* THE HONOURABLE SRI JUSTICE GODA RAGHURAM, THE HONOURABLE SRI JUSTICE V.V.S. RAO, THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY, THE HONOURABLE SRI JUSTICE RAMESH RANGHANATHAN AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD + WRIT PETITION Nos: 15419 of 2006; 26358 of 1999; 7906 of 2000; 14475 of 2002; 440 of 2003 and 857 of 2008 % FRIDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE # A.P. Civil Liberties Committee (APCLC), Rep by its President, Mr. S.Subhash Chandra Bose, S/o S.Venkata Krishnaiah, R/o P.B.Street, Governorpet, Vijayawada, Krishna District & Others ... PETITIONERS VERSUS $ The Government of A.P., rep by its Principal Secretary, Home Department, Secretariat, Hyderabad, and Others. ... RESPONDENTS ! Counsel for the Petitioners: MR. BOJJA TARAKAM and Others ^ Counsel for the Respondents: THE ADVOCATE GENERAL and Others Sri C. PADMANABHA REDDY, AMICUS CURIAE < GIST > HEAD NOTE ? 1) K.S.Subramanian: Political Violence and the Police in India pp 139-140 – Sage Publications, 2007 2) Psychologist: Harvard University; The decline of Violence 3) Eric Hobsbawm – Globalisation, Democracy and Terrorism – Little, Brown-2007 4) Alan M. Dershowitz – Preemption – W.W. Norton & Co, 2006 5) 339 U.S. 382 (1950) 6) 2007 (5) ALT 639. 7) (1992) Supp. (1) SCC 335. 8) (1997) 3 SCC 433. 9) (2006) 2 SCC 677. 10) (2006) 1 SCC 229. 11) (2007) 1 SCC (Cri) 193 12) (2003) 7 SCC 749. 13) (2007) 6 SCC 171. 14) (1996) 11 SCC 582. 15) (2004) 7 SCC 768. 16) (2006) 2 SCC 677. 17) (2006) 4 SCC 359. 18) (2006) 5 SCC 733. 19) (2006) 1 SCC 229. 20) AIR 2008 SC 907. 21) (2001) 6 SCC 181. 22) (1979) 2 SCC 322. 23) (1999) 3 SCC 247. 24) (2004) 13 SCC 292. 25) (1992) 1 SCC 714. 26) (1988) Crl.LJ 223. 27) (1978) Crl.LJ. NOC 10. Gauhati. 28) (1987) 2 SCC 359. 29) AIR 1970 SC 940. 30) (1978) 2 SCC 424. 31) 82 Columbia Law Review (1982) 32) Outlines of Criminal Law – 19th Edition p.36 33) 2008, 117 Yale Law Journal, 1070 34) An unpublished manuscript available at http://ssrn.com/abstract 35) 9 Oxford Legal Studies, 285 (1989) 36) 54 UCLA L. Rev. 117(2006) 37) 40 American Jurisprudence, Second Edition – Homicide, S.135 38) Policing a perplexed society - George Allen and Unwin publication, 1977 39) AIR 1963 SC 612. 40) (1974) 4 SCC 764. 41) AIR 1962 SC 605. 42) AIR 1964 SC 1563. 43) AIR 1968 SC 702. 44) AIR 1970 All 51. 45) (1980) 2 SCC 218. 46) (2004) 9 SCC 257. 47) (2005) 9 SCC 705. 48) (2005) 10 SCC 358. 49) (2005) 12 SCC 657. 50) (2005) 10 SCC 94. 51) (2005) 13 SCC 323. 52) Corpus Juris Secondum Vol. 57, P.107 53) (1970) 2 SCC 480. 54) (1996) 7 SCC 516. 55) 1981 (Supp) SCC12. 56) (1971) A.C. 814. 57) (1995) 1 A.C. 482. 58) AIR 1964 SC 1850. 59) AIR 1966 SC 119. 60) (1975) 4 SCC 153. 61) (2006) 2 SCC 450. 62) (1991) 3 SCC 627. 63) (2003) 2 SCC 518. 64) (72) L.Ed. 944. 65) AIR 1950 SC 27. 66) (1978) 1 SCC 248. 67) (1981) 1 SCC 608. 68) (1989) 4 SCC 286. 69) AIR 1963 SC 1295. 70) (1978) 4 SCC 494. 71) (1978) 4 SCC 104. 72) (1980) 1 SCC 81 and 93. 73) (1983) 2 SCC 104. 74) (1978) 3 SCC 544. 75) (1980) 3 SCC 526. 76) (1983) 2 SCC 68. 77) (1983) 2 SCC 96. 78) AIR 1986 SC 467. 79) (1974) 1 SCC 103. 80) 277 U.S. 438 (1928) 81) 343 U.S. 169, 180 (1952) 82) AIR 1945 PC 18. 83) AIR 1955 SC 196. 84) AIR 1960 SC 1113. 85) AIR 1968 SC 117. 86) (1980) 4 SCC 631. 87) (1989) 2 SCC 132. 88) (1977) 4 SCC 459. 89) (2006) 4 SCC 359. 90) (2008) 2 SCC 492. 91) AIR 1951 SC 207. 92) AIR 1959 SC 1118. 93) AIR 1963 SC 765. 94) (1978) 4 SCC 58. 95) AIR 1961 SC 986. 96) (1973) 3 SCC 753. 97) (1971) 2 SCC 654. 98) 42. British Journal of Criminology, 669 – Autumn, 2002 99) AIR 1962 SC 876. 100) AIR 1992 SC 1894. 101)(2003) Crl.L.J. 4414 (AP) 102) (1998) Crl.L.J 4333. 103) (1972) 1 SCC 450. 104) AIR 1971 SC 1389. 105) (1981) 3 SCC 208. 106) AIR 1942 Nag. 117. 107) AIR 1966 SC 97. 108) (1970) 1 SCC 590. 109) (1971) 1 SCC 855. 110) (2005) 1 SCC 568. 111) (1996) 9 SCC 766. 112) (1979) 4 SCC 274. 113) (1977) 4 SCC 39. 