Lex non distinguitur nos non distinguere debemus (The law does not distinguish and so we ought not distinguish)
Maintaining propriety in public speech is one of the key canons of judicial ethics. Propriety demands that judges desist from airing their views on issues that are sub judice, controversial or that are likely to be adjudicated by themselves or other courts.
While the honourable judges cannot be denied the right to privately hold views, secretly wear ideological and political biases and feel frustrations like that of an ordinary citizen, decorum demands they resist the temptation to air them in public forums.
Lordships should remember that words coming out of their mouth, both inside the sanctum sanctorum of justice and outside carry more weight than that of an ordinary official. They just cannot afford to be frivolous in the use of words. More so at a time when Indian democracy is facing threats from perpetrators of terrorism and the questionable means the state wants to employ in its fight against the menace through enactment of draconian laws and encounter style executions.
The opinion expressed recently by one of the senior judges in the Supreme Court, shows that the judiciary too has started to feel the pressure imposed by politicians who feed the rhetoric on terror as a means to garner votes and a society that feels terrorised in the absence of security. Such thoughts render the concept of fair trial invalid. The fact that such a statement came from top echelons of our judiciary means that list of worries of India's civil society is a growing list.
According to the learned Judge, who sits in the Constitution bench and has co-authored books that analyse threadbare the Article 21 (Right to life and liberty under the Constitution: a critical analysis of Article 21; Publisher: Bombay : N.M. Tripathi, 1993) a terrorist is not fit to be called a human. "He's an animal and what is required is animal rights," quipped Justice Arijit Pasayat, No 3 in the court by seniority, while speaking at a seminar on 'Investigation and Prosecution of Offences relating to Terrorism', organised by Indian Law Institute in New Delhi.
According to a Times of India report he also poured out 'anguish and pain at the current trend of crucification of police officials by so-called human rights groups for every perceived fault in any police operation against terrorists. "Today we are concerned with the rights of the terrorists but we are unmindful of the plight of the victims of terrorism. How many protest marches have been organised seeking to highlight the plight of poor daily wager bystanders, with whose death his family leads a life of extreme penury?" Pasayat said continuing his broadside against rights activists. The Judge also made allusions to the Batla House encounter and the case of Mohammed Afzal whose mercy petition is still pending before the President of India.
Joining him in the tirade was Solicitor General G.E. Vahanvati who said lot of "noise" being made for the nabbed Mumbai terrorist Ajmal Kasab's right to defence.
Now contrast this with what Supreme Court Chief Justice K.G. Balakrishnan had to say on December 13, 2008 while addressing the inaugural session of the international conference of jurists on 'Terrorism, Rule of Law & Human Rights' in New Delhi:
Adherence to the constitutional principle of 'substantive due process' is an essential part of our collective response to terrorism. As part of the legal community, we must uphold the right to fair trial for all individuals, irrespective of how heinous their crimes may be. If we accept a dilution of this right, it will count as a moral loss against those who preach hatred and violence. We must not confuse between what distinguishes the deliberations of a mature democratic society from the misguided actions of a few.
No one expects the entire colloquium of judges to speak in one voice. It's perfectly acceptable that Judges differ in opinion, but when the brightest legal minds of the country begin to deviate from the spirit of the Constitution and the accepted and revered statutes of International Human Rights covenants one feels jittery.
Justice Pasayat exhibited a perverse sense of justice, and a pathetic sense of humour when he dubbed terrorists as animals and said shockingly tongue-in-cheek that they require animal rights. The words must have been uttered in a moment of emotional outburst, but it certainly exposed the ideals that guide his current judicial philosophy.
What message would it be sending to Judges of lower level courts waiting anxiously for guidance in hundreds of human rights/terrorism related cases and police officials looking for the slightest excuse to disentangle their actions from the scrutiny of fundamental rights.
Lordships should know that in the fight against terrorism, an error made by a judge who circumvents the due process of law is greater than omissions and commissions committed by other branches of democracy. Only the judiciary holds the power to scrutinise the action of the executive and the legislature and order a correction of course if they have erred.
The role of a Supreme Court Judge in a democracy is two-fold, writes Aharon Barak in 'The Judge in a Democracy' - to bridge the gap between law and society, and to protect democracy and its constitution.
There are no shortcuts here. No 'state of exception' that allows skipping the due process of law because the times are different. Once the threat of terrorism passes and peace returns judges will not be able to wish away the terrible consequence of their actions.