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Law As A Means Of Justice: Emergencies And Terrorism Law

The term "Terrorism" is often used to describe acts of violence that attack citizens and, more broadly, society's integrity. At its root, it is the undermining of human rights by intimidating the public in order to achieve political and ideological goals aimed at influencing government actions. Terrorism can be considered as the "antithesis" of independence, thus rendering it meaningless.

In terms of law, however, the definition is not set in stone, as the entire international community is yet to adapt and agree upon a comprehensive definition of terrorism. In 1937, the "League of Nations" defined acts of terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public."[1]

Terrorism as a phenomenon is now widespread and there is hardly any country today which has escaped its wrath. While it's true that acts of terrorism results in the loss of many innocent lives which in turn leads to public outcry for adaptation of tougher laws by government, it is highly unlikely that weak laws are the only reason for the rapid advances of terrorism. Governments instead of coming forward and being accountable for the lapse in their judgement making, form new Laws that goes against the constitutionality of our democracy and use those to abuse basic "Human Rights" of the citizens of our country.

"I do not believe that a democratic society has the obligation to acquiesce in its own dissolution" - Jayprakash Narayan, August 9, 1975

At the heart of "Indian democracy", is governance, however, it is no surprise that it's working has several inadequacies, starting from low accountability to lazy follow through of administration, and overall limited oversight by both parliament as well as legislative bodies. There have been numerous instances in the past when the Indian government in the light of implementing Laws to safeguard the rights of citizens and protect them has brought forth Laws, which under the veil of Justice have done nothing but abuse basic human rights.

One such occurrence transpired during the "Indian Emergency" of 25 June 1975 to 21 March 1977, when Prime Minister Indira Gandhi declared a state of "EMERGENCY" under "Article 352 of the Indian Constitution," thus giving her the ability to rule by "Decree", suspending elections and civil liberties. Which drew widespread criticism and is now regarded as one of India's most contentious political times.

The "Supreme Court" in that period bearing witness to the "Demise of Democracy" stated: "civil liberties were withdrawn to a great extent; important fundamental rights of the people were suspended; strict censorship on the press was placed; and judicial powers were crippled to a large extent."[2]

Law as a means of Justice

"The concept of justice without law perhaps is not incoherent, but it is unavoidably vacuous."-Geoffrey C. Hazard, Jr.[3]

In ancient times, enactment of laws weren't essential, as morality and to a large extent religion regulated the relations between citizens. It was later determined that "Natural Law" was needed to regulate human relations which was based on "Justice" and "Morality." And that any variation of "Laws by humans" from this would be a violation of these laws. In the Modern age of contemporary jurisprudence, however, equality and liberty play a far greater role. When we discuss "Terrorism and Emergencies" the question of "Human rights" needs to be analysed as well, these rights prior to being called human rights were called "Natural rights or rights of men," which speaks of fairness and absolute justice among all.

"JUSTICE" simply refers to anything which is just and fair, in terms of law, however, the concept can refer to ethics and rationality as well. John Rawls states that: "justice can be realized only by normative choices made behind the veil of ignorance." Which means that there needs to be a certain presumption of equality and liberty among individuals.

The discussion entails an important question which is "What is the connection between Law and Justice?" "Naturalists" believe that justice is the source of law, whereas "Positivists" believe that law is the source of justice. "Laws are the body of concepts that courts acknowledge and use when dispensing justice," Salmond says. In conclusion, no matter how we look at it, we can see that Law and Justice share a bond in terms of their origin and foundation.[4]

There are numerous instances when the Indian government has enacted unjust laws that contradict the natural law and justice. Some of these laws date back to India under colonial rule while others have been devised in 1970s and 80s, when the country faced political discontent in various states and tried to curb them using a strong handed approach. In the following sections, I will examine the goals of some of the laws that have afflicted our country for years as well as discuss amendments made to them.

National Emergency Under "Article 352" Of The Constitution

According to "Black's" Law Dictionary "Emergency" is defined as "The failure of the social system to deliver reasonable conditions of life." And, in order to cope with such crises, public authorities must act quickly and within their legal authority.[5]

National emergencies can be caused by "war, armed rebellion or external aggression" in India or in parts of its territory. "Article 352" has been invoked in India numerous times, starting from 1962 in the "Indo-China War", 1971 in the "Indo-Pak War" to the times of "Internal Disturbances" stretching from 1975 to 1977 declared by then Prime Minister Indira Gandhi. If the President considers that a serious situation has arisen that jeopardises India's safety and security, he may announce a "Proclamation of Emergency."

This proclamation can even be made prior to the occurrence of any such events of threat or terror, provided the president is convinced that such events are impending. Normally, the "proclamation of emergency" is announced by publication in the "Official Gazette," but it is not necessary for the "Proclamation of Emergency" to go into effect.

