Dynamics of Liberty and Rights in Crisis – State, National Security and Individual Rights

Dynamics of Liberty and Rights in Crisis – State, National Security and Individual Rights

Nandhana

National Law University, Jodhpur

DOI:  https://doi.org/10.51244/IJRSI.2025.12060038

Received: 11 Jun 2025; Accepted: 16 Jun 2025; Published: 01 July 2025

ABSTRACT

The state through its government machinery has the ultimate obligation to safeguard the national security of the nation and in order to do so may curb the rights and liberties of individuals in the larger interest of the state. This forms a tripartite relation between the state, national security and individual rights with numerous externalities encroaching the triangle. The ambit of national security and subsequent rights of the individual it affects has evolved over the years. This paper attempts to discuss each component and their interrelationship through a comparative analysis of various states and eras. It also aims to suggest the maintenance of an exercise of balance between national security demands and its purportedly antithetical individual rights avoiding the trade-off between individual rights and larger public interest.

INTRODUCTION

The nation is the glue that binds the populace together and the state, as a representative of the populace safeguards and defends the nation. However, it is the people that make up the nation. Thus, the state is also bestowed with the responsibility of ensuring individual rights to the citizens to be exercised as a member of the nation. The attempt to carry out the dual responsibility of safeguarding national security and guarantee of individual rights may at times seem incompatible but must be harmonized.

Elucidating the Components

It becomes imperative to define the abstract concepts of state, national security and individual rights to attain clarity while determining the interrelation and interplay between them.

State

State, form the paradigm of national security is a mechanism of political rule.[1]To exemplify, the state equates to the government wherein the personnel involved take political decisions. The state is also said to constitute the administrative apparatus that aids in the maintenance of legal order. Alternatively, the state constitutes the ruling class which is responsible to maintain normative order.[2] Though, Max Weber defines state similarly, in addition to the control exercised by the government he also gives importance to a liberal-democratic set up that respects individual rights and liberties and a resultant clash of interests unfolds.[3]

The word “state” is derived from the Latin word, “status” which denotes a person’s legal position. During the middle-ages the word acquired a broader meaning as a legally organised body of men and in later ages denoted the form of government or constitution. [4]Thus, the state can be personified as the government.

The functions of the state under the ambit of classical functions includes legislative, executive and judicial functions. The functions performed by the state depends on the type of state policy pursued by the state while a security state may limit its intervention in maintaining law and order while a welfare state may extend its hand to provide for the overall wellbeing of its citizens.[5]In any case the security of the people is a primary state concern coming under the domain of law and order. The maintenance of national security comes under the domain of maintaining law and order which is an inalienable duty of any responsive state as breach of national security can result in severe law and order implication.

National Security

The Cambridge dictionary defines nation as “a country, especially when thought of as a large group of people living in one area with their own government, language, traditions, etc.”[6] As aforementioned it is the onus of the state to ensure security of the nation.

National security is the capacity to maintain a sustained state of security in which the regime, sovereignty, unity, territorial integrity, welfare of the populace, sustainable economic development, and other major interests of the state are unthreatened from both internal and external threats.[7] This definition is a comprehensive and multi-dimensional definition of national security providing for a wide range of eventualities. However, a fluid conception of the term gives the state a wide arena to act and defend itself under the garb of national security.[8] Paul D. Williams, an authority in security studies claimed that “security is therefore a powerful political tool in claiming attention for priority items in the competition for government attention”[9]

Undermentioned are the broad heads of categorizing national security threats the state has to deal with: territorial security, economic security, ecological security, physical security, social and political stability.[10]

Individual Rights

Individual Rights are positive rights that have their basis in morality or a natural right[11] , where an individual is entitled to act voluntarily ,without coercion according to one’s own judgement and others have an obligation to not violate these rights. The root of all individual rights is the “right to life.”[12]

Individual rights are an important area of constitutional law and are thus constitutionally safeguarded from violation by the state.[13]The scope of individual rights guaranteed include freedom of speech     and expression, rights against arbitrary search, arrest, seizure, right to a fair trial,[14]right to education and work.[15] The scope of these rights are continuously evolving and expanding to incorporate new rights in line with the changing circumstances.

