REALM OF IMPUNITY AND JURIDICAL LANDSCAPE
Sanctity of Judicial Review
Law by itself is not an expression of justice as it is interpreted by the judges in such a manner as to provide justice to the needy people. The judiciary upholds the supremacy of the rule of law and strengthens the sense of justice by defending the rights of individuals as a bulwark against the authoritarian actions of the state. The rule of law ensures that everyman is bound by the ordinary laws of the land whether he is a private individual or a public authority. It also serves as the core basis of judicial review over the arbitrary and capricious actions of the state with objective to keep them within the limits of law. The constitution of India, being the supreme law of the land, precisely encapsulates the basic tenets of the principle of rule of law that lays down the objectives of social, economic and political justice, equality of status and opportunity, fraternity and dignity of individuals. However, the very essence of this justice set forth in the law of the land is primarily for attainment of common good for the country men of India. All the three majestic pillars of the state are reposed with mandatory obligations to take appropriate accounts of the basic needs and requirements of all the individuals irrespective of differences among them. This implies that the justice is not only depended on the contents of the legal documents but also relied on the very existence of effective constitutional mechanisms capable of dispensing just and fair justice to the needy individuals. It does not mean that such constitutional bodies can discharge their respective functions according to their choice. They are legitimately bound to act within the boundaries of the constitutional law, and they also need to function in unison in complete harmony as they happen to be the delegates of people of this country.
In a way, it is apparent that the constitution of India has been a by-product of Indians freedom struggle against the British Colonialisim, and therefore, the British legacy has also been re-endorsed in India in many respects of its polity and legal system as well. A case in point is the prevailing concept of parliamentary supremacy that has endowed the national legislature as the only omnipotent constitutional body which could take and design any desired decision of their own. This is because in a parliamentary democracy, concern for propriety rights ought to be greater than the concern for legality, while legality can be achieved through judicial review and propriety can only be ensured through adequate legislative measures. If we take into consideration the issues which are being cropped up between political executive and judiciary in India more particularly in exercising the constituent powers of state, one may also recall the constitutional debate on the issue that took place in the constituent Assembly. It was resolved in the Assembly that the elected authority would have the final say in the country but not the appointed authority. However, during the process of working of the constitutional governance of India for the last more than six decades, it has been proved adequately that the textual rules, set out in the national document, could not alone run the constitutional governance without the unwritten constitutional norms glossed by the judiciary. On the other hand, there are also some other well accepted constitutional riders on the part of the national legislature while discharging its constituent powers. For instance, India adopts and follows a written constitution unlike UK, and there are inviolable basic fundamental rights embodied in the part-III of the constitution. Besides there are binding global legal regimes and also the basic structure of the constitution laid down by the apex count of India, which are considered to be some of the mandatory limitations for the national legislature while functioning its prerogative rights.
Interestingly, the national legislative has also been attempting to narrow down the scope of judicial review right from the very adoption and enactment of the constitution of India till today. On a whole, the people of this country do perceive that law shall not only speak justice but it must also deliver justice to the people. Such a general perception can only be tested and realized in the court of law, because it is the court only in the constitutional system of governance that could safeguard and protect life and liberty of individuals inter alia maintain and preserve a proper constitutional balance among all the stakeholders of this vast country. There is nothing wrong to say that the constitutional court is the only power centre of parliamentary democracy in India. In addition, the bare text of the legal document will not represent in itself as living organic law of the state unless one reads the rules of fundamental text along with the judicial rules put thereon by the constitutional courts.
Here, the question comes, how the higher court of this country has turned to be a supra-legislative body without the constitutional sanction. As a matter of fact, such higher court is, undoubtedly empowered to look into the constitutional validity of an impugned law as well as executive action under the purview of judicial review. Such system has been widely adopted and followed in the constitutional systems of many countries, like USA, Canada, Australia, Japan and Germany, among others. One of the basic reasons for adoption of judicial review is that a system based on written constitution can be hardly effective in practical reality without an authoritative independent and impartial constitutional arbitrator. For instance, in India, the main source of judicial review is contained in the article 13 (2) of the constitution, besides the other relevant provisions enshrined in the constitution.
