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Sunday, 1 December 2013


SENSE OF SECURITY OR CIVIL RIGHTS :- An Analysis on the Paradox of Anti-Terrorist Legislation


         In the modern context of our day to day lives on must come to terms with the fact that security is a concept that is both misleading and superficial in nature. When we use the word security one may have different conceptions of security be it physical, emotional or even financial security. Over the years we tend to associate the security in our lives as an obligation that the government needs to fulfill. At the very least we expect the government to provide us a certain degree of physical security to protect us from intrusion, assault, theft or any act that could be dilatory to our lives as a whole. Now let’s consider this in coherence with the concept of our rights. In India we have a plethora of rights the most important of them the fundamental rights guaranteed under the constitution the right to move, the right to reside in any part of the country, the right to form groups and the right to free speech and expression. These rights give us a certain power one may even say that these rights provide us with security. But the truth is that security is unattainable be it in India where you have riots or bomb blasts occurring on a daily basis or even in a country like the US where you have instances like the Boston bombings or even in a country like Iraq where drone attacks make the concept of security look like small child’s dream. Notwithstanding the frequency of these individual events the fact remains that now government can guarantee security what it can do is provide a sense of security. The enactment of the PATRIOT Act in the US or the exponential growth of their defense budget all contribute to one thing, instilling in the common public a “sense of security”. It can be seen in speeches by politicians as well during rally’s. The reasoning behind this is that this sense of security is what drives public participation as well as public support. A simple way of understanding this is by picturing a situation where any government that couldn’t guarantee the security of its people has stood in power. Now that one sees this provision of the sense of physical security as a government’s prime function we have to contrast it with the security that arises from individual rights perhaps they are both mutually inclusive. The rights are simply instruments that give us the power to demand what weare already entitled to. Now in a post 26/11 era we still hear shouts regarding new and more stringent anti-terror laws and their aim is in totality to promote the very sense of security which is at the end of the day a government’s prerogative. The burning question is what does a government do when you enact a legislation that goes against these rights yet looks to promote security which in turn indirectly supports these rights. This is the paradox that one is confronted with when dealing with anti-terrorist legislation. The Anti-terrorism legislation designs various types of laws passed in the aim of fighting terrorism. 
  They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism-related crimes, under the grounds of necessity. Because of this suspension of regular procedure, such legislation is sometimes criticized as a form of “loisscĂ©lĂ©rates” which may unjustly repress all kinds of popular protests.  Then rises the question in focus can any there be an sustainable model in which both rights and the sense of security can mutually co-exist. In USA post 9/11 there was widespread support of the PATRIOT act however in a few years after its enactment people started protesting against unlawful detention under the act, evasion of privacy and absence of government accountability owing to lack of transparency which were seen as a violation of rights guaranteed under the constitution of the US. The obvious answer given in reply to it was “national security” which brings us to the paradox of anti-terrorist legislation. Niccolo Machiavelli said that when citizens forget about the destruction wrecked in the past and the tools to stop it then are used against the people to suppress them. Then only two outcomes are possible either the state becomes a tyrant and people are forced to rebel or people continue to protest till and the state obliges, subservient to the will of its people. Though the latter may seem more desirable in truth it puts the state back into a vulnerable position and there arises the question once again is the sense of security more important or are people’s rights? One may state that in the absence of the sense of security anarchy may ensue making it impossible to enforce any rights at all. The other side may argue that when one begins valuing the common good more than individual rights then it destroys the purpose of rights itself and a state fails in upholding the ideals that stands on.  True that no right can be absolute but at the same time is a right expendable? In India the latest amendment to the Unlawful Activities (Prevention) Act drew the ire of several sections of the public calling it draconian as it imposes restrictions on various fundamental rights guaranteed under the constitution. The question we must ask ourselves is whether any such law like the UAPA (amendment) or the PATRIOT Act which is enacted in the immediate aftermath of a terrorist act, which is by its very nature “ex post facto”, can be legitimate in the long run. Does the need for public safety outweigh the fear of use or misuse of such an Act?  Can we have safeguards to prevent misuse or is the scope for misuse and its possibility in itself a disincentive. Are these thoughts even considered when making such legislation? The major issue in such situations is the need to go extreme and unwillingness to find a middle ground where both can be attained. Yes the governments may say security is of the utmost importance but by enacting legislation that is counterproductive to the concept of individual rights itself a form of terrorism that a state inflicts on its citizens irrespective of motive. By oppressing its people through such legislation is the government fulfilling the goals of the terrorists themselves? Some would argue that not enacting strong legislature which in turn makes people vulnerable to such attacks in the first place. Both situations may come across as lose-lose situations, but that doesn’t have to be the case, the solution lies in finding a middle ground between these two extremes many point out the reinforcement of local law enforcement institutions rather than creating new ones others point out to better training of officers to handle these events. Perhaps it is a hard task but it is still up to us to decide if we want to strive for a balance or oscillate to an extreme.

Author- Aditya Mitra
             2nd Year,
             School of Law,
             Christ University


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