The government, especially in the context of a democratic sense is representative of the populace, inclusive of the people.[16] However, in the wake of concentration or misuse of power by the state, the domain of the individual member is encroached upon.[17] Consequently. the civil society which hereto consisted of the populace and the governing body emerge as distinctive entities, split- up into its constituent components and the citizens demand for restoration of their rights.[18]

Sate, National Security and Individual Rights: The Interrelationship

Rights guaranteed under the constitution, various statutes and even natural rights aim to render the citizens highest degree of justice.[19] In order to protect each individual in their interactions with others, the idea of human rights first emerged long ago. Man interacts with other individuals while he is a member of a society, and these interactions are governed by specific laws to ensure orderly conduct and hold the detractors of the norms accountable. Once the state was established, these laws became more and more powerful, and the idea of freedom underwent change.[20] The state acts as an arbitrator and ensures the rules established are implemented and violations are rectified, punished[21] or compensated through state machinery.

In a report submitted by former UN Secretary­ General Kofi Annan titled “In Larger Freedom: Towards Development, Security and Human Rights for All”, stated the threats to national security in the 21^st century included but was not limited to conflict, but civil violence, organized crime, terrorism and usage of weapons of mass destruction. Poverty, diseases and environmental harms are also national security threats that also have cross border implications.[22]Such threats pose risk to life, property and overall well-being and limit the enjoyment of rights of citizens.

Thus, it becomes imperative that the state steps in to ensure that peace of the state is not tampered with or ensure its impact is minimal.[23] The founders of the United Nations aspired that national security would hold prime importance in state agenda and sovereignty bestows responsibility to protect human beings from war and repression.[24]Therefore the state has to maintain a balance between defending national security , the threat to which has an impact on individual rights, at the same time in the garb of defending the same not impose unreasonable curbs on rights.

An Examination of Various Types of National Security Threats, The Response of The State and Their Impact on Individual Rights

Territorial Security of The Nation

Territory is one of the key elements of the state, thus a threat to the territory equates to threat to the state. The territory is the homeland of the state, thus homeland security is the effort to prevent terrorism, reduce its vulnerability and is also futuristic in the sense it incorporates recovery from attacks that occur.[25] The threat or use of chemical, biological, radiological, nuclear, cyber, or conventional weapons by military or other means[26] are broadly the threats to the territory. Territorial conflicts stretch for the longest period of time and is the most fatal.[27]Thus exhausting the state and attacking hard on individual rights.

Attack on the territory has a centralised response even in federal states. As opposed to domestic crime or crime against humanity it is a direct attack on the sovereignty of the union government[28] which alone has the power to exercise violence according to Weber. Thus, the act being directed against the state, it has the responsibility to counter it. The measures taken by the state in this direction include intelligence, emergency preparedness and response, domestic counter terrorism, protection of infrastructure[29].

In defending the greater national security, the state imposes many curbs on business as usual and individual rights including the right to movement, association and expression are put on hold [30]and several civil-political rights rendered unenforceable ,as the attention of the state is diverted to the security which is claimed as an absolute defence .Apart from this in the process of attacks and counter attacks individual right to life and property are grossly violated, though the state attempts to minimise the casualties.[31]

For instance, during the 1962 Indo-Sino war[32] National Emergency was imposed for the first time in India on ground of threat to national security due to external aggression[33], all fundamental rights [34]except Articles 20 and 21 of the Indian constitution remain suspended and are transferred to the Union[35], leaving no redressal in case of infringement of these rights in the backdrop of defending national security.

The commission on Human Rights passed resolution 2005/80 to protect and promote human rights while countering terrorism.[36]Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides certain non-derogable rights including right to life, and to freedom from slavery and from torture or cruel, inhuman or degrading treatment or punishment, similarly provided in European Convention on Human Rights (Article 15).[37]

Solution: A multitude of anti-terror measures are short sighted that address imminent than being perpetually vigilant. The United Nations Global Counter Terrorism Strategy and United Nations Security Council can lead the exercise in a coordinated and rights centric approach to national security.

The viable solutions include strengthening the international legal framework and implementation of counter terrorism policies, by making them enforceable, hard law and detachment of national sentiments while dealing with terrorists, at the same time ensuring a fair trial, strengthening action against terror financing by public and private bodies through mechanisms like the Financial Action Task Force, ramping up investigation and document verification in international travel with the help of an autonomous body to minimise the risk of political vendetta and track down spread of terror through the cyber space.[38]

Cyber Security Threats as A Threat to National Security

Cyber Security has become the buzz word in the national and international sphere owing to increasing adoption and dependence of nations on the cyber space be it as a channel of communication or managing data.

