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Terrorism, Justice and Human Rights in India

Human rights activists express concern at comments by the supreme court judge Mr. Passayat

by K G Kannabiran, Prabhakar Sinha, 1 February 2009

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Judges, Advocates and Terrorists

K G Kannabiran *

Every judge of the Supreme Court before entering takes an oath where he says that he will bear true faith and allegiance to the Constitution , that he will uphold the Sovereignty and Integrity of India and that he will duly and faith fully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour or ill-will and he will uphold the Constitution and the laws. Justice Mr. Passayat has taken this oath twice when he was appointed to the High Court and later when he was elevated to the Apex Court. It may be a routine but it is also a disciplinary code. It is also a restraint on his freedoms under Part three of the constitution.

Four decades back I was arguing a case of commutation of death sentence into one of life before a Bench of AP High Court and the junior judge on the Bench asked me "why should these Naxalites who want to overthrow the Constitutional Government be allowed to seek protection under the constitution?" I told him that when these issues come before the Court it is not their values that are on trial but the values of the society. Barring Article 19 all the other crucial articles on life , equality and liberty are available to all whether citizens or non-citizens. These are campaign materials for Constitutional Democracy. This was around forty years back. A judge has a right to write about terrorism in his judgment as part of adjudication. But the restraint of speech applies to judge in all his public utterance. In one of his talks in a Seminar referring to terrorists he stated that they dot have human rights but only animal rights. As a judge he should be aware that the Nazi leaders who perpetrated genocide as a policy were not killed by the Allies but War Tribunal was constituted and tried and thereafter punished. In fact post second world war in the famous Sacco and Vanzetti trial justice Frankfirter formed Defence Committee for them when these Italian Radicals were denied defence.

The Decisions of the American Supreme Court during Mac Carthy period of un American activities accusations should form part of advocates during the period spent as apprentices to understand the values that enriched the profession. During the Mac Carthy period lawyers and judges were quite hysterical. Under the Constitution Judges are not expected to speak like Justice Passayat did nor can advocates resolve to deny defence to Islamic terrorists or physically prevent advocates appearing for terror suspects. The Boycott resolutions so frequently passed in our courts against some accused would amount to professional misconduct. It is unfortunate that the All India Bar Council did not play the role it was expected to.

Liberal values cannot spread without campaigning and our courts are slowly ceasing to be campaigner of liberal cause and the profession is not aware what liberal values are liberal because none of us read part III, IV and IVA of the Constitution.

* National President, People’s Union for Civil Liberties (PUCL)
- Plot 300, Street 6, E. Marredpalli
- Secunderabad 500 026, AP
- Phone: 040-27730632

[ A Letter to Justice Mr A.Pasayat ]

Dr Prabhakar Sinha,
- National Vice President People’s Union for Civil Liberties (PUCL)
- Nepali Kothi,
- Club Road,
- Muzaffarpur-842002

- Hon’ble Justice Mr A.Pasayat
- Supreme Court of India
- New Delhi.


A couple of days ago, I happened to watch a footage on a TV channel in which you were shown to express the view at a seminar that terrorists were animals and had no claim on human rights. Such a view of a Judge of the apex court held either due to ignorance or by conviction is a matter of grave concern to the citizens of the country. Under the Universal Declaration of Human Rights, every member of the human society is entitled to human rights without any exception and is not required to possess any other qualification for their enjoyment; but at the same time this does not give anyone the right to commit a crime including acts of terrorism and escape punishment. Thus the only(human) right of a person accused of commission of a terrorist act is to be tried fairly by an independent and impartial court of law and be punished or acquitted by it. He is also entitled to equality before the law and equal protection of the law. This is what even our constitution guarantees to every citizen. I wonder if you are aware of the implication of your view. It means that a person accused of indulging in terrorism is not entitled to presumption of innocence and a fair trial and should be convicted even without sufficient proof. This, apart from leading to massive miscarriage of justice, would be contrary to the principle of rule of law and against the letter and spirit of our constitution.

Yours faithfully,

Prabhakar Sinha,