The concept of Natural Justice is rooted in the philosophy of the Natural Law School of Jurisprudence, which is itself the product of the Renaissance and Greco-Roman Philosophy. The Anglo-Saxon system of common Law recognized the concept of Natural Law and its logical outcome, and the very bedrock of the Anglo-system legal system is based on this. The Universal Declaration of Human Rights is essentially a recognition of the principles of Natural Law, and India has a proud history of being multi-facetted democratic system based on a Constitutional regime, in which Fundamental Rights have sacrosanct value.
The English Philosopher Thomas Hobbes was one of the early proponents of Centralized Government, centered on the belief that a strong Government is needed to maintain order. However, this put him at loggerheads with Locke who propounded the idea that power must be exercised in a manner, which would mitigate the affliction of the masses.
Most of the democracies have adopted the Lockean approach, however the dichotomy between the Lockean approach and Hobbesian approach has persisted till date in the context of the balance between National Security and Fundamental Rights.
India and the rest of the world face unique security challenges on an everyday basis and are faced with every-day security challenge. In such a scenario, it becomes essential to confront ourselves with the question as to how far the question of National Security can be raised if the fundamental rights of the populace continue to be impacted due to concerns of National Security.
This Article tries to understand these situations and questions and try to resolve this quandary.
Early Beginings In Colonial History
The main objective of National Security Laws is to safeguard the Nation from threats, both internal and external. The genesis of National Security Laws goes back to the days of the British Raj to suppress the Native population and to maintain the indignity of imperial rule on us.
Post independence, the horrors of partition, the insurgency in Kashmir and separatist movements in the Northeast of the country and the ongoing threat of religious fundamentalism have constrained the use of Legislation like the Armed Forces Special Powers Act, 1958 and the Unlawful Activities Prevention Act, 1967 which empower the State to detain individuals and suppress their Fundamental Rights, if they are deemed to be a threat to National Security.
The intention of the Legislature, while initially benign have led to these Legislations becoming a tool of Oppression in the hands of the State.
The Tryst Of Judicial Pronouncements And National Security.
The case of Ak.Gopalan vs State of Madras[( 1950 AIR 27] was the first case where the validity of the Preventive Detection Act was challenged. The Supreme Court upheld the validity of the Act but struck down Section 14 of the Act being Unconstitutional, being violative of Article 19(5) of the Constitution of India. Justice Fazal Ali’s dissenting opinion that Article’s 14, 19 and 21 of the Constitution overlapping would later form the bedrock of Indian
Constitutional Jurisprudence.
In the famed case of ADM Jabalpur vs Shivkant Shukla [(1976 AIR 1207] the dissenting opinion of Justice H.R. Khanna wherein his Lordship opined that “even in times of emergency, the rights of the citizenry to approach the Constitutional Courts for redressal of their Fundamental Rights remain sacrosanct”.
The celebrated dissent of Justice Khanna became the Ratio Decendi in the case of Maneka Gandhi vs Union of India [(AIR 1978 SC 597] wherein the Hon’ble Supreme Court of India quashed the decision of the Passport Authority to not renew the Passport of the Petitioner, sans any reason. The Hon’ble Supreme Court of India in that case held that Articles 14, 19 and 21 of the Constitution of India mandate the reasonableness of due procedure, all state actions must follow “ due-process”.
International Law And National Security
India, being a Commonwealth country has been heavily influenced by Anglo-Saxon Jurisprudence, hence it is imperative that we examine the issue of National Security through the lens of foreign jurisprudence as well.
The impact of these celebrated rulings directly impact the so called National Security Doctrine, which the Executive often uses to bypass procedural and Constitutional safeguards, let us see how the same happened through case Laws
in cases where directly the question of National Security came into play.
In the celebrated case of Chief of Constable of North Wales Police vs Evans,
Evans was a probationary officer who was made to resign for personal indiscretions, which were not specified. The House of Lords held that the discretion of the Chief Constable was not unfettered, a Probationer could be required to resign as per procedure established by Law.
That, in the case of R vs Oakes, the Supreme Court of Canada said that a presumption in Canadian Law that possession of Narcotics indicated trafficking intent was violative of the Constitutional presumption of innocence guaranteed to every Canadian citizen.
Now, let us see how the Indian Judiciary has dealt with the issue of National Security through Case Law.
In the case of Extra-Judicial Execution Victim family Association vs Union of India[( 2016) 14 SCC 536] the Hon’ble Supreme Court rejected the arguments of the Union Government that due to reasons of National Security there should be no investigation as to alleged Extra-Judicial encounters by military personal and directed fair investigation to be made, and criminal prosecution to be initiated if allegations of excess force were found to be true.
vaplea of National Security and refused to let the plea of National Security prevent fair investigation into alleged Human Right abuses.
That, in the case of ML Sharma vs Union of India, the Supreme Court of India while dealing with the issue of Pegasus had remarked that the bald plea of National Security will not preclude the Court from instituting a case for judicial enquiry”.
That, the Hon’ble Supreme Court in the recent case of Madhyam Broadcasting vs Union of India , the Hon’ble Supreme Court said that the decision of the Ministry of Information and Broadcasting not to renew the license of Madhyam for undisclosed security violation’s was not sustainable in Law as the Supreme Court while relying on precedents from Keshavnanda Bharti and Maneka Gandhi and foreign jurisprudence like Evans vs Chief Constable and R vs Oakes held that secrecy claims must be justified and based on tangible material.
Conclusion
The reality of today’s world has brought National Security to the forefront. Judicial review is sacrosanct and as per the author even National Security must be tested on its anvil, the test of necessity being one which can be used.
It is imperative that a healthy balance is struck between National Security and Constitutional Rights, which the people of India have achieved through blood, sweat and tears. The response to savagery must be nuanced and as per our civilizational ethos, and should not be knee-jerk in nature. The State must justify its invocation of National Security and only when its necessity is appreciated, only then can its invocation be justified.