Pt Research Paper Final.docx

INDIVIDUAL LIBERTY V/S STATE SECURITY MUSKAAN KHANNA (11,1A) LADY SHRI RAM COLLEGE FOR WOMEN DEPARTMENT OF POLITICAL SCIENCE

ABSTRACT

The dichotomy between liberty and security is a constantly debated topic in developing and developed countries alike. The debate on this issue is the tip of a very large iceberg. It highlights a difficult question every modern state has faced but one that has intensified in age of high tech communication and international terrorism is about managing individual liberties with keeping state’s security intact. The paper critically analyses the dichotomy between individual liberty and state security as well as the integral issue of which of the two should be compromised to give effect to the other. The paper will try to propose ways of achieving balance between the two. The main purpose of the research paper is to do a collative analysis of the contemporary events dealing with civil liberties and state’s security using articles published on the issue and also use news articles of prominent newspapers related to the topic to answer my research question that is “Which of the two should be given prominence – an individual’s liberty or a state’s security?”

KEY WORDS

           

Liberty Security State Individual Violation Civil Compromise Terrorism Human Rights National interest Detention Brutality

INTRODUCTION Threats to national security generally prompt incursions on civil liberties. Questions like what compromises are to be made with our given rights for security and vice versa and when and to what extent do we need to sacrifice our individual liberties for security are common to these debates. Before delving into the dichotomy between national security and personal/individual liberties, we must outline what these terms mean. Security is a slippery term indeed and hence, we can say security is a constructed concept with differential meanings depending on each society or a nation and its historical context. 1 Security covers a wide range of aspects, from individual to state and international level, however there is an over-emphasis on the security of the state. Liberty, on the other hand can be loosely defined as the state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views. According to Locke, "In the state of nature, liberty consists of being free from any superior power on Earth.” Liberty is also a socially constructed term, which can be correlated to the individual rights. This debate isn’t recent, though after the 9/11 attacks and the anti-terrorist legislations that followed, it become more pertinent. In 1759, Benjamin Franklin stated that those who give up essential liberty to purchase temporary security deserve neither liberty nor security. Post 9/11, security in US was intensified and the government has given itself the privileges to tap phones, read and scan emails, access bank accounts, invade homes and detain people for indefinite periods on account of mere suspicion. The counter-terrorism efforts led to the emergence of the surveillance state. The offshoot of such surveillance created an intense debate on Security vs. Liberty, and till now this dissonance is unsettled. This dichotomy between security and liberty can also be seen as national security versus human rights. The most important thing for a free and democratic society such as ours is not, however, what we decide to do in each instance, but that we have an open and honest conversation on these difficult issues before we make decisions. Freedom entails risk. North Korea has suffered no terrorist attacks, but no one wants to live there. Western Europe and the United States have been struck repeatedly, but they remain the destinations of choice for all those fleeing oppression or seeking opportunity. Even democratic states must, however, struggle with how to protect their citizens. Collective security requires compromising some individual freedoms Therefore, the debate over liberty and security has always been a difficult one.

1

Weiner, Myron, International migration and security, 1993

METHODOLOGY

The research was conducted with the help of secondary sources. Various articles, journals and books substantiated the research.

LITERATURE REVIEW

1. Civil liberties v/s national security: lessons from September 11th attack on America, by Shun-Jie Ji. The paper talks about existing literature on the conventional debate between security and liberty exploring findings on the public attitude after 9/11.

2. National Security versus Civil Liberties by Nancy V. Baker, Presidential Studies Quarterly,Vol. 33, No. 3, The Permanent War (Sep., 2003), pp. 547-567 It mentions the views of the Political, media, and academic observers that have consistently noted the adverse impact of post-9/11 antiterrorism measures on civil liberties

3. Liberty and Security by Conor Gearty , Cambridge: Polity Press, 2013 Gearty’s book argues forcefully that true liberty and security possess crucial allies in democratic government, in the rule of law and in respect for human rights.

4. Violation of Human Rights by the Police in Kerala- A Study Dr. H. Abdul Azeez, The International Journal of Social Sciences and Humanities Invention Volume 1 issue 4 2014 page no.193-223. The journal deals with incidents of human rights violation by the police in specific cases, extent of violation of human rights by the police, the adequacies of the law to safeguard the human rights and human dignity of people, the problem in the implementation of the law related with human rights from being violated by the police, and the suggestions of the experts to improve the law and the system in this aspect are also analysed.

