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Justice – Laws - State
It is high time that the inter se relationship, the order of priority and the effect on people’s lives of three different concepts – Justice, Laws and State is seriously considered.
Under the structures gifted to the world by the ancient saints and sages of this country, justice was considered synonym of religion and was placed on top of the structure. Today, Justice and Law are considered the alternates of each other, which is a misconception. Both are different. Justice can exist even without laws, but laws cannot exist without justice.
How the concept of laws came into being? According to historians who believe in the theory of evolution of mankind, the history of laws can be stated thus – In the initial days, man was alone in this universe. He used to stay anywhere, eat anything and wander from place to place. With passage of time, man learnt to live in groups. Several such small small groups came into being and formed a Community. Hence certain rules governing the behaviour and interaction with each other came into being. Morality was the basis of these rules and hence they can be termed as moral laws. With further passage of time, the population grew to such an extent and their interaction became so widespread that it was felt that some authority is needed for implementing the laws (moral laws/values). Hence mankind established a centre of power. This centre of power which evolved into a structure called State was entrusted both implementation of existing laws and making of new laws. Thus laws and the State became interdependent. However, the origin of the powers to make laws is still untraceable.
The modern day State has created a jungle of laws. The democratic systems of governance has created a weird structure of law making. Majority - and that too a manipulatable majority - entrusted to itself the power to make laws; and to uphold these laws is made the highest duty of the judicial system. In this transformation justice lost its top position and is thrown to the bottom.
If a person functioning as a Judge is a gentleman, is impartial, has the sense of right and wrong, submits to the sovereignty of religion (not in the narrow sense of the term), has the vision to balance the cause and effect; he can dispense justice even without the modern day codified laws. On the other hand, even if there are thousands of codified laws (as is the situation now), but if they lack the element of Justice, then justice cannot be done. Justice and laws are two different things.
If we visualize Justice, Law and State as a triangle, three situations are possible;
a) At the top angle of the triangle is Justice and at the two base angles of the triangle are Law and State.
b) At the top angle of the triangle is Law and at the two base angles of the triangle are Justice and State.
c) At the top angle of the triangle is State and at the two base angles of the triangle are Law and Justice.
The correct situation should be as per the first alternate. Justice should be sovereign and at top and Law and State should be its subordinate helpers. However, presently, in the judicial system laws are at top and laws mean codified laws only (made either by the present State or the predecessor
). The State bows to the laws and Justice of course is at the bottom. However, Law which is at the top position in this second situation, is made by the State. Thus, in reality, it is the State which is supreme and both Law and Justice are subservient to the power of State. The situation which prevails today is the third situation. British State
In our country the Supreme Court is at the apex position in the judiciary. However, there are innumerable instances where the judgements of the Supreme Court are reversed by the State by subsequently enacting laws to the contrary in the Parliament. Thus there is no doubt that in the present day structures the State alone is sovereign.
From where did the State get the right to make laws? The State makes laws in Parliament and State legislatures and the Constitution is cited as the source of power to make laws. Who made the Constitution and wherefrom the power for it came? Constitution was made by the Constituent Assembly and Constituent Assembly was constituted under a law enacted by the British Parliament. Wherefrom the British Parliament got the power to make such laws? It may perhaps be answered that India was under the British domination and hence Britain could enact laws for India. But how did India become a British dominion?. And this question can be raised in the context of all the nations which were under British dominion at one time or the other, and even today the Commonwealth countries are British dominions and latently still slaves of Britain. The source of Britain’s power lies in the Papal Bull of 1493. That is a long history and going into it will be a deviation from the present subject.
We revert back to the triangle of Justice, Law and State. The powers of State to make laws are limited or unlimited? The Constitution has three lists of subjects on which exclusively the Centre, exclusively the States, and both Centre and States can make laws. However, by ‘residual powers’, subjects which are not specifically mentioned in the lists are also covered. It means the State has retained unlimited powers for itself to make laws on any subject under the Sun. The State can make laws to control each and every sphere of the lives of its citizens. It can consider the natural resources as its own property and make laws for them. The State can make laws on all issues – religious, social, economic and political and impose any regulations that it deems fit.
There is no system to put these laws to the test of Justice. What is a just rate of income tax – 10%, 20%, 50%, 70%, 90%? Whatever the State feels like ! If a criminal absconds after committing a crime, can the State arrest his/her innocent family members – his/her son, father, brother, husband, wife? Yes it can ! It is the State’s will ! Can there be different sets of rules for prosecuting a common citizen and a politician/ bureaucrat? Yes, there can be ! Which transactions and who can be taxed – Withdrawal by a person of his own money from his own Bank account? Facilities extended by a generous employer to his employees? Vegetarian citizens for allotting funds for production of meat? Making laws/entering into agreements for raising mountainous debts – external or internal, without the concurrence of the citizens? Can laws be made to hold to ransom the religious sector? Can the State acquire at its own free will, whenever it wants, by extending whatever reasons, Teerthas and religious places? Can the label of ‘Public Interest’ justify any step of the State?
Innumerable arms/institutions of the State, the Government departments issue notifications in hundreds and thousands every year, enact scores of new laws, promulgate ordinances, which are not known to the people at large. Still each citizen is bound by them. Ignorance of Law is no excuse ! Not only this, he carries on his shoulders the huge burden of sustaining the administration created for all these. Even after shouldering this burden, does the common man ever get justice? All these are illusions then? For what purpose? To what end?
The power of State considers the whole nation as its fiefdom. It can ransack the entire country and its people like a mad bull. The only factor – that of Justice – which can exercise control on the power of State has become non-existent. From where this demon like power of State came into being? What it means? Who gave power to whom? Or who appropriated power from whom? Who is entitled to this power? Whether it is Law which determines the ambit of State? Or it is the power of State which uses Law as extension of its authority? All these questions demand answers today, more than ever. Justice which was an element to find answers for differences of opinions and disputes, is surrounded itself in differences of opinions and disputes !
A Constitution enacted unconstitutionally has bestowed constitutionality on the laws! What a contradiction ! The people are bound to follow these laws ! What a helplessness ! The only element which can save the people from this situation is that of pure Justice. Where to find it?