Joginder Singh Toor

CERTAIN unwanted persons, from foreign land , unauthorized enter your country, laced with weapons deadly, arsenal devastating, and plans ugly and heinous, to destroy and destabilize your country. They resort to mass killing, arson and destruction, killing many and get killed except one or a few who are captured. Do the ones who are captured or wounded at the verge of death, entitled to any medical treatment to be saved and survive. And those who survive have to be killed to meet the fate they rendered to others or do they have any right to be tried and then sentenced by a court of law. Should they have any right to defense and get assistance of a lawyer as an alien facing trial. A big controversy has been sparked off by the Bombay invasion by foreign nationals, who created a hell.

Lawyers from the effected state of Maharashtra, have voluntarily or under threat from a regional chauvinistic party, the Shiv Sena have, refused to defend Ajmal Amir Kasab, the lone terrorist captured alive from amongst 10, out of whom nine got killed. One lawyer, who offered legal assistance to Ajmal, suffered plundering of his house and threat to his life.

The Chief Justice of India justice K.G Balakrishnan has now come out with a bold inception of law, which has been praised in other countries also, addressing a seminar at Delhi that Ajmal has a right to be defended. “It has been an increasingly recurrent strategy for insurgent movements as well identity based groups to resort to violent methods.” As to what is terrorism, the CJI explains that “the use of violent methods in place of ordinary tools of civic engagement and political participation. “Nations”, he advised “should refrain from moving away from the working of 9 Art 2
(4) of the U.N Charter which had become customary practice akin to creating a space devoid of law.” We must uphold the right to fair trial to all individuals, irrespective how heinous the crime may be. If we accept a dilution of this right, it will count as a moral loss against those who preach hatred and violence.

He also stated that tackling terrorism has a great potential of violation of human rights. Maintenance of fine balance between the enforcement of rule of law and the protection of individual rights was the basic requirement because maintenance of human rights cannot be swept under the carpet. Preserving the internal security and protecting the human rights through efficacious criminal justice system is the need of the day. The CJI took note of Human Rights Commission report that the post Godhra Riots indicated “Comprehensive failure to control the persistent violation of the rights to life, liberty, equality and dignity of the people of Gujarat.” Security agencies must prevail around strong public confidence. This will also lead to the civic acceptance of security legislation and ensure faith in the legal system. Loss of public confidence has immense implication for the nation’s test. Inner strength is in upholding the rule of law and preservation of human rights in the moment of crisis. Moral fabric of a nation requires that fundamental rights can not be eroded in the name of law enforcement.

In a world where, you describe other countries (Iran, North Korea and Iraq) as axis of evil, Gaza as source of international trouble, Afghanistan as originator of terror and declare war in its name. Where you don’t allow the term terror and aggression to be defined, so that it is not applied to your acts of aggression in Iraq and other countries. Where you refuse to sign a treaty for creation of International Court of Criminal Justice, and when you sign, you pass an Act to empower your President to use all force at his command to rescue the personnel taken into custody by the International Court of justice, even on charges of aggression or genocide. When you force the world to move and act in the manner that suits you, nothing can prevent, as the CJI describes while defining terror “The use of violent methods in place of ordinary tools of civic engagement and political participation.”

When minorities face genocide and followers of one religion decide to eliminate the followers of the other, the communal frenzy is at its highest, blood thirsty to the level to cannibalism. The failure of the governments to act, create situations, unpredicted and sometimes unpreventable. The gap between poverty and richness ever increasing, the frustration is unbound and material for unrest abundant.

The nation in this situation is faced with an aggression from within and outside: agitations, rebellions and revolts’ uncapped and uncontrollable.

Whatever the reasons, our criminal justice system requires that a person accused of any charge, maybe Indian or alien, is to be given a fair trial, which includes legal assistance, which assistance is equally required by the court as much as by the accused to reach a fair conclusion. The constitutional guarantees enshrined in the constitution of India that no person shall be deprived of his life and liberty except in due course of law, can not be denied to an alien facing trial in India, It being the basic fabric of democracy and essential element of human rights world over.

Art. 2(4) of the U.N Charter, an organization destined to doom but obliged to live requires “ All members shall refrain in their International relations from the threat or use of force against the territorial integrity or political impendence of any state, or in any other manner inconsistent with the purposes of United Nations” which are goals cherished but never fulfilled. These can hopefully be reiterated.

But the criminal justice in its intent, spirit and substance has to be adhered to, may be, at a cost too high and bitter, for the sake of human rights and democratic fabric, in accordance with Universal Declaration of Human Rights adopted in UN general assembly on December 29, 1948, Art. 10 of which provides that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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