BRIJNATH

LL.M 12-09

JURISTS: EMANUEL KANT

ARISTOTLE

Means are More Important than Ends for Justice

My name is khan and I am not a terrorist the judges of the Honble Supreme Court of India
spoke this dialogue from a film while they overturned the conviction of 11 people under the
TADA in a recent case decided by them. This statement was made by Supreme Court on a
somber note but message was loud and clear. In this judgment the courts also made a remark that
in the country of Mahatma the means are more important than the end. This was a stinging
remark on the shoddy investigating technique of the investigating agencies. In the light of these
two remarks which the court has made the author has made an attempt to show that the proper
means are more important for justice. In this process the attempt has also been made to highlight
the grim situation through which a particular community is going through and the pain seems to
be endless. It has been shown that how a completely wrong perception based on wrong
assumption has made the life hell for a whole community. In this process the help of the jurists
like Kant and Aristotle has been taken.

In the recent case the victims were charged for serious crimes under a very harsh law of TADA.
The law required that before registration of any FIR under this Act the written permission has to
be taken by the investigating officers from a police officer not below the rank of Deputy
Superintendent of Police (DSP). The rule of law in general requires that when a harsh law has to
be applied the procedural aspects must be followed very strictly. It has been done in order to
protect the interest of the accused as they are required to prove their innocence while the law
presumes them as guilty. The general defense of any criminal accused that unless proved guilty
they are innocent is not available to the accused of harsh laws like TADA. Their only defense is
the strict application of the procedural aspect of the law. So when this aspect is not fulfilled the
investigation is bound to be unfair and unjust. It is this aspect which was highlighted by the
Supreme Court of India when it struck down the conviction of the 11 accused people under this
Act.

However, beside the legality of the case the Court also touched upon an important issue in the
greater interest of the society. The Courts grim remark that My name is khan and I am not a
terrorist from a film was a sincere attempt of the Court to bring forth an issue which has grown
out of proportion and now affecting the very basis of this great nation i.e. unity in diversity. The
court was not only stating a mere dialogue but was expressing the pain and suffering of a whole
community which has prolonged far too long and shows no sign of abatement. The court was
trying to make a loud and clear message that enough is enough. No more can the people of a
particular community can be prosecuted for every act of terrorism. There must be an end to this
subjectivity and biasness. Though the court remained short of stating very blatantly that the
investigating agencies are being biased in their investigations (albeit not to demoralize them),
nonetheless the message was very clear. They are clearly being biased and subjective in their
investigations towards a particular community. It is not being denied that they are fighting the
greatest menace of twenty first century i.e. terrorism. But the fight is resulting in a greater
injustice to a particular community due to their biased and subjective investigation.

Every act of blast or terror attack put a whole community on defensive mode. They feel
intimidated in their own country. The question which then arises that why this situation has
emerged? Why only youths from a particular community are picked up for enquiry and further
investigations? The answer to this serious problem lies in the Kantian philosophy which has
provided that every action of any person should be governed by a categorical imperative and not
by a hypothetical imperative. In this case however, the fact is that a hypothetical imperative has
been converted into a categorical imperative without fulfilling the factors required for it. It has
been simply assumed that the hypothetical imperative is categorical imperative.

But what is that hypothetical imperative? The hypothetical imperative is that since most of the
terrorist acts have been done by the members of a particular community so every member
of that community is a terrorist. This hypothetical imperative is based on the inclination and
preferences of a small group of non rational being who want to vilify the members of a particular
community as villain and the cause of all the ills of this great nation. Now this hypothetical

imperative which was based on inclination and preferences of a small group of non rational
being has been assumed to have converted into categorical imperative without judging whether it
has universal application or it can turn into to a supreme moral principle. Can this view be said to
become a supreme moral principle worthy of universal application? Any rational minded person
can say that this hypothetical imperative is completely irrational and immoral and deserve no
praise. How can it be said that if certain act has been done by few persons of a particular group
then in all probability the whole group is bound to do that act. Then there is least possibility that
it has any universal application. Hence it cant be a categorical imperative.