114) (2000) 8 SCC 239. 115) (2000) 2 SCC 57. 116) (1997) 4 SCC 393. 117) (1976) 3 SCC 252. 118) AIR 2000 SC 637. 119) (2000) 8 SCC 498. 120) (1990) Crl.L.J. 2525 (All) 121) (1972) 3 SCC 414. 122) (2004) Crl.L.J. 2408 (All) 123) (1980) (S) SCC 499. 124) (1989) Crl.L.J. 202 (Pat) 125) (1978) Crl.L.J. 1238 (Kat) 126) (1995) Crl.L.J. 3059 (Madras) 127) (2000) Crl.L.J. 315 (Delhi) 128) AIR 1963 SC 430. 129) (1995) Crl.L.J. 1736 (AP) 130) (1993) 2 SCC 16. 131) 2006 AIR SCW 95. 132) AIR 1931 PC 254. 133) (1975) 4 SCC 428. 134) 1981 Supp. SCC 87. 135) 1996(4) ALD 372. 136) 1997 (2) ALD 523. 137) 2001(2) ALD 87. 138) (2006) 8 SCC 1. 139) Chapter –5, The Report of the Independent Commission on Policing for Northern Ireland, 1999 140) Debate over the Ku Klux Klan Act of 1871 – reported in The Congressional Globe – April 11, 1871 141) John E. Finn: Constitutions in Crisis – Political Violence and the Rule of Law – Oxford, 1991 142) Corwin – Total War and the Constitution, p.172 – Alfred A. Knopf, 1947 143) Lord Bolingbroke, Historical Writings – University of Chicago Press, 1972 144) Charles H. Mcllwain – Constitutionalism: Ancient and Modern – Cornell University Press 1947. IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HONOURABLE SRI JUSTICE GODA RAGHURAM, THE HONOURABLE SRI JUSTICE V.V.S. RAO, THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY, THE HONOURABLE SRI JUSTICE RAMESH RANGHANATHAN AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION Nos : 15419 of 2006; 26358 of 1999; 7906 of 2000; 14475 of 2002; 440 of 2003 and 857 of 2008 W.P.No. 15419/2006: Between: A.P. Civil Liberties Committee (APCLC), Rep by its President, Mr. S.Subhash Chandra Bose, S/o S.Venkata Krishnaiah, R/o.P.B.Street, Governorpet, Vijayawada, Krishna District. ... PETITIONER AND 1 The Government of A.P., Rep by its Prl. Secretary, Home Department, Secretariat, Hyderabad. 2 The Director General of Police, Inspector General of Police, Lakdikapool, Hyderabad. 3 The Superintendent of Police, Ongole, Prakasam District. 4 The O.S.D. Gray Hounds (Anti Naxal Squad), Ongole, Prakasam District. 5 The Station House Officer, Yeragondapalem, Prakasam District. 6 The Deputy Superintendent of Police, Markapuram, Prakasam District. 7 The Superintendent, Osmania General Hospital, Hyderabad. 8 V. Anantha Ramulu S/o. late Butchaiah, State President, A.P. Police Officers' Association, Hyderabad 9 Peoples Union for Civil Liberties, Office at 81, Sahayoga Apts, Mayurvihar- 1, Delhi, rep by National President K.G.Kannabiran 10 M/s Andhra Pradesh Police Officers Association rep by its General Secretary Mr. K.V.Ram Narasimha Reddy, office at Lakdikapool, Hyderabad 11 Common Wealth Human Rights Initiative – A Society registered under S.R.Act, Office at B 117, Sarvodaya Enclave, 1st Floor, New Delhi rep by its Director Mrs. Maja Daruwala R8 is impleaded as per court order dt. 12-3-2007 in WPMP 22136 of 2006 R9 is impleaded as per court order dt 31-1-2008 in WPMP No. 731of 2008 R10 is impleaded as per court order dt 7-2-2008 in WPMP No.2710 of 2008 R11 is impleaded as per court order dt 3-3-2008 in WPMP No.4595 of 2008 ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of Writ of Mandamus directing the concern Police to register crime in the offence of Killing of 8 Maoist Naxalites into the alleged encounter incident that took place on 23-7-2006 at Nallamala Forest near Darboina Penta and Nekkanti Palutla Villages, in Yerragondapalem Mandal, Prakasam District by registering a case under section 302 of IPC against the police personnel participated in the alleged encounter incident and initiate criminal proceedings to prosecute them taking all steps as per law and also call for all records with regard to the crime registered on this encounter and pass such other order or orders. Counsel for the Petitioner: Mr. Bojja Tarakam, Senior Counsel assisted by Mr. D.Suresh kumar Counsel for the Respondent Nos.1 to 7: The Advocate General assisted by G.P. for Home Counsel for the Respondent No.8&10: Mr. Uday Lalit, Senior Counsel Counsel for the Respondent No.9: Mr. K.G.Kannabiran, Senior Counsel Counsel for the Respondent No.11: Ms. Nitya Ramakrishnan and Mr. Trideep Pais Sri C. PADMANABHA REDDY, AMICUS CURIAE W.P. No : 26358 of 1999: Between: Komire Devavva, W/o.Narasimhulu, R/o.Gajasingavaram, Gambhirraopet Mandal, Karimnagar District. ... PETITIONER AND 1 Station House Officer, Sirikonda, Nizamabad District. 