Indian Abidance To The Standard Of National Security In International Conventions And Treaties

Indian Abidance To The Standard Of National Security In International Conventions And Treaties

Neyan Madhavan_JudicateMe


This Blog is written by Neyan Madhavan from Symbiosis Law School, NoidaEdited by Ritika Sharma & Prakriti Dadsena.



For better understanding of the topic, let us divide the topic into two sub-parts and understand the basic concepts. National Security or national safeguard is the security and defence of a nation state, including all the residents of that particular nation, economy and organisations which is considered to be an obligation on the part of the government. An International Convention or a treaty is said to be an agreement between different countries which has the legal capacity to become a contract. Examples of International conventions include exchange, science, crime and human rights.

Former Prime Minister of UK, Theresa May once quoted “National security is the first duty of government but we are also committed to reversing the substantial erosion of civil liberties.” In India, the question of national security has been put up several times during the past few decades.

Expanding fear among the residents of a country due to terrorist activities has led to the widening of the extent of national security legislations. This is an immediate outcome of countries getting more aware and cautious about, both, conventional and non-conventional threats. With recent amendments in the Unlawful Activities Prevention Act, 1967 and the National Investigation Agency Act, 2008 (NIA), the question of national security has been put on trial. The amendment in the latter, have the NIA extra-territorial jurisdiction in specific cases. Such amendments, however observed as important, have received criticism from libertarian strands of the general public.


As the general public turns out to be progressively educated and aware of their rights, national security legislations have over and over been addressed and debated upon. It remains for the future to tell if the Tshwane Principles (The Global Principles on National Security and the Right to Information) as regards to National Security in India will increase successful application not only in theory, but also in practicality. There have been innumerable changes in the meaning of “National Security” and related legislations as the years progressed. Numerous International treaties include express security exceptions. These specific safeguard provisions are essential in light of the fact that Customary International Law doesn’t accommodate a worldwide and abstract security exception that could straight be applied to International treaties. Ross Ackermann and Billa have stated that, “neither the Vienna Convention on the Law of Treaties (VCLT) nor the International Law Commissions draft Articles on State Responsibility contain such an exception, although they do contain exceptions for other scenarios, notably for cases of necessity, fundamental change of circumstances or the sanctioning of a breach of a treaty on another party to the treaty.”     E-contrario (argument from the contrary) to the general acknowledgement and codification of these exceptions, it turns out to be evident that security concerns can’t be summoned without a corresponding provision in the relevant treaty. Additionally, the differing language of security exceptions across different treaty regimes shows that, there isn’t one standard protection, however provisions varying in degree and requirements which are negotiated for each individual treaty.


Unilateral security action by the states has the capability to sabotage-political security at universal level in the event, if it erodes the rule of law and destabilise the authority of International institutions. The pursuit of financial security in rivalry with other country states can subvert the ecological security of all when the effect incorporates topsoil erosion, bio-diversity loss and climate change. Conversely, expenditure on mitigating or adjusting to biological change puts a pressure on the national economy. If such tensions are not overseen properly, national security policies might be ineffective or counterproductive. The elements of national security sketched out above are frequently in strain with each other. For instance, the significant expense of maintaining huge military powers puts a burden on the financial security of a nation. Conversely, economic constraints can restrict the scale of expenditure on military capacities.    

Approaches to deal with national security can have a complex impact on human rights and civil liberties. For instance, the rights and freedoms of citizens are affected by the influence of military personnel and mobilised police forces to control the general public; the use of surveillance, including mass reconnaissance in cyberspace which has suggestions for privacy; military recruitment and enrolment practices; and the impacts of fighting regarding warfare on civilians and civil infrastructure. This has prompted to a rationalistic battle, especially in liberal democracies, between government authority and the rights and freedoms of the overall population. Indeed, even where the exercise of national security is dependent upon good administration and the rule of law, there is a probability that the term national security might become a pretext for suppressing adverse political and social views.        