It is true that the higher court in India cannot invoke the plea of the doctrine of due process of law unlike the American Supreme Court, however, the Supreme Court, of India in its plenitude of constitutional power has functioned as a constitutional court of USA and also as the final court of appeal in civil, criminal and others like the House of Lords in UK. During the passage of time there has been a sea change in the interpretation of the term “procedure established by law” set out in article 21 of the constitution by the Supreme Court of India in the Judgment of Maneka Gandhi’s case in 1978. It was held that the court can not only invalidate the arbitrary action of executive but also invalidate the laws enacted by the legislature if found to be unjust, unfair and unreasonable. Therefore, it can be submitted that the apex court of this country has began to look into the fact that whether “the procedure established by law” is a fraud on the constitution or not. As a result, judiciary ought to step in when legislature and executive are found indifferent to the constitutional boundaries. Today, the basic structure doctrine evolved by the apex court has become a counter-majoritarian check on parliamentary democracy in India. Hence, the judiciary does not remain as a mere technocratic court, instead it has started acting as a social, political and economic auditor rather than a mere auditor of legality. Such a pro-active judicial attitude has created a watershed development in the post emergency period and also brought a paradigm shift in the equation between political executive and judges of the courts. Parodixically, such juridical landscape in India has also facilitated to bring the end of impunity and immunity, virtually enjoyed by the political executive in the name of parliamentary democracy.
Global perspective on ending impunity
Colonalism, fascism and imperialism have gradually faded away, however, international discontents and crimes have been found on the rise. Legally speaking, the twentieth century began to mark the steady rise of individual as subject of international law, more particularly, in the provinces of human rights and humanitarian laws. Some of the important objectives for establishment of world judicial body is to materialise the global commitment towards resolving conflicts, ending inpunity, fixing accountability and criminal liability on the individuals responsible for commission of heinous international crimes. Another profound philosophy behind the creation of such court philosophy the like International Criminal Court (ICC) is that it can facilitate the process of crystallizing the international criminal law inter alia it can also promote peace and security, since there can be no peace and security without justice. In this regard, the efforts, made by the international community, have been quite remarkable in their nature and development, more particularly, in combating with the realm of impurity and immunity enjoyed by both the dejure and defacto political as well as military leaders elsewhere in the world. Literally, the term inpunity is something that is being enjoyed by such dejure and defacto leaders without any political and legal barrier. The question is when such privileged groups become the real perpetrators of human rights of individuals, it is impossible to bring them to justice. On top of it, the human history also reveals adequate testimonies where domestic criminal justice systems of nation members have either failed or been unable to book and prosecute those responsible perpetrators on various counts. The concept of impartial and independent judicial institution, whether it may be in national or international level, is found intimately linked with basic tenets of a progressive human society without which humanity is to suffer.
Twentieth century witnessesed two devastating world wars and countless numbers of man made conflicts elsewhere in the world, that had eventually led to establishment of the League of Nations as the first international organisation of its kind after the first world war and then the United nation in 1945 after the second world war. Since global organisation, essentially a creature of sovereign nation s ‘ system, has not been able to assert itself as an independent actor on various issues in various occasions, an attempt was made by the world community with object to mitigate man made conflicts by setting up a Permanent Court of International Justice (PCIJ) during the League of nations era; but it could not materialise effectively due to many factors. Later, the establishment of the International Court of Justice (ICJ) by the United Nations shows that such an impartial and independent global court could also promote to realize those basic objectives set forth in the U.N. Charter. However, the Statute of ICJ recognizes only the nation state as the ipso facto party before the ICJ. That is why jurisdiction of the court has been limited, specially in dealing with those international criminals who have committed crimes with virtual impunity. In addition, the jurisdiction of the ICJ is based on the principle of consensus of the member states. Mention may be made in this regards about the historic development created by the International Military Tribunal (IMT) in Nuremburg and the Tokyo Military Trial, held in the post second world war in which those individuals criminals responsible for commission of heinous offences, like crime against peace, war crimes and crimes against humanity were booked and prosecuted. Subsequently, the said judgment was re-affirmed by the United Nations General Assembly in its first session. Later, the U.N. Security Council also followed the same suit by establishing ad hoc war crime tribunals; such as the International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994, specially under the mandate of the Chapter VII of the U.N. Charter. Those international military tribunals could book and prosecute several political and military leaders who were responsible for violations of human rights and humanitarian laws in their respective countries.
