ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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National Security vs Fundamental Rights


It is quite often the case in various jurisdictions around the world that fundamental rights when placed against national security and interests are relegated to an inferior proposition and position. Traditionally, in the name of national security, the courts have shown their proclivity to lean on the side of the state when matters pertaining to it are brought for consideration. Especially, in India, the central government has discovered its penchant to exploit this mindset. One cannot forget the dissenting words of Lord Atkin about the majority decision in Liversidge v Anderson (1941) UKHL 1. He says that when it comes to national security, the courts become more executive minded than the executive.”

If we place this discussion in the Indian context, the approach has been more or less the same. Here are a few examples. In the Naga Peoples’ Movement of Human Rights v Union of India (1998) 2 SCC 109, the validity of the draconian provisions of the Armed Forces (Special Powers) Act (AFSPA) were upheld by the Supreme Court of India without even stating any reference to the principles of equality, liberty, and life enshrined in the Constitution. Moreover, the Delhi High Court chose to call it a “social imperative” that shall take precedence. All this in the name of the national security. The Kartar Singh v State of Punjab (1994) 3 SCC 569, the case that challenged the validity of Terrorist and Disruptive Activities (Prevention) Act (TADA), also met with the same fate and got a stamp of constitutional approval from the final interpreter of the Constitution and the guardian of fundamental rights.

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