HISTORICAL BACKGROUND INDIVIDUAL LIBERTY Meaning of liberty: The word “Liberty” stands derived from the Latin word ‘Liber” which means ‘free’. In this sense liberty means freedom from restraints and the freedom to act as one likes. However, in a civil society such a meaning of Liberty is taken to be negative and harmful. It is only in a jungle that freedom from restraints is available to animals. In a civil society no person can be really permitted to act without restraints. Hence, Liberty is taken to mean the absence of not all restraints but only those restraints which are held to be irrational. 

Negative Liberty: In its negative sense, Liberty is taken to mean an absence of restraints. It means the freedom to act is any way. In this form liberty becomes a license. Such a meaning of liberty can never be accepted in a civil society. In contemporary times, Negative conception of liberty stands rejected.

 Positive Liberty: In its positive sense, Liberty is taken to mean freedom under rational and logical i.e. restraints which are rational and have stood the test of time. It means liberty under the rational and necessary restraints imposed by law. These restraints are considered essential for ensuring the enjoyment of liberty by all the people. In a civil society only positive liberty can be available to the people.

The Primacy of Individual: For Liberals the most important central theme is the understanding that human beings are individuals and primacy of the individuals is the characteristic feature of Liberal ideology. Individual is viewed as morally prior to society and bearer of fundamental natural rights which they possess by virtue of being human. For Locke there were three such rights the right to life, liberty and property. Liberals believe in individual as equal, rational, moral and autonomous being able to decide conception of good. Kant defines the dignity and equal worth of human beings when he gives the conception of individual as ‘ends in themselves and not merely as means for another’s will’. Liberals give priority of ‘the right’ over ‘the good’ as per this view individual is the best judge to determine his or her interest, the individual and no one else can decide what is morally right. Individual has all the right to decide “What is good life” but State is not supposed to prescribe that good life. Central idea of Liberalism is individuals are equal and have equalled moral worth and rights. This also means each individual is unique because each one is defined by qualities specific to them and each share the same status, thus equal to other.2

2

Ashok Acharya ,(2008) ‘Liberalism’ in Rajeev Bhargava & Ashok Acharya, (eds) Political Theory : An Introduction, New Delhi: Pearson Longman

STATE SECURITY

Meaning:

State security refers to the security of a nation state, including its citizens, economy, and institutions, and is regarded as a duty of government. Originally conceived as protection against military attack, national security is now widely understood to include non-military dimensions, including economic security, energy security, environmental security, food security, cyber security etc. Similarly, national security risks include, in addition to the actions of other nation states, action by violent non-state actors, narcotic cartels, and multinational corporations, and also the effects of natural disasters. Governments rely on a range of measures, including political, economic, and military power, as well as diplomacy to enforce national security. They may also act to build the conditions of security regionally and internationally by reducing transnational causes of insecurity, such as climate change, economic inequality, political exclusion, and nuclear proliferation. Therefore, National security then is the ability to preserve the nation's physical integrity and territory; to maintain its economic relations with the rest of the world on reasonable terms; to preserve its nature, institution, and governance from disruption from outside; and to control its borders. 3

Elements:

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Physical security Political security Economic security Ecological security Security of energy and natural resources Cyber security Infrastructure security

(Harold Brown, U.S. Secretary of Defence, 1977-1981)

ANALYSIS  9/11-Terrorist attack on the World Trade Centre: Coming back to the war on terrorism, George W. Bush in response to the September attack on the World Trade Centre and the Pentagon implemented certain new laws which included more security checks on the airports, Homeland Security Act, Patriot Act which often are believed to come in clash with the Bill of Rights. These laws gave the federal government an enormous range of powers to track and seize money being used to fund terrorist organizations like the Al-Qaeda. For example, the Section 215 gave the government to ask business for their financial records, Section 206 gave them the right to tap phones and other devices used by individuals, and the Section 207 legalizing survey and tracking down the movements of any individual on grounds of mere scepticism. The Patriot Act gives unbridled powers to the authorities to violate basic constitutional rights in the name of protecting the country from terrorism. The core values of liberty and security are especially relevant to an analysis of responses to terrorism. They are particularly susceptible to recalibration as a response to terrorism. There is a constant tension between unfettered civil liberties and control over those to secure public safety. Generally, law enforcement is primarily investigative, focusing on apprehending perpetrators of past crimes. When it comes to terrorism, law enforcement shifts to being more preventative, seeking to identify terrorists before they act. The failure of application of Geneva Convention rules in cases of Guantanamo Bay prisoners or the prisoners in Abu Gharaib who were denied even the habeas corpus provisions is itself a testimony to how political and civil liberties of individuals were buried to ensure national security. The detainees were denied the right to challenge the legality of their detention in court. They were denied the right to be informed of the charges they face, or the right to present evidence on their own behalves and the right to cross-examine the accusers and the accusations. The failure of the Bush government to ensure these rights raises serious questions about their commitment to the Bill of Rights which is supposed to be supreme and inviolable in nature. One needs to ponder over security for whom, as such arbitrariness puts in jeopardy rights of all. Hence, eternal vigilance is the price of liberty. 4

4

WENDELL PHILLIPS, speech in Boston, Massachusetts, January 28, 1852.—Speeches Before the Massachusetts Anti-Slavery Society, p. 13 (1853).

