My latest area of research includes a certain approach called the ‘Means- End’ approach that the Supreme Court is following now a days. Below is a draft chapter of the article wherein I analyse this approach vis-a-vis anti- terrorist legislations.


Criminal law is best understood as an instrument of control that the state uses against its citizens and other persons within its territory. This becomes apparent in the way a state defines an offence. One illustration of this axiom is the resistance of the state to enact enforced disappearances, fake encounters and genocide into the law. In contrast is the power the state has arrogated to itself through the Prevention of Terrorism Act 2002 (POTA) to declare an outfit as a ‘terrorist organisation’, impacting the potential to prosecute and outlaw. Since laws often get enacted in response to pressure from groups outside government, or to make a political statement, the difference that the law makes depends on how it gets enforced and used, reaching beyond its enactment[1].

Criminal law mechanisms to tackle the ‘terrorism’ have more often than not to face the scourge to being oppressive and insensitive to human rights concerns. In fact, to use what Dr. Ramanathan mentions above, they are used to make a political statement by the Government and more so, a show of power.[2] In countries like India, where terrorist activities have become an everyday phenomenon, and Governments press for the need of more specific laws to deal with such activities, there is a constant need to evaluate such legislations to the standards of fundamental rights and other constitutional limitations.

In 1977, Ronald Dworkin wrote ‘Taking Rights Seriously’[3], a book that argued that that rights must be understood as extremely important moral concerns, and cannot be outweighed merely because a majority would be better off by violating the rights of an individual. Rights need extremely strong protection because they are necessary for the dignity and equal respect of individuals, especially when those individuals form a minority within a society. Dworkin finally says that only when governments respect rights will respect for the law be generally reestablished[4]. More so, diverting from a jurisprudential standpoint, the Indian Supreme Court[5] has also sought to maintain a highly moral standpoint on the protection of fundamental rights and seeing them as inherent with the dignity of the individual and a restriction on the law making power of the Government[6].

Since independence, anti- terrorist legislations have been ever present in the statute book. These legislations consists of provisions to extend habeas corpus protections to 48 hrs, direct search and seizures, discretion to the authorities to declare any person and area a terrorist or a terrorist affected area, the legalizing of confessions made to a police officer etc..

These antiterrorism laws have raised significant human rights concerns in the past decade. Some of those concerns have remained even in the aftermath of the repeal of the Prevention of Terrorism Act[7] (POTA), since the Indian government has preserved many of the law’s provisions in other statutes. Other, similar laws also remain in place at both the central and state levels, such as the Unlawful Activities (Prevention) Act[8]. Attentiveness to these human rights concerns is not simply a moral and legal imperative, but also a crucial strategic imperative. As the Supreme Court of India has recognized, “[t]errorism often thrives where human rights are violated,” and “[t]he lack of hope for justice provides breeding grounds for terrorism.”[9] Since terrorists often deliberately seek “to provoke an over-reaction” and thereby drive a wedge between government and its citizens – or between ethnic, racial, or religious communities – adhering to human rights obligations when combating terrorism helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state.[10]

In two cases, Kartar Singh v. State of Punjab[11] and People’s Union for Civil Liberties v. Union of India[12], the Indian Supreme Court declared two anti- terrorist legislations as constitutional and described them as the ‘need of the hour’.[13] These two decisions remain of utmost importance in this issue and any debate on terrorism and human rights must proceed with an analysis of the issues raised in this case. It is the attempt of the researchers to critique the approaches taken by the Supreme Court in such matters by giving an analysis of the fallacious legal proposition evolved by the Court and its transformation from what we used to call ‘the guardian of justice and fundamental rights’ to the ‘defender of sovereign action’. (Continue reading the paper below)

A Means- Ends Approach

It would be interesting to note that apart from devising ways to prove the Act to be constitutional from the existing judicial tests, the judges in Kartar Singh based their opinions on a very fundamental premise that read;

“No doubt, liberty of a citizen must be zealously safe guarded by the Courts; Nonetheless the Courts while dispensing justice in cases like this one under the Terrorist and Disruptive Activities Act (TADA), should keep in mind not only the liberty of the accused but also the interest of the victim and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution.”[14]

So, basically the argument was the in the interests of the majority members of the society, even if the fundamental rights are violated, the impugned statute may be constitutional. The Court has, off late maintained that if the ends of the statute are to preserve public order and ensure the safety of its majority members, then the means used to achieve it may be justified.[15] Jurisprudentially, this seems to attract Jhering’s notion of law serving as a means to an end[16]. Accordingly, in such a purposeful evaluation of law, even if it sacrifices individual liberty, it will be valid[17]. To quote again from Kartar Singh’s case[18];

“that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.”

We would like to further explore this notion in a constitutional paradigm and seek to analyse and evaluate this particular approach taken by the Court and its correctness.

The earliest case that one can think of as related to this subject is that of AK Gopalan v. State of Madras[19], where the Petitioner contented the validity of preventive detention laws in light of Articles 19, 21 and 22 of the Constitution. This case has formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the ‘light of the object of State action in relation to the individual’s right and not upon its influence upon the guarantee of the fundamental freedoms. Mukherjea J. went on to state,[20]

“On the other hand articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exercised.”

