National Security vs. Human Rights Concerns: Balancing the Scales in India

Author : Rahil Aziz (BA.LLB, 7th semester), Student at JNU, Jaipur.

The tension between national security and human rights is a persistent and complex issue in modern governance. For a country like India, with its vast and diverse population, unique geopolitical challenges, and history of internal and external conflicts, balancing these concerns is particularly critical. The Indian legal framework, along with various landmark cases, provides insight into how the country navigates this delicate balance.

The Legal Framework

India’s approach to national security and human rights is deeply rooted in its Constitution, which seeks to protect individual freedoms while ensuring the security of the state.

1. Fundamental Rights:

The Indian Constitution guarantees several fundamental rights to its citizens under Part III, including the right to equality (Article 14), the right to freedom (Articles 19-22), and the right to life and personal liberty (Article 21). These rights are designed to safeguard human dignity and personal freedoms.

2. Restrictions on Fundamental Rights:

However, these rights are not absolute. Articles 19(2) to 19(6) provide for reasonable restrictions on the exercise of these rights in the interest of the sovereignty and integrity of India, the security of the state, public order, decency, or morality. Similarly, Article 21, which guarantees the right to life and personal liberty, can be curtailed according to the procedure established by law, often invoked in matters of national security.

3. Emergency Provisions:

The Constitution also contains emergency provisions (Part XVIII, Articles 352-360) that allow the suspension of certain fundamental rights during times of war, external aggression, or armed rebellion, thereby empowering the state to take extraordinary measures to protect national security.

4. Special Laws:

Several special laws have been enacted to address specific security concerns, including:

  • The Unlawful Activities (Prevention) Act (UAPA), 1967: This act provides for the effective prevention of unlawful activities and associations in India.
  • The National Security Act (NSA), 1980: Allows for preventive detention for a maximum of 12 months to prevent individuals from acting in any manner prejudicial to the security of the state or the maintenance of public order.
  • The Armed Forces (Special Powers) Act (AFSPA), 1958: Grants special powers to the armed forces in disturbed areas, allowing them to maintain public order but also leading to significant human rights concerns due to its sweeping provisions.

Balancing National Security and Human Rights: Key Cases

India’s judiciary has often been called upon to balance national security concerns with the protection of human rights. Several landmark cases illustrate this delicate balance:

1. A.K. Gopalan v. State of Madras (1950):

One of the earliest cases dealing with preventive detention, the Supreme Court upheld the validity of the Preventive Detention Act, 1950, emphasizing that personal liberty could be curtailed according to the procedure established by law. This case highlighted the tension between individual rights and state security.

2. Maneka Gandhi v. Union of India (1978):

In this landmark case, the Supreme Court expanded the interpretation of Article 21, ruling that any procedure depriving a person of life or personal liberty must be fair, just, and reasonable. This case marked a significant shift towards a more rights-oriented approach, emphasizing that even in matters of national security, due process must be upheld.

3. Kartar Singh v. State of Punjab (1994):

This case challenged the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. While the Supreme Court upheld the act’s validity, it also emphasized the need for strict adherence to procedural safeguards to prevent misuse, reflecting the judiciary’s effort to balance security and human rights.

4. People’s Union for Civil Liberties v. Union of India (2004):

This case dealt with the constitutionality of the Prevention of Terrorism Act (POTA), 2002. The Supreme Court upheld POTA but stressed that its provisions must not be misused to target innocents. The act was later repealed in 2004 due to concerns over widespread misuse, underscoring the challenges of maintaining this balance.

5. Naga People’s Movement of Human Rights v. Union of India (1997):

The Supreme Court examined the constitutionality of AFSPA in this case. While upholding the act, the court laid down guidelines to prevent abuse, including the necessity of periodic review of the declaration of disturbed areas and ensuring that armed forces act in accordance with legal protocols.

6. ADM Jabalpur v. Shivkant Shukla (1976):

During the Emergency period (1975-77), the Supreme Court controversially upheld the suspension of habeas corpus rights, stating that during an emergency, the rights of detainees could be curtailed. This judgment faced severe criticism and is often cited as a low point in the judiciary’s role in protecting human rights against state excesses.