 Jammu and Kashmir- civilians’ plight To understand the liberty v/s security debate in context of India, specifically in the conflictzone of Jammu and Kashmir, a case-study of Mrs. Masooda Parveen will be taken up to further analyze how in the name of national security, India has been violating civil and political rights and liberties despite being a signatory to International Convention on Civil and Political Rights (ICCPR).

Late Mr. Ghulam Mohi-ud-din Regoo s/o Abdul Raheem Regoo, husband of Mrs. Masooda Parveen, was a resident of Chandhara village, Pulwama in South Kashmir. At the time of his death, he was a practicing advocate at the Jammu and Kashmir High Court. He also was a saffron trader and he sustained heavy losses and hence couldn’t clear his dues with suppliers. To recover their claims, the suppliers took help of Ikhwanis or renegade militants and hence, the family had to transfer the ownership of their land to them and subsequently, shift to Rafiabad, Sopore. They returned to their native village in 1994. However, the Ikhwanis continued to harass and threaten them. On 6th October, 1994, Mr. Regoo was arrested by army for being an alleged militant and was kept in illegal custody for three months. After completion of interrogations, he was released and given a “white” certificate which now is the only evidence of that illegal detention and there is no record of FIR filed by the army. On 1st February 1998, 17 Jat Regiment stationed at Lethpora came to their residence and did a complete search (without any warrant or any prior notice to the local police station) and nothing incriminating was recovered. While his family was locked in a room, he was taken along while they searched their house and was taken by the army in the same vehicle. Masooda, wife of the deceased, says that they could hear screams and when the army left, there were blood stains on the walls of the room. Two days later on 3rd February’98, Regoo’s charred and mutilated body was kept at the doorsteps of their residence. A report dated 3.2.1998 filed with the Pampore police station alleged that Regoo had admitted during his interrogation that he was a Pakistan-trained

militant and an ex-commander of Al-Barq and had agreed to lead the army to the hideout of the militant group in the Wasturwan ranges and while removing the stones at the hideout, there was an IED explosion in which he died. As a proof, the Jat regiment claimed that 3 members of the patrol party had sustained “splinter injuries’’.

The petitioner-widow claimed that her husband was tortured to death and whole explosion plot was fabricated and argued, her husband was kept in custody for at least 30 hours and thereafter had a custodial death, making army liable for his death. As a result, an FIR was registered and an investigation under section 174 of the CrPc was commenced. No counter-affidavit was allowed to be registered by the wife, neither was she allowed to participate in the inquest nor their statements were recorded. The investigation gave a clean chit to the armed forces and in the final report, it was stated that the death was “accidental”, thus accepting Army version of events in totality.

In June, 1998, she sent petitions to the Chief Justice and the Supreme Court Legal Services Committee advised to approach the J&K High Court. She didn’t approach the court as she believed justice would not be delivered as judiciary was deeply influenced by the executive and the then executive’s party too had an equal role to play in her husband’s death.

On June 4, 1999, she filed a petition under Article 32 of the Indian Constitution seeking relief against the Union government and the state of J&K. She sought compensation for causing custodial death of Mohi-ud-din Regoo, as well as an ex-gratia payment of Rs. 1,00,000 and a government job. The original documents were not produced before the court and the state of J&K disappeared from the scene only to resurface to produce a shadow file on the pretext that the original file had been lost.

Thus, the SC, in 2007, dismissed the petition and totally disregarding the nature of shadow evidence, it held that Regoo was indeed a militant and upheld the army version of the truth. SC in its ruling upheld the “right to kill on suspicion”. A review petition filed by the widow too was dismissed.5

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Gender, Power and Military occupations, Asia, pacific and middle east since 1945, Christine De Matos and Rowena Ward,2012,Pg 247

