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Debates & Discourse


M.S. Ganesh


Thoughts In Terrorem M.S. Ganesh Law and order is not merely a composite expression, but it is an integrative endeavour. Law is a codified or axiomatic norm and order is a structured dispensation of that norm. Our perspectives of terrorism, however, tend to dichotomize the two.   This dissonance is inherent in the pedagogy of terrorism—in laws and government circulars, in state propaganda, in the postures of political parties, and in the protestations of vested interests about dangers to the ‘fabric of society’. The actual disconnect occurs when the dialogue between law and order breaks down; when, amidst the clash of arms, the laws fall silent. It is on the mutuality of the rule of law and the maintenance of public order that good governance rests. Their reciprocity turns to antagonism when there is misrule and maladministration. These truths apply both to municipal law and to international law; to domestic policy as much as to foreign policy.   In the Indian Constitution, Part IV sets out the principles of good governance (called Directive Principles of State Policy and comprising principles such as the one that justice, social, political and economic, shall inform all the institutions of the national life). These are not directly enforceable, but fundamental rights (such as the prohibition of discrimination on grounds of religion, race, caste, etc.) are. Our courts have said that the relevant directive principles have to be read into the fundamental rights (specified in Part III) that are being enforced. So much for pronouncement. The adjudicative disposition, however, is less often in favour of civil liberties and more often in favour of property rights. It was a keen awareness of this reality that impelled Justice V.R. Krishna Iyer’s riposte to the counsel for a zamindar challenging land reform legislation: the rich man always fights in the name of the poor man, which is why Gopalan lost and Cooper won (In 1950, A.K. Gopalan, the communist leader, had challenged his preventive detention and lost; but in 1970, Rustom C. Cooper, a banker, had challenged the bank nationalization act and won. The constitutional interpretation of a citizen’s rights to life, personal liberty and freedom of movement in Gopalan’s case was reversed in Cooper’s case relating to property rights.)   So too with terrorism. It is not without significance that Independence failed to see a decline in laws on preventive detention and terrorism. After ...


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