It is submitted that the validity of this test must be looked at only in light of the interpretation of the words ‘procedure established by law’ in Article 21 as the Court has explicitly made it clear in a plethora of cases that the object of the legislation and its purpose is now not relevant in determining the constitutionality of a statute.[21]

The whole interpretation of the words ‘procedure established by law’ relies on the fact that it doesn’t embody the idea of jus naturale or natural law but only state made law. The Court in AK Gopalan conluded this on the basis of the Drafting Committee’s Report and opinion that the ‘procedure established by law’ and the ‘due process of law’ are two different things is correct and by the rule of contemporania expostitia the latter is a conclusive expounding of the provision.[22]

This idea was later over-ruled in the later cases of RC Cooper v. Union of India[23] and Maneka Gandhi v. Union of India[24], where the earlier test of ‘object of state action’ was done away with and the Court propounded what was to be called the ‘direct and inevitable test’ for a law violating the fundamental rights guaranteed in Part III of the Constitution. Thus, the Court would now not look into the object and purpose of the legislation but see whether the impugned law directly violated the fundamental right of the person concerned and if so, it would be declared unconstitutional. Apart from this, Bhagwati J. in Maneka Gandhi’s case[25] also went on to state that the procedure established by law must be fair, just and reasonable and thereby bringing it at par with the United States concept of ‘due process of law’. This was later also held by Krishna Iyer J. in Sunil Batra v. Delhi Administration[26].

While there have been doubts on the validity of the ratios in the RC Cooper and Maneka Gandhi cases as to the exclusivity of rights and the tests of reasonableness, it is submitted that as regards the tests of violation of fundamental rights, these cases laid down the true tests and are to be followed in the present day as precedents.[27] In fact, Bhagwati J. in Bachan Singh v. State of Punjab[28] clearly distinguished between the application of the two tests and stated that now the direct and inevitable test is what is to be considered valid. However, while this is to be the true position of the law to be followed by the Supreme Court, it is our submission that the Court has gone back to the earlier doctrine of the object of state action and withdrawn from the latter cases. This can be explained further by a series of case law.

It may be mentioned that the right to privacy[29] is not an integral part of the Article 21 of the Constitution and is a result of judicial expounding of the law.[30] However, in the context criminal law, the Court has clearly stated that this right is not available in the context of public order and safety of the society. Justice Kuldip Singh in People’s Union for Civil Liberties v. Union of India[31] stated;

“The Right to privacy in India is subservient to the interests of the State”

This case came up in the context of the Prevention of Terrorism Act when it was argued that the seizure of documents and good by the executive under the Act without warrant is an infringement of the right to privacy guaranteed under Article 21 of the Constitution.[32] This was earlier also upheld in Govind v. State of MP[33] where the court cited various decisions and international instruments and stated that a balance must be created between the right to privacy and the interests of the general public[34].

Another related area is the incrimination clause in the Constitution under Article 20 (3) and its violation under certain circumstances by the State which include the collective interest of the society and maintenance of public order. In Kartar Singh v. State of Punjab[35], the Court declared Section 15 of the Terrorist and Disruptive Activities Act (TADA) that legalized confessions to a police officer above the rank of a Super- intendent as valid. The rationale was that it was a special provision based on a special classification having an object and purpose. Furthermore, that appropriate safeguards had been provided to see that Article 19, 20 and 21 are not violated. It would also be apt to state that Ramaswamy J. in his minority opinion[36] in the case stated that the procedure envisaged in Article 21 means and implies the manner and method of discovering the truth. The Constitution human rights perspectives; the history of the working of the relevant provisions in the Evidence Act, 1872[37], the wisdom behind Section 164 of the Code of Criminal Procedure[38] and Article 20 (3) ignite the inherent invalidity of Section 15 of the TADA.

Moreover, off late, the High Courts in deciding the impact and constitutionality of narco analysis on the self- incrimination clause in the Constitution have clearly held that in certain circumstances, in the interests of the society they may be used.[39] In Selvi v. State of Karnataka[40], the Court held that the interests of the society are undoubtedly superior to that of the criminal and in the creation of the balance wherever possible the former must be upheld. While the Supreme Court is deliberating on the constitutionality of the process as regards the application of narco- analysis in the context of terrorism and dire situations, it is most likely to follow the same line of thought.[41]

After Kartar Singh, the Court has again relied on the idea of collective interest and Article 21 in P Ramachandra Rao v. State of Karnataka[42] and Narinderjit Singh v. Union of India[43]. This basically shows the prolonged adherence of the Court to this idea of upholding the majoritarian interest of the society. But the question arises, does this approach over- rule the ratios of RC Cooper[44] and Maneka Gandhi[45] and bring back what was said by the Majority opinions in AK Gopalan v. State of Madras[46] ?

It is our submission that the ratios in the cases of Maneka Gandhi and RC Cooper are correct and sound in law but nevertheless, the Court in later cases is sub- consciously applying the Gopalan law and giving primacy to the object of the state action and the interests of the society; an approach which is wrong and should not be followed. Fundamental rights are inviolable in our Constitution to all persons and a statute, irrespective of its object and purpose should be declared unconstitutional if it violates any of the rights guaranteed in Part III of the Constitution.

