Author: Nishant Kr. Srivastava, Advocate
Laws, especially the penal laws, fundamentally are never meant to control or regulate the majority. Laws are enacted and get their moral and legal sanction from the societies owing to the fact that the societies feel that there are some stains of behavior that are against the accepted norms of social behaviour and are detrimental to the peace and tranquility in a given society. For example, the law regulating theft; marriage amongst siblings; law proscribing domestic violence, or for that matter the sedition laws.
Similarly, secularism, respect for laws, respect for religious sentiments of others, respect for your deads, respect for your nation, etc. again do not originate for the first time in law books, since these basic human behavioral norms are not ideally imposed or could be imposed by the operation of laws, unless and until the people and their value systems, which largely are influenced by the religious beliefs and religious doctrines they tend to profess and are further also guaranteed by the operation of fundamental rights of the country, have respect and space for such values and social norms. Traditionally the single largest source of law in any society is the ‘custom’ followed by a nation or a group of people inhabiting a particular area or by a particular section, which in modern times the legislatures have just recognised formally. And any enacted law is a fine balance of rights and duties; dos and don’ts; rights and entitlements of the state on one hand and the persons accused of any infraction of it, on the other.
In the background of the two very basic propositions or better to say unquestionable fundamental plinth stones, let’s see how we ( which I mean every Indian- and I don’t want to indicate or refer to any specific religion or group of people, etc.) have reacted to it and try to understand what fails us when we read ‘Rawat, 12 others killed in T. N. chopper crash’ or for that matter ‘divine justice’ or see all the emojis and insensitive and celebratory comments on the social media platforms, where the news about the martyrdom of our CDS and other brave Indian defence officials was published.
An Army General is not a person, at least he is not a political person who comes in power through the hustings by just first passing the post! A General is a non-political person, the head of our defence forces, and commands huge respect. He represents the nation as such, he leads our forces, the men who lay down their lives just for the reason they believe that it is their duty to die for the nation, if need be, and never to question the very concept of ‘nation’ which many so-called intellectuals keep on questioning. You don’t have to be educated in Harvard or Oxford to know this! Even a child, who has been inculcated the proper values, (which inturn come from your religious beliefs and the value system at home since the child is still unschooled and does not know what the so-called fundamental duties and the rights are and learns everything from his parents) knows this. We have watched many videos and photographs, if we have to go outside to find and we can’t find one in our own family (again it is another thing if one is unable to find such a kid in one’s own family and that person needs to introspect about it), where 2-3-4-year-old kids are seen saluting any random personnel in uniform!
The recent incident of the martyrdom of our bravest personnel in the chopper crash, which plunged each and every nation loving individual in deep anguish and shock, has even more shockingly evoked very causal and ridiculing comments from many, not only uneducated and religious bigots who do not believe in the concept of nation or motherland but also from the people who are acknowledged by some that they set the narrative and discourse in the country by exercising their fundamental rights guaranteed under Article 19(1) (a) of the Constitution of India, which restrains the State, which, unfortunately, wilfully and deliberately overlooking the Fundamental Duties which casts obligations upon them to observe.
Now, a question arises, should the masses, who have been hurt by these insensitive comments and emojis, keep quiet because it is very improbable that the State, which is tasked with the maintenance of law and order, peace and majesty of law, for obvious political reasons, vote bank politics and the fear of being termed as ‘facist, autocratic and brute’, by the same persons and media houses which have offended the sentiments of the vast majority of Indian masses?
Now, it is high time for the masses to exercise their legal rights and all the means and recourse, which the Constitution of India and the laws of the land enacted thereunder provide them and are available to each and every individual and not only to a few people or the media houses, who also exercise the rights at will to defend something which is indefensible.
Legally speaking Indian laws do recognise ‘emotional violence’ or ‘hurt’ or ‘humiliation’ though in the limited context of offences on the grounds of caste (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 matrimonial disputes (The Protection of Women from Domestic Violence Act, 2005), but the fact that the law recognises ‘emotional violence’, ‘hurt’ or ‘humiliation’ is not disputed. The penal laws of the land also recognise ‘Offences against the republic tranquillity’ and include section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. Offence committed in place of worship etc.), section 153B (Imputations, assertions prejudicial to national-integration) etc. in the main penal law of the land i.e the Indian Penal Code, 1860.
Unfortunately, the masses have not been made aware of the fact that if an abuser has some constitutionally guaranteed rights, the victims too have! And it seems that only the abusers are well-read and well aware and seasoned in exercising their fundamental rights (which are also called ‘negative rights’ since they are a kind of restrictions against the State), legally and constitutionally guaranteed and available to all. Law can never be unidimensional. It is always about to give and takes, the best example is the concept of ‘reasonable restriction’ as we find in Part III of our Constitution, which talks about the Fundamental Rights of an individual, especially a citizen of India. It is not uncommon to find in courts of law, following the adversarial system, that a criminal and accused gets all Constitutional and legal right and opportunity to defend himself/herself, when he/she is charged with, for example, to have defamed someone or to have killed a fellow citizen/ homicide. Further the State is under superior obligation to ‘prove beyond reasonable doubt’ that the person being charged of an offence only and none other has actually and intentionally committed the alleged offence and further that there is no legally recognised defence available to him/her (example right to private defence/ grave and sudden provocation etc.). In the entire process, the wrong caused to the victim and or his/her family is conveniently forgotten. The State is unable to stand for the rights of a citizen who has been wronged, thereby losing the moral authority to be there and in a clear breach of the promise to its citizens and raison d’être of its existence in the first place!
We must not forget the cases like Nirbhaya, Nitish Katara, Jessica Lal, Uphar tragedy, etc. could only see justice only after the sustained efforts by the families of those who were wronged and not only because our laws or the land were sufficiently equipped to punish the perpetrators. It was first the immediate members of the families of the wronged and then the society at large, sustained, long-drawn and expensive efforts that led to the final conviction of the accused.
Imagine, the people who were wronged (whose family members were killed/ wronged) would have left all to the prosecution, what would have been the final outcome? If opposing and using the Courts to challenge a law enacted by the Parliament or for that matter when protesting against the ‘salt tax’ is morally right, then I see no reason to not to challenge the wrongs committed by people in dealing with the martyrdom of our bravest soldiers.
So when we are offended at the insestivities of a few, which is also illegal, what stops us from exercising our Constitutional, legal, and moral rights to get the offenders to justice using the very legal process and rights, which in any case will also be available to the offenders with full force during the trial?
With the deepest tribute to our martyrs!
“Tolerance does not mean tolerating intolerance”- Anonymous
Author Nishant Kr. Srivastava, Advocate ( Founder and Managing Partner of Actus Legal Associates and Advocates, a full-service law firm based in Delhi ) Mail: nishant@actuslegal.in