Securing rights, protecting the nation?

Abstract

This chapter explores how the Supreme Court of India can most effectively protect fundamental rights in the context of national security and counter-insurgency policies. Its analysis of the mechanics of judicial reasoning points the way toward developing a rigorous, yet politically sustainable approach to security-related judicial review in India. The chapter analyzes two landmark cases: Nandini Sundar versus Chhattisgarh, where the state’s policy of deploying amateur auxiliary police to counter radical-left insurgency was challenged, and EEVFAM versus India, where the state’s informal but well-established policy of encouraging extra-judicial killing to counter separatism was challenged. It compares these with an older body of Supreme Court decisions reviewing national security legislation, and reflects upon judicial deference, rigour, and reasoning on fundamental rights and security risks across these various cases. The chapter shows that the Supreme Court has set aside security-related deference and most robustly protected fundamental rights and when it attends closely to the content of the rights at stake (drawing upon domestic and international norms) and the ground-level effects of the challenged security measure. The author argues that the Indian Supreme Court should embrace both modes of reasoning in cases challenging national security measures. Robust judicial scrutiny is particularly important given the Indian government’s tacit support for unlawful violence in response to security threats, and the Supreme Court’s own past lapses when reviewing security laws.