Terrorism trials

(Read legal blackholes and grey holes)

The constitutionality of terror laws case has been challenged twice. One in Kartar Singh V. Punjab.
Here, one of the arguments was on competence. Another key argument was on principle of self-
incrimination. This law was falling short of international standards as well
Similar arguments were made in PUCL case.
The SC said that terrorism is not to do with law and order or public order, which is a state subject. It
has to do with defense of India.
A Balagopal says whether it is the language of SC or KPS Gill’s view of terrorism. The question of
national security trumps civil liberties in both cases.
AP HC in one of its judgements said every case of police encounter must be investigated. The AP
Police immediately got stay from SC. The home ministry’s affidavit was making arguments akin to
falling down of India if Police is not given power to kill.
The author says the court gives it look of legality while upholding anti-terror laws.
NHRC chairman Ranganath Mishra said SC guidelines on TADA are not working at all. It was prior
to PUCL case.
He says that Judges displays constitutional positivism. The stance by court that role is minimal that
they should not interpret law. The courts are eventually taking position in favor of executive by this
rhetorical stance. The threshold of ROL slowly chips down even in cases of other areas of law as well.
3rd category- serious review of executive decision.
Kabir Kala Manch- UAPA constraining pol views.
Lot of legal scholars inspired Schmitt were arguing
CASS SUNSTEIN
He says judges should ideally maintain a minimal stance. The most know
He says the maximalist of national security kind and liberty model is problematic.
Sunstein says you can deprive people of property if Parliament is making the law. As long procedure
is followed then it is fine.
02/02
ORREN GROSS
CHAOS AND RULES = BOOK
He says during emergency cannot be regulated by law. He draws from Schmitt. Many constitutions
provide procedure for derogation of laws. The derogation from law is permitted by law itself. He sees
this accommodation very problematic. He says this distinction of normal period and emergency
period is dangerous. It undermines our vigilance against civil rights. The problem is that idea of
temporary phase in emergency doesn’t work out. Even the temporary prov can be made permanent.
Ex- AFSPA.
Emergency power piles up. The govt is wary of giving it up. It eventually becomes plea of
convenience. More and more spheres of life are brought into in.
Over a period, the threshold of resistance weakens. The discourse also changes. When judicial mind
start accepting lower standard of evidence it seeps into common mind. The national security sphere
start expanding to include other spheres.
He proposes a model called extra-legal model. It has flexibility of accommodative model and also
maintains that rules should not be suspended through legal methods. During normal times law should
be upheld but during emergency step out of the bound of laws.
He says law should not allow for its own suspension.
His position is of political realist.
3 points on which extra-legal model is based-
2. no matter how many safeguards you keep the cons arrangements never fructify.
3. probability of executive measures becoming permanent.
The justification to torture is ticking bomb model.
How extra - legal model deal with that-
He is saying the executive should publicly acknowledge that they took some extreme step. He says
public will decide whether the step taken was fair or not. It will act as restraint when you are not sure
how will the public reacts.
H says that the public should be actively engaged in this model to be successful. He doesn’t specify
the technicalities.
The normal theory does not apply in his model.