Keeping the flickering flame of justice alive

April 28 marks the 32nd anniversary of a little known but landmark moment in the history of India and of the world's legal system.

For 21 months, between June 25, 1975 and March 21, 1977, President Fakhruddin Ali Ahmed, on request by then-Prime Minister Indira Gandhi, declared a State of Emergency under Article 352 of the Constitution of India. This in effect gave Gandhi the power to rule by decree, suspend elections and civil liberties.

It was then that the Indian Supreme Court was called to rule in the Jabalpur vs Shivkant Shukla case. The case centered on the legality of imprisoning people without court ruling. In a four-to-one decision, the court ruled that there was no recourse to courts in case a person was detained during emergency rule.

The contrarian voice, a thunder in the darkness of subservience to political power, was that of Justice Hans Raj Khanna, who passed away in February of this year at the age of 95.

Justice Khanna wrote in his dissenting opinion that the door of justice could never be shut for citizens, not even during the state of emergency. His courage and moral rectitude cost him the promotion to Chief Justice. When in January 1977 he was superseded for the post of Chief Justice, Khanna resigned.

In a brilliant essay entitled "Human Rights During Emergency" Soli J. Sorabjee, a former Attorney General of India, says that while civil rights may in exceptional circumstances be suspended, there are some fundamental rights, such as the right to life, the right to a fair trial and freedom from torture or cruel treatment, that cannot be suspended under any circumstances. Doing so "would destroy the basis of a civilized state and the rule of laws."

Let me quote the last paragraph of this essay: "It should never be forgotten that the ultimate justification for an emergency in a democratic State is to enable it to preserve vital values of a democratic society temporarily endangered on account of unexpected situations of exceptional gravity. Emergency cannot be declared for undermining the basis of democracy. […] In the absence of the Rule of Law, Lawlessness predominates, especially government lawlessness, when there is no authority to question government's action, no mechanism to control it and no institution to make it accountable and to check its excesses. However grave the emergency it should always be remembered that there exists an inseparable bond between legality, democratic institutions and the Rule of Law. Once that bond is severed, all ties with decent, civilised life have been severed and human beings become devoid of humanity."

On June 29, 2006, the U.S. Supreme Court ruled that the military commissions instituted by U.S. President George W. Bush to try terrorism suspects held at Guantanamo Bay were illegal. The administration turned to the Congress, which it controlled the time, to pass a law to allow the president to keep the commissions alive.

While the Supreme Court has so far been the only constraint for the Bush administration in its so-called "war on terror," it has refrained from ruling on the most controversial point: The legality of denying habeas corpus to the prisoners at Guantanamo.

Let's hope that the news of the passing away of Justice Khanna will remind the U.S. Supreme Court that their role is keep the flame of justice alive and put (belated and partial) remedy to one of the most shameful moments in U.S. history.

Here We Go Again

Here we go again. The U.S. says one thing and does the opposite. And of course it finds a perfectly (to them) reasonable explanation and justification.

The U.S. has announced it will shoot down a spy satellite of which it lost control. Only last year the U.S. administration strongly criticized China for conducting a similar operation aimed at testing an anti-satellite system.

It is hardly surprising that the Pentagon and the White House claim that the operation is done in the name of world safety as the satellite will go out of control and plunge into the atmosphere by the end of March. Hardly the first satellite to fall on Earth...

According to James Jeffrey, a national security adviser, Mr. Bush has ordered to destroy the satellite because there is a greater chance of injuries to human beings beyond those usually associated with the re-entry of satellites into the atmosphere.

The satellite contains about 450 kilograms of hydrazine rocket fuel used in booster rockets. Hydrazine is a highly toxic chemical and can produce grave damages to humans. Hence the need to destroy it. True, but most of it would burn during re-entry.

The U.S. also claims that the difference between what the Chinese did and what the U.S. will do is that the satellite the U.S. plans to shoot down is on a lower orbit and will be hit when it is about to re-enter the atmosphere and all pieces of debris will be completely destroyed upon entering the atmosphere. After the Chinese experiment, several hundreds pieces of debris were tracked orbiting around the Earth posing a danger to other satellite.

Still, there is no assurance that there will be no big chunks of space trash left after the impact.

I am no satellite or space technology expert, so I take their word for good (sort of...). Still, I see no reason why the satellite could not be left to its fate and let burn on re-entry like all other satellites at the end of their life-cycle do.

I (and I am not alone here) believe there are further motives behind the move.

One is that as it is a spy satellite it is likely to contain sensitive data, software and/or hardware that the U.S. would not be happy to see fall in anyone's hands, least China or Russia. The Pentagon, in the incarnation of Marine Gen. James E. Cartwright, vice chairman of the Joint Chiefs of Staff, said that any sensitive technology would be destroyed on re-entry. So, once again, where is the need to destroy the satellite while still in orbit?

Still, the administration refuses to give any information about the satellite...

The answer may lie in the fact that the U.S. has not conducted a similar test since 1985. With China successfully shooting down a satellite last year, the U.S. may feel compelled to prove that they are not second to anyone.

And what about other countries that have satellites up in the sky and say they want to shoot it down when it comes to end of the run? Isn't this reminiscent of Cold War practices when the Soviet Union and the U.S. engaged in an arms race, each legitimizing the other's actions by "testing" a new defensive weapon?

The only difference between China and the U.S. is that the U.S. is telling the world what they are about to do -- maybe because they know they couldn't hide it anyway -- and the Chinese just did and then told everyone.