National Security and Natural Justice

 “In a situation of national security, a party cannot insist on the strict observance of principle of natural justice”

Justice Kurian Joseph

Introduction

The principles of natural justice are uncodified principles which forms the core of fair practice. Derived from the Roman words,jus naturaleand lexnaturale, natural justice is essentially a sense of what is right and what is wrong.[1]Though natural justice has been adopted as an integral part of the Indian Constitution, National Security is regarded as an exception to the same. This article provides a brief overview of what constitutes natural justice and how national security has been treated as an exception to it.

History

A court while adjudicating a matter is believed to arrive at the right decision when compelled to act in a procedurally fair manner. Failure to do so, will result in decisions propelled by arbitrariness catapulting to procedural inconsistencies and inequities. Where an act is found to be arbitrary, it is implied that it is unequal, both politically and constitutionally.[2] To avoid such inequalities and ensure procedural fairness, the Chief Justice of King’s Bench, Sir Mathew Hale in 1676, adopted the principles of natural justice into the common law system.[3]

The right to a fair hearing and other principles of natural justice, however, have to yield to predominant consideration of national security. In Council of Civil Service Unions and others v. Minister for the Civil Service[4], the House of Lords held that the adequacy of national security as a defence for breach of fairness is to be determined by the Government and not the Courts. This is so because the government alone has the access to necessary information to determine the same. 

The Indian Judiciary has over the years through landmark judgements such as Maneka Gandhi v. UOI[5]established the significance of natural justice and its integration into the Indian legal system. The exception of national security has been carefully considered by the courts. The Supreme Court in Ex. Armymen’s Protection Services Private Ltd. v UOI[6]held that in a situation of national security, strict adherence to natural justice cannot be demanded.The same has been upheld in Digi Cable Networks Pvt Ltd v. UOI[7], Sandeep v UOI[8]and M/S Add Lounge Services Private Ltd v. UOI[9]to name a few. The Court further held that national security encompasses socio-political stability, economic solidarity and strength, cultural cohesiveness, external peace and territorial integrity, amongst others. What constitutes national security is a matter of policy and hence to be determined by the executive. However, the Court is vested with the power to verify the existence of justifiable facts to prove involvement of national security.[10]

Provisions

Though not expressly mentioned, the Indian Constitution has sagaciously adopted a thread of the principles of natural justice. The Preamble to the Constitution guarantees equality of status and opportunity to ensure social and economic fairness. Further, it also assures to the citizens of India, social, economic and political justice along with the liberty of thought, expression and faith. Thus, within the Preamble which forms the soul of the Constitution itself, the principles of natural justice have been skilfully incorporated.

Apart from the Preamble, Article 14 of the Constitution, striking at the roots of arbitrariness, guarantees the right to equality before law and equal protection of law. Article 14 prohibits discrimination through administrative actions and discriminatory lawsof any nature.[11] Article 14 also includes within its ambit the principle of audialterampartem. Thus, it guarantees to a person adversely affected by administrative action, the right of hearing.[12] Further, in Maneka Gandhi v. UOI[13],the SupremeCourt clarified that the principles of natural justice form an integral part of rights guaranteed under Article 14. The Court held that the denial of opportunity to be heard amounts to violation of principle of natural justice and the right to equality under Article 14.

Whether Article 21 of the Constitution implements principles of natural justice was considered by the Apex Court in  A.K. Gopalan v. UOI[14].  The majority in this matter held that ‘law’ as addressed in Article 21 cannot be read as principles of natural justice. However, J. Fazal Ali, in his dissent stated that the principle of audialterampartem, being a part of general law of the land could be read into Article 21. Later, in Maneka Gandhi v. UOI[15],the same was overruled. The Court held that Article 21 mandates for the law to be fair, just and reasonable by providing the opportunity to be heard and following fair trial processes. The Court has reached the conclusion that Article 21 read with Article 14 and Article 19 form the test of reasonableness when it comes to determining the constitutionality of a law.[16]

