COURSE OUTLINE INDIVIDUAL AND THE STATE: EXTRAORDINARY LAWS IN INDIA. Associate Professor of Law

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1 JAWAHARLAL NEHRU UNIVERSITY CENTRE FOR THE STUDY OF LAW AND GOVERNANCE NEW DELHI COURSE OUTLINE COURSE TITLE: COURSE TYPE: DURATION: CLASSES: CREDIT: INDIVIDUAL AND THE STATE: EXTRAORDINARY LAWS IN INDIA Optional One Semester 3 hours per week 3 Credits COURSE TEACHER: Dr. P. PUNEETH Associate Professor of Law OBJECTIVES OF THE COURSE One of the most important and eternal problems of political theorists and the governments all over the world has been how to reconcile the liberties of the Individual in society with the safety and security of State. Although, in most situations, Individual freedoms and security of the State are compatible and are not inconsistent as there exists no basic conflicts between the two, in situations of crisis, conflicts may arise. In such crisis situations, should individual liberties be given more importance or the security of the state is a question that has engaged the minds of great scholars for centuries. Identifying the standards to strike a harmonious balance between individual liberties and security of the state both in times of war and peace is a ceaseless problem encountered by all most all the political systems in the world. How far the balance is maintained in the Indian Legal System is the central question the course seeks to address. The course outlines the constitutional demarcation of boundaries between the Individual and the State. The focus is on extraordinary provisions in the Indian Constitution and the extraordinary legislations enacted in the post Independent India for preservation and protection of public order, security of the state, and national security. The course aims at critical examination of the implications of such laws on civil liberties of individuals and justifications thereof. Critical examination will be undertaken in the light Page 1 of 6

2 of transnational standards, judicial decisions and with due regard changing scenario in India. BRIEF NOTE ON COURSE OUTLINE The course has been divided into six units. The first unit aims at providing broad overview of the discourses on individual rights and limits with specific emphasis on debates in the Constituent Assembly. Differences among the members of the Constituent Assembly and the consensus that was reached will be highlighted. The idea is to create context in which specific extraordinary provisions in the Constitution of India and extraordinary laws are to be discussed subsequently. The second unit deals with the recognition and guarantee of civil and political rights as Fundamental Rights (FRs) under the Constitution. It focuses on the extent to which they are recognized, subject to what conditions/limitations they are recognized and briefly about their amendability. Constitutional provisions relating to enforcement of FRs and judicial approach will also be covered in this section. Issues relating to derogability (suspendability) of FRs will not be discussed in this section. Those issues will be discussed in the section dealing with emergency provisions. In the third unit, the constitutional framework relating to preventive detention and the preventive detention laws enacted by the Union and the State Legislatures in the postindependent India will be critically examined. Attempts to strengthen constitutional safeguards against preventive detention through constitutional amendment and the judicial approach in dealing with preventive detention cases will be discussed. The fourth unit deals with the concept of martial law, conditions for its invocation, how the provision relating to martial law came to be incorporated into the Indian Constitution and its implications on the fundamental rights guaranteed under the Constitution. The fifth unit deals with emergency and individual liberties. It aims at critically analyzing the constitutional provisions relating to proclamation of emergency and its implications on the fundamental rights guaranteed under the Constitution. It highlights the differences between the original constitutional scheme and the changes that are introduced through amendments. The sixth unit provides broad overview of exceptional laws, what laid to their enactment, their compatibility with constitutional rights and due process standards. Page 2 of 6

3 COURSE CONTENTS Individual and the State: An Overview of Constitutional Framework Individual Rights and Freedoms under the Indian Constitution What rights are protected? Against whom they are protected vertical and horizontal application of FRs How they are protected? Conditions, limitations and amendability. Enforcement of FRs. Preventive Detention: Constitutional and Legal Framework Legislative competence Constitutional safeguards Preventive Detention Laws in India Judicial Review (subjective satisfaction v. objective assessment) Martial Law and Indemnity Concept of Martial law conditions for its invocation Article 34: Text in context Impact of the Act of Indemnity on enforcement of derogable and nonderogable fundamental rights. Emergency and Individual Liberties Emergency Provisions under the Constitution: Article 352, 358 and 359 Suspension of Rights during 1962, 1965, 1970 and 1975 emergencies Critical examination of the approaches. Access to courts during emergency and judicial approach Effect of the Constitution (Forty fourth Amendment) Act, Exceptional Laws TADA, POTA and UAPA, MCOCA and KCOCA AFSPA Special Courts and Tribunals Human Rights Concerns Judicial approach Page 3 of 6

