NATIONAL SECURITY

Vis-à-vis HUMAN RIGHTS

: PRESENT SCENARIO
A DISSERTATION SUBMITTED to
the DEPARTMENT of LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA
in PARTIAL FULFILMENT of the DEGREE of MASTERS of LAW (LL.M)

Supervised by :
Submitted by :
Prof. (Dr.) Sunil Yadav Sherry Pant
Chairperson, Department of Law Roll No. 01
Kurukshetra University, LL.M – 4th sem.
Kurukshetra.

DEPARTMENT of LAW, KURUKSHETRA

UNIVERSITY, KURUKSHETRA
(2019 - 2020)
To all those who inspired it
and will not read it
 i

DECLARATION

It is hereby declared that this dissertation is being submitted to the Department of Law,
Kurukshetra University, Kurukshetra in partial fulfillment of the requirements prescribed for
the award of the degree of Master of Laws (LL.M). The matter embodied in this dissertation
is original and has not been submitted for the award of any other degree.

Place : Kurukshetra Sherry Pant

Date : ______________ Roll No. 01
LL.M – 4th sem.
 ii

Prof. (Dr.) Sunil Yadav Chairperson, Department of Law

LL.M, PhD Kurukshetra University,
Kurukshetra.

SUPERVISOR'S CERTIFICATE

This is certified that Sherry Pant, a student of LL.M. – 4 th sem. bearing Roll No. 01,
Session 2019-20 of Kurukshetra University, Kurukshetra has completed her dissertation on
the topic “NATIONAL SECURITY Vis-à-vis HUMAN RIGHTS : PRESENT
SCENARIO” under my supervision and guidance.
It is further certified that the research work is the outcome of her own efforts and is fit
for submission and evaluation.

Place : Kurukshetra
Date : ____________ (Signature & Seal of the Supervisor)
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ACKNOWLEDGEMENTS

The task to bring this dissertation into fruition could not have been complete without the
participation and active assistance of many individuals to whom I am highly indebted and
want to extend my heartfelt thanks.
First, I wish to record my deep sense of gratitude and profound thanks to my dissertation
supervisor Prof. (Dr.) Sunil Yadav, Chairperson, Department of Law, Kurukshetra
University, Kurukshetra for his keen interest, inspiring guidance, constant encouragement
and suggestions throughout this work which helped me in socio-legal analysis of the data
available on national security, human rights and in the statistical computation of the same.
I also extend a sincere thank you to Prof. (Dr.) Dalip Kumar, Dean, Department of Law,
Kurukshetra University, Kurukshetra for his help, guidance and assistance in the class with
the topic of human rights.
It is a genuine pleasure to extend a big thanks to my parents and other family members for
their love, understanding, wisdom and enthusiasm for pushing me farther than I thought I
could go and not letting me give up. Also a special mention of thanks to my sister Bhavishya
who was never reluctant in assisting me with the access to the internet connectivity by
sharing her mobile internet using hotspot, whenever I needed the same for online research.
I am extremely thankful to my friends Mr. Jogender Singh, Ms. Nikita Goel and Mr. Amit
Mahiwal for having faith in me, resolving my dilemmas regarding research and providing me
with necessary suggestions during the pursuit of preparation of this dissertation.

Place : Kurukshetra Sherry Pant

Date : ______________ Roll No. 01
LL.M – 4th sem.
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PREFACE

Peace, development and human rights are essentially inter-related, interdependent and
indivisible. The term ‘national security’ in a narrow sense of the term conveys the realist idea
of security that concerns steps taken to mitigate actual or perceived violence and military
threat from adversaries. In a broad sense, it embraces concepts such as developmental
policies as well as the use of business and trade as instruments of establishing order and
minimising the possibilities of friction.
Many of India’s national security concerns have been attributed to a troubled neighbourhood.
Surrounded by failed as well as ill governed states, India has been subjected to a range of
security challenges from both state as well as state sponsored non-state actors. The country
has been plagued by a multiplicity of internal security challenges in the form of terrorism and
insurgency movements, pacifying which takes much of its effort and resources. Externally,
unsettled borders, disputed territories, and old treaties that have never been adhered to in
spirit create enormous problems for bilateral relations.

