The Question Of National Security: An Interesting Red Line Between Liberty and Security
The recent Supreme Court observations in staying sedition law, tearing off
sealed cover practice and in cases where the national security is in question
are going through a proactive sense of activism. What all does it Indicates? It
indicates increasing Judicial Activism in the field of National Security. Now
the question arises that is this growing sense of Judicial Activism in observing
the questions pertaining to National Security is absolutely essential or not.
Assessing the above said line that weather growing sense of Judicial Activism in
National Security is sine qua non or not, by default flares a debate that
weather the state can deter courts from dwelling in too much in the question of
National Security or the Court can deter the state in getting a so-called 'free
pass' in the matters of National Security. Now it is a settled fact that
whenever a matter related to National Security arises, the scope of exercising
Judicial activism becomes limited.
Now, a question arise here that why it become limited? the answer to that is
'sensitivity', the matters of espionage and national security carries
sensitivity and a lot of factums have to be investigated carefully moreover,
most of the details requires to be classified for security reasons. On top of
that, the concepts and content revolving around intelligence and national
security domain or literature is neither understandable nor explainable to
everyone especially to civilians which includes lawyers and Judges.
Therefore, Courts have to restrain (Judicial Restrain) themselves from dwelling
into the question of national security. Courts give a cursory view or
superficial view to get glimpse of the case and accordingly give their
observations as case progresses. However, nowadays courts are dwelling in too
much that puts state in a difficult position in presenting the facts of the case
in one go or at superficial manner.
As said, that due to classified and sensitive nature of the case everything
cannot be answered at base level which limits the court to some extent. But
court sometimes breach the limited space of addressing 'national security
matters' and make things 'overt' by excessive participation during the hearing
thereby leading to erosion of this concept of limited scope.
Now how the process of erosion happens, it happens when Court start to question
too much and dwell in the case in the name of liberty and justice that brings
vagueness in the State' stance and because of vagueness the ball goes in the
judiciary's court. The Courts are not realising the need of secrecy or
covertness rather they expect to be made aware of everything and not just the
glimpse or cursory view. This is the point where State goes on the backfoot and
liberty and justice prevails despite realising the essence of national security
and gravity of it that particular case involves with it.
The increasing activism in the question of national security fails to asses and
realise the state's constrains in presenting the facts before the court where
the national security is in question. The central point of the argument in
State's defence are the realisation, correct assessment and State constrains in
cases where national security is in question. Instead of starting a grilling
show and becoming impatient, Courts need to give space to the State in such
cases and patiently move as the case progresses.
The Guardians of Democracy: Liberty vs Security
The Guardians of Democracy: Courts and learned advocates have completely
different and opposing view on the State's stance though Courts especially, the
Apex Court. If we look some of the judgements we will get the sense of
increasing activism of Judiciary in maters of national security wherein the
Courts have observed- In the 2020 decision in Anuradha Bhasin v Union of India,
the SC held that no absolute immunity for national security grounds has been
In the 2021 interim order, directing an investigation into the alleged use of
Pegasus spyware on citizens, the Supreme Court said that the "mere invocation of
national security won't render the Court a mute spectator" and now tearing off
the sealed cover practice by both outgoing and recently appointed CJIs. These
strong observations from the apex court in safeguarding cardinal principles of
democracy and justice have in the recent past deterred the sate from using the
national security as reason to establish their case in the court.
The increased judicial activism can be said to be reasonable or justified
because it draws the line of transparency and keeps a check on State's actions
and prevent absolutism or dominance of one perspective which might be injurious
to health of democracy, liberty and ultimately to society as whole. The excuse
of National Security is the most draconian and powerful weapon that a state
possess and sometime use it to settle scores or to suit their needs whenever the
time comes. Classical case of ISRO Espionage case can be cited here.
Nowadays, the pragmatic shift in the outlook of the apex court is considered a
much needed shift because the national security excuse can lead to cultivation
of an unchecked absolutism of power in the state and to prevent this unchecked
power, Courts intervention becomes sin qua non. Being the guardians of
democracy, the Courts has to check and establish reasonableness of the set of
excuses that State often gives in the question of national security regardless
of security concerns because someone's fundamental right under Article 21 of
Indian Constitution is at stake. Now to establish reasonableness Courts needs to
apply logic and observe the facts of the case accordingly. This becomes the
fulcrum of the debate- liberty vs security.
One can say that in the name of liberty the security is compromised and liberty
is compromised in the name of security. Now as already said above, to deal with
such conflicts Logic and reasonableness needs to established otherwise
absolutism may rise injuring the society and bedrock of democracy. As far as
security is concerned, State is required to exercise or play the national
security card in genuine manner and not in prejudicial manner. If there is so
much need to realize the state's constraint then it is equally important to
realise the ends of justice and chances of miscarriage of justice involved.
It is not just an ordinary criminal case involving multiple dimensions, cases
involving national security question rely on specific dimensions and even Courts
have to exercise limited activism in observing these specifics. Hence, it
creates opportunity for State to hammer an unchecked absolute power. Therefore,
there is need of an increased scrutiny and vigil by Courts to check and balance
the power and to prevent miscarriage of justice.
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