National Security Laws in India: The Unraveling of Constitutional Constraints

Abstract

This article examines national security legislation in India, argues that the usual constitutional limits on the executive have failed to restrain the Indian government’s power and actions under security laws, and considers how to resuscitate constitutional checks and balances.

The article elucidates how security laws are designed to enhance the executive’s powers in ways that facilitate human rights abuses. It then argues that the executive has controlled the process of legislating security laws to an extent that significantly dilutes Parliamentary debate and scrutiny. The article analyzes how the Indian Supreme Court has reviewed the constitutionality of security laws since 1980, and argues that the Court failed to engage with constitutional standards when evaluating security laws. Thus, both the legislature and judiciary have endorsed the executive’s national security powers without fully engaging with the impact and import of these powers. Repeated endorsement has, in turn, eroded constitutional constraints – in particular, constitutional rights – in significant ways.

The article then proposes reforms that could better regulate the executive’s exercise of power under security laws, by weaving regular legislative and judicial scrutiny into decisions that are currently the exclusive preserve of the government. The article argues that the reforms proposed would harness debate and negotiation between different branches of the State on national security.

Keywords: national security, anti-terrorism legislation, India, Indian constitutional law