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| India-Pakistan |
| Ajmal Kasab has no right to trial |
| 2009-03-12 |
| by Dr N.M. Ghatate Ajmal Kasab, the lone survivor of the terrorist group, which killed scores of innocent people in Mumbai after a four-day gun battle with the armed forces, is a Pakistani citizen. The question of all questions is: what are his rights under the Indian Constitution and the international law? The answer assumes grave importance because it is now known worldwide that India is vulnerable to such attacks from citizens of Pakistan and other unfriendly countries. And, secondly, India has been fighting foreign-aided proxy for decades. First, let us note what the Constitution mandates. Article 21 guarantees the right to life and liberty to all persons whether citizens of India or foreigners, and clauses (1) and (2) of Article 22 state that a person arrested under the criminal law has the right to be informed of the grounds of arrest as soon as possible. Also, he has the right to consult and be defended by a lawyer of his choice and the right to be produced before the magistrate within 24 hours. But Clause (3) (a) of this article states that none of these rights are available to a person who, “for the time being, is an enemy alien” and (sub clause b) who is detained under a preventive detention law. Clauses (4) to (5) of this Article provide some safeguards to the detainee to regain his liberty such as the right to be informed about the grounds of detention, the right to make representation to the detaining authority and to the Advisory Board; and Clause (6) empowers Parliament to make laws regarding the procedure for fixing a time limit, the constitution and the procedure for the Advisory Board. But the fact is no such rights or power whatever is given to an enemy alien under Clause (3) (a) of Article 22. When the Constituent Assembly on September 15, 1949, debated this article there was a long-drawn debate about the likely abuse of the preventive detention law but not a whisper about the detention of an enemy alien. Introducing this article, Dr Ambedkar also said that there cannot be any controversy on this point. At that time, he said, the “exigency of individual liberty should not be placed above the interest of state…or of defence services of the country.” In a nutshell, an “enemy alien” is a class by itself. According to Basu’s framing of the Constitution, Parliament has the power to make laws regarding an enemy alien provided he is detained under the preventive detention law. Now the question arises: who is an enemy alien? According to The Halsbury’s Laws of England, an enemy alien is the citizen of a country which is at “war with the Crown”. In other words, there should be a state of war to categorise a person as an “enemy alien”. It is significant to remember that when the Constitution was framed and adopted in 1950 or the United Nations Charter, which emphasises about human rights, was framed in 1945, the international law recognised a state of war and a state of peace and there was nothing in-between. The former phrase existed when there was a concept of declaration of war and later after there was a peace treaty but since the second half of the 20th century, this situation has undergone a sea-change in the international law. There have been wars without an official declaration – for example, the Korean war of 1950, the Sino-Indian war of 1962, the Indo-Pak wars of 1965 and 1971, the Kargil war of 1999 and the recent Iraq war. In these undeclared wars, both sides followed the international law of war. Soldiers captured in uniform of the other side were given the status of Prisoners of War under the Hague Declaration of 1899 and 1904 i.e. they could not be forced to fight against their own country, officers could not be subjected to manual labour, the Red Cross was permitted to deliver to the POWs their mail and goods without duty. But, and this is a great but, if any enemy alien is arrested without uniform, he had no rights whatsoever. Such a person is treated as a spy and he could be shot down during the war. He could also be detained without the right of habeas corpus. No human rights or fundamental liberties under the U.N. Charter and even under our Constitution are made available to him. Undeclared wars and proxy wars have become a part of international relations and India is neither at war nor at peace with Pakistan and this proxy war is endangering the security, stability and sovereignty of India. Therefore, Ajmal Kasab, who is a citizen of Pakistan and who is caught in civilian clothes, has no right under the Constitution or the international law. Nor does he have the right to trial. Such a clear message should be given to Pakistan, which is conducting a proxy war against India and, furthermore, Pakistan should be told that “Goli” and “Boli” (talks and bullets) cannot go on simultaneously. The writer is a Senior Advocate of the Supreme Court and former Vice-Chairman of the Law Commission of India. |
| Posted by:john frum |
| #1 Such a person is treated as a spy and he could be shot down during the war. He could also be detained without the right of habeas corpus. No human rights or fundamental liberties under the U.N. Charter and even under our Constitution are made available to him. Expect a planeload of lawyers from Amnesty International |
| Posted by: john frum 2009-03-12 21:09 |