The currently prevailing competitive interpretation posits that national security and
human rights are competing systems, there is some kind of zero-sum relationship between
them and that one needs to choose between either security or human rights. This view is to a
large extent stimulated by the intensive violations of human rights by states in the fight
against terrorism. Almost without exception, each administration has treated the two goals as
mutually exclusive : promote human rights at the expense of national security or protect
national security while overlooking international human rights.
The characterisation of human rights as antithetical to national security is inaccurate, and
unproductive because a strong mutually exclusionist approach towards national security and
human rights are not beneficial for the future of our societies.
Balancing between human rights and security is one of the most important challenges of our
societies. Human rights supporters need to understand the importance of security, and the
security professionals need to understand the importance of human rights and freedoms.
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The national security threats can no longer be seen to come solely from sources of external
aggression, the culpability of state actors in violating rights in the name of security must also
be dealt with through democratic processes.
History has frequently led to major violations of human rights and related decrease of quality
of life by the unrestrained search for perfect national security. Modern democratic states with
their principle of division of power are, however, purposely made to retain the basic level of
human rights in exchange for perfect security.
Past and present state responses to the national security situations have favoured an
authoritarian impulse leading to serious human rights violations. India, like many other
nations in the world has tended to address security problems solely by enacting a wide range
of special laws that give more powers to security forces and neglect accountability. On the
ground, this has meant repressive and often violent practices by security forces.
Moreover, rather than attempting to resolve security challenges politically where
possible, or addressing the socio-economic roots of internal struggles, the knee-jerk response
of the States has been to enact repressive legislation some of which plainly violate the human
rights, and violation of rights in the name of security is all the more widespread as
perpetrators are covered by de jure or de facto impunity. This lack of accountability of the
police and the armed forces has favoured a climate of impunity, which encourages the human
rights abuses. International Covenants, Declarations, other International Instruments,
National Constitutions and various laws guarantee human rights and freedoms of accused but
a million dollar question is whether these rights and freedom are really enjoyed by the people
for whom they are meant. One of the basic functions and purposes of the security forces in
India is the maintenance of internal security of the country. The Army, Border Security Force
and the Central and State Police Forces, all play their important roles in discharging this
common responsibility.
The right striking of balance between state powers and rights of citizens is a symbol of
democracy. Human rights are not esoteric concepts removed from the reality of human
existence. Rather, they are the anchors on which our common humanity can be assessed. The
debates regarding the necessity of strengthening national security legislation and formulating
laws relating to anti-terrorism is of contemporary significance in many parts of the world and
this dissertation argues that protection of national security will only be further secured with
protection of human rights.
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TABLE of CASES

A
A. K. Gopalan v. State of Madras, AIR 1950 SC 27 90
Ahmed Noormohmad Bhatti V. State of Gujarat, AIR 2005 SC 2115 96
Ajab Singh & Anr. v. State of Uttar Pradesh & Ors., AIR 2000 SC 3421 47
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 45
Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 46
Anuradha Bhasin v. UOI, WP (Civil) No. 1031 of 2019, d/d 10.01.2020 48, 98
Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 96
Arvinder Singh Bagga v. State of Uttar Pradesh & Ors., AIR 1995 SC 117 46
Assam Public Works v. Union of India, WP (Civil) No. 274 of 2009, 66
d/o 02.08.2013

B
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 90
Birma v. State of Rajasthan, AIR 1951 Raj 127 42

D
D. K. Basu v. State of West Bengal, (1997) 1 SCC 416 46
Deoraj Khatri v. State of Bihar, AIR 1981 SC 928 46

E
Extra Judicial Execution Victim Families Association v. UOI, 2017 SCC 97
OnLine SC 743

