Judging the Troops: Exceptional Security Measures and Judicial Impact in India
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AbstractIndia's military has long policed parts of the country experiencing separatist demands. I evaluate the judiciary's response to grave abuse by the armed forces, critiquing positivist and deconstructive theories about exceptional emergency powers as I do so.
I argue that positivist legal prescriptions for designing exceptional security measures would fail to restrain state abuse. Positivist theories assume that exceptional powers will be used in compressed, extreme circumstances. But, the Indian experience shows that once exceptional measures are in place, governments will seek to retain them over the long term. Over time, these formal powers and the informal practices that grow around them are likely to entrench abuse. However, the Indian experience also demonstrates that when state abuse becomes firmly established, the judiciary will attempt to moderate exceptional powers, albeit partially, and with the aim of assisting victims of abuse rather than genuinely constraining the executive’s will to unilateral dominance.
All Author(s) ListSurabhi Chopra
Name of ConferenceThe10th World Congress of Constitutional Law (IACL-AIDC) 2018
Start Date of Conference18/06/2018
End Date of Conference22/06/2018
Place of ConferenceSeoul, South Korea
Country/Region of ConferenceSouth Korea
Year2018
LanguagesEnglish-United Kingdom
KeywordsIndia, judicial impact, armed forces, human rights abuse

Last updated on 2018-10-10 at 14:16