Contemporary Issues and Challenges

1. Counter-Terrorism and Human Rights:

In the post-9/11 world, counter-terrorism measures have intensified globally, including in India. Laws like UAPA have been strengthened, giving law enforcement agencies broader powers to combat terrorism. However, these laws have also faced criticism for alleged misuse and for infringing on civil liberties. For instance, the prolonged detention of suspects without charge and restrictions on bail under UAPA have raised human rights concerns.

2. Surveillance and Privacy:

With the advent of digital technology, surveillance has become a key tool in national security. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, have sparked debates over privacy rights versus state security. The Supreme Court’s landmark judgment in K.S. Puttaswamy v. Union of India (2017), which affirmed the right to privacy as a fundamental right under Article 21, has added a significant dimension to this debate. The court emphasized that any infringement on privacy must be backed by a law, necessary in a democratic society, and proportionate to the aim sought to be achieved.

3. Armed Forces and Human Rights:

AFSPA remains a contentious law, particularly in regions like Jammu & Kashmir and the North-East. Allegations of human rights abuses by armed forces have led to demands for its repeal or amendment. The Justice Jeevan Reddy Committee (2005) recommended repealing AFSPA, stating that it had become a symbol of oppression. However, concerns about national security have led to its continuation, reflecting the persistent challenge of balancing security and human rights.

4. Citizenship and Human Rights:

The Citizenship (Amendment) Act (CAA), 2019, which provides a path to Indian citizenship for non-Muslim refugees from neighboring countries, has raised significant human rights concerns. Critics argue that it violates the right to equality under Article 14 and could lead to discrimination based on religion. The Supreme Court is yet to rule on the constitutionality of the CAA, but the nationwide protests and debates highlight the ongoing struggle to balance national interests with human rights.

Balancing Act: The Role of the Judiciary

The Indian judiciary plays a crucial role in maintaining the balance between national security and human rights. While the courts have upheld various security laws, they have also insisted on procedural safeguards and judicial oversight to prevent abuse.

1. Judicial Review:

The power of judicial review is a cornerstone of India’s constitutional framework. The judiciary has the authority to strike down laws and executive actions that violate fundamental rights. This power is essential in ensuring that national security measures do not encroach excessively on human rights.

2. Procedural Safeguards:

The judiciary has consistently emphasized the need for procedural safeguards in security laws. For instance, in the case of preventive detention laws, the courts have insisted on timely review of detention orders and the provision of legal aid to detainees.

3. Human Rights Commissions:

The establishment of the National Human Rights Commission (NHRC) and various state human rights commissions has added an extra layer of oversight. These bodies investigate allegations of human rights violations, including those arising from security operations, and make recommendations for corrective action.

4. Guidelines and Protocols:

In cases involving AFSPA and other security laws, the judiciary has laid down guidelines to prevent misuse. For example, the Naga People’s Movement case led to directives for periodic review of ‘disturbed area’ status and for ensuring accountability of armed forces personnel.


The tension between national security and human rights is an ongoing challenge for India. The country’s legal framework, backed by its Constitution, aims to balance these concerns by providing for fundamental rights while allowing for reasonable restrictions in the interest of national security. The judiciary plays a pivotal role in maintaining this balance, ensuring that security measures do not unduly infringe on individual freedoms.

As India continues to face diverse security challenges, from terrorism to insurgency, the need for robust yet balanced legal mechanisms becomes ever more critical. Laws like UAPA and AFSPA must be implemented with stringent safeguards to prevent abuse and protect human rights. The judiciary’s proactive role in reviewing such laws and ensuring adherence to due process is essential in this regard.

Ultimately, the pursuit of national security must go hand in hand with the protection of human rights. A democratic society thrives when it successfully navigates this delicate balance, ensuring both the safety of its citizens and the preservation of their fundamental freedoms. As India evolves, so too must its legal and institutional frameworks, continually striving to achieve this equilibrium.

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