Such global juridical landscape has, undoubtedly paved the inroad for mapping the international criminal law inter alia for establishment of an international permanent criminal court. On the other hand, the delegates of Trinidad and Tobago also made a similar proposal to the U.N. General Assembly in the early 1950s for setting an International Criminal Court so as to combat international crimes at the global level. Eventually, the General Assembly made an attempt to prepare a draft of international criminal tribunal statute in 1951 and 1953, and the same had been found echoed in its efforts in 1989. The International Law Commission was requested by the General Assembly in 1989 to address the question of establishing such a global criminal court. Accordingly, the International Law Commission prepared a draft statute for setting up the said court. Later, the General Assembly also constituted an ad hoc committee in 1994 to review the major substantive as well as administrative issues arising out of the draft submitted by the Law Commission. In 1995, the Assembly set up a preparatory committee to finalise the matter for establishment of the International Criminal Court (ICC). Finally the Rome Statute of the International Criminal Court was adopted on 7 July, 1998 and the working the ICC began from 1 July 2002 with the objectives of putting an end to impunity of the perpetrators of the international crimes and of vindicating state obligations to exercise its criminal jurisdiction over those responsible for commission such heinous crimes. It can also be said that the ICC is the ultimate culmination of century-old human endeavours towards fixing individual criminal liability.
Indian legal system follows the rule of law of Ango-Saxon Jurisprudence and functions in harmony with the rule of law that emanates from the international legal regime. It is beyond doubt that primary objective for establishment of the ICC is to check and monitor the realm of impunity practised across the world. Interestingly, Republic of India has opted not to be a party state to the Rome Statute of 1998 by rejecting the idea of internationalizing criminal justice in the domestic legal framework. In addition, she has also been strongly asserting that there is no need of the ICC in India. However, on the contrary, it is a universally accepted that ICC can only step in when the concerned delinquent state has deliberately either concealed the perpetrators or has not acted accordingly to book and prosecute the responsible criminals. The actual implications of the principle of complementary jurisdiction of the ICC, as set out in the Rome Statute has invariably shown the need to build harmonious cooperation and understanding between the global judicial body and domestic court, specially in dealing with the international crimes. Therefore, it seems that India has abdicated its national as well as international accepted norm of complementary jurisdiction of the ICC. It is also worth mentioning that in South Asia, those neighbouring countries, like Nepal, Bangladesh and Pakistan have become the signatories to the Rome Statute, whereas the their big brother India has been attempting to make subversive steps to erode the ICC jurisdiction. Such measures of a civilized nation like India may be, somehow, made justifiable politically, but it may not be so legally, because India has been, right from the beginning, a peace loving nation with her profound commitments towards the restoration and maintenance of global peace and security. She has also been asserting to be inducted as a permanent member of the U.N. Security Council since a quite long time. Considering all its credential contributions and position, it would be wrong to content for India to follow the same suit of USA in this regard. Though the international treaties and conventions are not the self-executing documents in India, it is normally accepted and followed that member state is bound legally by the general international law, international customary rules and the principles of jus cogens. Since is not an exception for India, she has the international obligations coupled with national obligations which are deeply embedded in the Constitution of India glossed with the constitutional conventions evolved by the apex court of India. Such constitutional mandates ensure the government of India to assimilate and realize those globally accepted legal norms in its domestic legal system. Further, the juridical landscape created by the judiciary has also signified the government of India’s position towards its global and national obligations.
On the contrary, the common law legal system, adopted in India and elsewhere in the world, considers the international treaties as non-binding documents unless and until the state party has signed and ratified them. However, it is also equally true that mere adoption of a political constitution of a state without the constitutional norms glossed to the text, it shall not have an effective working of a constitutional system inter alia it will not be able to realize the objectives setforth in the text of the constitution.
Apparently, the constituent power to make, design, define, adopt and implement the global legal standard in India is with the parliament. Therefore, the function of the legislature is of paramount while taking measures for internationalizing the global criminal justice in the domestic affairs so as to end the practices of impunity.