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