4 SCHEME OF EVALUATION The evaluation shall have two components and the distribution of weightage is as follows: Sl. Components Max. Marks No. 1 Continuous evaluation 40 2 End Semester Examination 60 TOTAL 100 Different components of continuous evaluation and allocation of marks are as follows: Sl. Components Max. Marks No. 1 Term paper 20 2 Presentation of term paper 10 3 Class Participation 10 TOTAL 40 Required readings: 1. Ujjwal Kumar Singh, The State, Democracy and Anti Terror Laws (New Delhi: Sage Publications, 2007). 2. A. G. Noorani, Challenges to Civil Rights Guarantees in India (Oxford University Press, 2012). 3. K.M. Mathur, Challenges to Police Human Rights and National Security, (Kalpaz publications, 2003). 4. Surendra Malik, Supreme Court on Preventive Detention (EBC, 1985). 5. Venkat Iyer, States of Emergency The Indian Experience, (Butterworths, New Delhi, 2002)]. 6. H. M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus: A Criticism (Bombay: N.M. Tripathi Pvt. Ltd., 1978). 7. International Commission of Jurists, States of Emergency: Their Impact on Human Rights (Geneva, 1983). Page 4 of 6

5 8. Andrew Harding, John Hatchard (ed.), Preventive Detention and Security Law: A Comparative Survey (Martinus Nijhoff Publishers, 1993). 9. Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of law (Ann Arbor: The University of Michigan Press, 2003). 10. Kuldeep Nayar, The Judgment: The Inside Story of the Emergency in India (1977) 11. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1995). 12. Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Tripathi, 1985). 13. Anupama Roy and Ujjwal Kumar Singh, The Masculinist Security State and Antiterror Law Regimes in India, 39 (2) Asian Studies Review (2015), available at: Anil Kalhan, Gerald P. Conroy, et al., Colonial Continuities: Human Rights, Terrorism and Security Laws in India 20:1 Columbia Journal of Asian Laws (2006). 15. G. O. Koppell, The Emergency, the Courts and Indian Democracy 8 JILI 287 (1966). 16. Asmita Basu, Routinization of the Extraordinary- A Mapping of Security Laws in India, available at: A G Noorani, Armed Forces (Special Powers) Act: Urgency of Review, 44 (34) EPW A.G. Noorani, India: A Security State 44 (14) EPW A.G. Noorani, Liberty versus Security 42 (27 28) EPW Suggested readings: 1. M.P.Jain, The Indian Constitutional Law (2010). 2. H. M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt. Ltd., 2005). 3. M. P. Singh, V.N. Shukla s Constitution of India (Eastern Book company, 2013). 4. Granville Austin, The Indian Constitution Cornerstone of a Nation (Oxford University Press, 2003). 5. Subash C. Kashyap, Constitution Making Since 1950 (Universal Law Publishing Co. Pvt. Ltd., 2010). 6. L.M. Singhvi, Freedom on Trial (Vikas Publishing House Pvt. Ltd. 1994). 7. V. Swaroop, Law of Preventive Detention (DTU Publications, 1990). 8. David H. Bailey, Preventive Detention in India: A Case Study in Democratic Social Control (1962). 9. B. V. Kumar, Preventive Detention Laws in India (1991). 10. Pannalal Dhar, Preventive Detention under the Indian Constitution (1986). Page 5 of 6

6 11. K.G. Kannabiran, The Wages of Impunity: Power, Justice and Human Rights (New Delhi: Orient Longman, 2004) 12. Ben Power, Preventive Detention of Terrorist Suspects: A Review of the Law in Australia, Canada and the United Kingdom. 13. Nasser Hussain, Beyond Norm and Exception: Guantanamo, Critical Inquiry 33 Summer (2007). 14. Giorgio Agamben, States of Exception (Chicago and London: The University of Chicago Press, 2005). 15. Haley Duschinski Reproducing regimes of impunity: Fake encounters and the informalization of everyday violence in Kashmir Valley, 24 (1) Cultural Studies (2010). 16. Julia Eckert, Death and the Nation: State Killing in India in A. Sarat (ed.), The cultural lives of capital punishment: comparative perspectives (Stanford, Calif.: Stanford University Press, 2005). 17. Bhagat Oinam, Violence, Impunity and the Fallout: A Tale from Manipur, in Patrick Hoenig and Navsharan Singh (eds.), Landscapes of Fear: Understanding Impunityin India (New Delhi: Zubaan, 2014). Page 6 of 6