The cyber space can be effectively put to use by miscreants to manipulate the cognitive aspect of individuals and groups considering the wide dissemination of information.[39] For instance, if an army personnel or for that matter a common man comes across any disinformation circulated by the adversary and believes it to that extent losing confidence in the government and national figures due to the psychological impact tailored using personal beliefs, ideology and worldview. The frustration and dissatisfaction that sprouts upon being influenced by such disinformation can result in serious consequences for internal security of the nation. On the other hand, the impression on the defence personnel has critical implications from the point of view of external threats as the ultimate objective is to defeat the adversary psychologically preceding physical or tangible victory.[40]

As a result, the state sought to find ways to protect information, systems, and minds through disparate security fields, such as information security, operations security, cybersecurity, physical security, and cognitive security.[41]But, such an attempt should not lead to excessive curbs on freedom of speech and expression[42] and arbitrarily censoring online activities violating the right to privacy[43] by the state. Thus, an attempt to impose curbs and take actions by the state must be based on stringent guidelines to prevent abuse of power as in the case of Section 66A of the Information Technology Act, 2000 which was struck down.

An example of misinformation spread is related to the COVID vaccine, which turned out to be overwhelmingly safe and a primary weapon to curb the pandemic.[44]As the spread of the infection, hospitalisation and deaths continued to rise, the spread of misinformation simultaneously shot up, which had the potential to only further exacerbate the public health crisis and subsequently national security. Reportedly, conspiracy theories regarding the long-term effects of the vaccines were hatched to promote vaccine hesitancy.[45]Blockade of a preventive mechanism of spread of the pandemic had the propensity to lead to a public health crisis, which in itself is a threat to national security.

Economic Perspective of National Security

The economy of the country is the fire that feeds the nation. Experience from past economic disasters and increased understanding of the functioning of the globally interlinked thriving market economy has led to economic national security gaining traction. Thus, economic security is not merely about GDP(Gross Domestic Product), employment or productivity the key focus points of macro-economics but largely influenced by global flow of goods , services and capital and the capital and commodity markets that facilitate these flows.[46]The existing tide of globalisation intensified between 1989-2009 beginning with the fall of the Soviet Union and the decimation of the Cold War[47] , connecting the market economies of various nations regulated by their respective states.

An interconnected global world order presents tremendous advantages but a disastrous impact experienced in one end of the economic network too is transferred to the other, for example, the 2007 economic crisis (subprime mortgage crisis) which emanated in the US as a result of the collapse of the housing market hit hard the world economy threatening the national security of world economies. It adversely affected the banking and insurance sector leading up to the Great Recession, the world economic crisis of the largest scale after the Great Depression(1929-39). [48]

The recession caused a decline in GDP for nations increasing financial burden of debt and liabilities but the hardest hit in any crisis are the commoners, who lost their homes, businesses, savings, jobs, facing long-term unemployment and falling into poverty and debt traps. [49]Such consequences are collaterally violative of an individual’s socio- economic rights,[50]impacting employment, standard of living and ultimately the right to life per se. A similar impact on employment was seen during the COVID-19 pandemic, owing to lockdowns and related curbs imposed, economic activities were restricted by the state leading to massive layoffs and pay cuts.[51]It was in essence right to life versus right to life trade off where the public health perspective took over the livelihood front. But in reality, the economy and the global supply chain can never be completely shut, leading to vicious spread of the disease, delaying economic recoup.

The states’ handling of the economic crisis is done in consonance with the handling of administrative activities and expenses and payment of present and future liabilities. Therefore, the state controlled central bank lowered the reserve requirements to inject money into the economy coupled with lowering rates of interest, sector specific support for struggling businesses, deferring interest and tax payments.[52] Most or all of these measures were initiated by the states with the aim of economic recovery to ensure economic security and stability.

On the downside, keeping in line with economic principles, increased money flow pushes up inflation, making goods and services expensive and unaffordable to the poorer masses affecting food security, and access to services like education and health care[53] falling under the ambit of socio- economic rights. In such a scenario a time bound distribution of essential foods through the rationing system (food kits) to the needy and increase in capital expenditure in improving public health and expenditure will aid in resolving the crisis and ensuring protection of socio-economic and civil rights.

Environmental Threats to National Security

The Cambridge dictionary defines environment as the air, water, and land in or on which people, animals, and plants live.[54] Thus the nation is located within the sphere of the environment and a threat to the environment is consequently a threat to the nation.  According to United Nations Development Programme (UNDP) and Human Development Report (1994) environmental security is an issue of prime importance as it affects the very survival of the human race and has transboundary implications.

In a 2007 report, published by the Military Advisory Board, comprising of a group of highly respected retired Admirals and Generals in the United States declared unequivocally in their findings that the expected effects of climate change constitute a significant risk to national security. It predicted increased threat of unrest in some of the world’s most volatile places, posing threat to public order [55]and peace, which is an essential right to  a dignified life recognised by the United Nations General Assembly.[56]

Climate change has effects that go right to the core of the security agenda: disease due to climate change and pollution[57], flooding, drought and crop failure, famine, increased competition for food, water, and energy in areas where resources are already scarce and economic disruption on the scale unforeseen, all of which leading unprecedented levels of migration in highly tense areas[58] creating refugee crisis.