The condition of national security of Republic of India is set by its inner solidness and International interests. National Security Advisor of India heads National Security Council of India, gets a wide range of intelligence reports and is the chief advisor to the Prime Minister of India over national and universal security policy. Illegal migration to India, generally most of the people are Muslims from neighbouring countries such as Bangladesh and Myanmar (Rohingya Muslims) are a national security risk. There are more than 40,000 Rohingya Muslims from Bangladesh and Myanmar who are illegal immigrants and are considered to be a threat to the national integration. A lawyer, Ashwini Upadhyay filed a Public interest Litigation (PIL) in “Supreme Court of India” (SC) to identify and deport these. It is also said that around 600,000 to 700,000 illegal Bangladeshi and Rohingya immigrants in National Capital Region (NCR) region especially in the districts of Gurugram, Faridabad, and Nuh (Mewat region), as well as interior villages of Bhiwani and Hisar.


National Security Act of 1980 is an act of the Indian Parliament declared on 23rd September whose main motto was “to provide for preventive detention in certain cases and for matters connected therewith”. The Act contains 18 sections in total. This act authorizes the Central Government and State governments to prevent an individual from acting in any way that is biased to the security of India and the relations with other nations as well. This act additionally offers power to the governments to confine an outsider (foreigner) / a person who is from an alien country to restrict his presence or oust from the country. This act was passed during Indira Gandhi’s tenure. Prior to National Security Act, there were many other acts which were enacted in India with regard to national security of the country. Defence of India Act, 1915 was amended when 1st World War was taking place to empower the state to confine a citizen preventively. The Government of India Act, 1935 gave the potentiality of preventive detention (the detainment of an individual with an objective of preventing them from committing other such crimes) to the state governments for reasons associated with protection, foreign relations with regard to Indian states. According to Article 22 of the Constitution, preventive detention law could be ordered. The Preventive Detention Act was introduced in 1950 and remained as a codified law until Maintenance of Internal Security Act, 1971 (MISA) came into picture. Maintenance of Internal Security Act was revoked in 1977 and National Security Act came into force from 1980.


As far as national security is concerned, it has to do with the defence setup in India, police establishments, indigenous production of the defence products and intelligence agency.  The guidance of an expert or an Indian researcher, however not a Sinologist with regard to the border issues between India and China is important. The following are the concerns relating to it. One, unbalanced consideration on a single point agenda displayed is considered to be a threat to the national security of India. Two, when India is fighting with COVID-19 alongside Chinese transgression and the certainty that China has already been utilizing all the Indian sources (Media, Government, Military) on its online networking to mould the facts. Maybe, we seem to forget that under crucial occasions, we ought to follow the proclamation, ‘National Outlook for National Security’.

Border Defence Co-operation Agreement (BDCA)

Since the topic is based upon national security in International Conventions, let’s discuss about a treaty which exists between India and China.

Li Keqiang, Premier of the People’s Republic of China came to India in 2013 for a discussion with the Cabinet Committee on Security and to discuss about the Border Defence Cooperation Agreement (BDCA) which was proposed by China to maintain the strategic distance from any erupt situation between the soldiers of the two sides at the Line of Actual Control. Line of Actual Control is the line which separates Indian controlled territory from the Chinese controlled territory. It is said that the army has certain reservations on a proposition with respect to facilitated patrolling by the two sides along the LAC and this has been conveyed to the government. The BDCA made it clear that troops of opposite sides won’t fire at one another, under any situation. There were many other highlights of the agreement as well. This is one of the International treaties wherein National security was taken into consideration.


Rajkishore Prasad v. State of Bihar

In this case, the order of detainment was made by the District Magistrate under Section 3(2) of the National Security Act. The detenu (a person who is held in custody/ a detainee) made a portrayal to the District Magistrate, yet meanwhile the case of detenu was cited to the advisory board and the representation was dismissed by the state government after the issue had been considered by the advisory board. The court while maintaining the contention urged on behalf of the detenu that constitutionally speaking a duty is thrown on the detaining authority to contemplate the representation has reference to Section 8(1) of the National Security Act which states that, “when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 1 [fifteen days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate government.” It was held that if a suitable government has considered the portrayal of the detenu, then it can’t be said that there is contradiction of Article 22(5) or there is failure to consider the representation by the detaining authority.


To sum up, a state’s accession to treaty infers that the state is expected to follow the rules of the treaty. Likewise, when states look forward to reserve discretion which goes far away from the acknowledged standards of Customary International Law, they should do it in a manner that is straightforward. Where there are no direct exceptions, there is no special case aside from the acknowledged principles of Customary International Law. International law excludes an implicit, open-ended national security exception that applies across all treaties.












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