Introduction
The ongoing pursuit of national security often places governments in a risky position: maintaining public order while respecting constitutional guarantees. India’s internal security laws are crafted to safeguard national sovereignty and protect citizens from terrorism, insurgency, and other threats. Yet, the application of these laws has often raised serious concerns regarding the infringement of fundamental rights. This chapter explores into the core challenges and dilemmas associated with balancing state security laws with individual liberties, focusing on issues such as overbroad laws, lack of accountability, due process challenges, and instances of human rights violations.
Overbroad Laws: The ongoing Threat to Civil Liberties
The vaguely worded laws leave a room for interpretation, often resulting in the loss of civil liberties. Statutes like the Unlawful Activities (Prevention) Act (UAPA), National Security Act (NSA), and sedition laws under Section 124A of the Indian Penal Code grant sweeping powers to the State without strict safeguards.
While the UAPA aims to address terrorism, its broad definitions of “unlawful activity” and “terrorist act” have led to arbitrary arrests. For instance, in Gautam Navlakha v. NIA (2021), the activist was arrested under UAPA based on vague allegations and held in custody without trial. According to the National Crime Records Bureau (NCRB), between 2015 and 2021, over 8,900 people were arrested under UAPA, yet the conviction rate remained below 3%.[1]
In Shaheen Abdullah v. Union of India (2020), [2]the Supreme Court highlighted the chilling effect of UAPA and emphasized that dissent cannot be criminalized. The ongoing Court acknowledged that misuse of such laws violates Article 19 and 21 of the Constitution.
Judicial Observations
In K.A. Najeeb v. Union of India (2021), [3]the Supreme Court emphasized that bail should not be withheld merely due to the application of UAPA, particularly in the absence of timely trials. The ongoing Court cautioned against laws becoming instruments of oppression.
The ongoing sedition law has often been criticized for curbing dissent. In Vinod Dua v. Union of India (2021), the Court clarified that criticism of the government does not amount to sedition unless it incites violence or public disorder. In SG Vombatkere v. Union of India (2022), the Supreme Court put Section 124A in suspension, acknowledging that a colonial law should not be weaponized against free speech in a democratic polity. The ongoing Law Commission, in its 2018 report, recommended reconsidering Section 124A, stating that it had outlived its utility in a democratic society.
Another major challenge in the security-rights balance is the lack of accountability mechanisms for law enforcement and military personnel. Laws like the Armed Forces (Special Powers) Act (AFSPA) offer de facto immunity to security forces, raising concerns about unchecked power.
In the case of EEVFAM v. Union of India (2016), the ongoing Supreme Court, examining over 1,500 alleged fake encounters in Manipur, stressed that AFSPA does not shield personnel from judicial scrutiny. The ongoing Court held that blanket immunity under AFSPA violates Article 21 and that excesses should be investigated.
Despite judicial directions, prosecutions under AFSPA remain rare. The ongoing Justice Jeevan Reddy Committee (2005) recommended repealing AFSPA, arguing that its implementation has withdrawn local populations and look after a culture of liberty. The ongoing report stated that the Act had become a symbol of oppression and should be replaced with a more humane legal framework.
The ongoing Committee suggested replacing AFSPA with a more humane legislation that provides protection to the armed forces but also incorporates mechanisms of accountability. It proposed that the Unlawful Activities (Prevention) Act (UAPA) be amended to include necessary powers instead of retaining AFSPA. Yet, these recommendations have not yet been implemented.
National Human Rights Commission (NHRC) Findings
The ongoing NHRC has repeatedly flagged issues of custodial deaths and torture in conflict zones. In its 2022 report, the NHRC noted 139 custodial deaths, with several attributed to illegal detention or police excesses. A total of 3,612 complaints of human rights violations were received, of which 32% involved police action.[4]
In 2023, the Ministry of Home Affairs reported to Parliament that over 500 complaints of human rights violations by security personnel were under investigation[5]. The ongoing NHRC also noted challenges in access, especially in AFSPA-imposed regions, thereby calling for greater institutional support and independent oversight.
[1] National Crime Records Bureau. (2022). Crime in India – 2021 (Vol. 3, Table 14.3: State/UT-wise Cases Registered, Persons Arrested and Chargesheeted under Unlawful Activities (Prevention) Act (UAPA)). Ministry of Home Affairs, Government of India. Retrieved from https://ncrb.gov.in/en/crime-india-2021
[2]Shaheen Abdullah v. Union of India, W.P. (C) No. 10808 of 2020
[3] Union of India v. K.A. Najeeb, (2021) 3 SCC 713
[4] National Human Rights Commission. (2023). Annual Report 2022–23. New Delhi: NHRC, Government of India. Retrieved from https://nhrc.nic.in/sites/default/files/NHRC_AR_2022-2023_English.pdf
[5] Ministry of Home Affairs. (2023). Replies to Parliamentary Questions – Lok Sabha & Rajya Sabha (2023). Government of India. Retrieved from https://www.mha.gov.in/parliament-qs