“He (a terrorist) is not fit to be called a human. He’s an animal so what is required is animal rights” said Justice Arijit Pasayat, the second pusine judge of the Supreme Court of India while addressing a conference on terrorism recently.
While condemning the terrorists as being undeserving of the protection of human rights, he said that human rights activists ought not to waste their time agitating for providing even a modicum of rights to these animals. These words would per se be quite unwelcome from anyone, but coming from one of the twenty-four guardians of our democracy, they are alarming.
With all respect due to the judge, I must differ. The basic minimal set of rights, available even to the most depraved criminal or the perpetrator of the most heinous terrorist crimes, is also a sacred charge on humanity and must never be allowed to be stripped, on pain of losing the very essence of humanity.
Near the end of the Second World War, many prominent wartime premiers and world leaders went public with vitriolic anger and demanded that the Nazi war criminals should be hunted down like vermin and be shot on sight or hung from the nearest electric pole without any trial. The logic employed by Churchill and his counterparts in Europe and in the US bears uncanny similarity to the sentiment echoed by the learned judge.
The thesis regurgitated by the judge is that by committing certain acts the perpetrators – Nazis in the case of Churchill et. al. and the terrorists in the case of the learned judge – have breached the boundaries of humanity and are therefore fair game for vigilante justice. The proponents of this doctrine seek to strip the Nazis/terrorists of their very human characteristics and declare them beyond the reach of humanity, outside the confines of law and thus non-human for all intents and purposes. Once this conceptual barrier of conscience has been breached, it is only a short step away from declaring the lives of these people forfeit without any further formalities; declaring that these people may be treated in any manner, killed or maimed or otherwise abused, by any and all, without fear of retribution by the law or the society.
This is a very dangerous concept and an extremely perilous conceptual jump. No law or human custom in current times sanctions such a de-humanizing process. Even the bloodthirsty post-WW2 leaders were thankfully detracted from rushing down this downhill slope by Henry Stimson who managed to convince the newly elected US president Harry Truman to prevail upon the allies to conduct war trials in Nuremberg and Tokyo instead.
The ensuing trials before the International Military Tribunal for the Far East (IMTFE) and the International Military Tribunal at Nuremberg thus stand testimony to the renewed commitment of even the victims of the most horrendous crimes to the principles of humanity and human rights. Even those who had marched endless streams of the wretched into gas chambers at Auschwitz and Dachau were afforded a trial and were given the benefit of a decent defense. The efforts of Harry E. Clarke at the IMTFE are a tribute to the rule of law. From the ashes of a shattered world, Colonel Harry E. Clarke who was a serving US military officer deputed to defend the accused in Tokyo not only put up a spirited defense for one of the prime accused, General Yamashita but also reiterated the need for fairplay and due process even for the alleged perpetrators of the worst atrocities mankind had seen till that time. This serving army officer who had been a part of the war effort believed in the need for fair trials and even went to the extent of appealing the decision of the military tribunal before the US Supreme Court.
The learned judge would also be well advised to reread the intriguing episodes of Justice Radhabinod Pal, the Indian judge who was nominated to the IMTFE and of Justice Jaranilla who was himself a victim of the infamous Bataan Death March where 76,000 of his compatriots were forced to march across the unforgiving jungles of Philippines, of which only 54,000 survived.
While history remembers Jaranilla as a man consumed with hatred against the Japanese and who had vowed to convict and condemn each of the accused tried before him, Justice Pal had the strength of character and the capacity not just to decide according to his conviction but even to return the bow of the accused as they entered the courtroom each day of the trial.
A judge must not be seen to be an intemperate or harsh or opinionated person. Let me correct that sentence: A judge must not be an intemperate or harsh or opinionated person. Each case tried by him, each accused who is presented before him depends upon the judge’s strength of character to give him the benefit of the presumption of innocence. A judge who has already made up his mind one way or the other can scarcely be objective or judge while remaining honest to the oath he has sworn.
The learned judge may also like to revisit the adage about one man’s terrorist being another man’s freedom fighter. Wise men tell us that a person’s actions must be viewed in the totality of the circumstances. Nelson Mandela and even our nationally revered Bhagat Singh and Mangal Pandey were strictly speaking, terrorists if viewed from the strict perspective enunciated by the judge. These freedom fighters were offering organised resistance against the de jure government of the time and had adopted violent means to express their dissatisfaction. They were committed to overthrowing the extant government and were willing to resort to any means they could lay their hands on. Shubash Chander Bose’s Azad Hind Fauj was not averse even to collaborate with Hitler to achieve independence for India.
Needless to add, the First War of Independence is still called the Mutiny of 1857 by those who were at the receiving end. The violence of the Umkhonto we Sizwe is still a touchy subject for the Boers and other South Africans and must still be weighing on the conscience of its one-time commander, Nelson Mandela, even if infrequently. The victims of the Nazi Pogrom would not be averse to treating Bose with the same contempt and hatred reserved for the Italian Benito Mussolini or the other Nazi collaborators.
Would the judge condemn unheard Bose and Bhagat Singh and Mandela and the scores of others whose struggles succeeded, at the same time he condemns the terrorists he has prejudged as animals today?
A judge of the Supreme Court is the last word on the law. Article 141 of the Indian Constitution has traditionally been interpreted to mean that a pronouncement in court by a Supreme Court judge is the binding law for all courts in India. In this context, we must confess that there is scarcely any trial judge or High Court today which can remain unaffected by the intemperate outburst of the Judge.
We must therefore work harder now to ensure that the unlawful reluctance of the lawyers to defend the accused, compounded by this sharp outburst does not result in a faulty verdict in the case. International law accepts, and even the Rome Statute of the International Criminal Court impeaches and does not accept a domestic legal order which is unwilling or unable to guarantee a fair trial.
Maybe as an exception therefore we must show our commitment to law by turning over the trial to the ICC. Maybe judges need to be reminded by their peers and their predecessors time and again that having taken an oath, a person becomes a judge – and remains a judge all twenty four hours of the day till such time he lays down his office. His conduct within and outside the courtroom must always be judicious and in consonance with the letter and spirit of the law. A judge, especially one sworn to act as the guardian of our constitution and the very life and liberty of each citizen of India, should perhaps be a dove rather than a hawk.
(May 13, 2009)