Such environmental disasters interfere with right to life , property , livelihood , health among innumerable allied individual rights.[59]For instance , the irresponsible handling of industrial waste in Japan led to the Minimata disease outbreak (1956), in 1986 Ukraine witnessed the horrid Chernobyl Nuclear disaster leading to long term health consequences and in 2019-2020 the wild fires witnessed in the Amazon rainforest in Brazil was at its peak ironically caused by immense deforestation[60] and further leading to the same simultaneously increasing emissions and declining the quality of the environment.

Due to the inevitable cross border nature of environmental threats, there should be a collective responsibility towards environmental security. Environment covenants such as the Paris Agreement on Climate Change [61]based on common but differentiated responsibility and the Nationally Determined Contributions put forward by the nations in the Conference of Parties under the United Nations Framework Convention on Climate Change[62]must be legally binding and enforced strictly in an attempt to limit and as far as feasible to restore the environment. In addition, incentives and subsidies must be provided by the state for adopting climate friendly technologies and way of life such as electric cars and using renewable energy as fuel. To deal with the consequences of the damage already done disaster preparedness and mitigation efforts must be ramped up by the states to protect lives and property.

Social and Political Threat to National Security

Social Threats

As globalisation has advanced, boundaries have become less relevant, which has decreased the likelihood of external violence. On the other hand, internal threats to a nation’s security result due to inter-religious, inter-sectarian, or inter-ethnic conflict, shifting identities in the wake of globalisation, social radicalization, and rising extremism and terrorist ideologies.[63] These threats undermine national unity, cohesion and loyalty towards the state, resulting in rioting and disruptions of law and order. These have a close nexus with corruption money laundering and access to weapons.[64]

Similar to the proliferation of the printing press which led to the emergence of the Protestant order, the increasing traction of social media[65] and the easy access to information is leading to the spread of bigotry and extremist and radical ideas.

The partition of a nation as a result of continuous demands and agitation by a section of the population belonging to a different socio-cultural group , resulting in threat to the national security of the unified nation due to law and order issues which emerge due to the protests turning violent( affecting several rights such as freedom of business and movement and threat to life)  is an instance of giving in by the nation in the interest of national security. On the other hand, such demands emerge from the refusal by the state to accept the religious- cultural rights of the dissenting communities from which stems dissatisfaction and separatist tendencies. For example, the independence of Ireland from Britain in 1920 and the reversal of Northern Ireland to the United Kingdom 1922 is an instance of social forces dictating sovereignty.

Political Threats

Political security refers to protecting the sovereignty of the government and the political system from internal and external threats.[66] Threats to the political security refers to acts which question the sovereignty of the state which represents the nation thus affecting national security, such as waging war against the government, espionage[67] , coups and unethical defections of political players leading to fall of governments and political instability is a threat to political security of a nation which is run by a government ruling on popular mandate.

African countries have faced the largest number of coups with a wave of coups as recently as in 2022[68].Such dismissal of existing governments and takeovers have two dimensions to it. On the one side of the coin the reason for the coup may be popular dissatisfaction with the government with respect to being responsive to people’s interest and rights. On the other hand, the usurper of power may be autocratic, power hungry and ultimately blatantly neglect individual rights. Pakistan provides a fitting example where the Generals who took over toyed with the supreme document such as the constitution according to their whims and fancies.[69]

Ultimately, quoting Thomas Jefferson, “one gets the government that one deserves”. Therefore, in a democratic world order where the will of the people, who hold the most powerful weapon of vote reigns supreme. The people should be cautious about the polity and their rights and exercise proper discretion while putting their rights to exercise. But their responsibility does not end there. A truly democratic polity involves active involvement of citizens as far as feasible in debate and discussion including in matters affecting national security of “their” nation.

CONCLUSION

A sovereign state has the responsibility to defend the security of the nation simultaneously respecting individual rights and liberty guaranteed by the state through the constitution, statutes and international treaties the state is party to. The traditional idea of territorial security has expanded in scope to include several other domains such as economic, environmental, social and political sphere. But, the expanding scope and responsibility of the state to maintain national security does not absolve the state from protecting individual rights but only puts the state at a higher pedestal of responsibility of safeguarding the citizens and their rights from these unconventional but imminent threats. The citizens at the same time. have a coextensive responsibility to respect the sovereignty and integrity of the nation, be aware and rational and assist in defending the national security and interests in the globalised world order to retain a harmonious network.