It is seemingly impossible to forget the case of Ajmal Kasab undergoing trial in the Indian courts despite the explicit evidence available against him in addition to being caught red handed. It is natural to wonder why perpetrator of such heinous acts was not mercilessly executed in public view to set a befitting example. But as we will see, such passion driven acts are ill advised and shall be patently eschewed by peace loving nation states shepherded under rule of law.

In the aftermath of any political violence the civil rights and liberties are stifled, often unwittingly. Emotions, naturally, go out to the pitiable conditions of the victims. If the audience can readily imagine being the victim, emotions are even susceptible to manipulation at the hands of power hungry political leaders.  Political leaders- authoritative, glib orators, employing the best rhetoric. Under the veneer of patriotism it is easy to claim the role of a protector- radiating palatable comfort, entrapping the most cautious citizens to lower their guard, making the state stronger vis-a-vis the citizenry.

Terrorism is perhaps the gravest challenge to modern nation states. It triggers an almost instantaneous rebuke from the entire citizenry- seeking retribution, perhaps even vengeance. The upper echelons of the executive are encouraged, even provoked and incited to jettison the established legal procedures and subvert it in order to ensure that the gravest punishment is inflicted on the perpetrators expeditiously. But it should be borne in mind that such repressions are counterintuitive, for this repression, is precisely what any terrorist seeks to elicit. The slightest carelessness and the emergency provisions would work to erode the cherished freedoms that they are enacted to protect. Ill considered laws exacerbate the antagonisms underpinning political violence. Laws foisted over a populace can ostracize even bona fide communities, whereas prudent policies can integrate and synergize seemingly estranged communities. Worse, such hasty laws foster and foment a culture of retrograde legislation and policies that seep into other areas of criminal justice, blighting the entirety of criminal jurisprudence.

The author is not advocating adoption of Gandhian ideals of non violence, for, it would be perverse if democratic nations had to prove their liberal credentials by allowing rogue elements to function scot free. The author merely advocates that laws enacted to remedy even the most egregious acts should strictly adhere to the rule of law. It is imperative to point out that rule of law is different from rule by law. What the former entails is this- the parliament shall abstain from enacting legislations in accordance to its mere whims and fancies or to appease transient political majorities. There are certain yardsticks that legislations shall necessarily adhere to, in other words there shall be certain non negotiables that cannot be abridged even in the most egregious instances of political violence. Granted, such actions might not pacify the infuriation that impregnates the populace, but that is precisely the aim of law- enumerating a set of rules that shall apply even when powerful emotions are unleashed-when passion divorces the mind from logic. Such hastened laws would prove to be malevolent for the vigour of the democracy in the longer run. They depreciate the credibility of the government. 

What constitutes these immutable non negotiable elements acquires different meanings in different systems of law. Traditionally, it has been well established that rule of law encompasses clear and concise laws enacted in accordance to procedural proprieties. But in the present day and age wherein the roles and responsibilities of the states have increased exponentially on account of undertaking welfare schemes, it is imperative that the scope of rule of law is widened. Traditionally, the constitutions of democratic nation states enumerate rules and laws from which derogation is allowed only in the narrowest circumstances. This exalted ideal of rule of law embodied in the constitutions is further complemented and emancipated by various international charters, the most primordial example being the Universal Declaration of Human Rights. ICCPR, ICSER and the like.  A common catena between these charters is not only the elements traditionally encompassed in rule of law i.e. fairness and equality before law but further emphasis on the dignity of an individual.

It is imperative that special laws are scrutinized not only by reference to the national constitution, which, in some cases can be amended at the behest of those in power but also these international charters. What this ensures, is that it is the rule of law, and not merely rule by law which is upheld. In order to be in consonance with international charters it is required that the same rights are extended to everyone brought into a system of criminal justice. The protections should not be denied to any particular class, especially if such a class is politically vulnerable and identifiable by distinctions accruing on account of race/religion/ethnicity. The rationale is simple-avoiding discriminatory legislation from gaining legality under the garb of protecting the citizenry.  The idea that an alien is a lesser human being because he is not a citizen is an affront to human right values and puts a hierarchy on the value of human lives- precisely what human right laws seek to end.

Hence, although the nation, being sovereign, is free to enact any special law, the extent to which the state can depart from normal legal safeguards without jeopardising the essence of rule of law needs to be monitored. This can be achieved in a numerous ways-

a.     Test of proportionality:  Ascertaining that the legislation has a reasonable nexus with a pressing social need.

b.     Whether an alternate method requiring less deviation from established legal procedure exists?

c.      Ensuring that certain safeguards exist. Ex. After a certain period habeas corpus can be applied for.

d.     The phraseology of special legislations should be specific and targeted. Albeit, the greatest precaution should be taken to ensure that wrong people are not being targeted, which would lead to damaging innocent lives and depreciation of the trust deposed in government.

That such special laws are misused to settle political vendettas is an open secret, yet, in the present political climate of the country protection of civil liberties is getting increasingly tough. Maybe, in the Indian context, this stems from the fact that an overwhelming majority has not experienced any direct threat to their civil liberties since the emergency of 1975. Only an “alienated minority” experiences a sense of being powerless and marginalised, whose only shield is law. But this should not provide comfort to the “normal” citizenry. Draconian and retrograde laws creep insidiously into the general fabric of a nation’s law, creating new paradigms of state power ultimately proving detrimental to all.