2 Station House Officer, Gambhirraopet, Karimnagar Dist. 3 Superintendent of Police, Nizamabad. 4 Collector & District Magistrate, Nizamabad. 5 Superintendent, Govt.Hospital, Kamareddy, Nizamabad District. 6 Govt. of A.P., rep. by Secretary Department of Home, Secretariat, Hyderabad. 7 Gandhi Hospital (Hyderabad),(Secunderabad) rep. by its Superintendent. R7 is impleaded as per Court order dt.31.12.99 in WPMP No.33285/99. ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order, direction or writ in the nature of a Writ of Mandamus declaring that the action of the Third and Sixth Respondents in not taking action in accordance with the law against the concerned police personnel of the First Respondent's Police Station for having opened fire without any provocation and injured severely the petitioner's husband on the evening of 15-6-99 at Gajasingavaram, Gabhiraraopet Mandal, Karimnagar District and further in not taking the financial and other responsibility for the cure and well being of the petitioner's husband is arbitrary, unjust and illegal, and directing (i) the Sixth Respondent to forthwith ensure provision of adequate medical treatment to the petitioner's husband at a super-specialist hospital at its expense; (ii) the Sixth Respondent to pay an amount of Rs.2 Lakhs to the petitioner as compensation and damages for the medical expenditure incurred on her husband till now; and (iii) the Third and Sixth Respondents to forthwith prosecute the concerned policemen of the First Respondent Police station in accordance with the law for the said offence; and pass such other order or orders as this Hon'ble Court may deem fit and proper. Counsel for the Petitioner: MR.K.BALAGOPAL Counsel for the Respondents: Advocate General W.P. No : 7906 of 2000: Between: Andhra Pradesh Civil Liberties Committee Rep by its State Vice-President Dr. G.Lakshman, S/o. G.Balaiah. R/o. Qr.NO.L.55, O.U. Staff Quarters, Hyderabad. ... PETITIONER AND 1 S.H.O. Police Station, Parakal, Warangal District. 2 Superintendent of Police, Warangal District. 3 Superintendent, M.G.M.Hospital, Warangal. 4 The Chief Secretary, Government of A.P. Secretariat, Hyderabad. ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus directing the respondent herein to preserve the dead bodies of the person who were killed in an encounter which took place Kaukonda Hills, Parkal Mandal, Warangal District, and after identification of the bodies the same bodies may be handover to the family members of the deceased. It is further prayed that this Honourable Court may be pleased to direct the respondent herein to register a Crime U/S .302 IPC and further institute judicial enquiry by the sitting District Judge, Warangal District. and basing on the report punish the erring police officials and to pass such other or further orders as this Honourable court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: Mr.V.Raghunath Counsel for the Respondents: Advocate General W.P. No : 14475 of 2002: Between: The Andhra Pradesh Civil Liberties Committee, rep. by its Vice President, Sri S.Subhashchandra Bose, R/o. H.No.27-17-25, Governorpet, Vijayawada, Krishna District. ... PETITIONER AND 1 Rathnam Raju, S.I. of Police, Machavaram Police Station, Krishna Dist., 2 Sheik Hussain HC (638), Machavaram Police Station, Krishna Dist., 3 Sambasiva Rao (PC 1048), Machavaram Police Station, Krishna Dist., 4 N.Raju (PC 656), Machavaram Police Station, Krishna Dist., 5 The Commissioner of Police, Vijayawada, Krishna Dist., 6 The Director General of Police, Lakdikapool, Hyderabad. 