Further the maxim mentioned above also does not satisfy the second requirement of a categorical
imperative. The maxim makes the use of a particular group as a means to an end and not an end
in themselves. Here the problem of finding a terrorist after a terrorist attack as an end has been
fulfilled by the means of deciding beforehand a particular community as a terrorist community.
Thus this hypothetical imperative fails on both accounts to become a categorical imperative.

But unfortunately the investigating agencies seem to have taken this conversion of one into
another quite seriously but without any basis. This has clogged the mind of the investigators and
they are not able to act freely. They think that they are acting freely and without bias by basing
their act on this so called categorical imperative which in reality is only a hypothetical
imperative. Thus in reality since they are being swayed by the so called categorical imperative
they are not acting freely and without bias. Their act is not autonomous but heteronymous. Hence
the investigators are perpetuating an injustice by arresting youths from a particular community
based on this false notion of categorical imperative that every person having a particular name is
a terrorist. It is completely unjust and immoral also to brand a whole community as a terrorist
community.

Further the motive of their investigation is not based in a sense of duty that the real culprit should
be arrested and brought to justice. Their motive is based on the end result that is to somehow

prove someone as guilty. The main aim of the investigators is to somehow impute the guilt on
someone i.e. to show that someone has been convicted. After all if any act of terror has happened
then it must have been done by someone. The fact whether the person actually caught and
punished was guilty or not is immaterial. Here the investigating agencies are using the utilitarian
concept of Bentham and thus does not care the misfortune of one person for the sake of
happiness of society in general. They assume that societal sense of happiness is more important
for them and thus human right of few persons can be jeopardized for the sense of happiness of
society which they would derive from the conviction of some person for the terror act. But the
Kantian view does not justify this act as for Kant the happiness of each person is important. It is
because Kant treats each person an end in themselves and not a means to an end. The members
of a particular community cant be made the source of happiness in general for the whole society.
They cant be chosen as a means to that end.

However based on the faulty notion of categorical imperative the investigators are acting
hetronomously (without actual freedom) and without a sense of duty. They are investigating
keeping the end result in mind i.e. conviction at any cost and that too as early as possible. They
have predetermined (due to effect of so called categorical imperative) that since accused must be
from a particular community and since they are the accused are, they must be guilty and thus
must be convicted even though evidences are concocted, forged and investigations are shoddy.
This is resulting in hardship for the whole community and they are feeling more alienated than
ever.

It is thus in this scenario the Court held that the means are more important than the ends. The end
result of conviction in this situation is less important as compared to the process of conviction.
Thus any minute lapses on the part of investigating agencies must be dealt with very strictly as
this can only prevent the misfortune of a whole community and reinstate their lost self esteem
and dignity. It is by following proper means of investigations that we can give credibility to the
convictions without affecting the whole community feeling victim of any prejudices.

Then, another important issue which emerges out of this mess is that what kind of society we are
creating by these kinds of investigations where to keep passions under check we make the escape
goat out of a particular community alone. This is in fact a larger issue than the previous one. The
work ethics of investigating agencies shows that they have first determine who is a terrorist and
then proceed on the investigations. In the investigation they try to collect those evidences which
will fulfill their end result that is the conviction of the accused as terrorist. In that zeal of quick
conviction of the accused persons they are even ready to forgo the proper procedure established
by law for investigation. This has resulted in embarrassing acquittals of large no of terror
accused. This situation raises two important questions.
1. Are the investigations based on the end result bypassing the required legitimate means
decreasing the menace of terror against which the investigating agencies claims to be
fighting?
2. Is it promoting justice and upholding the rule of law?