 P. Rajan Case – The Indian Emergency, 1975 It was one of the most notorious cases of the Emergency and became a byword for police brutality in Kerala and excesses in general. The case of P. Rajan — an engineering student who was picked up by the police for a crime in which it was easily verifiable he had no role and then tortured and killed showed the depths of State brutality during a period when civil liberties were suspended and the media was censored. It was the long and lonely struggle of T.V. Eachara Warrier — Rajan’s father — that brought out the truth behind his son’s disappearance after he was taken away by the police on March 1, 1976. Rajan’s body was never found. But his father’s spirit was so unrelenting in the pursuit of truth that, although the police denied all through having taken the youth into custody, the High Court of Kerala, in its order in April 1977 in a habeas corpus petition filed by him, said there was sufficient evidence before it to believe that this indeed had happened.“Why are you making my innocent child stand in the rain even after his death? I don’t close the door. Let the rain lash inside and drench me. Civic Chandran was among the detainees at the Kakkayam torture camp with Rajan. Apparently, Rajan just did not survive the torture. Warrier, in his book, says his son was with a youth festival team from the college the night the Naxalites attacked a rural police station, taking away a rifle and causing some vandalism. This fact was easily verifiable from the other students in the team. It was on suspicion of his involvement in this attack on February 28, 1976, that he was taken into custody by the police on March 1. The arrest occurred in the front yard of the Regional Engineering College at Chathamangalam, in Kozhikode district. He was stepping out of the college bus bringing back students who had participated in an inter-collegiate youth festival in another college, located about 40 km away, when they took him. Mr.Rajan was brutally tortured and killed in the camp. He was first beaten up severely by eight police men in the camp, and then tied to a wooden bench with his hands and legs down. Later, he was brought into another room where the then Deputy Inspector General of Police was sitting with sharpened pencil. As part of questioning, Deputy Inspector General of Police pierced the pencil edge into the already crushed thigh muscles which gave unbearable pain to Rajan and he cried aloud. At that time, a Sub Inspector of Police standing nearby started kicking him on his stomach with his heavy police boots. Then Rajan fell down, became unconscious and died. Rajan's father fought a long battle against the establishment to bring to light the facts behind the disappearance and expose atrocities committed by the state. The petition and subsequent investigations found that Rajan had indeed been taken into custody,and perhaps died when in police custody. His body was not found, and many charges against the accused in this case had to be dropped. The accused included the chief of the Crime Branch wing of Kerala Police, DIG Jayaram Padikkal, who was convicted but the conviction was overturned on appeal. Karunakaran was the Home Minister during the emergency. He resigned from the post of the Chief Minister of Kerala in 1978 from adverse judgement in the case. 6

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Memories of a Father, by T V Eachara Varier, Published May 2004 by Asian Human Rights Commission (AHRC)

CONCLUSION Both individual liberty and state security are two sides of the same coin. The research tried to show the lacunas involved in implementing one of these leading to the compromise of the other. However, the research failed to prove which one of these should be treated superior to the other. Also, the research could have been more realistic if surveying method was adopted. But due to time constraints, the researcher had to resort to qualitative data. Undoubtedly, state security can’t be compromised in any circumstance but certain individual liberties like right to life should be considered beyond normal liberties. The case studies mentioned above talks about the human rights violations happened in the name of national security. The extent of brutality, in no way, justifies the purpose of securing national interest. The United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights – to which India is a state party – has stated that detention in the name of security “presents severe risks of arbitrary deprivation of liberty” and “would normally amount to arbitrary detention as other effective measures addressing the threat, including the criminal justice system, would be available”. Amnesty International India, Human Rights Watch and the ICJ oppose all such systems of administrative detention, as they invariably circumvent the protections of the ordinary criminal procedure. Therefore, to conclude this research, some basic principles of democracy that maintains the balance between the need to govern effectively and the need to maintain individual liberties have to be upheld. These principles define the balance between principles of liberty and security. First, the government must be accountable to people. Secondly, the government may impose punishment only after conclusion of fair, open and transparent procedures designed to protect the rights of the accused. In particular, these principles must include the right to be free from coerced interrogation. The government should not discriminate between citizens on arbitrary grounds. Last but not the least; people should be free to express their ideas, regardless of their content, free from fear of reprisal. Thus, Liberty and Security have become privileges afforded solely by the empowered few. Therefore, we must work towards returning to a true universalism that ensures democracy, rule of law and human rights to all.

BIBLIOGRAPHY WEBLINKS:

 http://www.insightsonindia.com/2018/07/02/rajya-sabha-tv-in-depththe-emergency/

 https://studymoose.com/individual-rights-vs-national-security-essay

 https://www.nature.com/articles/s41599-018-0151-3

 https://debatewise.org/debates/2663-security-vs-liberty/

 https://www.jstor.org/stable/27552513

 https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=296 2&context=journal_articles

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1471634

 http://takshashila.org.in/takshashila-policy-research/individual-libertyvs-public-security-rns/

 https://msu.edu/~bsilver/AJPSCivLib.pdf