According to "The Constitution (38th Amendment) Act, 1975" the president can issue a different proclamation based on different grounds as specified in "Clause (1)" even if a previous proclamation is still in place. "There can be no obstacle to judicial review of evaluating the legitimacy of the proclamation of emergency issued by the President under Article 352(1)," according to "Minerva Mills vs Union of India,"[6] which was later changed by the "44th amendment."

Amendments to the Article 352

Several changes were introduced to the "Article 352" under the "44th Amendment Act". The expression of "internal disturbance" was changed with "armed rebellion". It was made compulsory for the president to have "A Proclamation of Emergency" recommended to him in writing, before he could go ahead and declare it. This was brought in as a safeguard to make sure that there was no possibility for the "Prime Minister" to take any decisions on emergency, on their own. As "Ms. Indira Gandhi" had allegedly done in June 1975.

The time period under which the "Proclamation of Emergency" must be approved by both the house of parliament was reduced from Two months to One month. Also, this resolution to be passed has to garner a majority of the total membership of the House or a majority of more than "two-thirds" of the members "present and voting". Before the amendment, such a resolution could be passed by a simple majority. The "Proclamation of Emergency" can, however, be lifted after six months, and its continuation requires agreement by both the houses of parliament every six months.

If the situation improves the President has the option to revoke the Emergency. To do so a meeting can be called by at least "one-tenth" of the full strength of the House at 14 days' notice, who then can either revoke it or let it continue. Before the "44th Amendment" was in place, the members of the house had no such role to play in the revocation of the emergency, and after the approval of parliament, the proclamation could continue indefinitely until and unless the president revoked it on his own.

While the "Proclamation of Emergency" is announced and invoked in India to protect the Citizens, it is necessary to keep in mind the overall wellbeing of the citizens is also of primary importance and that they are provided with their fundamental rights and that those rights are not infringed upon. To counter any extreme measure by the government to take place there are various safeguards in place. Like:

It has been ensured that enforcement of "fundamental rights" in "Articles 20 and 21" cannot be suspended at all, and specific conditions are in place to make sure that specific "fundamental rights" whose enforcement can be suspended, do not act as devices to exploit the Citizenry. In the case of "Article 19," which used to be automatically halted when a "Proclamation of Emergency" was issued, it is now unscathed if the reason is just "armed rebellion" rather than "war or external aggression."

National Investigation Agency Act, 2008

The "United Progressive Alliance" administration passed the "National Investigation Agency Act, 2008" in the aftermath of the "Mumbai Terror Attacks" dated "November 26, 2008", where hundreds of people died. The act established the "NIA" as the sole "Federal Agency", giving it complete authority to take "Suo Moto Cognizance" of all types of terrorism in India and file cases against such offences.[7] The act conferred powers on "NIA", under which it could deal with different types of offences such as "terrorism, counterfeit currency, human trafficking, narcotics, etc."

For carrying out investigation in case of offences, "NIA" now had the power to enter any state without the permission of that states' government. It was also provided with complete authority to create a "Special agency" named as "National Investigation Agency" which could carry out investigations or continue judicial proceedings for offences committed under the "NIA Act" or as stipulated in its "Schedule". The act also laid down special provisions for "investigating scheduled offences" and for state governments to work cooperatively with NIA.

The Limitations of the NIA Act, 2008

Even though the "NIA ACT, 2008" had a wide range of powers, there were however certain limitations to its functioning. It only had powers to investigate the "Scheduled Offences" under its purview such as "Atomic Energy Act, 1962; the Unlawful Activities (Prevention) Act, 1967; The Anti-Hijacking Act, 2016 etc." beyond which it couldn't function.

Whenever a case falls under the offences specified in the schedule of the "NIA act", that case report changes hands starting from the Police station to the state government to finally the Central government. The central government has powers to determine if the offence are specified under the act or not. Thus, it's the central government's opinion that directs the work "NIA" does, which gives ample power to the central government to conveniently misuse that power when questions are raised against the Centre itself.

Special courts investigate the agency's inquiry, and a rapid trial necessitates the establishment of several special courts. Unfortunately, the Central Government can only set up one "special court" for each area as indicated in the schedule, limiting the agency's powers. This in turn slows down and delays prosecution, making the process of speedy trials redundant, giving an excuse to the government for handling cases in a lazy manner.

The NIA (Amendment) Bill, 2019

Amendments were made to the "NIA Act, 2008" by "The National Investigation Agency (Amendment) Bill, 2019" that increased the powers and streamlined the functioning of the "NIA". The bill gave powers to NIA to expand its jurisdiction, allowing it to carry out investigations related to: "human trafficking, counterfeit currency or banknotes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908" Giving it powers similar to the Police investigating identical offences throughout India.[8]

The amendment of 2019 also allows "Sessions Courts" to be designated as "Special Courts" for the trial of "scheduled offences under the Act." The Amendment also provides "The NIA" with the authority to investigate crimes committed outside of India which are covered by "international treaties and domestic laws" of other countries.

