New Delhi: From the time of Caesar’s victory over Anthony, right through the Louisiana Purchase and the American Civil War, to the traumatized world after the 9/11 attacks, the West has been trying to come to terms with the idea and doctrine of necessity. More recently, space has had to be conceded to it overcoming reflexive and often strident liberalistic objections and obstructionism. The doctrine of necessity may have a critical bearing on the Ishrat Jehan case.

Ishrat Jehan was a terrorist. That was the considered determination of the Intelligence Bureau. How the Bureau arrived at that determination is certainly not for this writer to question, who has known an assortment of its officers over many years, and found them to be uniformly professional and sound in their judgments. The IB was closely involved with the military, the paramilitary and the state police to stamp down terrorism and insurgency in Jammu and Kashmir and Punjab. The means and the methods employed to achieve the objectives of state were far from regular and there is a national consensus and silence about them that is best kept preserved.

The battle against terrorism is an asymmetric one. On one hand, the terrorists are not bound by constitutional law and niceties. Their single aim is to create terror, kill innocents, and derive the maximum publicity from their horrific acts and heinous crimes. The key to a successful terrorist strike lies in the elements of speed and surprise with their built-in shock-and-awe component. There are no rules of engagement. Terror serves its own end. The state, on the other hand, is bound by constitutionality in counter-terrorism operations. This looks appealing on the outside. But in practice, it has been an unmitigated disaster. The judiciary goes by precedents but it baulks from having a personalized institutional memory. How many judges remember Neelkanth Ganjoo who was gunned down by terrorists in broad daylight in Srinagar in 1989 because he passed the death sentence on Maqbool Butt of the Jammu and Kashmir Liberation Front? His murder had a cautionary effect on the judges of J and K. In Punjab, the judges became positively infamous for granting prompt bails to terrorists which forced the police to adopt other means to square them. The United Progressive Alliance government at the Centre is obviously selective about the Ishrat Jehan case with an eye on the coming general election but the judiciary cannot lose sight of the larger trend in the war against terror, especially as some of its own have been victims of terrorism, whilst a few others abdicated their sworn duties and responsibilities in the face of a grave national emergency. And it must always be remembered in this asymmetric war that the politicians and judges still work and live in secure environments whereas the full brunt of the asymmetric violence and bloodshed are borne by the defenceless majority who comprise the common citizens, you and I.

What was the crime of the Buddhists that they came so close to getting killed in the terror attack in Bodh Gaya on Sunday, 7 July?

When Caesar was informed of Anthony’s death, he said, with a touch of regret, “...but we do lance Diseases in our bodies....” Thomas Jefferson, against his own personal convictions, approved the purchase of Louisiana territory from the French and wrote in justification that a “strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means”.

And no less than Abraham Lincoln challenged constitutional orthodoxy and the Congress by suspending habeas corpus during the United States Civil War. After a Union general suspended habeas corpus in one theatre of the war, Lincoln said he “could arrest, and detain, without resort to ordinary processes and forms of law, such individuals as he might deem dangerous to public safety”. He defended himself even more vigorously in the Congress, saying that an insurrection “in nearly one-third of the States had subverted the whole of the laws... Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” And by no means is terrorism, today, any less than a waged war, a war of a thousand cuts, where the enemy plays by no rules, and finds, in the case of India, state sanction and support in the neighbourhood.

Jefferson and Lincoln’s laws of necessity found later expression in a singular phrase, “The Constitution is not a suicide pact,” which first came in a judicial pronouncement in the late 1940s and eventually made its way, via other citings, into the title of a pugnacious tome written by Judge Richard Posner of the United States Court of Appeals and a distinguished professor at the University of Chicago Law School. Appearing in 2006 in the background of the Bush administration’s war against terror, it provoked a storm in the liberal establishment, but its fundamental points, including judicial pragmatism in the face of the all-encompassing Al-Qaeda threat, could not be ignored. Its brilliance and Posner’s outstanding juridical credentials and formidable intellectuality meant that his ideas had to be taken seriously, more so because they represented a continuum from the time of Jefferson and Lincoln. For the Ishrat Jehan case and beyond, it would be very advisable and proper for the Indian judiciary to be acquainted with the concept of “The Constitution is not a suicide pact.” It will mean all the difference between losing and saving the republic.