[1] See Usha Ramanathan, “Crime and Punishment”, Seminar, 2006. Available at

[2] Leila N Sadat, “Terrorism and the Rule of Law”, Washington Univ. Working Papers, Available at the Social Science Research Network.

[3] Ronald Dworkin, TAKING RIGHTS SERIOUSLY, 1st ed. 1977, 3rd rep. 1984, p. 16.

[4] Ibid. at p. 115.

[5] Primary among these include Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AK Goplan v. State of Madras, 1950 SCR 88 : Minerva Mills v. Union of India, (1980) 3 SCC 625.

[6] See also, VR Krishna Iyer, “Democracy of Judicial Remedies – A Rejoined to Hidayatullah”, (1984) 4 SCC (J) 43.

[7] Prevention of Terrorism Act, 2002.

[8] Unlawful Activities Prevention (Amendment) Act, 2004.

[9] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

[10] Anil Kalhan, (et. al.), Anti- Terrorism and Security Laws in India, A Report to the Association of the Bar of the city of New York on a Research Project for the Committee On International Human Rights, 2006.

[11] Supra n. 9.

[12] People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.

[13] Supra n. 9 at para 39.

[14] Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 351.

[15] See also, People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 : Masooda Parveen v. Union of India, 2007 (6) SCALE 447.

[16] R. Von Jhering, “Law as a Means to an End”, MDA Freeman, (ed.), Lloyd’s Introduction to Jurisprudence, 7th Ed. 2001, p. 703.

[17] I. Jenkins, “Jhering”, (1960-61) 14 Vanderbilt L. Rev. 169.

[18] Ratnavel Pandian J. , Kartar Singh v. State of Punjab, 1994 (3) SCC 569.

[19] AK Gopalan v. State of Madras, AIR 1950 SC 27. The Majority consisted of Kania CJ, Patanjali Sastri, Mahajan, Mukherjea & Das, JJ. Fazl Ali J. gave the minority and disagreed herewith with the above proposition.

[20] Ibid at p. 255. This was further approved in Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

[21] In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, Mukerjea J. stated that the object of the legislation or any hostile or inimical intention on part of the legislature need not be proved to determine the validity of the Act. In State of Punjab v. Daulat Singh, (1946) 73 IA 59, the Court clearly held,

” The effect of the impugned Act on the personal right of the individual must be ascertained, and if the Act involved an infringement of the right, it would be declared invalid irrespective of its object and purpose.”

Das J. said that this case was implicit in the case of State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.

[22] Supra n. 16.

[23] RC Cooper v. Union of India, AIR 1970 SC 564. Even though Shelat J. Speaking for the Majority in the case did not explicityly refer to the word ‘inevitable’ in the ‘Direct and Inevitable Effect’ test, Bhagwati J. in Maneka Gandhi v. Union of India, held that this was implicit in his judgment and the true test.

[24] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[25] Ibid.

[26] Sunil Batra v. Delhi Administration

[27] See PK Tripathi, “The Fiasco of Over-ruling A.K. Gopalan”, AIR 1990 Jour. 1. These cases include Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154 : AK Roy v. Union of India, AIR 1982 SC 710 : Bachan Singh v. State of Punjab, AIR 1980 SC 898 : Shambhu Nath Sarkar v. State of West Bengal, (1973) 1 SCC 856.

[28] Bachan Singh v. State of Punjab, AIR 1980 SC 898.

[29] First expounded by the historic article of Charles Warren and Louis D. Brandeis, “The Right to Privacy”, 4 Harv. Law Review 193.

[30] See Kharak Singh v. State of UP, AIR 1963 SC 1295 : Govind v. State of MP, (1975) 2 SCC 148 : Sharda v. Dharmpal, (2003) 4 SCC 493.

[31] People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 at p. 603.

[32] Ibid.

[33] Govind v. State of MP, (1975) 2 SCC 148 at para 29.

[34] In Kharak Singh v. State of UP, the Constitutional bench held that the right to privacy may be violated only in accordance with an established law by the legislature and thus denoting the subservient existence of this right.

[35] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

[36] Ibid at paras 406 and 309.

[37] The Indian Evidence Act, 1872.

[38] The Code of Criminal Procedure, 1973.

[39] Selvi v. State of Karnataka, 2004 (7) Kar LJ 501 : Ramchandra Ram Reddy v. State of Maharashtra, Cr. Writ Pet. 1924/ 2003. Decided on 5th March 2004.

[40] Selvi v. State of Karnataka, 2004 (7) Kar LJ 501.

[41] I had the good opportunity of working with TR Andhyarujina Sr. Adv. on the case for the C.B.I. and a part of this argument for validating the process was based on this idea.

[42] P Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.

[43] Narinderjit Singh v. Union of India, (2002) 2 SCC 210.

[44] RC Cooper v. Union of India, (1970) 1 SCC 248.

[45] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[46] AK Gopalan v. State of Madras, AIR 1950 SC 27.