Need for reforms in the NIA Act

The amendment faced a lot of criticism from all corners with various issues being raised against it, since the new "Amendment" has increased the Powers of "NIA" enormously while scraping away its previous limitations. The Chhattisgarh government went so far as to say that the Act is "ultra vires to the Constitution and beyond the legislative competence of the Parliament".

The reason for this was that it feared that conferring such "unfettered, discretionary, and arbitrary powers" to the centre would lead to them being misused against the state, undermining the states' claim to sovereignty as provided by the "Constitution of India." Many also believe that these amendments have made "The NIA" a "parallel police structure", that goes against the "Federal structure of the constitution" giving the "NIA" absolute powers to dictate terms at which it can deal with states.

There were also concerns regarding how such reforms can pave the way for it being used as a loaded gun against "Minorities", and how the government turns a blind eye and refuses to take any action if the victim was a minority and the perpetrator wasn't. There have also been documented cases where the "NIA" has refused to cooperate with State Police. Many political leaders were also concerned that the bill will usurp governments' authority over investigations into crimes such as "Human trafficking" and "Cyber terrorism". Questions have also been raised concerning how police officers might file cases against a person if they believe he is "against India's interests." [9]

Governments all over the world and in "India" enact laws keeping in mind its own "political and sociological" philosophies in mind, while its true many of these laws are enacted to fulfil the interest of society at large, it doesn't seem as a surprise when Governments enact laws in its own interest, at times democratic and at times tyrannical. In the context of India as well, Laws at times come into force, serving as a manipulative system to make a society curb to the will of those in power.

While it is true that there is a need for stringent laws to prevent "Terrorism" from destabilizing the economy and society, it's also necessary that the Government shouldn't forget the objective it set out to achieve, which is to provide a blanket of protection to its citizens and to look after their fundamental rights as well as their Human rights and not abuse its powers by implementing laws that go against this Objective.

However, all of these laws are sometimes nothing more than regurgitated versions of one another utilised by governments to impose their will on the public. In case of National agencies which look after the security and integrity of the nation as well, while they are set up to combat terrorism and criminal activities, limitations on them cause inefficient and lazy work coupled with corruption.

And If these restrictions are removed, these institutions will engage in tyrannical acts in the interests of governments, against the will of the people. Thus, the need of the hour is Balance between Power and Accountability, as well as close monitoring of the implementation of such Laws, that facilitates the welfare of the People and safeguards their liberties and rights.

  • Asthana S, 'Emergency In India: Explanation Of Article 352 - 360 Under The Constitution' (iPleaders, 2021) accessed 11 December 2021.
  • 'Explained: What Is National Investigation Agency Act, And Why Is Chhattisgarh Challenging It?' (The Indian Express, 2021) accessed 11 December 2021.
  • 'Fact Check: How 2019 Amendment Changed 2008 NIA Act' (The Indian Express, 2021) accessed 11 December 2021.
  • Garg R, 'Limitations On The Powers Of Investigation Agencies - Ipleaders' (iPleaders, 2021) accessed 11 December 2021.
  • Hazard, Jr G, 'Law And Justice In The Twenty-First Century' (2021) 70 Fordham Law Review.
  • Tamirat A, 'Law As A Means Of Serving Justice' (, 2021) accessed 10 December 2021.
  • Venkatesan V, 'Amendment To The National Investigation Agency Act, 2008: An Act Of Violation' (Frontline, 2021) accessed 10 December 2021.

  1. The League of Nations, Convention for the Prevention and Punishment of Terrorism, Art. 1 (1937), League of Nations Treaty Series (LNTS).
  2. AIR 1979 SC 478
  3. Geoffrey C. Hazard, Jr, 'Law And Justice In The Twenty-First Century' (2021) 70 Fordham Law Review.
  4. Abiyou Tamirat, 'Law As A Means Of Serving Justice' (, 2021) accessed 10 December 2021.
  5. Subodh Asthana, 'Emergency In India: Explanation Of Article 352 - 360 Under The Constitution' (iPleaders, 2021) accessed 11 December 2021.
  6. 1980 AIR 1789
  7. V Venkatesan, 'Amendment To The National Investigation Agency Act, 2008: An Act Of Violation' (Frontline, 2021) accessed 10 December 2021.
  8. 'Fact Check: How 2019 Amendment Changed 2008 NIA Act' (The Indian Express, 2021) accessed 11 December 2021.
  9. 'Explained: What Is National Investigation Agency Act, And Why Is Chhattisgarh Challenging It?' (The Indian Express, 2021) accessed 11 December 2021.

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