Of Maternal State and Minimalist Judiciary: The Indian Supreme Court's Approach to Terror-Related Adjudication

Abstract

This article uses Supreme Court jurisprudence in terror-related offences to examine what the role of a court in a constitutional democracy should be. The authors first examine the theory of judicial minimalism. Then, based on the contrast between two sets of Supreme Court decisions -decisions in terror-related cases (where national security is pitted against civil liberties) and decisions related to fundamental right in general - the authors make two arguments. First, that the Supreme Court has been inconsistent in its treatment of these two categories of cases - it has employed the minimalist approach in terror-related cases while adopting a less deferential approach in general Fundamental Rights adjudication. Second, that doing so, the Indian Supreme Court has been inconsistent and abdicated its responsibility.

Keywords: Minimalism, terror, POTA, TADA, India, Supreme Court