7 The Government of Andhra Pradesh, rep. by its Secretary, Dept. of Home, Secretariat, Hyderabad. 8 The Director General, Central Bureau of Investigation, New Delhi. ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a order or orders more particularly one in the nature of a writ or mandamus direction the respondent nos.6 herein to register a criminal case against the respondent nos. 1 to 5 herein u/s 302 IPC R/w sec.34 IPC and further direct the respondent no.7 herein to entrust the matter for investigation to the respondent no.8 herein and prosecute as per the law and punish the erring police officials who are the responsible for the cause of the death of the deceased and further prayed that this Hon'ble court may be pleased to award the appropriate or more suitable compensation to the deceased family and pass Counsel for the Petitioner: Mr. V.Raghunath Counsel for the Respondent Nos 1 to 4: Smt. S.K.Ratna Counsel for the Respondent Nos 5 to 7: Advocate General Counsel for the Respondent No.8: Mr. C. Sadasiva Reddy& Mr.T.Niranjan Reddy W.P. No : 440 of 2003: Between: Andhra Pradesh Civil Liberties Committee, Rep. by its State Vice-President Dr.G.Lakshman, S/o. Balaiah, R/o. L-55, O.U. Quarters, Hyderabad. ... PETITIONER AND 1 The Station House Officer, Dachepalli P.S., Guntur District. 2 The Station House Officer, Bmdalamottu P.S., Guntur District. 3 The Superintendent of Police, Guntur, Guntur District. 4 The Assistant Civil Surgeon, Government Civil Hospital, Gurajala, Guntur District. 5 The Assistant Civil Surgeon, Government Civil Hospital, Vinukonda, Guntur District. 6 The Director General of Police, Andhra Pradesh, Hyderabad. 7 The Home Secretary, Department of Home, Secretariat Buildings, Hyderabad. ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus, directing the respondents herein to preserve the six dead bodies, three which are presently lying in Gurajala Assistant Civil Hospital, Guntur District and three dead-bodies which are yet to shift to the Assistant Civil Hospital, Vinukonda, Guntur District, who were killed in two fake encounters dt. 5-1-2003 and 6-1-2003 respectively in the limits of 1st and 2nd Respondents herein and further direct the respondents herein to conduct Post-Mortem by a team of Forensic Expert Doctors with Videographs and handover the dead bodies to their family members or nearer relatives and further direct the respondents to register a Criminal Case U/Sec. 302 of I.P.C. against the Police persons who involved in two fake encounters and to grant such other relief or reliefs as this Hon'ble Court Counsel for the Petitioner: Mr. V.RAGHUNATH Counsel for the Respondents: Advocate General W.P. No : 857 of 2008: Between: K.Radha, D/o.K.Krishnaiah, C/o.Adinarayana,R/o.H.No.2-2-21105/B/6/2, Near Sri Vidya School, Tilaknagar, Hyderabad ... PETITIONER AND 1 The Government of A.P, Rep.by its Prl.Secretary, Home Department, Secretariat, Hyderabad 2 The Director General of Police and Inspector General of Police Lakdikapool, Hyderabad 3 The Superintendent of Police, Ongole, Prakasam Dist 4 OSD Gray Hounds (Anti-Naxal Squad) Ongole, Prakasam Dist 5 The Station House Officer, Yerragondapalem, Prakasam Dist 6 The Deputy Superintendent of Police, Markapuram, Prakasam Dist 7 The Deputy Inspector of Police, Gurajala, Guntur Dist(Investigation Officer in Crime 36/2006 of P.S., Y.Palem) 8 The A.P. Police Officers’ Association Rep. by its President, Hyderabad ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of Mandamus directing the concern police to register crime in the offence of killing of petitioners sister Rajitha@ Shyamal and 7 other persons into the alleged encounter incident that took place on 23-07-2006 at Nallamala Forest near Darboinapenta and Nekkanti Palutla(V) in Yerragondapalem(M) Prakasam Dist by the disclosing