“Blessed are those who are able to die a natural death in Thalassery”

published on March 21, 2008

Kannur killings: The judgment

Justice K P Radhakrishna Menon
Source: www.newwindpress.com

A landmark decision. The observations, the comments and the annotations, particularly to quote The New Indian Express of March 12, 2008 _

“Where man slaughter is a competing sport, party leaders very cunningly escape unhurt in this cruel and bloodthirsty game, all political parties there seem to indulge in inhuman activities, all party peace missions are nothing but a hoax to hoodwink the fickle minded public”

and like remarks in the judgment reflect the nightmarish feelings of the panic-stricken apolitical citizens who love and live for Mother India.

The judge has found that even the investigation into the crimes by the police, who, the judge observes, are ‘par excellence’, has become farcical due to the unethical intervention of politicians and their sycophants and hangers-on.

That the judicial conscience is hurt is clear from the comment, “Blessed are those who are able to die a natural death in Thalassery”. About the criminal administration in the State it shall be said, it partakes of the characteristics of an organisation of byzantine complexity; and the result is the denial of the fundamental right of a person namely, ‘protection of life and personal liberty’ guaranteed under Article 21 of the Constitution.

When this peculiar situation is brought to the notice of the High Court, should the High Court intervene and protect the most precious fundamental right of the citizens guaranteed under Article 21 or should the High Court remain a mute spectator to the near anarchy situation in an area within its jurisdiction, is the first question that warrants an answer in the light of the unethical and unpardonable criticism political bigwigs have levelled against the judge who delivered the judgment.

The answer to the first part of th e question is a big ‘Yes’. I shall refer to Article 215 of the Constitution which says that “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt. Construing the Article, the Apex Court has declared that the High Court has inherent and plenary powers unless expressly or impliedly limited and subject to the appellate jurisdiction of the Supreme Court. The Apex Court therefore declared that the High Court has unlimited jurisdiction including jurisdiction to determine its own powers.

Prima facie therefore no matter can be said to be beyond the jurisdiction of the High Court. It is all the more so in the case of enforcement of the fundamental right guaranteed by Article 21. The higher judiciary in our judicial system envisaged under the Constitution is the sentinel of the fundamental rights of the citizens.

It shall not therefore be said that the judge has crossed limits. One more question warrants an answer. Is the judge justified in holding that the only solution to control the political killings is timely intervention by the Union Government by deploying sufficient force in the affected area? The answer lies hidden in Article 355 read with Article 34 and Entries 1, 2 and 2A of List 1 of the Seventh schedule.

These constitutional provisions empower the Union Government to declare ‘Martial Law’ in any area within the territory of any state, to protect the State against external aggression and internal disturbance.

The words employed in Article 355, ‘it shall be the duty of the Union to protect every state against external aggression and internal disturbance’ make it clear that it is the bounden duty of the Union, if found necessary, to declare martial law and deploy ‘force’ to abate the anarchical situation and thereby restore peace and tranquility in the area. I shall in this connection quote the constitutional expert H M Seervai _

“The power to declare martial law to put down such internal disturbances could thus be part of the legislative powers of the Union under entries one and two of list 1 (I would add Entry 2 A, virtually confirming the view of Seervai, inserted later) also. This entry 2A talks about deployment of any armed force of the union or any other force, subject to the control of the union or any contingent, or unit thereof, in any state in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. This entry in fact is explanatory of Article 34 empowering the Union Government to declare martial law in any state.

Seervai further says that Article 355 can be invoked without a proclamation by the President as in the case of Article 352.

To quote Seervai: “If a rebellion or a revolt in a place can be put down by use of force without issuing a proclamation under Article 352; it is submitted that there is nothing in the Constitution which requires such a proclamation to be issued.

One of the reasons is that before the machinery of issuing such a proclamation can be set in motion, grave and irreparable damage may be done if in a sudden emergency prompt action is not immediately taken to meet force with force.

It is submitted that under Article 355 read with entries 1 and 2 (I would add 2A subsequently incorporated), there is ample executive power to put down rebellion or a state of war by martial law”. Dicey, a renowned constitutional expert, says that the proclamation of martial law is an act of the Executive Government which on its own will suspend the law of the land.

The inference irresistible from the discussion above is that the judge was right and well within his jurisdiction to tell The Union Government to deploy “force” in Kannur to control the killing spree let loose for want of governmental action at the right and appropriate time for obvious reason.

Had the judge not made a declaration regarding the deployment of Central forces, I definitely would have assigned him a place in the list of authorities, constitutional or otherwise, who are enveloped by the proverbial statement that “cowards die many a time”.

Now the judge has shown the courage to safeguard the fundamental right of the citizens who love and live for Mother India, guaranteed under Article 21. And therefore kudos to the judge.

Before I conclude – a request to the bigwigs in politics and the representatives of the people in Parliament and the Assemblies. Please study and understand the Constitution and the political history of the democratic governments in the world and discharge your functions so that you will be able to build a new and prosperous India where every one will be happy and live in harmony.

When this comes true, every Indian will go to dust a proud citizen of India, to rise again and rejoin in its glory as stated by former President A P J Abdul Kalam.

As Goethe said, “Whatever you can do or dream you can, begin it. Boldness has genius, power and magic in it. Begin it now.”

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