F
Faheema Shirin.R. K. v. State of Kerala, (2019) 2 KHC 220 48

H
Huassainara Khatoon v. Home Secretary, Bihar, AIR 1979 SC 1360 45, 46

J
Justice K. S. Puttaswamy (Retd.) & Anr. v. Union Of India, (2017) 10 SCC 1 45
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K
Kahrak Singh v. State of U.P., AIR 1963 SC 1295 45
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 1, 93
Ktaer Abbas Habib Al Qutaifi v. Union Of India & Ors, 1999 CriLJ 919 68

M
Madav Hayavadanrao Hoskot v. State of Maharastra, (1978) 3 SCC 544 46
Madhu Limaye v. SDM, AIR 1971 SC 2486 92
Mohammad Salimullah v. Union of India, WP (Civil) No. 739 of 2017 67

N
Naga People’s Movement of Human Rights v. UOI, (1998) 2 SCC 109 95
Nand Lal Bajaj v. State Of Punjab, AIR 1981 SC 2041 92
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 48

P
Parmanand Katara v. Union of India, (1989) 4 SCC 286 47
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568 30, 94
People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363 95
Prem Shanker Shukla v. Delhi Administration, AIR 1980 SC 1535 47
Prathvi Raj Chauhan v. UOI, WP (Civil) No. 1015 of 2018 d/d 10.02.2020 50

R
Rajoo @ Ramakant v. State of M.P., (2012) 8 SCC 553 46
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express, AIR 1989 SC 46
190
Rudal Shah v. State of Bihar, AIR 1983 SC 1986 46

S
Sambhu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425 92
Sajal Awasthi v. UOI, WP (C) 1076 of 2019 98
Shafin Jahan v. Asokan K. M., AIR 2018 SC 343 47
 viii

Shakti Vahini v. Union of India, (2018) 7 SCC 192 48

Shiv Kumar Sharma and others v. Union of India, AIR 1968 Del 64 42
Smt. Selvi & Ors v. State of Karnataka, (2010) 7 SCC 263 47
Sri Indra Das v. State of Assam, (2011) 3 SCC 380 96
Subhash Kashinath Mahajan v. State of Maharashtra, AIR 2018 SC 1498 50
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 45

T
T. V. Vatheswaran v. State of Tamil Nadu, (1983) 2 SCC 68 47

U
Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCR 594 45

V
Vidaya Devi v. State of Himachal Pradesh, C. A. No. 000060-000061/2020, 48
d/d 08.01.2020
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LIST of ABBREVIATIONS

AFSPA Armed Forces Special Powers Act, 1958

AIR All India Reporter
B.C. Before Christ
CIDR Central Identities Data Repository
CriLJ Criminal Law Journal
CrPC Code of Criminal Procedure, 1973
DDT Deception Detection Test
DRDO Defence Research and Development Organisation
ed. Edition
etc. et cetera
FDST Forest Dwelling Scheduled Tribe
FIR First Information Report
IB Intelligence Bureau
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
Inc. Incorporation
IT Information Technology
J&K Jammu & Kashmir
MDGs Millennium Development Goals
MHA Ministry of Home Affairs
MISA Maintenance of Internal Security Act, 1971
NATGRID National Intelligence Grid
NETRA Network and Traffic Analysis System
NCW National Commission for Women
NGO Non-Governmental Organisation
NHRC National Human Rights Commission
NIA National Investigation Agency
NRC National Register of Citizens
OTFD Other Traditional Forest Dwellers
 x

PIB Press Information Bureau

POTA Preention of Terrorism Act, 2001
PUCL People’s Union for Civil Liberties
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SCST Act The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989
TADA Terrorist & Disruptive Activities (Prevention) Act, 1985
TCIS Telephone Call Interception System
TSPs Telecommunications Service Providers
UAPA Unlawful Activities Prevention Act, 1967
UDHR Universal Declaration of Human Rights
UIDAI Unique Identification Authority of India
UN United Nations
UNCAT United Nations Convention against Torture and other cruel,
inhuman or degrading treatment or punishment
UNCITRAL United Nations Commission on International Trade Law
UNDP United Nations Development Programme
UNGA United Nations General Assembly
UPCOCA Uttar Pradesh Control of Organised Crime Act, 2017
U.S. United States
v. Versus