the name and identity of 15 Dist special police men, SI and PC No.430 and 1843 of Y.Pallem of Prakasam Dist by registering a case under section 302 of I.PC. and initiate criminal proceedings to prosecute them taking all steps as per law and pass Counsel for the Petitioner: Mr.Balla Ravindranath & Ms. Kolla Savithri Devi Counsel for the Respondent No.1 to 7: Advocate General Counsel for the Respondent No.8: Mr. Uday Lalit, Senior Counsel The Court made the following : THE HONOURABLE SRI JUSTICE GODA RAGHURAM, THE HONOURABLE SRI JUSTICE V.V.S. RAO, THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY, THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONOURABLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION Nos. 15419 of 2006; 26358 of 1999; 7906 of 2000; 14475 of 2002; 440 of 2003 and 857 of 2008 COMMON ORDER: (Per Hon’ble Sri Justice Goda Raghuram) Competing interpretations of recurrent, contemporaneous events : Since the inception of the naxalite movement in Andhra Pradesh in 1969, 551 police personnel were killed including one DIG, two S.Ps, five D.S.Ps; 16 Inspectors and 49 Sub-Inspectors. 2928 civilians were killed; public and private property worth hundred of crores of rupees was destroyed; the extremist groups indulged in mindless violence and committed brutal murders. The naxal violence increased since 1991. They deliberately ambush and attack police with sophisticated firearms and explosives. In order to create terror the Maoists are also targeting functionaries of ruling political parties and killing them brutally – (counter affidavit of the Director General of Police in W.P.No. 15419/06 including Annexures 2 and 7) … the State Executive for the first time started extra-legal killing which is popularly known as Encounter since 1968 and as on today in the name of alleged encounter the State has snatched away lives of about 4000 people during the last four decades – (written submissions dated 4.3.2008 of Mr. V.Raghunath, Advocate for APCLC, in W.P.Nos. 7906/2000, 14475/02 and 440/03) The lesson for the MHA (Ministry of Home Affairs) is thus clear: it should advise state governments that brutal repression is no answer to the Naxalite movement; that the Naxalite ideology must be fought politically; that Naxalite criminal actions must be dealt with under the existing criminal and human rights laws; and that Naxalite social base, which springs from exploitation, inequality and injustice must be countered by purposeful political and administrative action to implement the promises made in the Preamble and the Directive Principles of State Policy of the Constitution. Police repression is attractive and easy to adopt by a government armed to the teeth with paramilitary forces, equipment, firepower and mobility! However, police repression only goes to strengthen the Maoist thesis on the class character of the Indian State. It is counter-productive and helps to increase the mass base of the Naxalites, which arises out of the failure of the State to deliver the developmental goods as mandated by the Constitution –– Political Violence and the Police in India ([1]). Steven Pinker observes: The most important and underappreciated trend in the history of our species: is the decline of violence. Cruelty as popular entertainment, human sacrifice to indulge superstition, slavery as a labor-saving device, genocide for convenience, torture and mutilation as routine forms of punishment, execution for trivial crimes and misdemeanors, assassination as a means of political succession, pogroms as an outlet for frustration, and homicide as the major means of conflict resolution – all were unexceptional features of life for most of human history. Yet today they are statistically rare in the West, less common elsewhere than they used to be, and widely condemned when they do occur.