National security exceptionalism: Tracing a shift in the Supreme Court’s approach to anti-terror laws

The Supreme Court on April 16 rejected student-activist Umar Khalid’s review petition urging a relook at the Court’s January order denying him and fellow activist Sharjeel Imam bail in the 2020 Delhi Riots conspiracy case.

This decision is a missed opportunity for the Court at course correction in a case widely seen as an egregious instance of the failure of our criminal justice system to protect personal liberty. It also means Khalid will continue to remain in prison, having already spent more than 2000 days incarcerated without trial in the case under the Unlawful Activities Prevention Act, 1967 (UAPA).

Granular analyses of the original order denying bail reveal inexplicable deviations from the Court’s own prior jurisprudence on issues like the threshold required to secure bail under the UAPA and the contours of what constitutes a prima facie case under the Act.

Less emphasis, however, has been placed on what the order conveys about the changing nature of the Supreme Court’s justifications of the State’s actions that affect civil liberties and what implications it holds for the future. It is, thus, an opportune time to scrutinise the Court’s journey in navigating the challenges thrown up to the protection of fundamental rights by anti-terror laws, especially when national security as a ground is involved.

Traditionally, the Supreme Court has seen national security as an area that is less amenable to judicial scrutiny compared to other domains as evident from cases like SP Gupta v. Union of India (1981). In that case, it was observed that even though a matter could not escape judicial review on the ground that it involved a political question, certain areas like international relations and national security remained beyond the pale of judicial scrutiny (paras 996 and 998). Similarly, in State of Punjab v. Sukhpal Singh (1989), the Court stated that, “those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires." (para 9). These rudiments evolved by the Court in relation to its approach towards national security would go on to inspire its jurisprudence dealing with anti-terror laws.

India’s anti-terror laws introduced special courts and diluted procedural safeguards such as the presumption of innocence, the right against self-incrimination and bail as the norm. However, when their constitutionality was challenged, the Supreme Court did not undertake a proportionality analysis to assess whether such measures were the only viable means to address terrorism. Instead, it upheld these provisions in nearly every instance, citing the extraordinary nature of the offences they sought to curb. In Kartar Singh v. State of Punjab (1994), for instance, while upholding the validity of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), the Supreme Court held “the collective interest of the community and the safety of the nation…” as taking precedence over individual liberty (para 351). This formulation implicitly entails the extra-constitutional subordination of personal liberty to what the State defines as the collective national interest.

Further, in the context of Section 15 of the Act, which made confessions given to police officers admissible as evidence, the Court ruled that “if the exigencies of certain situations warrant such a legislation”, it shall be held constitutional, provided it did not violate any fundamental rights (para 253). In so ruling, the Court did not even attempt to explore the risks posed to the protection of the right against self-incrimination under Article 20(3) of the Constitution as a potential consequence of the enforcement of such a provision.

In PUCL v. Union of India (2003), which upheld the constitutionality of nearly all of the provisions of the Prevention of Terrorism Act, 2002 (POTA), the Court expressed agreement with the legislature’s position that the “magnitude and prevalence of the evil of terrorism” (para 45) warranted a new legal regime characterised by a preventive element to it, instead of giving specific reasons as to why the provisions aligned with the fundamental rights. Again, in the fashion of Kartar Singh, appeals were made in the name of the “larger interest of the community” and “larger public interest” in PUCL to justify deviations from the CrPC (para 56).

Crucially, striking a chord of familiarity in the present context, the exceptional bail provision under Section 49 of the POTA that prevented the accused from availing of the ordinary bail procedure for one year following the date of detention, was upheld by the Court “taking into account, the complexities of terrorism-related offences and intention of Parliament in enacting a special law for its prevention” (para 70).

Despite the above observations, the Supreme Court did conduct an analysis of procedural reasonableness in the above cases and imposed safeguards like laying guidelines for the exercise of the State’s forfeiture power and reading mens rea requirements into provisions involving abetment and association in PUCL and Kartar Singh. Thus, despite not outrightly contesting the constitutionality of the parallel justice delivery mechanism set out in the special laws, the Court did strike a balancing act in its anti-terror jurisprudence through a reasonable interpretation of the statutory provisions.

Even though TADA and POTA have since been repealed or lapsed, the fundamental position evolved by the Court in the above cases vis-a-vis national security continued to guide its approach towards the present anti-terror framework including the UAPA. In recent times, however, the Court seems to have notched up the supremacy of national security a few levels higher, even as it is being cited on an alarmingly frequent basis by the State to cloak its arbitrary exercise of police power.

The shift has been most apparent in the Supreme Court’s bail orders in UAPA cases. Despite the Court’s settled jurisprudence on the grounds on which bail could be granted under the stringent conditions set out in Article 43D(5) of the UAPA in cases like Union of India v. KA Najeeb (2021) and Vernon Gonsalves v. State of Maharashtra (2023), national security has recently emerged as a blanket criterion by the Court to deny bail. While adjudicating a challenge to bail granted to persons accused under various sections of the IPC and the UAPA in a train derailment case [CBI V. Dayamoy Mahato (2025)], the Supreme Court observed how the Article 21 right of the accused needed to be looked at from “a much wider view”, as national security was at stake in the case (para 16). It also invoked a “heightened but fair-minded vigilance” while granting bail in matters involving national security. Similarly, in another UAPA case, Union of India v. Barakathullah (2024), an overriding national security imperative was cited as one of the grounds to deny bail to the accused.

Going beyond terror cases, even while adjudicating asylum claims of a persecuted community like the Rohingya, the Court has accepted the State’s national security argument to allow departures from non-derogable international obligations like the principle of non-refoulement [Mohammed Salimullah v. Union of India (2017)]. The paramountcy of national security over protection of rights is becoming increasingly apparent in the Court’s oral observations too. For instance, last year, Justice Surya Kant (as he was then), questioned petitioners seeking disclosure of the findings of the Court-appointed committee in the Pegasus case as to what was wrong if spyware was being used against "anti-nationals" in the interests of national security.

The denial of bail to Khalid and Imam must be understood in the context of this judicial pivot towards national security exceptionalism. In Gulfisha Fatima, the Bench observes in Paragraph 51 that liberty could not be treated as the “sole value” where national security was at stake and both liberty and security had to be “accommodated through reasonable adjudication.” Even while cherry-picking Khalid and Imam as the “architects of the conspiracy”, it follows the same line of reasoning to justify their continued detention by citing “broader security interests” (para 100) instead of closely scrutinising the vaguely formulated accusations of conspiracy and the questionable evidence presented by the prosecution.

National security is, no doubt, a legitimate ground to impose restrictions on the exercise of fundamental rights where the Constitution explicitly provides for it, as in the case of the freedoms under Article 19. However, the Supreme Court’s importation of it as an overriding restriction -particularly in areas where it has itself laid down express safeguards to protect rights, such as bail under the UAPA - significantly amplifies the risk of executive abuse. One hopes that the wider tendency of the Court to accept national security as a justification capable of granting seemingly unchecked powers to the government does not lead to Khalid’s and Imam’s examples becoming the order of the day.

Abhishek Rath is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) team at Vidhi Centre for Legal Policy.

Views expressed are personal.