Security At A Cost: How Executive Discretion In National Security Threatens Constitutional Rights
- IJLLR Journal
- Jan 9
- 2 min read
Sahil Hussain Choudhury, Hamdard Institute of Legal Studies and Research (HILSR), Jamia Hamdard, New Delhi
ABSTRACT
National security laws are essential for recipients sovereignty and public order, but unrestricted application is a sure threat to the principles of constitutionality and democratic freedoms. India has the UAPA, NSA and AFSPA that give the executive extraordinary powers. Intended to address genuine threats, however, these laws are often misused to stifle dissent, target marginalised communities and violate basic rights granted under Articles 14, 19, 21 and 22 of the Constitution.
This paper challenges historical amnesia, covering the colonial genealogy of such laws with the emergence of the Rowlatt Act to the post-independence adaptations of such laws. It delves deep into landmark cases such as the Bhima Koregaon arrests, the detention of Dr Kafeel Khan and extra-judicial killings in Manipur. It also closely examines the historical trajectory and abuse of these laws since their colonial origins in Rowlatt Act, and post- independence adaptations.
The research builds on the ICCPR and ECHR, among other international standards, to make a strong case for immediate reforms, progressive narrowing of statutory definitions, strict necessity and proportionality reviews to be conducted by judges, repeal of immunity provisions under AFSPA, and the introduction of independent oversight mechanisms.
It contends that national security must be balanced with the protection of the fundamental rights that are at the heart of India’s democracy.
This can only be done by recalibrating India’s national security framework so that while India pursues safety, it does so in a way that reinforces and does not undermines justice, liberty, and equality, which are all essential values enshrined in our Constitution.