([2]) According to the eminent historian Eric Hobsbawm: The twentieth century was the most murderous in recorded history. The total number of deaths caused by or associated with its wars is estimated at 187 million, the equivalent of more than 10 percent of the world’s population in 1913. ---- At the start of the twenty-first century we find ourselves in a world where armed operations are no longer essentially in the hands of governments or their authorized agents, and where the contending parties have no common characteristics, status or objectives, except the willingness to use violence.([3]) State action against terrorism (including the domestic variety), blurs legal, moral and ethical definitions of appropriate substantive and procedural rules of peacetime law-enforcement engagement under constitutional norms of governance on the one hand; and war on the other. War is also a species of conflict; it is supposed to take place primarily between sovereign states or, if they occurred within the territory of one particular state, between parties sufficiently organized to be accorded belligerent status by other sovereign states. Hobsbawm observes: In recent years, the situation has been further complicated by the tendency in public rhetoric for the term `war` to be used to refer to the deployment of organized force against various national or international activities regarded as anti-social - `the war against the Mafia`, for example, or the `war against the drug cartels`. Not only is the fight to control, or even to eliminate, such organisations or networks, including small-scale terrorist groups, quite different from the major operations of war; it also confuses the actions of two types of armed force. One – let us call them `soldiers` - is directed against other armed forces with the object of defeating them. The action of the other – let us call them `police` - sets out to maintain or re-establish the required degree of law and public order within an existing political entity, typically a state. Victory, which has no necessary moral connotation, is the object of one force; bringing to justice the offenders against the law, which does have a moral connotation, is the object of the other – (Hobsbawm – 3supra note 2, at pages 21, 22 – emphasis is supplied). The distinction, between war and peacetime law enforcement within the framework of a legal regime under a constitutional order is critical and an issue of profound significance for civil society. Democratic regimes world over are experiencing a fundamental shift in the approach to controlling harmful conduct. The shift is from the traditional reliance on deterrent and reactive strategies and towards increasingly preventive and proactive strategies. The shift has clear and momentous implications in areas of human rights, criminal justice administration, and security – national and international, foreign policy and critically for civil liberties jurisprudence. The conceptual shift in emphasis from a theory of deterrence to a theory of prevention influences and substrates actions that Governments take to control dangerous human behavior. These range from preventive warfare; proactive crime prevention techniques including phone tapping, stings, informers and moles; surgical, psychiatric or chemical methods for preventing sexual predation; racial, religious, ethnic or other forms of profiling; prior restraint on dangerous or offensive speech; use of torture or other extraordinary measures towards gathering intelligence considered essential to prevent imminent acts of terrorism; as also targeted killings of terrorists ([4]). Executive and even judicial sanctions against life and liberty, it is axiomatic, must be explicitly spelt out in legislative authority. This is the essence of civilized and constitutional governance. In the context of our constitutional scheme and qua Article 21, the State shall not deprive any person of life or liberty except in accordance with the procedure established by law. Considered in the context