The whole process bears a huge similarity to the Aristotelian Telos approach to justice. The
investigating agencies seem to be working on the premise of Aristotelian philosophy of justice.
So it would be very much necessary to examine whether the Aristotelian philosophy of justice is
serving the cause of the investigators. Hence the first question is that what is the telos approach
of justice? The telos approach simply says that if we want to do justice then we must first decide
what is the purpose or the ultimate end of any act. In other words what we want to achieve
through a particular act. Once we decide it then the next approach is to promote that virtue which
will lead to that end or fulfill that purpose. In the present context (by seeing the work ethics of
the investigating agencies we can easily say that) the ultimate purpose or end of the investigation
is to get the conviction of the terror accused anyhow because it will lead to the happiness in the
society and thus will promote the justice. But to achieve this ultimate aim we must promote that
kind of investigations which will lead to convictions. It simply means that the investigations
should more focus on the conviction rather than the investigation itself. Here ends are more
important than the means. Even though investigations per se are wrong and the evidences are
forged or any procedure has not been followed they should not come in the way because the
ultimate aim of investigations is convictions.

Now this situation does not sound good because we can clearly see that this telos approach of
promoting justice is actually not doing so. Then where has it gone wrong. To understand this we
have to analyse the broader perspective of whole issue.

The insensible acts of the investigating agencies (for a long period now) in arresting and
detaining the youths of particular community after every terror attack has further crystallized the
belief that all the members of the community are terrorists. The community as a whole has been
intimidated and alienated from the general masses. This has resulted in the formation of a polis
which is devoid of a whole segment of a society. The resultant deliberation is also devoid of the
rational views of what is good and what is bad for the society as a whole. The whole polis has
been hijacked by one group and the resultant common good which has emerged has further
marginalised a whole community. The effect of all this is that we are promoting a virtue (that
someone must be convicted anyhow) which though seems to be promoting the good of the whole
society but in reality it is not. It is rather harming the interest of the society as a whole.

The innocent people are being harassed by the investigating agencies because of their belief that
if the accused are from a particular community then they must be a terrorist. This belief is the
result of the faulty categorical imperative which itself is not based on sound reasoning and is
mere a hypothetical imperative. This has resulted in two situations and both are harmful for the
society as a whole. On the one hand, while the actual terrorists who dont belong to any
communities (those who kill innocent people cant belong to any community) are roaming freely.
On the other hand the innocent people who have been harassed and humiliated are also becoming
outlaws to take revenge of their humiliation and harassment. This is serving no good to the
society as rather than decreasing the terror acts they are fuelling the wounded passions of the
whole community. The recent home grown terror modules are the result of this misguided policy
of the government and the investigating agencies. This is also against the justice which the
investigators intend to promote.

This has resulted because there is no legitimacy to means which are being followed by the
investigating agencies and the society. While society is not following the proper means of a
sound deliberation by alienating the whole community, the investigating agencies are also in the
haste of getting results bypassing the proper means. This has resulted in questioning of even the
legitimate convictions and common good of the society based on sound reasoning.

Now, the important question which can be asked that why this situation has arisen when
everything is going according to the telos of the Aristotle? Does it mean that the telos approach
of Aristotle is wrong as we see rather than promoting justice it is increasing injustice? The
answer lays in the fact that telos approach of justice or broadly speaking the Aristotelian
approach of justice is not wrong per se but problem lies in their application.

The purpose or end of the act of investigation which is considered as good to society itself is
wrong. The society cant be happy by mindless conviction of any person even though he is not
guilty. Further this wrong end is being chosen because we are not deliberating properly in the
society as we have alienated a major chunk of society completely. The proper means of
deliberation is not being applied. It is in this case we see that the end based and result oriented
investigations are rather causing grave injustice and also increasing the menace of terrorism.

Thus in the original issue whether means are more important or ends for proper justice we find
that somewhere the means are playing an important role in delivering the justice. The Kant
seems to stress that neither means nor ends are important but the act should be categorical per se,
i.e. existing on its own. But when we analysed his theory we found that even he is reaching to his
categorical act through a proper means and not arbitrarily. Similarly Aristotle though gives a
telos approach but he also says that the telos is based on proper deliberation. Thus even he
stresses on the means to proper telos. Hence we see that means are important for promoting
justice and how every person belonging to a particular community is not a terrorist. Thus even
my name is khan I am not a terrorist.