Principles of natural justice have also been incorporated in Article 22(1) and (2). It confers upon the arrested the right to; be informed of grounds of arrest, consult and be defended by a lawyer and be produced before a Magistrate within 24 hours. Further, Articles 32, 226 and 227 of the Constitution have bestowed upon the judiciary the authority to question violation of fundamental rights and prevent violation of natural justice. Article 311 of the Constitution is also a manifestation of the principles of natural justice in matters concerning dismissal, reduction of rank or removal of public servants. It provides the servant so removed, dismissed or reduced in rank, the opportunity to be heard.

Concept

The principles of natural justice as adopted in India include mainly two rules:

  • nemo judex in causa sua– which translates as no man should be a judge in his own cause in order to ensure the impartiality of the judge.
  • audialterampartem– also known as the rule of fair hearing which seeks to ensure that every accused is provided the opportunity to present his case.

Natural Justice in National Security matters

The various legislative examples of utilisation of the exception of national security to the principles of natural justice are as follows:

  • Preventive Detention Act(PDA) (1950-69), enacted as a precautionary measure during the partition period, authorises the government to arrest an individual without any reasons for up to a year.
  • Armed Forces (Special Powers) Act (AFSPA), 1958 which was extended to all of Northeast in 1972, to Punjab in 1990 and recently to Jammu and Kashmir, provides institutional impunity to State forces for human rights violations.[17]
  • Unlawful Activities (Prevention) Act (UAPA) and related amendments. The UAPA, 1967 introduced as a preventive detention law has been misused as a political weapon for human rights violation masked in the defence of national security. The UAPA is considered draconian owing to the fact it provides for no sunset clause and poses great difficulty for accused to avail bail.[18]
  • Maintenance of Internal Security Act (MISA), (1971-77),reinstitutedthe laws under PDA after its lapse in 1969. It was aggressively utilised against political opponents, civil society groups and trade unions during the 1975 emergency.
  • National Security Act (NSA), 1980,popularly called the ‘no vakil, no appeal, no daleel’ law confers the power to detain an individual for up to 10 days without informing him of reason for arrest.
  • Terrorist and Disruptive Practices Act (TADA),(1985-95) facilitated custodial torture and abuse under the guise of combating terrorism.
  • Prevention of Terrorism Act(POTA), (2001-04) reinstated provisions of TADA placing limitations on right of defence and enhancing police powers.

The recent introduction of the National Investigation Agency (Amendment) Bill, 2019 has invoked immense controversy regarding the rationality of the exception of national security to the principles of natural justice. Can counter-terrorism measures be availed as an excuse to tear down civil liberties and related rights of citizens? The NIAA Bill in fact vests unchecked powers upon the police to override the due process established to protect the rights of citizens to a fair trial.[19] Under this Bill, the onus of proving innocence is assigned to the accused which is in violation of the basic principle of “innocent until proven guilty.”

Under the United Nations Security Council Resolution, it is mandatory for States to ensure that the measures adopted for combating terrorism are in compliance with their obligations under International law. All thelegislation abovementioned permit custodial torture and other ill-treatments. Thus, they are in violation of the UN Convention Against Torture and other Cruel, Inhuman Treatment and Punishment which India has conveniently refrained from ratifying. Theynot only threaten liberty and privacy but deny the right to a free trial which is required under the Universal Declaration of Human Rights. These legislations, specifically the proposed amendments to the UAPA are tools capable of curbing the voices of dissent and to carry out potential witch hunts against resistors.

Conclusion

India being a welfare state demands the conferment of discretionary powers upon the administrative agencies. The principles of natural justice embodied in the Constitution seek to prevent the abuse of the discretion so granted. However, the extent of application of the same and exceptions to the principles of natural justice pose a conundrum before the judiciary.The question of whether national security laws should be allowed to breach principles of natural justice is long debated. Should the government be permitted to violate fundamental rights under Article 19 and 21 under the mask of national security?Is national security an exception to natural justice or rather a disguise acting as barbed wires and concentration camps to an otherwise free India?

