Terrorism: A Threat to the Rule of Law in India

There are two main essentials of rule of law, firstly, the supremacy of laws which means that individuals and governments are subjected to law and secondly, it imposes a restriction on discretionary powers which helps in balancing equality. This is enshrined as the basic structure in Indian Constitution through various case laws like Keshvananda Bharati. This article discusses how Terrorism goes against the basic structure and is thus a threat to Rule of Law.

Introduction to Rule of Law in India     

The principle of ‘Rule of Law’ is almost part of every nation’s law and has been adopted by various nations including India. Rule of law provides that law is supreme and must be followed by every individual; every legal authority or legal person derives its force from the law. The notion of ‘Rule of Law’ was well clarified by England and Wales High Court (King’s Bench Division), Court observed that in one or another way King is also subjected to law because the law is the reason that he is King.[1] The expression ‘Rule of Law’ has been derived from a French Expression “La Principe de Legality’[2] means that government should be based on basic principles or elements of rule of law. In other words, the rule of law lays down the basic foundation of law which excludes all forms of discrimination. There are two main essentials of rule of law, firstly, the supremacy of laws which means that individuals and governments are subjected to law and secondly, it imposes a restriction on discretionary powers which helps in balancing equality. Professor S.M. Qadri addressing the Independent People’s Tribunal expressed his views about rule of law that, if the rule of law is still not implemented in India then I must have to say that it has a dark future. He further explained that in order to implement the rule of law we must work together.[3]

Meaning and Definition of Terrorism

It is a little bit difficult to explain the expression ‘terrorism’ however it includes violence, excessive use of force and other terrorist activities. Roots of terrorism are present in India for a long time. Terrorism has various forms and it is committed due to various reasons. Mahatma Gandhi also believed that in a nation where roots of terrorism are present, it becomes little difficult to establish the ideal concept of democracy. In Indian context issue of terrorism is a major issue and the Indian Parliament has passed various anti-terrorism laws to prevent the terrorism.

In Madan Singh v. State of Bihar[4] In this case, Apex Court observed that term terrorism includes war offences and disturb the public peace.

According to various jurists terrorism is the use or susceptible use of force intended to bring about political change. Terrorism is the use of force especially the use of unlawful force to attain certain motives.

The principle of rule of law is also applicable in India. Constitution of India has adopted the principle of rule of law and Part-III (Fundamental Rights) of Constitution of India is based on the principle of rule of law and it is a foundation of Constitution of India. Article 13 clauses (1) (2) of the Constitution of India[5] according to these clauses any law which is inconsistent with fundamental rights, provided by the Constitution of India, will be declared void and it also restricts the States to pass such inconsistent laws. Apex Court made certain approaches in various landmark cases to explain the notion and importance of rule of law.

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In ADM Jabalpur v. Shivkanth Shukla[6] In this case Apex Court observed that: “Article 21 of Constitution of India is not the only provision that protects that rule of law, even in the absence of implementation of Article 21 of Constitution of India, States have no power to deprive a person of his life and liberty without the authority or permission of law. Court further observed that rule of law is now applicable and adopted by all nations.”

In Kesavananda Bharati v. State of Kerala[7] In this case, Apex Court held that this fact cannot be denied that rule of law is an important part of basic structure of Constitution of India and it cannot be amended by an Act of Parliament at any cost.

In Secretary, State of Karnataka and v. Umadevi and Others[8] In this case Apex Court held the equality in public employments is required for proper functioning and the rule of law is the main feature of Constitution of India and further held that courts cannot pass any order in violation of Article 14[9] and must be read with Article 16[10].

Apart from these judicial decisions, there are other authorities established by the Indian Government to protect the principle of rule of law. Judicial review is also an important tool to protect the principle of rule of law.

Terrorism a threat to Rule of Law in India

Terrorism is considered to be one of the major threats to the principle of rule of law in India. It infringes the fundamental rights provided by the Indian Constitution. Indian Parliament has passed certain anti-terrorism laws to prevent the terrorism, such as TADA, POTA, AFSPA, and UAPA. In numerous cases, the Supreme Court has made it cleared that ‘terrorism’ is a most concerned threat to rule of law in India.

In Madan Singh v. State of Bihar[11]In this case, Apex Court observed that Article 21 is affected by various terrorist activities. States need to take proper steps to protect Life, Liberty, and Privacy as given under Article 21.

In Hitendra Vishnu Thakur v. State of Maharashtra[12]In this case Apex Court observed that the determination of an act whether it amounts to terrorist act or whether it falls under TADA provisions or not is depends on the circumstances of the case and mere disruption of law and order or of public peace does not amount to terrorist activities. It must affect the rule of law which is a part of the basic structure of the constitution.

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In People’s Union for Civil Liberties v. Union of India[13]In this case Apex Court observed that the fundamental rights and human rights which are provided by the Constitution of India and based on the principle of rule of law must be protected from terrorist activities. Court further explained that terrorism is a major threat to rule of law and it is the duty of States to prevent the increasing terrorist activities and government should pass adequate ant-terrorist laws.

Conclusion

It is concluded that rule of law is a part of basic structure of Indian Constitution. Rule of law explains that every individual or State or Government should be subjected to the law. Framers of Indian Constitution were in the view that India must follow and implement the rule of law for the proper functioning of Indian Constitution. Provisions like fundamental rights and equality before the law are the outcome of rule of law and included in the constitution to ensure that rule of law must be followed. Supreme Court has made various approaches to explain the importance of rule of law in various judicial decisions. But however, terrorism is the biggest and major threat to rule of law in India. Apex Court and various High Courts have observed that terrorism violates the basic structure of constitution or rule of law and also violates the Article 21[14] (right to life). Courts have directed the Central Government to implement anti-terrorism laws to prevent the terrorism.

[1] Case of Proclamations, (1610) E.W.H.C. K.B. J22 77 E.R. 1352: (1611) 12 Co Rep 74. (Referring to a statement made by Chief Justice Coke: “The King himself must not to be subject to man, but subject to God and the law, because it is the law that makes him King”), available at (June. 15, 2017, 09:30 AM), http://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html.

[2]La principe de legalite, (June. 15, 2017, 10:00 AM), https://www.lawnotes.in/La_principe_de_legalite.

[3] GRACE PELLY, STATE TERRORISM: TORTURE, EXTRA-JUDICIAL KILLINGS, AND FORCED DISAPPEARANCES IN INDIA 221 (2009).

[4] (2004) 4 S.C.C. 622 (India): 2004 S.C.C. (C.R.I.L.J) 1360 (India).

[5] Article 13 (1) and  (2) of Indian Constitution: (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void or; (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

[6] A.I.R. 1976 S.C. 1207 (India).

[7] A.I.R. 1973 S.C. 1461 (India).

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[8] A.I.R. 2006 S.C. 1806 (India).

[9] Article 14 of Constitution of India: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[10] Article 16 of Constitution of India: (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination

[11] supra note 4.

[12] (1994) 4 S.C.C. 602 (India): 1994 S.C.C. (C.R.I.L.J.) 1087 (India).

[13] (2004) 9 S.C.C. 580 at 596 (India).

[14] Article 21 of the Constitution of India: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”