DAW 6th January 2026, Mains Answer Writting 2027

DAW 6th January 2026, Mains Answer Writting 2027

Question

As a constitutional court, how should the judiciary balance National security and individual liberty in cases involving terrorism? Discuss with reference to constitutional values and ethical governance. (250 Words, 15 Marks).

Model Answer

Approach: Introduction:

  • Briefly highlight the inherent tension between national security and individual liberty in terrorism cases, establishing the judiciary’s constitutional role as a balancer of competing interests.

Body:

  • Explain the constitutional framework: Fundamental Rights (Arts. 14, 19, 21) vis-à-vis permissible restrictions and preventive detention under Art. 22.

  • Establish Parliament’s competence to enact anti-terror laws under the Union List.

  • Discuss the judiciary’s balancing role through proportionality, reasonableness, and judicial review.

  • Cite key judgments to show evolution from executive deference to rights-oriented scrutiny.

  • Integrate ethical governance: rule of law, non-arbitrariness, human rights obligations, and safeguards against misuse.

  • Acknowledge critiques regarding misuse and the need to balance judicial activism with security concerns.

Conclusion:

  • Reiterate that constitutional courts must harmonise security and liberty through proportionality, oversight, and constitutional morality to preserve democratic governance and the rule of law.

Introduction:

  • The tension between National security and individual liberty is a defining challenge in constitutional democracies, especially in the context of terrorism. Terrorism threatens national sovereignty and public safety, prompting states to adopt stringent laws like the Unlawful Activities (Prevention) Act (UAPA) and National Security Act (NSA), 1980 that empower preventive and punitive action.

However, fundamental rights enshrined in the Indian Constitution (Part III) - particularly Articles 14 (Right to Equality), 19 (Freedom), and 21 (Right to Life and Personal Liberty)- impose limits on state action. The judiciary, as the guardian of the Constitution, must balance these competing imperatives ensuring that counter-terror measures uphold constitutionalism and ethical governance rather than undermine civil liberties. Body: Constitutional Framework:

  • Fundamental Rights vs Security Limitations:

  • Article 21 guarantees personal liberty; however, preventive detention laws like NSA operate under Article 22, which explicitly allows detention without trial in specified circumstances, provided procedural safeguards (such as advisory board review) are followed.

  • Article 19 freedoms can be restricted for sovereignty, integrity, and public order, but such restrictions must be reasonable and not arbitrary.

  • Legislative Competence:

  • Parliament derives power to legislate anti-terror laws under Entry 1 (Defence), Entry 9 (Prevention of offences), and Entry 13 (Criminal law) of the Union List, indicating that terrorism falls within national competence.

Judicial Role and Balancing Test:

  • Constitutionalism and Proportionality:

  • The judiciary applies proportionality and reasonableness tests to ensure that restrictions on liberty are necessary and proportionate to the threat. This includes examining whether conferring broad discretionary powers on the executive leads to arbitrariness.

  • Safeguards and Oversight:

  • Judicial review is essential even in cases involving national security: preventive detention orders must be reviewed by advisory boards and subject to subsequent judicial scrutiny to prevent misuse.

  • Landmark Judicial Interpretations:

  • In Kartar Singh v. State of Punjab, the Supreme Court upheld the constitutional validity of TADA, emphasising the need for special laws against terrorism but also recommended safeguards for the accused.

  • In A.K. Gopalan v. State of Madras, preventive detention was recognised within constitutional parameters, but later jurisprudence (e.g., Maneka Gandhi v. Union of India) expanded procedural fairness under Article 21.

  • International comparisons (e.g., A. and Others v. UK by the European Court of Human Rights) underscore that indefinite detention without fair review violates basic liberty norms and due process rights.

Ethical Governance and Human Rights Principles:

  • Non-Arbitrariness and Rule of Law:

  • Ethical governance requires that security laws avoid vague terminology (e.g., imprecise definitions of “terrorist” or “security threat”) that can be misused to detain innocent individuals.

  • The rule of law demands clear standards and procedural transparency (informing detainees of grounds, access to representation, periodic judicial review).

  • Human Rights Obligations:

  • Even under national security exigencies, core human rights (no arbitrary detention, right to fair trial) remain non-derogable under international norms (e.g., ICCPR).

  • Safeguards against Misuse:

  • Courts should ensure strict interpretation of preventive detention and anti-terror laws, protect against discrimination, and provide remedies against wrongful detention- aligning law enforcement with constitutional morality.

Critiques and Challenges:

  • Misuse of Power: Laws like NSA and UAPA have been criticised for enabling arbitrary detention without trial, inadequate safeguards, and limited transparency- risking violations of Articles 14, 19 and 21.

  • Judicial Deference vs Activism: Courts must resist undue deference to executive assertions of security; judicial activism is warranted where liberty is at stake but also avoid overreach which could compromise effective counter-terror measures.

Conclusion:

  • The constitutional court must balance collective security and individual liberty through a principled adjudicatory framework rooted in constitutional values:

  • Respect Fundamental Rights – Liberty, equality, and due process cannot be unduly compromised even in the face of terrorism.

  • Apply Proportionality and Scrutiny – Assess necessity, vagueness, arbitrariness; insist on judicial oversight of executive action.

  • Embed Ethical Governance – Transparency, accountability, and human rights compliance must guide interpretation of anti-terror laws.

  • Promote Rule of Law – Security measures should be lawful, predictable, and respectful of constitutional morality.

  • In doing so, the judiciary not only protects individuals from state excesses but also reinforces the democratic ethos where security and liberty coexist without undermining the core constitutional promise of justice for all.