According to the National Crime Records Bureau, 75% of arrests made under UAPA have ended in acquittal or discharge.[20] Despite this, 1,182 arrests were registered under UAPA in 2018[21]

Recently, in 2018 in relation with the BhimaKoregaon incident, writers, lawyers and activists were arrested under the Unlawful Activities Prevention Act.[22] This is an example of the danger posed by this exception to natural justice. The repeated arrests of AkhilGogoi, a right to information activist from Assam also exhibits a gross violation of the principles of natural justice under the guise of national security. He has been denied medical treatment and arrested repeatedly to circumvent judicial scrutiny of executive actions.[23]

Anti-citizenship law protestors have also been arrested under the pretext of anti-terrorism laws to ensure national security. Students and activists, including many from JamiaMilliaUniversity in Delhi have been charged with the offence of hatching conspiracy to instigate communal violence in Delhi under the UAPA.[24] The students so arrested have been denied the basic right of the opportunity to be heard, an important pillar of natural justice.[25]

Despite the continued protests and debates over the matter, it is observed that the rationale as adopted in colonial India to persecute freedom fighters still persists in Indian laws. Unfortunately, the role of freedom fighters is now played by the minority, indigenous communities, activists, journalists, students, artists and trade unions.

Questions

  1. What is Natural Justice?
  2. How has the Judiciary interpreted provisions of the Constitution to include the principles of natural justice?
  3. Is National Security an exception to the principles of Natural Justice and how has this exception been incorporated into Indian legislation?
  4. How does the exception of National Security to the principles of Natural Justice violate international law?
  5. What are some recent instances of arrests made, violating Natural Justice under the guise of National Security?

[1]https://blog.ipleaders.in/natural-justice/

[2] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

[3]https://corporate.cyrilamarchandblogs.com/2018/03/principles-natural-justice-origin-relevance/

[4] Council of Civil Service Unions and others v. Minister for the Civil Service (1985) AC 374.

[5]Maneka Gandhi v. Union of India, 1978 AIR 597.

[6]Ex. Armymen’s Protection Services Private Ltd. v Union of India, (2014) 5 SCC 409.

[7]Digi Cable Networks Pvt Ltd v. Union of India, CA No. 120-121/2019.

[8]Sandeep v UOI, CWP No. 2492/2014.

[9]M/S Add Lounge Services Private Ltd v. Union of India, W.P.(C) No. 11202 of 2015.

[10]https://zeenews.india.com/news/nation/natural-justice-principles-can-be-waived-in-national-security-matters-sc_914935.html

[11]http://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-Indian-Constitution.html

[12] Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101.

[13]Supranote 5.

[14]A.K. Gopalan v. Union of India, AIR 1950 SC 27.

[15]Supra note 5.

[16]http://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-Indian-Constitution.html

[17]https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security-laws

[18]https://www.business-standard.com/article/current-affairs/arrested-activists-67-ended-in-acquittal-or-discharge-under-uapa-act-118090800801_1.html

[19]https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security-laws

[20]https://www.newsclick.in/UAPA-Amendment-2019-Narendra-Modi-Government-Amit-Shah-Anti-Terrorism-Laws

[21]https://www.thequint.com/news/india/sedition-cases-uapa-official-secrets-act-ncrb-data-2018

[22]https://www.hindustantimes.com/cities/activists-arrested-in-elgar-parishad-case-await-trial/story-7s3Yq91xq6ohHTIdLnEoHO.html

[23]https://www.counterview.net/2020/04/top-assam-rights-leaders-repeated.html

[24]https://www.aljazeera.com/news/2020/04/india-hindu-nationalist-gov-targeting-anti-caa-protesters-200422122213197.html

[25]https://www.indialegallive.com/top-news-of-the-day/news/anti-caa-protests-lawless-campuses-88795

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