Since India’s independence in 1947, it has had security laws in place that are purportedly concerned with activities that represent larger, more lasting risks to ordinary life than, say, petty criminality. These laws are aimed at protecting the public against and punishing those who promote or engage in terrorist activity, organised crime, separatism, and other forms of damage to society. Many Indian states have their own regulations that regulate comparable dangers, which work in tandem with federal rules. These safety laws are complementary to India’s generally great and procedural criminal codes. Proponents of such legislation in government say that standard criminal law is inadequate to cope with certain threats and that a more targeted response is necessary. This overt reaction is similarly amplified, providing the law and order apparatus with greater muscle than is permitted by standard criminal law. This appeal has its roots in the specifics of the Indian environment, but it has relevance outside India as well, particularly at the start of a century in which the United Nations Security Council urged its members to oversee anti-terrorist regulations. India is one of the longest-standing constitutional democracies in the developing world. The majority of legal and judicial systems in South Asia mainly rely on Indian precedent. The lessons we can learn from India’s experience with security laws about the weaknesses of other postcolonial, developing democracies and how to fortify against those weaknesses when drafting anti-terrorist legislation are clear.
The Indian protection laws’ current procedures for government accountability are weak and retroactive file criminal charges against government personnel who were working under security authorities, the charges must be explicitly sanctioned by the country’s governing bodies and cannot be advanced with the support of victims of rights abuses. Although the finest court may do exceptional things via its corrective and preventative judicial review powers, the public seldom has access to them. Few people can afford to take their cases to the highest court in New Delhi or the highest court in any Indian state capital, where delays are the norm due to the payment of criminal fees. Since positive middle safety protections have recurred in several generations of Indian legislation, any reform of the country’s protection laws, whether they are substantive or procedural, would be difficult to enact. However, it will be easier to garner support for changes that moderate government authority than for those that completely remove it. Once such changes are codified into law, they have a good chance of being widely adopted. Despite the Supreme Court’s ability to show deference to the government, the court has shown in the past that it is very hesitant to relinquish control over matters pertaining to national security. The court has not heard any arguments from the government that may have removed its jurisdiction over specific executive powers while considering security laws. It is likely that the legislature will want to keep reviewing and monitoring capabilities for itself due to the inherent political competitiveness in a democratic election system. Once such authorities are in place, opposing political parties are not likely to support changes that reduce their power, even if they are ambivalent about laws that restrict individual liberties. The complex, rights-limiting functions will not be delayed by incorporating checks and balances at the granular level into protection legislation. However, this will reduce the likelihood that they will be used to enable violations of human rights. An oxymoron, India’s protection laws are paradoxical in the worst way. They create exceptional legislation and place broad constraints on rights, yet are so ingrained as to be, in all practical respects, the norm. These laws leave individuals open to abuse because they establish precedents for evading constitutional checks and balances. The central government has become excessively strong since its far-reaching powers under safety regulations have increased over time while other agencies have declined. Moreover, governments may easily brush off non-kingdom opponents of national security, regardless of how well-argued their points may be, by citing the latter’s alleged inability to comprehend classified material or calling into question the former’s patriotism. I fear that the legislative and judicial changes I have advocated may upset this precarious balance. The people will be forced to deliberate and the government will be encouraged to make well-informed decisions if checks and balances are built into the use of safety authorities. That would be a blow to the trend of reducing constitutional restraints, which has let Indian safety laws double as licences to abuse.
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