Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.
Somebody has said that Laws are meant to be broken. This expression finds its greatest champions in those people who consider themselves as Laws unto themselves and they are terrorists. Good and evil have existed together as one does not survive without the other but the greatest evil of the contemporary world without corresponding good is terrorism. Our country is no exception. We have witnessed many terrorist attacks in the recent past. On 13th December 2001, five armed gunmen infiltrated into Indian Parliament house precinct and in exchange of cross-firing between them and security forces, five police personnel, a gardener and a parliament security guard lost their lives. On 13th May 2008 pink city of Jaipur, capital of the state of Rajasthan was rocked by seven serial bomb blasts within a span of 12 minutes, leaving sixty dead and injuring more than 120 people. 26th November 2008 terrorist attacked India’s fiscal capital Mumbai at eight places including CST Railway station, Taj Mahal Hotel, Oberoi Trident Hotel, Cama Hospital, Metro Cinema etc. murdering and wounding hundreds of innocent people, as they had planned and targeted areas having a huge conglomeration of the human population. The above terrorist attacks and many more examples of such incidents around the world, including World Trade Center attack in the most powerful country of the world –US, is tormenting and outraging many inquisitive minds igniting the most debatable complex question as to whether these wholesalers of human coffins and corpses can be anointed with Human Right protection?
“Terrorism is an enemy of the basic human rights: of life, peace and prosperity,” said Mrs. Sushma Swaraj.
‘Terrorism strikes at the very heart of everything India stands for. It is a global threat to democracy, the rule of law, human rights and stability, and therefore requires a global response.
In the Geneva Convention of 1948, Universal Declaration of Human Rights was adopted for the “Recognition of the inherent dignity and inalienable rights of all members of the human family”. Today the opposition might cite Article 5 which states “No one shall be subject to torture or to cruel, inhuman, or degrading treatment or punishment.”
Those individual, group or groups who indulge in contumacy of these declarations act contrary to such noble ideals and consequently, they cannot claim the protection of Human Rights. These perpetrators of human genocides, mostly by use of bomb blasts and unmindful insane triggering of AK47 rifles, do not possess human qualities.
They murder and blast human bodies of innocent people, women and children, sick and infirm, old and young all alike, and most of the times corpses are slithered into pieces, making it impossible to collect body parts of the departed innocent souls and perform their last rights. The most glaring example is the cowardice act of ghastly murder of Late Prime Minister Rajiv Gandhi whose body could be identified only with the help of some of his attires. How perpetrators of such mass human killings can be brought within the purview of Human Rights? It is puerile to cogitate that terrorists will have respect for the human rights of innocent people. Killings of innocent citizens had jolted and tormented even the most coolest mind of our Prime Minister Dr Manmohan Singh when he desperately uttered the following words:“ In certain circumstances states are both entitled and obliged to take steps that derogate from human right principles, we should not feel discouraged, because certain rights and freedom can be derogated from…”
Human rights are those rights which are bare minimum requisites for the existence of social human order and the negation of it will diminish the distinction between animal and human social existence. They have been adopted universally to protect mankind from tyranny to foster decent human lives for all human beings in this ephemeral world. They are also enshrined in our Constitution under Chapter III, Chapter IV and IVA. Article 21 of our Constitution guarantees “Life and liberty” to all and therefore it is an embodiment of human rights conferment. They are meant for humans and not for those who claim and act like demons such as terrorists, who possess no regards for such human rights, which they violate with impunity, at will, bringing unsurmountable grieves and sorrows to many families, inflicting un-healable wounds to its sufferers which can not and do not dissipate so long as life continues in this ephemeral world. Such is the bete-noire outburst against the terrorist activities that Dr Arijit Pasayat, Judge, Supreme Court of India, (since retired) even dubbed them as “animals”. He expressed his anguish and anger by speaking the following words: “We should not talk about human rights violation of terrorists because terrorists are the people who kill innocent people with AK 47 and AK-56….those who killed innocent people by no stretch of the imagination are human beings. They are worth not more than animals”
The terrorist belongs to a much more ruthless class of murderers than ordinary criminals. They orchestrate mass human killings in an organized planned manner. Neither they value any sentiment nor do they carry any respect for human lives. It is ludicrous to harangue in their defence that since they possess human anatomy they should be anointed with Human Rights. One who has no regards for Human Rights of others and negates it consciously must not be allowed to seek shelter behind the lame veil of possessing Human Rights, once the question of bringing him to books is considered.
