Judicial Restraint in an Era of Terrorism Prevention of Terrorism Cases and Minorities in India

The article assesses and compares the behaviour of India’s higher judiciary on Prevention of Terrorism Act (POTA) cases with the pattern of rulings on previous preventive detention and anti-terror laws in India. It tests the hypothesis in Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights, that POTA cases would see more pro-state rulings, particularly after incidents of terrorism, but that Muslim minorities would not be unduly targeted by the judges. The findings from the 103 POTA cases affirm the hypothesis that the judgments of the high court and the supreme court do not exhibit a pattern of disfavouring Muslim accused. However, a more disquieting element with worrisome consequences for civil liberties is apparent in the framing of the anti-terror cases. The court is more likely to rule in favour of the state when a case is framed as ‘Islamic terrorism’. The impreciseness of this and other terms such as ‘urgency’ and ‘security threat’ have expanded the scope of the application of anti-terror laws, diluted the ‘due process’ protections, and reduced the ability of judges to make a distinction between the political aspirations and the religious affiliation of the accused. This has diluted the procedural and substantive protection for civil liberties of citizens and vulnerable minorities in India.