We stand at the threshold of a new era in our constitutional history. A seemingly innocuous petition filed before the Supreme Court of India a few weeks ago promises to change the way Indian constitutional jurisprudence addresses terrorism. A number of petitioners including the eminent jurist Soli Sorabjee, seek orders from the apex court to better equip the police in the fight against terror. While the arguments advanced in this “public interest” petition stand in stark contrast to the original intent of the framers of the Indian constitution, its outcome will influence the fate of judicial activism and constitutional legitimacy in the coming decades. In more immediate terms, it threatens to herald the implicit recognition of a new right: the right against terror.

The petition filed in the context of the Mumbai terror attacks (which have been pejoratively nicknamed ‘26/11’, perhaps in imitation of American lingo, notwithstanding that the siege on Mumbai lasted for three whole days) is striking for its harmonisation of two leading Indian judicial devices which have defined Indian constitutional law in the last three decades: ‘substantive due process’ and ‘legislative void’ jurisprudence. The first doctrine, ‘due process of law’ is derived from the fifth and fourteenth amendments to the American constitution, and enables constitutional courts to judicially recognise unenumerated ‘fundamental’ rights in invalidating legislation. For example, the right to privacy, though not found anywhere in the actual text of the American constitution, was considered a fundamental constitutional right by the United States Supreme Court in 1965. Historically, the framers of the Indian constitution had, on the suggestion of a US Supreme Court judge, deleted the words “due process of law” from the text of the Indian constitution, replacing them with the words “procedure established by law”. However, in a leading Indian Supreme Court decision in Maneka Gandhi’s case (1978), a new standard of judicial review was applied by an activist court against statutes that were required to conform with the substantive standard of being ‘reasonable, just and fair’. The result: what used to be a bare-bones ‘right to life and liberty’ under Article 21 now encompasses the right to a clean environment; the right to food, clothing and shelter; the right to privacy; the right to a speedy trial; and the right to education, among others.

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