May, 2018.
60 Singh, supra note 56 at 220-260.
61Malavika Vyawahare, “A Conversation with : Human Rights Activist Binayak Sen”, NY Times (India, 10
December, 2012).

62The 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 https : //ncrb.gov.in.
63Government of India, Ministry of Home Affairs, Memorandum to the Full Commission of National Human Rights
Commission, Annexure I, 19 December 1994, cited in Ram Narayan Kumar et. al. Reduced to Ashes : The
Insurgency and Human Rights in Punjab, Final Report (vol. I) (South Asia Forum for Human Rights, 2003) at 99.
64 Ibid. at 99.

65SAHRDC, supra note 33, citing a statement by the Minister for Internal Security when speaking to the Press
Trust of India on 28 August 1994.
66 SAHRDC, supra note 33; Ram Narayan Kumar et. al., supra note 63, at 100.
67
Anil Kalhan, et al., supra note 7.
68 Ibid. at 192-196.
69Amnesty International, supra note 45 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. State of J&K, (1982) 2 SCC 43 : AIR 1982 SC 1023, Mohd. Iqbal Sheikh v. State of J&K,
(2003) 3 JKJ 534 and Zakir Hussain v. J&K, (2006) 2 JKJ 672.
70 Surabhi Chopra, supra note 49 at 28-29.
71
Manipur Baptist Convention v. Union of India, 1988 SCC OnLine Gau 41 : (1988) 1 Gau LR 433.
72 Surabhi Chopra, supra note 49 at 28-29.
73
Laura Donohue, “Terrorism and Counter-Terrorist Discourse”, in Global Anti-Terrorism L. & Pol’Y (V. Ramraj, et
al. eds., 2005).
74
Federalism and State Criminal Procedure, as reproduced in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 :
1978 Cri LJ 968.
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