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Liberty vs Security: The Canadian Model

In the tension between guaranteeing fundamental freedoms and ensuring security, it devolves on the courts to maintain the balance and protect the rights of citizens. In contrast to the attitude of Indian courts, a recent judgment of the Canadian Supreme Court can be held up as a model of judicial sensitivity to human rights and fairness.

Civil liberties

Liberty vs Security: The Canadian Model

In the tension between guaranteeing fundamental freedoms and ensuring security, it devolves on the courts to maintain the balance and protect the rights of citizens. In contrast to the attitude of Indian courts, a recent judgment of the Canadian Supreme Court can be held up as a model of judicial sensitivity

to human rights and fairness.


The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by

–Benjamin N Cardozo, The Nature of the Judicial Process,

Yale University Press, pp 168. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty

–Justice Louis D Brandeis in Whitney vs California 274 US 357 (1927).

o not mourn for the US whose Supreme Court has been politicised beyond recall for some time with the appointment of judges of dubious worth, mourn rather for the Supreme Court of India which has in a series of cases over time, pronounced illiberal judgments in cases concerning TADA, POTA, the Armed Forces Special Powers Act 1958 and not least in the case arising out of the attack on Parliament’s building on December 13, 2001.

A recent book by Ujjwal Kumar Singh (The State, Democracy and Anti-Terror Laws in India, Sage) is a very well documented survey of the enforcement of “extraordinary laws” in India and an incisive analysis of their impact on our democracy.

India has had these laws though it did not face “existential challenges”. TADA came in the wake of Indira Gandhi’s assassination; POTA came after 9/11. The Armed Forces Special Powers Act 1958 has tarnished the statute book for nearly half a century. So comprehensive is the survey that the book will serve as a work of reference.

Ujjwal Kumar Singh’s book is a study

of the jurisprudence of emergency and

exceptionalism in practice. But what pro

tection has the Supreme Court afforded to

the citizen? The author’s answer is pre-eminently


Significantly, judicial responses to petitions challenging the constitutional validity of anti-terror laws have always been confirmatory of extraordinary laws, affirming thereby the authority of the executive to decide on the existence of an extraordinary condition and specific policies including legal measures to deal with it. While upholding the constitutional validity of the anti-terror laws, the Supreme Court has not only endorsed extraordinary procedures on the “rationale of supreme necessity” not covered by regular law. It has also upheld the executive’s delineation of “necessity” for example, public order, national security, waging war against the state, conspiracy against the state, terrorism, etc. In the PUCL petition challenging the constitutional validity of POTA, for example, the Supreme Court focused on the question of “legislative competence”, while choosing not to interrogate the “need” for such a law, on the ground that it was a “policy matter” and hence not subject to judicial review (PUCL vs Union of India Writ Petition 129 of 2002, decided in December 2003). In the process, the Supreme Court expanded the legislative authority of the executive, giving it the overreach by means of which, it transcended the areas of potential contest over what the state perceives as necessary power, and what the law actually makes available. The Supreme Court’s decisions upholding the constitutional validity of POTA and TADA may be seen as attributing legality to the various procedural exceptions these laws prescribed. Yet, there are layers within the judgments and the other judgments that followed (for example, the Parliament Attack case) where spaces of substantive liberty are sought to be carved out, by the Supreme Court. Yet, substantive liberty, which holds out the promise of weaving rights into legal formalism, based on the assumption that citizens have moral and political rights, the latter to be enforced by and through the courts, remains inadequately realised, precisely because the safeguards are sought to be woven into laws founded on principles of procedural exceptionalism.

We may be grateful for the “guidelines” that ameliorate repressive laws, but we cannot but ask why do our judges have so illiberal an outlook? The outlook does matter, as Cardozo pointed out. It is the outlook which explains why in the infamous habeas corpus case during the Emergency, four judges meekly supported the government; but one dissented.

Canada’s Supreme Court’s judgment on February 23, 2007 in Adil Charkaoui vs Canada pronounced by chief justice McLachlin on behalf of himself and eight other judges – justices Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein – is a model of judicial sensitivity to human rights and fairness. It is lucidly written, free from judicial bombast. In issue were the rights of permanent residents and aliens under anti-terrorism laws.

The chief justice said at the outset “One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.”

The court was confronted with a statute, the Immigration and Refugee Protection Act, S C 2001, c 27 (“IRPA”), that attempted to resolve this tension in the immigration

Economic and Political Weekly July 14, 2007

context by allowing the minister of citizenship and immigration (the “Minister”), and the minister of public safety and emergency preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question was whether the solution that Parliament enacted conformed to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.

Section 7A the Canadian Charter of Rights and Freedoms read: “Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Article 21 of the Indian Constitution says very nearly the same thing. The chief justice ruled: “I conclude that the IRPA unjustifiably violates Section 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate Sections 9 and 10 (c) because they are arbitrary. I find that Section 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the Section 15 (equality right).”

It is not the reasoning on legal issues which matter to us in India so much as the nine judges’ approach and outlook. Read this:

while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice… If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of Section 7. That is the bottom line. Earlier the court had ruled “the greater

the effect on the life of the individual by

the decision, the greater the need for

procedural protections to meet the common

law duty of fairness and the requirements

of fundamental justice under Section 7 of

the Charter”. Recalling that dictum, it now held:The procedures required to conform to theprinciples of fundamental justice mustreflect the exigencies of the security context.Yet they cannot be permitted to erode theessence of Section 7. The principles of fundamental justice cannot be reduced to thepoint where they cease to provide the protection of due process that lies at the heartof Section 7 of the Charter. The protectionmay not be as complete as in a case wherenational security constraints do not operate. But to satisfy Section 7, meaningfuland substantial protection there must be. The court summed up the criteria for

validity:The following list, which, of course, is notexhaustive of all considerations, seems to me to at least address the more obvious (considerations). Needless to say, theconsiderations relevant to a specific case,ad the weight to be placed upon them, will


depend upon the circumstances of the case:

(1) Reasons for the detention, i e, is theapplicant considered a danger to the publicor is there a concern that he would not appear for removal. I would think thatthere is a stronger case for continuing along detention when an individual is considered a danger to the public. (2) Lengthof time in detention and length of timedetention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. (3) Has the applicant or therespondents caused any delay or has eithernot been as diligent as reasonably possible.Unexplained delay and even unexplainedlack of diligence should count against theoffending party. (4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to reportchanges of address or telephone numbers,detention in a form that could be less restrictive to the individual, etc.

As the German jurist Ehrlich sagely observed, “There is no guarantee of justice except the personality of the judge”.


Economic and Political Weekly July 14, 2007

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