[Reader-list] India: Supreme Court judge advocates “animal rights” for alleged terrorists
Venugopalan K M
kmvenuannur at gmail.com
Tue Apr 14 18:43:36 IST 2009
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India: Supreme Court judge advocates “animal rights” for alleged terrorists By
Kranti Kumara and Keith Jones
20 February 2009
The third most senior judge on India’s Supreme Court has bluntly said in a
public forum that alleged terrorists should be denied “human rights.”
Instead terror suspects should be treated like animals. “What is required
are animal rights,” declared Supreme Court Justice Arijit Pasayat.
Pasayat’s remarks were by no means off the cuff. They were made at a January
27 seminar organized by the Indian Law Institute to discuss “Investigation
and Prosecution of Offences relating to Terrorism.”
They were a clarion call for India’s politicians to go even further than
they did in a series of sweeping anti-terrorist laws that were passed
virtually without debate following the late November terrorist atrocity in
Mumbai. Under these laws, terror suspects can be held without charge for up
to 180 days, the presumption of innocence is set aside for some offences,
and special terror courts have been established from which the press and
public can be excluded. The state has adopted a veritable catch-all
definition of terrorism that could be invoked to justify the suppression of
all manner of anti-government agitations.
“It is important,” Pasayat told the Law Institute seminar, “to have special
laws to deal with terrorists and we need to give enough time to our
investigators and prosecutors to prepare the case with strong evidence.”
While Pasayat, for obvious reasons, did not say so, his remarks were also
clearly meant as a rebuttal of the views of India’s chief justice, K.G.
Balakrishnan.
Speaking at a meeting of international jurists in December, Balakrishnan had
simply restated elementary democratic judicial principles, including that
all individuals “irrespective of how heinous their crimes may be” are
entitled to a “fair trial.” “Adherence to the constitutional principle of
‘substantive due process’ is,” said Balakrishnan, “an essential part of our
collective response to terrorism.”
In an argument remarkable for its vulgarity and for its frank repudiation of
core bourgeois democratic judicial principles, Pasayat denounced those who
show concern for the rights of terror suspects. He deplored “how human
rights activists carry out protests and hold *dharnas* (a form of sit-in
that may involve fasting) if rights of terror suspects are violated.”
This, it must be emphasized, is in a country where the security forces—as
Indian and international human rights organizations have documented in
thousands of cases— routinely use torture, summary executions,
disappearances and judicial frame-ups to combat armed opponents of the
Indian state, be they Islamicists, Naxhalites (Maoist guerillas), or
ethno-nationalist separatists.
“We speak of upholding human rights,” continued Pasayat. “What we are
worried [about] is the violation of the rights of terrorists, the people who
kill innocent people with AK-47s and AK-56s on streets. He (a terrorist) is
not fit to be called a human. He’s an animal, so what is required is animal
rights.”
There is more than a whiff of fascism in Pasayat’s views, and not just in
his cavalier denunciations of those who stand up for the human rights of the
accused and his call for terror suspects to be treated like animals.
The third longest-serving judge on India’s supreme court is, as Pasayat’s
remarks attest, oblivious to the seminal distinction that is at the root of
India’s judicial system—the distinction between an accused and a person whom
the state has proven guilty of a crime through a trial, in which the accused
is able to question his accusers and challenge the evidence against him. For
Pasayat a “terror suspect” is already a terrorist who should be denied even
the limited rights and protections accorded convicted criminals.
Pasayat did not say what he meant by “animal rights,” but they are clearly
code words for torture or worse. Given his stature in the Indian judicial
system, they are an open incitement for the police to abuse, even kill,
terrorist suspects.
In this regard, it is important to note that the Hindu supremacist Bharatiya
Janata Party and its allies have long demanded that confessions made to
police—as opposed to those given in open court—be admissible as evidence. So
shameful is the record of the Indian police and security forces in respect
to the use of torture in obtaining evidence that even the Congress Party-led
government has thus far felt compelled to resist this demand.
The significance of Pasayat’s remarks is underscored by the reaction to
them.
At the seminar itself, his views were echoed by several other prominent
participants, including senior advocate Fali S. Nariman and the second
highest law officer in the land, the solicitor-general of India, G.E.
Vahanvati.
Nariman suggested the government has been “pussy footing on terrorism,”
because, unlike the public, the “Home Minister and Law Minster are protected
from terrorist offences.” He said terror suspects should be stripped of the
“right of silence,” that is, the right to refuse to answer questions posed
by the police or in a court of law, without any inference of guilt being
drawn by this refusal.
Solicitor-General of India Vahanvati said that terrorism could not be fought
“by conventional methods”—i.e., civil liberties and longstanding judicial
principles must be suspended or set aside: “It is time to show we also know
how to fight and not just bark.”
India’s solicitor-general challenged Chief Justice Balakrishnan’s view that
under Indian law Mohammed Ajmal Amir Kasab, the lone gunman to survive the
Mumbai terrorist attack, must be provided with proper legal representation.
“If a lawyer does not want to fight for Kasab,” said Vahanvati, “we should
not force him or her to do so. Let Kasab defend himself before the court, if
he can speak another language other than terrorism.”
Since his arrest, the 21-year-old Kasab has been the object of a lynch-mob
mentality whipped up by India’s ruling elite with the aim of furthering
India’s longstanding geo-political rivalry with Pakistan, justifying the
passage of laws that vastly increase the repressive powers of the state, and
otherwise shifting Indian politics sharply to the right.
It is a core democratic principle that all accused, innocent or
guilty—indeed, especially the guilty—merit a proper legal defence, so as to
ensure that they are not abused by the state. But the outrage over the
Mumbai atrocity is being used to stampede the public into accepting the
setting aside of this and other basic rights.
With the active support of various bar associations, India’s legal
profession has treated Kasab like a leper. All those who have been
approached to undertake his legal defence have refused.
And the authorities have encouraged this attitude, although as Balakrishnan
has warned, given the stipulations of India’s constitution and previous
Supreme Court rulings guaranteeing legal aid and establishing basic norms of
a fair trial, it will be impossible from a procedural standpoint to proceed
with the legal case against Kasab unless he is able to exercise his right to
have a lawyer defend him.
Revealing as was the reaction of Pasayat’s fellow seminar participants, even
more significant has been the absence of any serious criticism, let alone
outcry, against his noxious views from within the legal profession or from
India’s political establishment. In fact, Pasayat’s remarks have elicited
virtually no comment, a silence that bespeaks support.
The failure to oppose Pasayat’s patently antidemocratic views demonstrates
that there is no genuine constituency within the Indian ruling class for key
democratic and legal-juridical principles, including the presumption of
innocence and the right to a fair trial.
It needs to be added that in recent years the Supreme Court has served as a
major instrument in the bourgeoisie’s drive to transform India into a
cheap-labor producer for world capitalism, a program that has resulted in
increasing social inequality, economic insecurity and poverty. The Court has
declared that public sectors workers have no right to strike, outlawed
political strikes, asserted the power to ban commentary critical of
government decisions (the *Clemenceau* case), and issued a series of
decisions expanding managerial prerogatives.
The working class must take heed: while the bourgeoisie likes to proclaim
India the “world’s largest democracy,” it is increasingly indifferent and
hostile to democratic rights and is turning to authoritarian forms of rule.
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