Let us critically appreciate, analyze and examine terrorist Human Rights from another angle. In an ordinary crime of human slaughter, the minimum punishment prescribed statutorily is life imprisonment or the death penalty. In such crimes question of violation of human rights are seldom raised and no eyebrows are raised. These crimes are often committed by those who do not have criminal proclivities. If such malefactors, who do not carry propensity to violate human rights cannot be clouded with human rights violation, how those human butchers who are responsible for thousands of killings can be brought under such a cloud? Those who live by the sword must die by the sword. To allow such inhuman people to claim the protection of human rights is, in fact, the negation of human rights declaration by the international community. One who has respect for the human rights of fellow human beings should only be allowed to reap the benefit of such rights. Declaration of human rights has its existence in mutual respect for each other and recognition of possession of such rights by others. It is not a lopsided nor one-way channel. Census-id-idem for mutual respect and recognition of other’s human rights are the sine qua non for a claim of human rights protection by oneself.
Law must be adaptable to contemporary social needs and it should not ignore hard ground realities, otherwise, the very purpose of the law of creating a social order with human dignity will lose all its efficacy. Now the time has come when a fresh look is required to 1949 Third Geneva Convention. More than half a century after the said convention, the world had witnessed more than a century convocations to constrain wrath of war but not much has been achieved to ameliorate the sufferings of victims of terrorist attacks. human rights of a few disgruntled groups, mostly religious fanatics, must yield to the human rights of the masses. Now the time has come when the world has to put it’s head together to have a consensus on such an issue that those who kill innocent people must not be allowed to silhouette themselves behind human rights violation veil when the punishment to be inflicted on them is considered.
Twelve Conventions have been drafted at the UN level to deal with terrorism; recent ones are the Convention for the Suppression of Terrorist Bombings (1997), the Convention for the Suppression of Financing Terrorism (1999) and the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). These Conventions and others establish that states are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts. Practically all forms of terrorism are covered by these Conventions, in addition to the Geneva Conventions and the Rome Statute of the ICC.
If we are to take human rights even half-way seriously, we will have to recognize that terrorism, low-intensity warfare and their linkages with organized crime have created new and unprecedented dangers to the unity and integrity of the country, to the survival of democratic governance, and to the very possibility of human rights. It is, consequently, necessary to devise new laws, procedures and processes that help contain this menace and protect the people from the depredations of a merciless and utterly unprincipled enemy.
The Supreme Court in PUCL vs Union of India observed: “Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze constitutional principles, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is the defence of the nation and its citizens. Terrorism is definitely a criminal act, but it is much more than mere criminality. To face terrorism the country needs new approaches, techniques, weapons, expertise and of course new laws.”
Having said that, we have to address the basic issue that the fight against terrorism cannot be allowed to result in the violation of human rights.
To quote the well-known author Paul Hoffman, “History shows that when societies trade human rights for security most often they get neither.”
While concluding it can be said that there is, no doubt, a conflict of perception and objectives between the State and the terrorists. But the State cannot afford to have any contradiction or dichotomy in its response to fight terrorism and its commitment to the protection of constitutional rights of the people.
“Law should not sit limply, while those who defy it to go free and those who seek its protection lose hope.”
In the 173rd report of the Law Commission when it was called to comment on the proposed “Prevention of Terrorism Bill 2000” Justice Verma stressed the importance of maintaining a balance between individual rights and the rights of the society and opined that in case of conflict between the two, the interest of society must prevail.
Therefore, when we talk of human rights of the terrorists; are we talking of rights and freedoms to kill others, much less the innocents? Are we talking of right or freedom to destroy properties of others or the state? Are we talking of right or freedoms to coerce or intimidate the people or society? No! Terrorists not only has no right or freedom to indulge in any of the aforesaid forms of behaviour, on the contrary, but indulgence in such behaviours should also lead to serious adverse consequences under the law.
Even in Ramcharit Manas, the most sacred Hindu Scripture, it’s writer Goswami Tulsi Das has written that when Lord Hanuman got himself captured by Ravan in an attempt to teach him good things, then Lord Hanuman had to inform Ravana as follows:-
“Sab Ke deh param priya swamy
Marih moh kumarag Gami
Jin mohi mara to mai mare…”
Which means that “everybody loves his own body, and I was assaulted by those who follow the wrong illegal path, therefore I had assaulted only those who had assaulted me first.”