Author: Nandini Hirani Gujarat Law Society, Ahmedabad
Ever since man has evolved, he has learnt to live under a certain kind of power or under someone’s reign. There was a time where he has obeyed the laws of nature too. He himself created the offences, and he himself created the punishments for the offences too. But one thing that was not seen in olden times was that the laws that were formulated were serving their purpose by keeping in tune with the principles of morality and justice. It is to law alone that men owe justice and liberty. It is this salutary organ of the will of all which establishes in civil rights the natural equality between men. It is this celestial voice which dictates to each citizen the precepts of public reason and teaches him to act according to the rules. The question here is if laws even though functional in a country is enough to meet the ends of justice. For this, we need to know what is the law and what is justice. ‘LAW’ means the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. ’JUSTICE’, in its broadest context, includes both the attainment of that which is just and the philosophical discussion of that which is just. The concept of justice is based on numerous fields, and many differing viewpoints and perspectives including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness. Often, the general discussion of justice is divided into the realm of social justice as found in philosophy, theology and religion, and, procedural justice as found in the study and application of the law.
The above definitions have given us an idea as to how both of them govern individually. If one restricts itself to follow the rule of law one might not reach the ends of justice. In the case of K.T. Plantation Pvt. Ltd. v. State of Karnataka[i], held as follows; “The rule of law as a principle contains no explicit substantive component like an eminent domain but has many shades and colours. Violation of the principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but such violations may not undermine the rule of law so as to invalidate a statue. The violation must be of such a serious nature which undermines the very basic structure of the constitution and the democratic principles of India. But once the court finds, a statue undermines the rule of law which has the status of a constitutional principle like the basic structure, the said grounds are also available and not vice versa. Any law which in the opinion of the court is not just, fair and reasonable is not a ground to strike down a statute because such an approach would always be subjective not the will of the people because there is always a presumption of constitutionality for a statue. The rule of law as a principle is not an absolute means of achieving equity, human rights, justice, freedom and even democracy and it all depends upon the nature of the legislation and the seriousness of the violation. The rule of the law as an overarching principle can be applied by the constitutional courts, in the rarest of rare cases and the courts can undo laws, which are tyrannical, violate the basic structure of the constitution and norms of law and justice.”
If we look at the present laws for women in India, we would be startled to know that there is a 0.1% justice rate. So, what is the meaning of making laws without serving justice in the first place? The Supreme Court has also pointed out several flaws in obsolete laws that make them unworkable, especially in labour and commercial matters. But a notable feature is that Before passing more Acts in the 16th Parliament, the lawmakers could think of un-legislating a long list of outdated laws that have defied the ravages of time. Even scrubbing them with amendments will not make them relevant. The Law Commission had made a study of such statutes in 1998 and presented a lengthy list of legislation which could be jettisoned, benefiting the public and the courts. It had named 166 central Acts, one of which goes to the days of the East India Company, namely, the Coastal Vessels Act,1838 The Livestock Importation Act, 1898, was originally meant to regulate the import of livestock liable to be affected by infectious disorders. It was recommended for repeal, but it was dusted and kept alive with an amendment in 2001 adding ‘livestock products’ to the definition of ‘livestock’. The Glanders and Farcy Act, 1899, appoints inspectors to search and destroy diseased horses, asses and mules. The Dourine Act, 1910, deals with the castration of diseased horses and compensation to be paid to the owner.
By taking a glance of the laws that have been in existence since centuries, we would come to know that ever since the law has been made wider, there provisions to make them narrower have immediately followed. So, the very basic feature of law i.e. Dynamism has also got affected at a level where it makes the ultimate definition of law worthless. We have also seen an abundant rise in the fake cases of rapes, sexual harassment and molestation. Why has this scenario suddenly come into the picture is because of the scope of the law that has given such rights to women without looking into the real facts of the case? The movie ‘Section 375’ also highlights the same principle that how can facts be manipulated and to what extent can an interpretation of a very clear definition of ‘rape’ and ‘sole prosecutrix testimony’ can make blunders in a criminal justice system. This is not just a nail in the coffin of women victimizing themselves, but also a huge miscarriage of justice.
This, therefore, stands as an explicit example of how the interpretation of prevalent laws can create a wrong reinforcement in society. Wrongful convictions appear at first to be “rightful” apprehends and subsequent convictions, and additionally include a public verbalization about a particular malefaction having occurred, as well as a particular individual or individuals having committed that malefaction. If the conviction turns out to be a miscarriage of equity, then one or both of these verbalizations is ultimately deemed to be mendacious. During this time between the miscarriage of equity and its rectification, the public holds erroneous notions about the occurrence of a malefaction, the perpetrator of a malefaction, or both. While the public audience of a miscarriage of equity certainly varies, they may in some cases be as immensely colossal as an entire nation or multitude of nations.
In cases where an astronomically immense-scale audience unknowingly witnesses to a miscarriage of equity, the news-consuming public may develop erroneous credence about the nature of malefaction itself. It may withal cause the public to mendaciously believe that certain types of malefaction subsist, or that certain types of people incline to commit these malefactions, or that certain malefactions are more commonly prevalent than they authentically are. Thus, wrongful convictions can ultimately mould a society’s popular notions about malefaction. Because our construal of malefaction is gregariously constructed, it has been shaped by many factors other than its genuine occurrence.
Mass media may additionally be faulted for distorting the public perception of malefaction by over-representing certain races and genders as malefactors and victims, and for highlighting more sensational and invigorating types of malefactions as being more newsworthy. The way a media presents malefaction-cognate issues may have an influence not only on a society’s trepidation of malefaction but withal on its credence about the causes of malefactor deportment and desirability of one or another approach to malefaction control. Ultimately, this may have a consequential impact on critical public notions about emerging forms of malefaction such as cybercrime, ecumenical malefaction, and terrorism. There are inauspicious psychological effects, even in the absence of any public erudition. In an experiment, participants significantly abbreviated their pro-convivial comportment after being erroneously sanctioned. As a consequence, there were negative effects for the entire group. The extent of wrongful sanctions varies between societies.
All this data shown above justifies and clarifies only one thing again and again which is that laws are to protect the humankind but not at the cost of natural justice. If laws were to be rigid, there would be no one who would believe in the justice system. Because the laws that are being written are only to be interpreted by judges who are again human. Their rationality on an existing law would differ case to case, which is why it is said that ‘Law is a Jealous Mistress’.
[i] K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1